England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEEDS CROWN COURT
(TREACY J)

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 November 2004

Lord Justice Potter :

Introduction

1. On 13 November 2002 in the Crown Court at Leeds before Mr Justice Treacy the appellant pleaded guilty to a charge of manslaughter contained in Count 2 of an indictment as an alternative to the charge of murder contained in Count 1. Count 1 and a further account of affray (Count 3) were ordered to remain on the file under the usual terms.
2. On 4 March 2003 in the Crown Court at Manchester an application was made to Treacy J to vacate the guilty plea. That application was refused. It was renewed on 16 June 2003 at Kingston-upon-Hull and was again refused by Treacy J, the appellant being sentenced on that date to a term of four years' imprisonment consecutive to a term of four years' imprisonment which he was already serving for an unrelated offence.
3. There were three co-defendants, Jason Hodgson, Leanne Beard and Mathew Carney. Hodgson and Beard also pleaded guilty to manslaughter (Count 2) as an alternative to murder (Count 1) and were sentenced to four years' and six months' imprisonment and three years' and six months' detention in a Young Offenders' Institution respectively. Carney was acquitted under s.17 of the Criminal Justice Act 1967 after the prosecution offered no evidence against him.
4. The appellant now appeals against conviction and sentence by leave of the single judge.

The facts

5. In the early evening of 16 September 2001, the appellant, his girl friend Leanne Beard and her cousin Jason Hodgson were part of a christening party which ended up at Yates' Wine Lodge in York. During the evening Michael Brolly, the eventual victim, was also drinking at the bar and became loud and aggressive towards them. The group then proceeded to another bar. By then the appellant and Leanne Beard had been refused service at Yates Bar on the grounds that the appellant was too drunk. Brolly also went to the second bar and continued to act aggressively towards them eventually making his way out of the bar while continuing to shout at the main group. At this point he knocked over Leanne Beard.
6. Outside the bar Brolly removed his shirt and taunted various members of the group gesturing them to come towards him. Beard hit him with her handbag and swore at him and he then started to run away pursued by a group which included Hodgson which gave chase and caught up with Brolly. He was surrounded and brought to the ground and repeatedly kicked and punched. The appellant and Beard, who had not been part of the group involved in the initial attack, then came onto the scene and joined in the assault on Brolly. Members of the public summoned the police who arrived with paramedics within a few minutes. Unsuccessful attempts were made to revive Brolly at the scene but he was pronounced dead shortly after his arrival at hospital. A post-mortem examination confirmed that he had died as a result of multiple injuries sustained in the attack.
7. Hodgson was arrested and interviewed shortly afterwards. He accepted that he had chased after the deceased had punched him. However he denied that he had kicked the deceased and maintained he had tried to stop others from doing so. In interview the appellant and Beard both claimed that, when they reached the scene, the deceased was motionless on the ground and his attackers gone. The appellant said that he had waited at the scene with Beard and she had been upset and both denied being involved in the assault. However, on being shown a pair of her boots stained with the blood of the deceased which had been recovered near her home, Beard admitted that she had kicked the deceased twice in the lower back. The two, with others, were charged with murder and affray.
8. The appellant and his co-defendants were due to stand trial on 13 November 2002. By then, the appellant was in prison serving a term of 4 years' imprisonment, having pleaded Guilty to an offence under s.20 of the Offences Against the Person Act 1861, at a trial where he was indicted under s.18. Some weeks prior to the instant trial, counsel for the various defendants made approaches to the prosecution to establish whether a compromise could be reached. The Crown made clear that, if the appellant, Hodgson and Beard pleaded guilty to manslaughter, such a plea would be accepted, but that a trial on the count of murder would be pursued if there were not a collective plea to that effect from all three defendants.
9. It was the case for the Crown that the appellant was part of a joint enterprise to attack Brolly in the course of which he met his death. Both the evidence of eye witnesses prior to the attack and CCTV evidence available showed him with Leanne following the first group to a point just prior to the fatal incident which occurred off camera. He was distinctly dressed with a yellow baseball cap and large white jacket. It was alleged that the appellant and Leanne Beard had both participated in kicking the deceased on arriving at the scene and that an imprint on the face of the deceased was consistent with it having been made by the appellant's training shoe. There were two eye witnesses who identified the appellant in the statement as having participated in the attack.
10. Andrew Croft, a doorman who knew the appellant well and had seen how he was dressed earlier in the evening, said that he enjoyed a good view of the events. He witnessed the appellant and Beard severely kicking the deceased with the other members of the group.
11. In his statement, Croft said he could see four or five men and Leanne Beard standing over the deceased.

"All these people were raining kicks at him [Mick Brolly] kicking him all over his body repeatedly and some kicking his head which was flopping about and I remember thinking then that he was probably unconscious at that point. This group kept kicking him for about 10 seconds or so and I saw Carl Mason kicking him as well as Jason Hodgson and Leanne Beard. The group were all as bad as each other as the kicks were quite severe. At the same time they were kicking Brolly, some of them were leaning over shouting abuse at him as he lay there. I had a good view of all this, as it was only across the road and I saw it quite clearly. After that 10 second period, one or two of the men, who I didn't know, seemed to back off a little and that left Hodgson, Mason and Beard to kick a little more before the attack finished."

