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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Maclean & Anor, R. v [2024] EWCA Crim 1523 (24 September 2024) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2024/1523.html Cite as: [2024] EWCA Crim 1523

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT CROYDON
HIS HONOUR JUDGE HYAMS-PARISH
T20207176

		Royal Courts of Justice Strand London WC2A 2LL
		24 September 2024

MR JUSTICE LAVENDER:

1. These are renewed applications for leave to appeal, leave having been refused by the single judge. Christopher Maclean renews his application for leave to appeal against conviction. Stephen Miseldine renews his application for leave to appeal against sentence, together with his application for an extension of the time limited for appealing.
2. The applicants were convicted as follows. Mr Miseldine pleaded guilty on 4 February 2022 in the Crown Court at Croydon to one count (count 1) of conspiracy to supply class A drugs. Mr Maclean was convicted by a jury in the same court on 25 July 2023 on two counts (counts 1 and 2) of conspiracy to supply class A drugs.
3. On 29 September 2023 Mr Maclean was sentenced to a total sentence of 18 years' imprisonment concurrent on each count and Mr Miseldine was sentenced to 14 years and five months' imprisonment. We note that although the judge ordered that the surcharge apply, allowing it to be administratively imposed, the record sheet does not record a surcharge for either applicant. The applicable surcharge was £181.
4. Communications on the EncroChat platform revealed a sophisticated, well-planned criminal enterprise which involved the sourcing and selling on of large quantities of cocaine. There was no dispute that the EncroChat messages established that the users were involved in a conspiracy to supply cocaine. The Crown alleged that Mr Maclean was one of the EncroChat users, with the handle "Nomessersplease".
5. On count 1 Mr Maclean, Mr Miseldine and their co-defendants were charged with conspiring with one another and with others in the period from 1 April to 17 June 2020. On count 2 Mr Maclean was charged with conspiring with unnamed others during the period from 20 March to 17 June 2020.
6. The principal issue at Mr Maclean's trial was whether he was "Nomessersplease". It is unnecessary to refer to all of the telephone, cell site and surveillance evidence on which the Crown relied, but it is relevant to note two matters. First, the Crown adduced, without objection, evidence that Mr Maclean had been convicted in 2014 of conspiring to supply a controlled drug in the period from January 2012 to January 2013. Secondly, the Crown also relied on a photograph found on Mr Maclean's telephone which had been made on 12 December 2019 and which the Crown submitted showed a block of cocaine. This photograph was not adduced as part of the Crown's case, but was admitted during Mr Maclean's cross-examination pursuant to section 101(1)(f) of the Criminal Justice Act 2003 on the basis that it was evidence to correct a false impression given by Mr Maclean, who had said in his evidence-in-chief that he had not traded in cocaine since 2012.
7. Mr Maclean's counsel submitted to the judge that, in order for a false impression to have been given, the evidence must prove to the criminal standard that it was false, that in this case the photograph alone could not establish to the criminal standard that he was dealing in cocaine in 2019 and that it followed that no false impression had been given, with the result that the gateway was not available.
8. The judge ruled that the evidence would be admitted with directions to the jury that they could only use it if they concluded to the criminal standard that it showed that Mr Maclean had continued to trade in cocaine. It is not contended that there was any error of law in the judge's directions.
9. Mr Maclean's proposed appeal against conviction is solely concerned with the judge's decision to admit into evidence the photograph of the block of cocaine found on his telephone. It is conceded that the photograph could have been admitted as part of the Crown's case, either pursuant to section 101(1)(d) of the 2003 Act or perhaps even without the need for a bad character application. However it is submitted that section 101(1)(f) "requires the Defendant to have ... said something unarguably, blatantly, objectively wrong such that it gives a jury a false impression that can uncontrovertibly be corrected by the adduction of that which shows the assertion for what it is." We note that this submission uses adverbs which are not to be found in section 101(1)(f). It is also submitted that admitting the photograph pursuant to section 101(1)(f) meant that the judge "was bound in his summing-up to give that picture and the grand claims attached to it an undeserved precedence and, thereby, unfairly to risk impugning Mr Maclean's credibility."
10. We see no force in this latter submission. It is inherent in any application under section 101(1)(f) that the Crown contend that the defendant has misled the jury. As for the former submission, we note that the judge's approach in this case, namely that it was for the jury to decide whether Mr Maclean had given a false impression and to do so to the criminal standard, was the approach adopted by the trial judge in the case of Renda [2006] 1 WLR 2948, as appears from paragraph 25 of that judgment, in which this court approved the approach adopted by the trial judge. In the present case, the photograph, in the context of all of the other evidence in the case, provided sufficient material to justify the judge in leaving this issue to the jury. Accordingly, we refuse Mr Maclean's application.
