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Cite as: [2002] 1 WLR 1528, [2001] EWCA Crim 2633

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POOLE, R v. [2001] EWCA Crim 2633 (27th November, 2001)

		Neutral Citation Number: [2001] EWCA Crim 2633

Royal Courts of Justice
Strand, London, WC2A 2LL

27th November 2001

B e f o r e :

LORD JUSTICE JUDGE
MRS JUSTICE HALLETT
and
MR JUSTICE STANLEY BURNTON
____________________

REGINA
V
POOLE

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
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____________________

Michael Clare [Miss S. Gibbs] (for the Crown)
Mark Fenhalls [Mr I. Acheson] (for the Appellant)
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Lord Justice Judge :

This is an appeal by Louise Poole, following her plea of guilty on re-arraignment to an offence of indecent assault on 19th December 2000 in the Crown Court at Norwich before His Honour Judge Mellor. On 13th February 2001 she was sentenced by HHJ Downes to 7 months imprisonment. An order was made under section 5(2) of the Sex Offenders Act 1997, and the anonymity of the complainant was protected by an Order under s39 of the Children and Young Persons Act 1933.

The grounds of the present appeal arise from and are concerned with the circumstances of and events subsequent to the appellant’s re-arraignment. The facts therefore can be dealt with very briefly.

The appellant and her partner had lived together for some years. They had two children. In March 1998 they befriended the complainant. A close relationship was built up. The complainant spent a great deal of time at their home, occasionally baby-sitting for the children.

It was alleged that on 16th February 2000 the appellant indecently assaulted the complainant, then 15 years old. Her partner was said to have supplied cannabis to the complainant which facilitated sexual contact by the appellant. The precise details of the indecent assault are irrelevant. The prosecution case against the appellant depended on the evidence of the complainant herself, supported by a tape recording of a subsequent conversation between her and the appellant, made without the appellant realising that it was being tape recorded.

On 10th November 2000, at the PDH, the appellant, and her partner, entered not guilty pleas to count one (indecent assault) and count two (supplying a controlled drug of class B).

The case was listed for trial on 18th December. On that date, before Judge Mellor and a jury, the prosecution case was opened and the trial proceeded. At the end of the day the case was adjourned part heard. Subsequently the prosecution indicated that it would be prepared to accept “guilty” pleas to one of two counts from each Defendant. The precise circumstances are unclear and for present purposes do not matter.

On 19th December, in the presence of the jury, the appellant’s then counsel, Mr Guy Ayres, applied for count one of the indictment to be put to his client. The judge agreed. The appellant pleaded “guilty”. Her plea was accepted by the Crown, counsel explaining the reasons to the judge and jury. Counsel asked that count two should lie on the file against the appellant. He then said “I appreciate that the jury are in charge of these Defendants”, to which the judge responded, “In the circumstances I shall discharge the jury”. He then went on

“Members of the jury… you have heard what has happened…. There are two ways of dealing with it, one would be to turn to you and ask you to appoint a foreman, and say “well, you have heard them say they are guilty, we find them guilty”; or more simply, if I discharge you, and accept their pleas as would have been done had they taken place before a jury was sworn in the first place”.

In effect therefore, the jury was discharged without entering any verdict, and the case then proceeded as if the plea had been entered on arraignment and was adjourned for the preparation of reports, and eventually sentence.

On 19th January 2001 the appellant indicated that she wished to apply to vacate her guilty plea. Her trial counsel and solicitors withdrew. Legal aid was transferred to fresh counsel. She formally waived legal professional privilege and her former counsel and solicitors were ordered to lodge affidavits or statements about the circumstances leading up to her change of plea.

On 9th February new counsel made two applications to Judge Downes, who had taken over the conduct of the case in the unavoidable absence of Judge Mellor. He applied for the guilty plea to be treated as a nullity on the basis that the trial had not been properly concluded, and pointed out that if what had taken place was a nullity, there was no need to proceed with the application to vacate the plea. If that application were unsuccessful, counsel applied to Judge Downes to disqualify himself from hearing the application for leave to vacate the plea, and instead to order that the application should not be listed before judges who sat regularly at Norwich Crown Court. The reason was that Mr Ayres practised in Norwich at local chambers, and appeared regularly at Norwich Crown Court. Moreover Judge Downes had been a member of those chambers before his appointment to the Circuit Bench. The judge was told that the appellant herself was not taking or raising any point. Counsel was taking it, as part of his general responsibility for the conduct of her case. He relied on the Human Rights Act, and the appearance of fairness, and as Judge Downes put it, an entitlement to a hearing before an impartial tribunal.