12. Wayne Wheatland described the chasing of the deceased. He followed on, being behind the appellant and Leanne Beard, whom he identified as following the leading group. As he approached the scene he saw Hodgson attacking the deceased and then back off as some others joined in. He described himself as having a good view. He said:

"After a few moments I saw Leanne Beard and Carl Mason approach Mick who by now was laid facing away from me and them. I could see Mick was not moving at this point. As Leanne and Carl approached Mick, they both started kicking Mick and I could see clearly that they were kicking him from the bottom of his head to his back. I can recall that she also hit Mick with her handbag. I didn't like what I saw and told them both to leave it and back off. Even Jason [Hodgson] was telling them to leave it and to come away and that was enough. They all seemed to back off. I do not remember any of the others I have previously mentioned attacking Mick, they may have done but I cannot recall."

13. Linda Coates witnessed the victim on the ground with a few people around him, two of whom were "kicking him quite violently" in his chest and stomach area. She saw a woman move away from the victim and shout twice to a male wearing a fleecy jacket and bright coloured baseball hat "He fucking deserved that". On 18 October 2001 she identified Mason on a video identification parade as the man to whom the woman shouted. She also identified Leanne Beard as the woman.
14. Jennifer Taylor saw the victim running, chased by five males who passed her. She saw him brought to the ground and initially attacked by one male. Two other males then joined in the attack which continued "mainly with kicking". She then saw a female kick the victim in the back. On 18 October, she too identified one of the attackers as Mason and the female as Leanne Beard.
15. Emma Morris heard a disturbance and a person cry "Come on everyone he has had enough". She saw the victim on the floor being kicked by a group of four males, one of whom she stated was the appellant whom she had known for four years.
16. It was the Crown case that there was evidence upon which an intention to cause grievous bodily harm could be established, but recognised that a lesser intention only might be proved against each defendant. The prosecution therefore indicated that they were prepared to accept a collective plea to manslaughter.

The decision to plead Guilty

17. No firm agreement was reached and, prior to trial listed for 13 November 2002, the prosecution circulated a written opening of the case. On the day fixed for trial, the Crown were given leave to add a Count of manslaughter to the indictment which required all defendants to be arraigned on the new count. The matter was listed for 10.30am, but adjourned to permit consultations to take place between counsel and the defendants which lasted for the whole of the morning of 13 November. With the agreement of the parties' respective legal representatives, the appellant and his co-defendants had a meeting without any representatives present in the cells at around midday to discuss their respective positions.
18. Following that meeting, the appellant discussed with his counsel, Mr Patrick O'Connor QC and Mr Granville-Faul the strength of the prosecution case and in particular the evidence as to the extent of the appellant's participation. Counsel considered a plea to be advisable. A considerable practical difficulty emerged in that the appellant accepted the advantages of a plea as put to him; however, he disputed that he had kicked the deceased or joined in the assault on him. At the same time, faced with the CCTV film, he stated that he could not remember seeing any part of the assault despite the fact that the film evidence made clear that he must have done and indeed showed him approaching the scene of the attack with Leanne Beard who had herself been identified by several witnesses as at the centre of the assault and who was proposing to plead guilty on the basis that she admitted kicking the deceased.
19. While, in principle, the appellant was prepared to entertain a plea to manslaughter in order to avoid the risks of trial on a murder charge, the basis of his plea (or at any rate a basis satisfactory to the Crown) was problematic. The difficulties were discussed at length. A position was reached where the appellant appeared simply unable to make up his mind whether or not to plead guilty on the basis that he had participated in the joint enterprise of an attack on the victim, without accepting that he had kicked him, as alleged by the Crown.
20. At 2.30pm on that day, so that the trial could proceed, Patrick O'Connor QC, requested that the appellant be arraigned first. At that stage his representatives were unaware as to how he would plead. They had discussed the matter with him and advised him of the strength of the prosecution case and left him to decide on his plea. When the indictment was put to the appellant he pleaded 'Not Guilty' to Murder but 'Guilty' of Manslaughter.
21. Following the appellant's guilty plea, the court adjourned, counsel for the co-defendants having indicated that their clients were also likely to plead guilty to the new count of manslaughter.
22. Guilty pleas were entered by Hodgson and Leanne Beard on the following morning i.e. 14 November, and written bases of the defendants' pleas were submitted. Leanne Beard pleaded guilty on the basis that she had participated in the assault and had kicked the deceased twice in his lower back area. Hodgson limited his participation to punching the deceased. However, at that stage of the proceedings his plea on that basis was not accepted by the prosecution which submitted that he had also kicked the deceased during the attack.
23. On that morning, prior to the court sitting, the appellant had informed his legal representatives that he was unhappy with his plea of the day before. He received further advice from all members of his legal team upon the merits of the plea and the consequences of change, including the fact that his counsel would have to withdraw from the case. Later, he was advised separately by Mr Granville-Faul, with whom he had a particularly good relationship, and who had represented him at his previous trial. In the light of the appellant's expressed uncertainty as to whether or not to withdraw his plea, Mr Granville-Faul advised him to consider his position for a few days before coming to any conclusion and the appellant accepted that advice.
24. In court during the morning, the defendant's written bases of plea were discussed before the judge. The basis of plea proffered on the appellant's behalf in the light of his instructions read as follows:

