England and Wales Court of Appeal (Criminal Division) Decisions

Williams, R v. [2000] EWCA Crim 62 (24th November, 2000)

Case No: 2000/01838/Z1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London,

WC2A 2LL

Friday 24th November 2000

LORD JUSTICE HENRY:

1. This is the judgment of the Court. On the 18th January in the Crown Court at Nottingham, before Mr Justice Holland the appellant pleaded guilty to conspiracy to kidnap (Count 1/1), conspiracy to rape (Count 1/2) and conspiracy to murder (Count 1/3). On 10th March 2000 he was sentenced to life imprisonment on each count.

2. On 22nd March 2000 the recommended minimum sentence of five years was amended under Section 28 of the Crime & Disorder Act, 1998, and the judge indicated that a sentence of 12 years' imprisonment would have been imposed. The appellant having been convicted of an offence to which Part 1 of the Sex Offenders' Act, 1997 applied, the appellant was required to comply with the requirements of Part 2 (Notification to the Police). His co-accused, Paul Thomas Elkington, pleaded guilty to all three counts on 17th January 2000, and was also sentenced to life imprisonment with a recommended minimum sentence of 12 years on the same terms as the appellant. Williams now appeals against conviction by the leave of the Single Judge. The appeal against conviction is based on the judge's refusal of the appellant's application to vacate his guilty pleas, and plead not guilty.

3. The matter arose in this way. The conspiracies alleged were essentially between the appellant Williams and Elkington. It was the Crown's case that between July 1998 and April 1999 the appellant and his co-accused had planned to kidnap, rape and murder pre-pubescent girls. An undercover police officer had recorded conversations with both men. The officer had met the appellant on 13th July 1998, and they subsequently did cleaning work together. The appellant frequently discussed details of the plans he had made with his co-accused. Thereafter the officer met the co-accused and then he had met both men together and recorded their conversations. On 2nd April 1999 the officer drove both men to some caves where they planned to dispose of the victims' bodies. On 25th May 1999 the appellant was arrested.

4. In the course of the recorded conversations the appellant and the co-accused had indicated that they had to find a female child aged between two and ten, they would then abduct her using a van, preferably with a sliding door (the undercover police officer had such a van). The intention was that the three men that participated in the abduction would then take part in vaginal, anal and oral sex with the child, the possibility of taking photographs and making a video recording was also discussed. The appellant and co-accused went into graphic detail as to what they would do to the child and the likely injuries the child would sustain. The appellant and co-accused had discussed their concern that they could be identified through DNA if the child was discovered and either of them arrested. There was discussion of the need to "... drain her out ..." or to kill the child and dispose of the body. There was discussion of the equipment required to carry out the offences, how the purchase of the same was to be funded, and some purchases were made. On the 1st and 2nd of April 1999, the site where it was proposed to take the child was visited. On 2nd and 3rd April, details of the plan were confirmed. The appellant and co-accused were subsequently arrested. In interview the appellant said that he and the co-accused had, while in prison, made a plan to abduct a girl, to have sex with her and "... dump her ...". He said it had been a fantasy.

5. The evidence in support of the Crown's case in relation to the three conspiracies to kidnap, to rape and to murder was founded on the words and actions of the two defendants, as recorded by the undercover police officer.

6. On 17th January 2000 the case was listed for pleas at the Crown Court at Nottingham before Mr Justice Holland. According to the defence, it had been Williams's understanding that both he and his co-defendant Elkington were to plead not guilty. Each had indicated in his defence case statement that the defence was going to be one of just fantasy. But on the day Elkington pleaded guilty on all three counts. The defence case was that this came as a surprise to the appellant. That same morning Williams announced to his counsel and a junior representative of his solicitor that he wished to plead guilty to the indictment. When asked why, he gave two reasons, namely that Elkington had pleaded guilty and he did not think that a jury would believe him.

7. In fact, the defence view was that Elkington's plea was an advantage to Williams's defence. Counsel were not prepared to act on his instructions to change his plea in the absence of Mr Bugg, an experienced solicitor who had advised Williams from the outset. Mr Justice Holland accordingly agreed to adjourn the matter until the following day, 18th January.

8. Mr Bugg, leading and junior counsel saw the defendant that day and the instructions were repeated. The fullest advice was given to Williams about the consequences of such a plea, namely that a life sentence would be inevitable, that there would be a minimum term before consideration of his case by the Parole Board, that the latter was unlikely to recommend his release until satisfied that he was no longer a danger, and that he might well be in prison for the rest of his natural life. But Williams maintained his instructions.