On 9th February both applications were refused. In relation to the procedure adopted on 19th December, the judge held that the relevant principles could not be encapsulated in the simple statement that the verdict had to be taken from the jury. As to disqualifying himself, he reminded himself that he was considering whether to exercise the Court’s discretion to allow a defendant who had pleaded guilty in open court to vacate the plea. He said that his decision did not “involve questions of guilt or innocence. It does not involve findings or judgments, but merely whether the circumstances are such that the Court should grant a change. It is not unusual for judges to have to listen, for instance, in voire dire hearings, when the evidence perhaps of a defending solicitor may be someone they know very well and had been instructed by at the Bar. A professional tribunal is frequently entrusted with matters which are in the mind of the tribunal – for instance, looking at unused material – but having to put out of his mind when sentencing someone matters that have been read elsewhere. Judges have to be trusted. It is not…. an appeal against…. conviction … where I would have to find the facts of what occurred, or in a civil case involving a small judgment depending on whom I believed. That is simply not the case. If I were hearing an appeal against conviction, and I knew one of the witnesses, as any Judge, Magistrate, or anybody else of course, would, I would immediately disqualify myself. But, that is not the situation here, this is a question of discretion. I have to consider whether the application to change is apparently justified, and whether, … it would be fair to allow it”.

He then proceeded to hear the application. Mr Ayres gave evidence; so did the appellant. The evidence was largely uncontentious, and the differences were insignificant. The judge decided the application by directing himself to ignore Mr Ayre’s views about whether the plea was safe. He focused exclusively on what the appellant herself told him in her evidence. In summary it came to this: she had fully understood Mr Ayre’s oral advice to her, that she should only plead “guilty” if she had committed the offence. She also understood precisely what she was doing, and appreciated the significance of the document signed by her, before she pleaded guilty, which read:

“I, Louise Rosalie Poole have decided of my own free will to plead guilty to count one in the indictment and I have made the decision after speaking with my advisors and my partner….. I understand that I will be sentenced on the basis that I did the sexual acts complained of by C. I understand that I could well receive an immediate custodial sentence when sentenced for this offence”.

The appellant indicated that she had not been pressurised by Mr Ayres. Her solicitor had not undermined her confidence. She had taken her own decision against the wishes of her co-defendant. In summary, on her own account, this was a voluntary plea, entered by a defendant who understood exactly what she was doing, and the consequences, both in the sense that she was admitting that she was in fact guilty, and also that she was at risk of a prison sentence.

In view of those findings, it was hardly surprising that the appellant’s application to vacate the plea was refused.

In this appeal we are re-addressing the issues raised before Judge Downes. Neither the safety, or otherwise, of the conviction, nor the merits or absence of merits of the application to vacate the plea have been argued.

The Plea

The discretion of the judge during the course of the trial to permit a defendant to withdraw his “not guilty” plea and substitute a plea of “guilty” is uncontroversial. The essential requirement is that however the judge may be informed of the defendant’s intention, the validity of the process depends on the defendant’s re-arraignment on the indictment, or relevant counts of the indictment, and that the plea is tendered personally by him. This is no more than a manifestation of the elementary principle that the defendant is always personally responsible for the plea. If authority is needed however, it can be found in Hancock 23 CAR 16 (when the verdict was taken without the defendant being re-arraigned at all) and Heyes 34 CAR 161. These authorities further suggest that where such a plea is duly tendered while the defendant is in charge of the jury, the jury’s verdict must be taken. In Gatenby 34 CAR 255, Lord Goddard CJ described the process as a “technicality” adding, however, “it is a technicality that ought to have been observed…..the irregularity is one that rendered the trial a nullity”. These authorities form the basis for Mr Mark Fenhalls’ submission that his client’s plea was invalid. We note that in Tomey 2 CAR 329, when the defendant changed his plea and was sentenced without the jury entering a verdict, no criticism was made by this court, perhaps because the issue did not arise.