"Carl Mason has pleaded guilty to manslaughter on the following basis;

(i) that Carl Mason was friendly with Michael Brolly inside Edwards' Bar, but Michael Brolly appears to have bumped into Leanne Beard on his way out of the bar and that Carl Mason tried to restrain Leanne Beard from attacking Michael Brolly outside Edwards' Bar.

(ii) that Carl Mason and Leanne Beard followed a group of men chasing Michael Brolly at some distance behind, walking rather than running, and pausing at the junction of Skelgate to see which way the chase had gone.

(iii) that Carl Mason's involvement in the assault came after Michael Brolly had already been forced to the ground, punched and kicked to the body and head by others repeatedly and he was probably already unconscious.

(iv) it is accepted that Carl Mason was a participant in a joint enterprise which resulted in the death of Michael Brolly."

25. The judge pointed out that the basis of the plea failed to state specifically what the appellant had done at the scene. The following exchange took place:

"MR RUSSELL: I understand that Mason is unable to recall precisely what he did, but I have been handed a document, perhaps we can hand up the typed copy to your Lordship on that.

…..

MR O'CONNOR: Because there is a wider basis of plea which is more properly called our mitigation, this is the agreed basis of plea, and I am very grateful to my learned friend because he has gone a very long way. So if I may write on this, "Agreed by Crown", and then it can't be confused with any other material we place before your Lordship later. This is the only copy at the moment.

MR JUSTICE TREACY: … It doesn't actually say what Carl Mason did at the scene?

MR RUSSELL: No, that's what I'm about to deal with as I understand it, my Lord. I understand that Mr Mason is unable to recall precisely what he did. But my learned friend has indicated to me that the Crown evidence that he was involved in kicking can't be disputed in those circumstances, and what I propose to do in relation to his case is to open what seems to the Crown to be the salient facts and mitigation can be put forward in the usual way.

MR JUSTICE TREACY: Yes."

26. On 14 November 2002, the matter was adjourned for sentence so that pre-sentence reports could be obtained for the appellants' co-defendants. A report was not sought in the case of the appellant as he was already serving four years' imprisonment for an offence of wounding which had been committed while he was on bail in respect of the present offence. The case was listed for sentence on 9 December 2002. During this interim period, however, the appellant dispensed with his legal advisers and his new representatives notified the court of an intended application to vacate his guilty plea on the ground that he had been denied freedom of choice and had been subject to unfair and improper pressure prior to making it, having always maintained that he was not guilty of the offence.

The application to vacate the plea: 4 March 2003

27. A hearing date in this connection was fixed for 30 January 2003. Upon that and the next day the judge heard evidence from the appellant and his former counsel Patrick O'Connor QC and Granville Faul, the appellant having waived privilege. The hearing could not be completed because of the absence of Mr Whitely whose evidence was heard on 4 March 2003, following which the judge made his ruling.
28. The appellant gave evidence that, at the meeting with his co-accused, he had let them know that he wished to go to trial, despite the fact that they made clear that they wanted a deal. He said that he knew the case against Leanne Beard was very strong and he tried to reassure her. He said that Jason Hodgson had said "Its up to you". He wanted it out of the way in order to see his children. The appellant had told him he would be all right and maintained his position that he was going to trial. He said that later, when discussing it with Mr O'Connor QC and Mr Granville-Faul he had said that he did not know what to do. They considered that a plea was the best thing to do and talked about consecutive or concurrent sentences. He said that he had been in shock at the time. He acknowledged that counsel's advice was 'sensible' in that they were thinking in the long run. He said that he had never told them that he accepted assaulting Brolly and said that he did not do the crime. When challenged on this in cross-examination, he rejected the suggestion that he had in fact accepted that he might have assaulted Brolly but now could not remember. He said he did not know what to do when he got to court. He realised that the trial had to proceed and that a decision was required but he could not make that decision. The solicitor's note as to his evidence concerning his state of mind at the time of his plea reads as follows:

"The indictment was read to me … manslaughter charge. I didn't answer straight away. I don't recall delay. I was in a state of shock. I was thinking "What am I doing". I did plead to manslaughter."