9. Mr Andreae-Jones QC, for the appellant, saw the judge in his room with the express purpose of alerting the court as to the reservations that the defence team had to their instructions to change the plea. He said:

"One particular reservation is that it might be that it comes back from the psychiatrist that he is insane .... If that happens, then it may be that there would have to be an application to vacate the plea."

10. The judge was told this:

"... he was left overnight to think about the situation and left also to speak about the matter to Mr Bugg, who has had the carriage of this from the start, and his instructions, which are in writing, are this morning to plead guilty to all three counts on the indictment. I have to say that his legal team are very unhappy with that. The truth of the matter is it appears to us that he has simply lost his courage, which is understandable. But the fact remains that he is, for no discernible benefit at this stage at least giving up some chance of an acquittal in favour of ... (mechanical failure)".

We have added the emphasis because there were potential advantages to the appellant in the plea: it meant his "specified period" matched Elkington's, and would or might help him when it came to parole.

11. The reservations already quoted were then expressed, and the judge suggested obtaining a psychiatric report. The psychiatric report was prepared by Dr P R Snowden, consultant forensic psychiatrist for the Home Office and North-Western Regional Health Authority and is dated 8th February 2000. The psychiatrist knew that the appellant had a history of sexual offences against young girls, that he had served a sentence for rape, and was currently serving a sentence for sexual offences. He took the appellant through those sexual offences. He was

"... able to discuss his offending and his rape fantasies in an animated way, without any indication that he felt upset or remorseful."

12. This led to the psychiatrist's opinion:

"1) Michael Williams is fit to plead and not under disability in relation to any future court appearance.

2) I have no doubt that Michael Williams is an extremely dangerous individual who poses a significant risk to females, particularly pre-pubescent girls. He has a long history of sex offending and for this reason one would have to view extremely seriously the violent sexual paedophile fantasies of kidnap and rape. While of course it is difficult to be certain as to whether he would have acted out the fantasies, I would have argued that on the basis of his past behaviour that there is a significant risk that he would have done. I thought it was particularly ominous that he did not exhibit any remorse for his past offences or for his violent paedophile fantasies. He recognised that his behaviour and his fantasies were wrong, but this was not accompanied by any evidence of remorse at the time of my interview. He minimised his past offending, and little empathy for his victims. He was animated and at times excited when describing his offending, and in particular his fantasy life. He would, I believe, present a grave and immediate risk to young girls in particular, should he be allowed to return to the community."

13. The doctor also dealt with his intelligence:

"Michael Williams does not come across as being the most intellectually able of individuals. During the initial part of my interview he presented as though he was a rather immature, limited man. As the interview progressed, it was clear that he had average intellectual abilities, it was notable that he had a very good memory of dates and names. However his memory became less clear when I tried to get him to discuss in detail his offending, [his] fantasy life, and the possibility that he might have acted out some of his violent rape fantasies with the co-accused. ... He was animated, not at all anxious, and was able to discussed his offending and his rape fantasies in an animated way, without any indication that he felt upset or remorseful."

14. The judge heard the application to vacate the plea on 18th and 23rd February. On the 18th the defence's application was to adjourn to call the psychiatrist (whose report was before the court) to give evidence. The judge was told this of the appellant's state of mind:

"Our instructions now are that he pleaded guilty because his co-defendant did and because he thought his chances in front of the jury were very slim and our instructions now are that it was indeed fantasy and, in those circumstances, our submission is that the plea of guilty is not one which can stand in circumstances that justice can be done and it is in those circumstances that I make the application."

So the case was further adjourned. By way of comment, the psychiatrist's report shows reality (in the form of his earlier sexual offences) and fantasy intermingled. There is no necessary dividing line between fantasising a rape and planning its commission for real. The psychiatrist did not say that this was just fantasy: see his view on the danger posed by the appellant. Just fantasy was a difficult defence to run. The appellant was well-placed to assess the chances of that defence succeeding.