11. We turn now to Mr Miseldine's application for leave to appeal against sentence. He was 35 when sentenced and had been convicted of 12 previous offences, committed between 2003 and 2016, including a conviction for conspiracy to supply drugs, for which he had received a sentence of 80 months' imprisonment imposed in 2016. The judge sentenced Mr Miseldine on the basis that he had played a leading role in a conspiracy involving 24 kilograms of cocaine. The starting point under the offence-specific guideline was 14 years' imprisonment, with a range from 12 to 16 years. However, the judge found that the quantity involved justified going above the range and that the offence was aggravated by Mr Miseldine's previous conviction for a similar offence, for which he was on licence when he committed this offence. The judge decided that the appropriate sentence after trial would have been 17 years' imprisonment. That, in itself, is not challenged.
12. The proposed grounds of appeal are that the judge should have reduced the sentence by more than the 15 per cent reduction which he applied by reason of Mr Miseldine's guilty plea and that the judge should have reduced the sentence by reason of the time spent by Mr Miseldine in custody between his arrest and his sentencing, a significant part of which did not count automatically towards his sentence because he had been recalled to serve the remainder of the sentence which had been imposed on him in 2016.
13. Mr Miseldine first appeared before Oxford Crown Court on 16 July 2020 and, following the transfer of the case, he first appeared before Croydon Crown Court on 14 August 2020. Much time was taken up thereafter with the attempts by the defendants to obtain a decision at a preparatory hearing excluding the EncroChat evidence. A preparatory hearing was fixed for September 2021, but at the end of August 2021 the defendants asked for that hearing to be vacated and it appears that that was the end of Mr Miseldine's attempts to have the EncroChat evidence excluded. Meanwhile, Mr Miseldine had been arraigned on 15 June 2021 and had pleaded not guilty. When he changed his plea to guilty on 4 February 2022 the trial was only six days away.
14. Sentence was deferred to await Mr Maclean's trial. That trial started in February 2022, but Mr Maclean became too unwell for it to be completed. It was fixed again for 22 August 2022, but could not proceed on that occasion because Mr Maclean's counsel was involved in the action taken by the Criminal Bar Association. The trial started again on 19 July 2023 and, as we have said, Mr Maclean was convicted on 25 July 2023 and the defendants were eventually sentenced on 29 September 2023.
15. It is submitted that Mr Miseldine's sentence should have been reduced by more than 15 per cent because of what HHJ Gower said in a hearing on 25 January 2022. The judge said that it would make a significant difference if pleas were to be entered. It was shortly after that hearing that Mr Miseldine indicated his intention to plead guilty and he entered his guilty plea on 4 February 2022.
16. It is submitted that in order to make a significant difference the sentencing judge, HHJ Hyams-Parish should have reduced the sentence by 20 per cent rather than 15 per cent.
17. We do not consider that that is arguable. Had Mr Miseldine pleaded guilty on the first day of trial, the reduction in his sentence would have been no more than 10 per cent. Instead, he pleaded guilty only six days before the trial was due to commence and his sentence was reduced by 15 per cent. The extra five per cent was equivalent to a 10-month reduction in his sentence. That was a significant matter.
18. On 18 June 2020, the date of his first appearance in the Magistrates' Court, Mr Miseldine was recalled to prison to serve the remainder of the sentence which had been imposed on him in 2016 for, we note, a similar offence. He continued to serve that sentence until 27 January 2023, two years and seven months later. The time which he spent in prison on remand after 27 January 2023 will automatically count towards his sentence, but not the time spent in prison before that. As this court explained in Kerrigan [2015] Cr.App.R (S) 29, Parliament's intention is that a day served in prison should only count towards one sentence, although the court has a general discretion to do justice. However, as this court further explained in paragraph 45 of its judgment in Prenga [2018] 1 CrAppR (S) 41, that is an exceptional jurisdiction. The only potential exceptional factor in this case is the time which elapsed from first appearance until sentence. Although, at three years and three months, this is very long, having considered the various reasons for it we do not consider that it was sufficiently exceptional to require the judge to reduce the sentence.
19. Our attention was also drawn to the General guideline: overarching principles, which says as follows under the heading "Delay since apprehension":

"Where there has been an unreasonable delay in proceedings since apprehension which is not the fault of the offender, the court may take this into account by reducing the sentence if this has had a detrimental effect on the offender."

20. In the present case there is no evidence that the delay has had any detrimental effect on Mr Miseldine, who knew from the moment he was arrested that he was guilty of this offence and knew also that in consequence he was facing a very long sentence of imprisonment.
21. Accordingly, we refuse Mr Miseldine's renewed application.