29. He said that he heard the case adjourned and returned to the cells where no-one came to see him at that stage.
30. He said that on 14 November, Mr Whitely came to see him and the appellant told him he was not happy and wished to withdraw his plea, having made a mistake. Shortly afterwards, he saw his counsel and said he wanted to withdraw the plea and was not happy with how it had been dealt with. They advised him that he should not withdraw his plea that day but should think further about it. He was present when his co-accused entered their pleas that day and the case was then adjourned to 9 December. Afterwards he had a meeting with Mr Granville Faul who spent some time with him telling him he had done the right thing by not withdrawing his plea at that stage. He made clear that the appellant would lose a lot of credit if he did so. The appellant said that he understood why he said that. He said that his basis of plea was first discussed after his co-defendants pleas had been taken. In that connection he made clear that he could not accept that he had kicked the victim: "Those words would not come out of my mouth". He said that O'Connor told him that the plea could be put on the basis that he was drunk. He said that he understood that the basis of his plea included the assertion that he could not recall events in York that night, but he had not realised that meant that he could not dispute the witnesses' account. He only realised that fact when it became clear in court. He said he recalled mention on 14 November by the judge that the basis of plea did not admit what the appellant had in fact been doing and that was the first time he realised that in the mitigation statement he was "accepting what the witnesses said". When later Mr Whitely sought to discuss the question of the plea with him, he said that he wanted to go to trial and would have to sack his representatives in favour of a new legal team.
31. He acknowledged in cross-examination that, prior to 13-14 December, he had had many discussions about the strengths and weaknesses of the Crown's case and the defence case and had been advised as to the benefits of a plea to manslaughter. The possibility both of all three defendants pleading and of the appellant pleading alone were discussed. He was not surprised that such a course was considered. He was aware of the benefits of pleading to a lesser offence because of his earlier trial. He acknowledged that the risks were discussed as to whether or not Croft would be an effective witness and strengths of the prosecution case and the weaknesses of the defence case were generally discussed. He said he felt pressurised by repeated requests as to what he was going to do. He had not made up his mind until the moment of plea that he would in fact plead. Mr O'Connor had told him that he would fight the case for him but that he would probably lose, in which case the appellant would get life. "He did say he would fight the case and probably lose. He said it was in my best interests. A matter for me. He would fight the case."
32. He asserted that he had 'jumped at the chance' of meeting the co-defendants. He reasserted that at that meeting he had told them he wished to go to trial and that was how it was left. He remembered seeing Mr Whitely just before he came in court:

"He didn't put me under pressure. I said I didn't know. I was thinking about Leanne and Jason … I knew their cases hinged on my decision …. I realised all had to plead. My position was uncertain. They would act in reliance on my plea. They could enter their pleas and deal be concluded."

33. He said that afterwards he realised that, if he reversed his position, it would affect Leanne and Hodgson. Later when he told the team he wanted to withdraw and mentioned new representation, they told him to go back and think about it. Although he wanted to sack them that day he was told delay would make no difference. He was told the decision was up to him, but in the view of counsel it would be a big mistake as neither the judge or the co-accused would be happy.
34. It is unnecessary to recount the evidence of Mr Whitely, Mr O'Connor and Mr Granville-Faul, all of whom were cross-examined by counsel for the appellant. There was broad agreement as to the account of events, but not that the appellant said that the question of a collective plea was first discussed on 13 November. His advisers said that the offer of a collective plea had been known and discussed from a substantially earlier date. The principal issue was whether or not events and defence counsel had placed unfair pressure on the appellant to plead guilty. Counsel were also criticised in that (a) they had never stated in terms to the appellant that he should not plead guilty to something he had not done. (b) Once the appellant had manifested doubts as to his plea on 14 November, he had been advised to think it over for a few days rather than seek to change his plea then and there.
35. The judge gave a lengthy and careful ruling.
36. He reviewed the law relating to a defendant's right to apply to vacate a plea of guilty and considered the cases of Hall [1968] 52 Cr App R 528 and Turner [1970] 2 QBD 321 observing that in the former case the Court of Appeal had stated clearly that the responsibility of pleading guilty or not guilty was that of the defendant himself, it being the clear duty of defending counsel to assist the defendant to make up his mind by putting forward the pros and cons of a plea, if need be in forceful language, so as to impress on the defendant the result of what a particular course of conduct is likely to be. In the latter case, this court reiterated that counsel may properly advise the defendant in strong terms to change his plea, provided it is made clear to him that the ultimate choice is freely his. The judge also stated that he had regard to the convenient restatement of the general legal principles in the case of R v B EWCA Crim 3020. He observed that:

"If there is a real possibility that a defendant did not have a free choice as to plea, or that there were other circumstances which called into question the genuineness of that plea, and if there is an objective basis for such a finding, this court should exercise its discretion to permit a change of plea."

37. He then dealt methodically with the grounds which had been advanced before him under the headings which we set out in heavy type below.