Our attention was directed to the decision of the House of Lords in Rose (1982) AC 822. The issue under examination was whether there was jurisdiction in the Court of Appeal Criminal Division to order a venire de novo when the court was satisfied that a verdict of guilty must be set aside because of a “material irregularity consisting of improper pressure imposed upon the jury at any time before verdict.”In effect, the certified question asked the House of Lords to consider whether and in what circumstances venire de novo could issue. In a speech which was plainly illuminated by an article of “great scholarship” (per Lord Lane CJ in R.v Rose (1982) 75 CAR at p330) entitled “Venire de Novo” 71 (1955) LQR100 by Mr R B Cooke (now Lord Cooke of Thorndon) Lord Diplock identified a distinction between those cases where venire de novo might lie because the trial had never been “validly commenced”, and those which, although validly commenced, “had not been validly concluded by a properly constituted jury bringing an unequivocal verdict of guilty or not guilty followed by sentence or discharge of the defendant by the court”. Hancock was an example which demonstrated the jurisdiction to grant the order where the purported conviction “had been recorded despite there having been no valid verdict by the jury”. Further examples followed. It seems to us that these observations relating to Hancock formed part of Lord Diplock’s historical analysis of the writ of venire de novo and the jurisdiction of the Court of Criminal Appeal between its creation in 1907 and its abolition and replacement by the Court of Appeal Criminal Division in 1968, rather than the reasoning which culminated in the decision that the appeal by the Crown in Rose should be dismissed. We acknowledge that the line of authorities relied on by Mr Fenhalls was not questioned. At the same time we do not read the speech of Lord Diplock as providing positive support for it. Certainly there is nothing to suggest that he examined the basis for Lord Goddard’s observations in Hancock and approved them.

The subsequent judgments in Lewis 87 CAR 270 and O’Donnell (1996) 1 CAR 286, referring to the same passage by Lord Diplock do not assist in the present analysis.

During the course of the argument we endeavoured to ascertain whether the requirement that the jury should enter the verdict after a change of plea is based on principle, and if so what it is, or whether it is no more than a reflection of practice originating from more formal times. Counsel were unable to assist us to discover the principle. If there is one, it is probably that for as long as the defendant is in the “charge” of the jury, it is for the jury to return the verdict. It is also true that the practice is hallowed by time. We have all seen it in operation. Unless the jury has already elected a foreman, the judge identifies one of their number to be the foreman. The associate tells the jury words to this effect: “Do you on the defendant’s own plea, and at the direction of the judge, find the defendant guilty?”, or even, without the apparent courtesy of a question, “You find the defendant guilty”. The judge-appointed foreman turns to his or her colleagues. There is a degree of nodding and puzzled shuffling about. The foreman says “Guilty”. This is not, we emphasise, any sort of procedural protection of the kind envisaged by Lord Cooke in his article, to which we must now turn.

Lord Cooke identified a number of procedural irregularities, resulting in neither a conviction nor an acquittal, which had been held to vitiate proceedings and permitted a writ of venire de novo to issue. He explained that some other irregularities did not have the same effect. In the present context, he observed, “If the prisoner changes his plea to guilty in the course of his trial, and a conviction is then entered without a verdict being taken from the jury, then there is a mistrial; but the committal and trial may have been perfectly regular up to that stage”. Having analysed the authorities, he suggested that the “nullity” theory was unworkable, and concluded that it must be “discarded”. Basing himself on the observations by Lord Sumner in Crane (1921) 2 AC at 331, Lord Atkin in Ras Behari Lal (1933) LR60 IA at 357 and Lord Goddard CJ in Neal (1942) 2KB at 594, he proposed that the discretion to order a venire de novo should be exercised where the effect of the irregularity was “to deprive an accused person of the protection given by the essential steps in criminal procedure”. He went on to suggest that if the decision in Neal were no longer regarded as authoritative, no formidable obstacle to this proposal could be discerned. In Rose, Lord Lane CJ ventured to doubt “whether that part of the judgment in Neal (dealing with venire de novo) was properly founded.” Lord Diplock, at p.336, said that he did not find Lord Goddard’s suggestion that “one test of what would amount to a mis-trial sufficient to render the trial abortive and void would be whether the irregularity would be patent on the record if it were drawn up. “What in modern times would be regarded as “the record if it were drawn up” that Lord Goddard had in mind, is far from clear”.