15. The adjourned hearing was on 23rd February. On that day we just have a transcript of the judge's ruling. He set out the history as summarised above and said of the initial conversation in chambers:

"Mr Andreae-Jones ... indicated in chambers that the change of plea that was about to take place was effectively against his advice and that he was concerned about it. On the other hand, as I understood it, all the appropriate advice that one would expect from a leading QC had been given to his client. The end result was a decision, in terms of plea, that emanated from Mr Williams. Subsequently I am told by Mr Andreae-Jones, and I readily accept, that Mr Williams pleaded guilty on that occasion for two reasons. The first reason was his co-accused, Mr Elkington, had pleaded guilty and he wished to be treated in a similar fashion. The second point that weighed with Mr Williams was that he did not think a jury would acquit him."

16. He reported how after Mr Andreae-Jones had seen the psychiatrist's report, and he obtained instructions from his client that the planning recorded by the undercover police officer

"... throughout it had been a fantasy and, more importantly, that his client now wished to change his plea so as to have the matter ventilated before a jury."

He urged on the judge the seriousness of the offences charged, submitting that given the constant concern which the defence team had had so it would be appropriate for the court to allow the change of plea to permit the matter to be tried before a jury.

17. Mr Milmo QC for the Crown referred the judge to the authorities, starting with R -v- Dodd [1982] 74 Cr App R 50. The facts were these. Dodd was charged with other men with a serious robbery. He did not attend for trial when the case was first listed. He had absconded and did not surrender. However, he was apprehended and arraigned and pleaded guilty. He had made limited admissions as to the help he had given to the armed robbers and his involvement and assistance in planning, but he denied that when it came to it he had carried out his agreed part or played any part in the robbery itself. Yet he pleaded guilty. His counsel were concerned that he was asserting his innocence while pleading guilty, and alerted the judge to their suspicions that pressure might be being put on him by his co-defendants. The culmination was that as the jury retired to consider their verdicts, Dodd sought to withdraw his plea on the grounds of pressure on him and threats to himself and his family.

18. In considering the law, the Court accepted the first three propositions put forward by counsel for the defence:

"i) The Court has discretion to allow a change of plea from guilty to not guilty at any time before sentence.

ii) That discretion exists even when the plea is unequivocal.

iii) That discretion must be exercised judicially.

19. Then on what remained in issue, the Court said this:

"Fourthly, Mr Scrivener submitted that if the plea of guilty is not freely made it is an important matter to be taken into account in the exercise of the discretion. He relies on the passage in the speech of Lord Morris of Borth-y-Gest in the Manchester case at p501 where Lord Morris says that by his plea it must be fully and freely acknowledged and confessed to the court that he is guilty. Fifthly, Mr Scrivener submits that where a defendant alleges his plea of guilty was made under pressure, the judge must hear evidence and determine that issue before ruling on the application to change the plea; and lastly, that failure to exercise discretion amounts to a material irregularity and thus makes the ruling appealable in this Court.

The short answer to the submissions made by Mr Scrivener is that the learned judge did hear the evidence of Dodd; that he did consider whether the plea had been freely given. He took into account that Dodd may have been under some pressure, but nevertheless, having seen and heard him and been fully apprised of the position, he came to the conclusion in his discretion that there were no good grounds for permitting him to change his plea. We can find no grounds for interfering with the exercise of his discretion. For these reasons we refuse all these applications for leave to appeal."

This case is stronger than Dodd, because here it is clear that the appellant's plea was freely given, after considering the advice of his legal advisors.

20. That authority was referred to in the case of R -v- Drew [1985] 81 Cr App R 190. There the trial judge went wrong in law in that he concluded that once the jury returned a verdict in the trial, his discretion to permit a change of plea was extinguished. As Lord Lane CJ held that was an error of law in that it infringed the clear general principle that there was a judicial discretion to allow a change of plea from guilty to not guilty at all times up until sentence. As the judge had not recognised that he had such a discretion, he fell into error. Lord Lane then continued:

"The final issue which arises for decision is whether in these circumstances the proviso to Section 2 should be applied. If we take the view that the trial judge could only properly have exercised his discretion in one way, namely adversely to the appellant, then it would clearly follow that no miscarriage of justice has actually occurred here, so the appeal would necessarily fail.

There were here certain obvious similarities on the facts to the case of Dodd (supra). In that case also counsel went to see the judge and indicated that the accused was going to plead guilty because he was in fear rather than because he was in fact guilty. It plainly cannot be said that whenever the judge discovers that the plea of guilty is being entered reluctantly he must decline to allow it and instead require it to be treated as a plea of not guilty. Judges no doubt often appreciate that a plea of guilty is being entered reluctantly from the mere fact of the accused having earlier pleaded not guilty to the offence. In our judgment only rarely would it be appropriate to exercise his undoubted discretion in favour of an accused person wishing to change an unequivocal plea of guilty to one of not guilty. Particularly this is so in cases where, as here, the accused has throughout been advised by experienced counsel and where, after full consultation with his counsel, he has already changed his plea to one of guilty at an earlier stage in the proceedings."