Denial of guilt until time of trial

38. The judge did not find this a persuasive factor as very many defendants did just this. Indeed the defendant had done so in relation to the charge under section 18 of the Offences Against the Person Act with which he had been faced shortly after being charged with the murder in this case. He said that detailed denials were often transformed into guilty pleas when the Crown was prepared to consider a plea to a lesser charge. He found that, when instructing his solicitor and counsel that he was not guilty, but at the same time claiming that he could not remember through drink the detail of what he did on the night in question, the appellant was in effect saying "Well, I would never have kicked someone like that." The judge found that the offer of a collective plea to manslaughter had been made by the Crown some weeks prior to trial and discussed with the appellant by his counsel two or three weeks prior to trial, at which stage the appellant had not dismissed a manslaughter plea out of hand but thought it might be attractive. It was not a sudden event thrust upon the appellant, but rather was one he had had ample time to consider in the light of advice as to his position given well before trial. The judge said:

"I can conclude that, like many in his position, he postponed any decision (a) until it became clear what others were doing and (b) until he actually had to give his decision."

Discussion with co-accused

39. The judge did not regard this as a significant event resulting in unfair pressure on the appellant to plead guilty. On the appellant's own evidence, no pressure was put upon him by Hodgson and Beard. On his own account, at the end of the meeting, he was still minded to go to trial. There was no pressure from his co-accused. The judge stated:

"Further, I reject the suggestion that knowledge that they stood or fell together resulted in his making a decision which was not genuinely his. It is, no doubt, not an easy situation to be in, when faced with a decision of considerable importance, but there is nothing unusual in Mr Mason's situation as it then was."

Improper pressure by counsel

40. This complaint had principally been raised against Mr O'Connor. The judge observed that it emerged in evidence less strongly than in the appellant's witness statement. The judge's conclusions were that (i) the case had been thoroughly prepared for trial by the solicitor and both counsel; (ii) the weaknesses of the appellant's case had been fully and fairly explained to him; (iii) that such advice as was given did not transgress the limits discussed in Turner and Hall; no improper pressure was brought to bear upon the appellant; (v) the appellant was simply finding it hard to make a decision and was unwilling to look clearly and logically at the issues; (vi) the ultimate decision was left up to the appellant. The judge found that at the time of the plea:

"The reality is that, although counsel had given clear and firm advice, as they were bound so to do, they had not forced the defendant's hand. They had left it for him to decide when he came up to court and entered his plea of guilty, it was no doubt influenced by their advice, but it was truly his own decision."

The defendant's condition on 13 November

41. The judge stated that he had no doubt that by 13 November the defendant was in a state of anxiety. However, having examined the evidence of Mr Faul who was the last of the legal advisers to see the appellant before entering his plea, the judge said:

"Those last exchanges between Mr Granville-Faul and Mr Mason demonstrate not only the absence of improper pressure by counsel but also that Mr Mason albeit anxious, was rational and capable of making the decision. If anything, Mr Granville-Faul's words eased the way for Mason to say Not Guilty, had he wished to do so. Yet Mr Mason ultimately decided otherwise by coming up to court and pleading guilty to manslaughter.

I do not find that there was anything to render the plea unsafe or doubtful based on the defendant's condition, or that pressure and stresses he faced were greater than those facing many other defendants in a difficult position before having to make an important decision. There is some truth in an observation made by Mr O'Connor, that however long Mr Mason had to consider, he would have vacillated until the last moment."

Advice given and written basis of plea

42. The judge held that it was clear that the appellant knew the evidence against him well and understood it. He had discussed it at length and over time with his advisers. While he was reluctant to plead guilty to manslaughter and at no stage told his advisers that he was guilty, he knew what it would involve admitting if he did plead guilty. The judge rejected the submission that counsel were at fault in not saying that the appellant should not plead Guilty to something he had not done, or that they had no authority to put forward the basis of plea. He found that, by reason of earlier experience, as well as the advice he had received, the appellant was under no misapprehension in respect of the former. As to the latter, the judge stated:

"I accept that Mr O'Connor's evidence, complemented by that of Mr Granville-Faul, that Mason was told in effect "If you plead guilty you must realise that by doing so, you will accept that you took part in the assault and since you say you can't recall what you did, it will have to be on the basis of the evidence for the Crown.

By entering his guilty plea, the defendant was therefore acknowledging this and Mr O'Connor was entitled to produce and put before the court the document entitled 'Basis of Plea' which accurately reflects what the defendant had been told would be implicit in his plea of guilty if tendered …

I consider that Mr O'Connor was entitled to proceed as he did and to reserve the question of that specific injury to mitigation. In the circumstances, I do not consider that the way in which these aspects of the matter were handled advances the defendant's application."