In the result, we do not need to found our decision in the present case on the emancipating foundations proposed by Lord Cooke, but we have respectfully adopted his cautionary suggestion to examine our conclusion against any possible procedural disadvantages to the defendent. Limiting ourselves to the present context, rather than the broader issues which were under consideration in his article, we can see no possible unfairness or disadvantages to a defendant, who elects to change his plea after the start of the trial, if his plea is treated in precisely the same way as it would if it had been tendered before the jury were sworn. It involves a personal statement made publicly by the defendant that he is guilty of the crime alleged in the indictment. The protection to which he is entitled is the absolute freedom to enter whatever plea he wishes.

Since Hancock, Heyes and Gatenby were decided several significant changes of procedure have taken place. The Criminal Appeal Act 1907, and Criminal Appeal Act 1966 and 1968 were concerned with appeals against conviction based on the “verdict of the jury”. It was not until s44 of the Criminal Law Act 1977 that the word “conviction” was substituted for the words “verdict of the jury”. Therefore when these cases were decided, the appeal process was directly, and exclusively, connected with an appeal against the jury’s verdict. Since 1977, although it is rare, an appeal against conviction may be allowed after the defendant has pleaded guilty. It could be allowed in a case when the defendant pleaded “guilty” on re-arraignment after the start of the trial before the jury. Before 1977 that would not have been permissible. Another important change in the jurisdiction of the Court of Appeal Criminal Division relates to its power to order a new trial. Until 1989 the power to order a re-trial was confined to a successful appeal against conviction “only by reason of evidence received or available to be received by them under section 23 of the Act” (that is, s23 before its amendment by s4 of the Criminal Appeal Act 1995). The limitation was removed by s43(1) of the Criminal Justice Act 1988. In an appropriate case, it would now be, but was not formerly, open to this court to quash a conviction based on a plea of guilty, and, if so advised, to order a new trial in the interests of justice. That course would now be available. This increased flexibility is illustrated by the fact that it is no longer necessary for a jury to be empanelled and return a “not guilty” verdict when the prosecution has decided to offer “no evidence”. S17 of the Criminal Justice Act 1967 makes that unnecessary.

It is in this changed context that we must examine whether in the light of the authorities, Judge Mellor’s decision to discharge the jury after the appellant pleaded “guilty”, and his order that a conviction should be entered on the basis of that plea, should continue to be regarded as a nullity. None of the authorities cited to us directly addressed this procedure. However it is clear that once the jury is discharged, the defendant ceases to be in its charge. The question therefore is whether one of the most valuable discretions available to the trial judge – the power to discharge the jury – is in fact circumscribed and unavailable to be exercised in circumstances like these. If the judge is compelled to ask the jury for its verdict, discharging them from giving one would not be an available option. The single permissible procedure would be to seek the jury’s verdict, although, in reality, the jury’s verdict is no more than a formality. We apply that description advisedly.

In Drew 81 CAR 190 the appellant was convicted by a jury, when on re-arraignment, he entered a plea of guilty to three counts in the indictment. Subsequently he applied to change his plea. The judge ruled that he had no power to allow the application. The defendant was given leave to appeal against his conviction. It was argued on behalf of prosecution that the fact that the jury returned the verdict was “all-important” and that the trial judge had no power to permit a subsequent change of plea. The verdict could not be cancelled. This court was not impressed with the argument.

“There appears to this court no greater difficulty in altering the record following a jury’s verdict than doing so upon a change of plea in any other situation. The jury’s verdict where, as here, it is entered upon the discretion of the judge, is essentially a formality”.

We regard it as significant that this observation was made by Lord Lane CJ, whose dedication to the constitutional primacy of the verdict returned by the jury requires no emphasis.