We have added the emphasis, as the judge clearly proceeded on the basis of the principle set out. The integrity of the system proceeds from the freedom of the defendant, when he has received proper advice, and is under no disability, and subject to no outside pressure, to make an informed decision as to plea that is his own.

21. Against that legal background, Mr Milmo for the Crown submitted that:

a) the appellant was a mature man with appropriate mental capacity advised throughout by very experienced leading counsel supported by similarly experienced solicitor who clearly enjoyed the total trust of his client and a junior;

b) the plea was quite unequivocal, indeed was not on advice but against it; and finally

c) the grounds for the plea were "... rational, if pragmatic".

22. The judge sensibly concluded that he could realistically assume in the circumstances that the appellant would have been advised that as and when he pleaded guilty he would be taken by the court, for all practical purposes, to be guilty.

23. The judge then concluded:

"I am unable to find there is any good reason for me to exercise my discretion in favour of Mr Williams to allow him to change his plea. This is plainly, in my judgment, not a case where, as it were, in hindsight I should have directed that the plea of not guilty should be maintained. Matters ... have not moved on at all since the 18th January. On that day there was this unequivocal plea on entirely rational grounds which are readily sustainable. Indeed, the approach to the problem that Mr Williams took on that day is an approach, ironically now encouraged by Parliament, when it made it compulsory for judges to take into account when sentencing the fact of a plea. Thus it is, on that day, one has an unequivocal plea on rational grounds arrived at following advice to which no exception at all could conceivably be taken. There is really, so far as I can see, no good basis for supporting a change in their position. Nothing really has happened since that time that is of any significance bearing upon this problem and thus it is, when I come to look at the sort of reason that would sustain an exercise of my discretion in favour of Mr Williams the sort of reason that the Court of Appeal had in mind supporting that passage in the case of Drew, I simply cannot find it at all, and for that reason, despite the fact that I appreciate only too well the significance of my ruling, I make it."

24. As has already been pointed out, it is clear law, binding on this Court, that from first arraignment to sentence, the trial judge has a judicial discretion to permit the withdrawal of a guilty plea and the substitution of a not guilty plea. That discretion must be judicially exercised, but it is the discretion of the trial judge, and not of this Court. Only if it is exercised improperly will this Court intervene.

25. Next, the character of the plea must be considered. Our courts attach great importance to a plea of guilty, and rightly so because of its self-incriminatory nature. It is for this reason that we hold fast to the tenet that there be

"No qualification or deviation from the rule that the plea of guilty must come [in person] from him who acknowledges guilt". (see R -v- Williams [1978] 1QB 373 at 378G)

26. Here the plea of guilty was unequivocal, and was made after a full opportunity to reflect and with the benefit of advice (albeit not taken) from an experienced legal team. Mr Williams was of average intelligence, he was fit to plead, and more than capable of a proper understanding of what the charge involved, and what the consequences of a guilt plea were. There was nothing to suggest that the defendant was put under any pressure, or subject to any inducement, or was mistaken, or that his decision was made in ignorance of its consequences.

27. In his submissions to us Mr Andreae-Jones was critical of the judge's approach to the task. He suggested that the judge should have made further enquiry, and perhaps heard evidence. A similar attack was made in R -v- Cantor [1991] Crim LR 481. There this Court made clear that it is for the trial judge in each individual case to decide what enquiry the exercise of discretion requires.

28. Here the Crown had a strong, indeed overwhelming, case, the plea of guilty was unequivocal and taken despite (but with the benefit of) advice against the course. The judge knew of (and would have respected) the defence team's unhappiness with the plea, and their informed speculation as to the reason for it. There was no suggestion of any mental deficit or suggestibility in the defendant, nor pressure or inducement in relation to the decision he took. In short there was no reason to believe that any further enquiry was necessary.

29. It was, as the judge appreciated, a significant and anxious decision, but at the end of the day there was no good reasons for giving leave to withdraw the plea. The trial judge here acted within the broad ambit of his discretion in so concluding. And this Court would have reached the same decision.

30. This appeal will be dismissed.