The events of 14 November

43. The judge said it was clear that on 14 November the defendant was unhappy with his decision; he also said that he had no faith in Mr O'Connor and talked to his legal team about changing his plea. The judge stated that the appellant was properly advised about the matter, Mr O'Connor going up to court and preparing a note for a submission asking for further time so that the defendant could change his plea, while Mr Granville-Faul went to see the defendant on his own. The judge accepted the latter's evidence that he did not receive clear instructions that the appellant would withdraw his plea; just that he was generally unhappy with it. He had advised the appellant that a change of plea was a very serious thing to do. The appellant had understood what he was told and said he would think about it. Mr Granville-Faul then told him to think about it for a few days and that is how the matter was left before the return to court.
44. The judge said this:

"That is why Mr O'Connor did not make any application to me to vacate the plea or any other application related to it. Mr Mason then did nothing in court during the hour or so that ensued to seek to change his plea there and then, even though there was a 15 minute break during that period for the Crown to take instructions on an unrelated matter.

It seems to me that the key to this matter is whether the plea tendered on 13^th November was voluntarily entered. The fact that the defendant was subsequently unhappy about his decision cannot invalidate it if it was freely made, although I have regard to the events of 14^th November when looking back at the events of 13^th November … I conclude that [on 14^th November] although generally unhappy, he was not wishing an application to be made that day or giving instructions which would require counsel to do so. As we now know, he decided he wanted to change his plea the following week."

45. The judge concluded:

"I find no objective material to lead me to conclude that this unequivocal guilty plea was entered on 13^th November in circumstances which would cause me to doubt that the decision was that of the defendant, freely entered on an informed basis.

I find no other ground which would lead me to feel that there is a real possibility that the plea was given in circumstances which render it suspect. Accordingly, I refuse the application."

The second application to vacate the plea: 16 June 2003

46. Following his rejection of the first application to vacate the plea, and because of the evidence of Mr O'Connor to the effect that he had intended to mitigate on the basis that Mr Mason had not personally been involved in kicking the victim, Treacy J indicated that he thought it appropriate to hold a Newton Hearing on that issue. Two successive dates fixed for that purpose had to be vacated by reason of the appellant's illness and the hearing was eventually arranged for 16 June 2003 for which purpose the Crown had originally proposed to call Mr Croft as a witness, but by which time various difficulties had surfaced. Upon 16 June, the Crown indicated that it was not in a position to call Mr Croft as he was facing possible charges for providing false information in support of a colleague in a recent incident of violence. Counsel for the Crown made clear that he was not abandoning Mr Croft as a witness of truth in these proceedings but indicated that for present purposes he was not in a position to call him because (a) it would be necessary for defence counsel to investigate the fresh material which had come to light and (b) it was likely that, in the course of that investigation Mr Croft would be cross-examined in a way that made it necessary to advise him of his privilege as to self-incrimination. There were other witnesses who could provide evidence, but they fell into a category of supporting evidence when compared to that of Mr Croft and, in the circumstances, the Crown formed the view that it would not be right to press the court to a finding positively against the appellant that he had been personally involved in kicking the deceased. Emma Morris was not considered a reliable witness in that she had previous convictions for possession of drugs and there was some suggestion that she was addicted at the time of the offence and Wayne Wheatland had gone abroad. The Crown took the view that, in the circumstances, it was not appropriate to submit an application to rely on his evidence pursuant to section 23 of the Criminal Justice Act.
47. In those circumstances, the judge stated that he would sentence the appellant on the basis that he had been involved in the crime of manslaughter of the deceased but that it was not aggravated by any personal kicking on his part. That was, of course, the very burden of the appellant's basis of plea and reflected the basis upon which he had originally been prepared to plead guilty.
48. In the face of these developments, counsel for the appellant submitted that the appellant should be permitted to vacate his plea of guilty on the basis that the advice given to the appellant by his counsel on 13 November 2002 would have been different had the defence been aware of the information in relation to Andrew Croft, who was the primary witness for the prosecution. The judge did not accede to the application. He said that the unequivocal plea tendered in November 2002 (as he had already found) was in reality an admission of a participation in a joint attack upon the deceased, voluntary in nature and made on an informed basis. He characterised the plea as "a public and voluntary acceptance by this defendant that he took part in an unlawful attack".
49. In the judge's view the subsequent discovery of misconduct by Croft did not affect the situation. The incident in respect of which he was facing possible charges occurred in April 2003 i.e. well after the entering of the plea. The judge said the position might have been stronger from the defendant's point of view if any non-disclosure prior to plea had been involved. However, the allegations against Mr Croft arose out of an incident well after the date when the plea was tendered, let alone that of his original statement i.e. 21 September 2001.
50. The judge summed up the matter in this way:

"It is right that one should have in mind that although the evidence of Mr Croft plainly played an important part in the case to be considered by those advising Mr Mason, it was not the only evidence. There was plain evidence of his presence; there was CCTV evidence which … demonstrated that such version of events as Mason was putting forward to his legal advisers could not be correct; there were other witnesses who implicated Mr Mason; the evidence was of a pack of people chasing Mr Brolly through the streets of York, in retaliation or revenge for previous misconduct of Brolly earlier that evening, and there was evidence which made it plain that Mr Mason had been part of the group which had been subjected to Mr Brolly's misconduct and was part of the group which pursued him subsequently. It was also a relevant factor to be borne in mind by those advising – as was indicated to me by Mr O'Connor – that if the matter proceeded as a trial on murder, evidence in relation to the co-accused, Mr Mason's girlfriend, Leanne Beard, was likely to be such as to make the task of those defending Mr Mason the more difficult.