Lord Lane continued:

“In our judgment logic and good sense dictate that the trial judge should have the same power to allow a change of plea even where the verdict of guilty has been returned formally by the jury. It would be a most unfortunate anomaly in the law were it otherwise. We have come to the conclusion that neither the authorities nor the intrinsic nature of the jury’s verdict compels such an unsatisfactory result”.

For the same reasons, we are unable to accept that what is no more, or very little more, than a formality should act as a limitation on the discretion of a trial judge to discharge the jury from giving a verdict, as and when, in his judgment, it is right to do so. Moreover, we cannot perceive the slightest potential disadvantage to the defendant, if, following a change of plea, the judge were to do so, and then approach the issue as Judge Mellor did in this case. The jury having been discharged, the conviction was based on the appellant’s own plea. When we seek to answer the question,“What, in 2001 is the purpose, if any, of the rule for which Mr Fenhalls contends?”, we can discern none. The act of discharging the jury had the effect of bringing the trial to an end. If the jury had disagreed at the end of the trial, it would have been discharged and a new trial ordered. If at any time before the re-trial, the appellant had decided to plead guilty, it would not have been necessary to empanel a jury: similarly, if the Crown concluded that no evidence should be offered. In our judgment, the course taken by Judge Mellor was permissible. It resulted in a valid conviction. If the conviction was unsafe, this court would have jurisdiction to quash it, and if necessary in the interests of justice to order a new trial, jurisdiction to make the necessary order. Neither course would be appropriate here.

In rather different circumstances this approach was adopted in McCarthy, unreported, 7th November 1997. In view of the particular circumstances in which one of the Defendants in that case tendered her plea, and the fact that the validity of the plea on re-arraignment was not questioned, we do not regard that decision as authority for our conclusion. It is nevertheless consistent with it.

Bias

Mr Fenhalls focused our attention on the recent decision in the Court of Appeal in In Re Medicaments and Related Classes of Goods (No.2) (2001) 1 WLR 700. He suggested that “a fair minded observer would apprehend that there was a real danger that Judge Downes would have been unable to make “an objective and impartial appraisal of the... evidence”.

We disagree. The application that the case should not be listed before Judge Downes, or any judge sitting at Norwich Crown Court, was misplaced. In common with every judge in the country Judge Downes had no doubt presided in court when counsel on one, or other, or both sides, and sometimes their instructing solicitors, were known to him personally, in some instances, no doubt, going beyond simple acquaintance to warm personal friendship. We do not, of course, suggest, any more than Judge Downes did, that it would have been appropriate for him to preside over litigation in which a friend had an interest or was to be called as a witness in relation to contentious matters, or that in these circumstances, some special privilege attaches to barristers and solicitors. However our system would become unmanageable if judges were obliged to recuse themselves every time they knew counsel on one side, but not the other, or better on one side than they did counsel on the other. Indeed one of its sources of strength is that judges know personally and feel able to trust the advocates who appear in front of them to fulfil their professional obligations, both to their clients and to the court. This element of trust between individual judges and individual barristers and solicitors builds up over the years of a working professional relationship.

In the present case the issue was whether Judge Downes should exercise his discretion to allow the appellant to vacate her plea. In that context, the essential material was bound to come from or be presented by the appellant herself. Mr Ayres’ presence was necessary, as part of his continuing duty to assist the court and his client. He was not participating in the process as a witness with any personal interest whatever in the success or failure of the application. If during the course of the hearing, any significant point of controversy involving Mr Ayres’ conduct or his credibility, or his professional skills had emerged, although he did not expressly say so in his judgment, Judge Downes would undoubtedly have reconsidered whether he could properly continue to consider the application, or whether after all, it should be adjourned for hearing before another judge. In our judgment, however, although we do not regard this as decisive, given that he was told expressly that the application was not being made on the personal instructions of the appellant herself, on what he was given to understand of the basis of the submission, Judge Downes was not required to disqualify himself in advance, nor act on the basis that a significant point of controversy between Mr Ayres and the appellant was likely to arise. As it was, none did.

In the result, addressing himself to the material put before him by and on behalf of the appellant, Judge Downes concluded that no basis was shown for setting aside the guilty plea. He was right to reach that conclusion, for the reasons he gave.

This appeal is dismissed.