In my judgment the new features of information which have arisen in relation to Mr Croft are not such as to cause me to exercise my judgment and to allow this defendant to change his plea. I regard the matters which have arisen as matters which had no influence upon the plea which was tendered in the sense that it was left to this man to decide whether he accepted he had participated or not in the joint enterprise resulting in Mr Brolly's death. The information that was available to him then was information upon which he had to make his decision. The subsequent allegations which have been made against Mr Croft, in my judgment, do not affect the voluntariness or the validity of the plea then tendered, and I decline to accede to the submission made to me."

The Grounds of Appeal

51. The Grounds of Appeal as originally drafted assert that the judge erred in principle on the established facts and wrongly exercised his discretion on both 4 March and 16 June 2003 when refusing the applications of the appellant to vacate his plea. However, in the course of the appeal, Mr Smith QC for the appellant accepted that there were no grounds upon which the judge's exercise of discretion on 4 March could be successfully challenged in that no error of law was demonstrable. Nor could it be shown that the judge considered the facts and submissions other than fully and fairly in reaching a decision which was properly open to him.
52. We have no doubt that Mr Smith was correct to make that concession. We start, as did the judge, with the succinct statement of the position by this court in R v B [2002] EWCA Crim 3020 per Laws LJ.

"The law is very clear. The court of trial possesses a discretion to allow a defendant to change his or her plea of Guilty to one of Not Guilty at any time before sentence even though the plea may be said to be unequivocal: see the decision of this court in Dodd (1981) 74 Crim App R (s) 50. The discretion must of course be exercised judicially. There must be some objective basis for allowing the plea to be changed. Some of the cases however, show that the discretion is, generally speaking, exercised sparingly in the defendant's favour. In Cantor [1991] Crim LR 481 it was made plain that this court would not lay down any rules of practice concerning such changes of plea. It was for trial judges to decide how to respond to an application for that to be done."

53. As made clear in Dodd, the question is not simply whether the plea was unequivocal; it is important that it should be freely made, given its status as a public acknowledgement and confession of guilt see S v Recorder of Manchester [1971] AC 481 per Lord Morris of Borth-y-Gest at p.501. In that connection, it is plainly important, almost invariably by the hearing of evidence, to investigate the position where it is suggested that the plea of guilty was made under undue pressure, that is to say (in the case of a person who is not suffering from illness or handicap) pressure beyond that inevitably incident to the criminal process and the need for the defendant at the appropriate time to record a plea, so that the trial may proceed. However, if the judge investigates that question fully and fairly, taking into account the various factors brought to his notice and concludes that there are no good grounds for allowing a change of plea because the plea represents a free and genuine acknowledgement of guilt, then it is inappropriate for this court to interfere. As stated by Lord Lane CJ in Drew [1985] 1 WLR 914 at 923c:

" … only rarely would it be appropriate for the trial judge 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."

54. Thus, for an appeal to succeed in respect of a trial judge's exercise of discretion to refuse a change of plea from Guilty to Not Guilty:

"It must be shown that the judge misdirected himself or took account of matters which he should not have taken account of or failed to take account of matters to which he should have had regard or that he exercised his discretion in a wholly unreasonable manner." see Hafeiz Sheikh and others [2004] EWCA (Crim) 492 per Mantell LJ at para 18.

55. Mr Smith rightly recognised that such could not be shown to be the case in respect of the judge's ruling on 4 March.
56. Nonetheless, he submitted that, in relation to the judge's ruling on 16 June, there is demonstrable an error of principle on the part of the judge in discounting the effect of the revelation in respect of Mr Croft's liability and the consequent decision of the Crown not to rely upon it at the Newton Hearing. It is submitted that the judge's observation that the subsequent discovery of misconduct by Croft which post-dated the original "unequivocal and unfettered plea of guilty" did not affect its substance, demonstrates an error of principle, or at least an error of approach, in the light of the observations of the House of Lords in S v Recorder of Manchester (above) to the effect that matters which only come to light at the sentencing stage may be prayed in aid of an application to change a plea of Guilty to Not Guilty. Mr Smith relies upon the observations of Lord MacDermott at p.493:

"The evidence relevant to the commission of an offence is generally relevant to the sentence. That part of the hearing which is directed to the sentence may well cast new light on the question of guilt or innocence. I think it is safe to say that this has long been recognised and the tenor of English law has been against erecting any barrier between these two parts or stages which would place them, as it were, in watertight compartments and so reduce the scope of judicial ascertainment and discretion … Every experienced judge knows that, even in uncontested matters, the truth has a habit of emerging in bits and pieces, and that the legal ingredients of the offence charged may not be fully understood by the accused … Once made, a mistaken plea may be properly accepted and the mistake may never stand revealed. But if, as can happen, the truth comes to light during the second stage of the proceedings, when the question of what to do with the accused is under consideration, why should it not be acted upon and a changed plea of Not Guilty allowed where the interests of justice so require?"

57. Similarly, at p.501, Lord Morris stated:

"If, before the court has completed its task in regard to the case, an application to withdraw the plea is made and if it is made for reasons the court deems valid and which perhaps it had previously had no opportunity of considering, is the court powerless to accede to it? It would be lamentable if that were so. The court might feel that having regard to the reasons advanced it would be wholly wrong to hold a person to some previous acknowledgement of guilt. The desire of any court must be to ensure, so far as possible, that only those are punished who are in fact guilty. The duty of a court to clear the innocent must be equal or superior in importance to its duty to convict and punish the guilty. Guilt may be proved by evidence. But also it may be confessed. The court will, however, have great concern, if any doubt exists as to whether a confession was intended or as to whether it ought really ever to have been made."

58. Mr Smith submits that the reference to "the truth" coming to light during the sentencing stage of the proceedings must in practice mean the strength of the prosecution case. He submits that, with Croft abandoned as a witness, Wheatland absent, and only the "second line" witnesses available (they not being regarded as sufficient at the Newton hearing to establish that the appellant had kicked the victim), the strength of the prosecution case was reduced to a level at which the advice of Mr O'Connor as to the wisdom of a plea would inevitably have been different. In those circumstances, because it was still open to the appellant to change his plea prior to sentence, he should have been allowed to do so.
59. We do not accept those submissions. We do not think that any misunderstanding of the proper principle or approach is apparent in the full careful and considered ruling of the trial judge. The judge's comment that the subsequent discovery of misconduct by Croft did not affect the situation was directed to his observation that the appellant's plea of guilty was a public and voluntary acceptance by him that he took part in an unlawful attack. The point he was making was that, as matters then stood, nothing had by then happened or was known to the prosecution or defence which affected the apparent veracity of Mr Croft. The judge went on to say that, if the Crown had then been aware of such matters and had not disclosed them, then an argument might have been mounted that such non-disclosure tainted the plea entered because it was given on the basis of evidence which could not be attacked so far as the credit of the witness was concerned. However, that was not the position; so the judge went on to consider whether, in the light of the allegations now made against Croft, there was reason to doubt the 'truth' of the charge in relation to the basis upon which the plea was put forward.
60. He was correct to do so. As this court observed in McGovern, 13 February 1998 unreported (9701076/X4):

"What is, of course, highly material is whether or not on the Crown case there was evidence to support the charge in the terms to which the plea was entered and whether or not the instructions given by the defendant at the time the plea was entered were consistent with the basis of the plea being put forward."

61. The judge said this:

"When I gave judgment in this matter on the 4^th March 2003, I said this, "I accept Mr O'Connor's evidence, complemented by that of Mr Granville-Faul, that Mr Mason was told, in effect, 'If you plead guilty you must realise that you accept you took part in the assault'. By entering his guilty plea the Defendant was, therefore, acknowledging this, and Mr O'Connor, Queen's Counsel, was entitled to produce, and to put before the court, the typed document entitled, 'Basis of Plea' which accurately reflects what the Defendant had been told would be implicit in his plea."

62. The judge went on to consider the apparent truth of the matter in the light of the evidence available to the Crown, even if Mr Croft's evidence was put on one side. He summed it up in the passage we have already quoted at paragraph 50 above. We do not consider that passage can be faulted or, indeed, improved upon.
63. Had the position been that events subsequent to the plea, or material which had subsequently come into the possession of the prosecution, negated the basis of the appellant's plea, or affected it to the extent that it demonstrated or gave rise to doubts whether the basis of plea was correct, or had Croft's evidence been the sole matter upon which the prosecution relied, the position might well have been different, in that it would have raised doubts as to the correctness of the plea, albeit freely given. However, that was not the case. Had the trial proceeded against all of the defendants without the evidence of Croft, there would nonetheless have been the evidence of the CCTV camera, of the witnesses described at paragraphs 2-16 above, and the undisputed fact that the appellant was throughout accompanying Leanne Beard who had herself been seen kicking the victim and had his blood on her shoes. There was thus not only no objective reason to doubt that the plea was freely given at the time; there was no objective reason to doubt its truth in the sense that the appellant was, at a late stage in the attack, present and participating as set out in his plea, albeit the Crown were accepting in relation to the Newton hearing at least, that it was not in a position to prove that the appellant himself kicked the victim.
64. In the result, the appellant was indeed sentenced upon the basis of his plea, and not upon the basis that he kicked the victim, the very matter which had originally caused him to seek to withdraw his plea once given.

Conclusion

65. We are wholly satisfied that the judge's exercise of discretion upon 16 June was correct and that there can be no suggestion of injustice in this case. The appeal against conviction is therefore dismissed.
66. The appeal against sentence will be dealt with following the handing down of this judgment.