England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		22nd November 2011

LORD JUSTICE JACKSON:

1. This judgment is in four parts, namely;

Part 1: Introduction;

Part 2: The Facts;

Part 3: The Criminal Proceedings;

Part 4: The Appeal to the Court of Appeal.

Part 1: Introduction
2. This is an appeal against conviction and an application for leave to appeal against sentence in a rape case. In relation to conviction, the issue between the parties is whether the appellant should have been allowed to withdraw a plea of guilty which he had entered after taking counsel's advice. It is well established that if the court gives leave, a plea of guilty may be changed to not guilty right up to the moment when sentence is passed. However, the court will not give leave for a change of plea unless there is good reason to do so. This is rarely the case if the defendant enters his plea of guilty after taking advice from experienced counsel (see R v Drew (1985) 81 Cr App R 190)
3. Another important issue which arises concerns apparent bias. We shall deal with that aspect of the law when it arises in the narrative of this case.
4. After these introductory remarks we must now turn to the facts.
Part 2: The Facts
5. On the evening of 1st May 2010 the appellant (who was aged 18) attended a stag night in Blackpool. At about 6 a.m. the following morning the appellant was in the vicinity of Blackpool Promenade looking for his hotel. He met a young woman (aged 20), to whom we shall refer as "M". M, like the appellant, had spent the previous evening socialising in Blackpool. Both of them had drunk a quantity of alcohol. The appellant and M struck up a conversation. They appear, at least for a time, to have got on amiably. We say that because CCTV footage from a nearby McDonalds restaurant shows the appellant and M having breakfast together and behaving like a normal couple.
6. Subsequently, as is common ground, there was a sexual encounter between the appellant and M. They had sexual intercourse. Also the appellant inserted his finger into M's anus. What is in dispute between them is whether M consented to that sexual encounter. M says that she did not consent. On the contrary, she objected strongly. The appellant, on the other hand, says that M participated willingly in the sexual encounter, although she asked to be paid £50 if they were going to have sexual intercourse. The appellant says that he agreed that sum and he paid £20 on account.
7. Whether or not the sexual encounter was voluntary, the appellant and M certainly fell out at the end. When the appellant left, he took M's mobile phone from her handbag. There is no dispute that that action constituted theft.
8. M promptly reported the incident to the police. She said that she he had been raped and sexually assaulted and also that her mobile phone had been stolen.
9. In due course the appellant was arrested and interviewed by the police. He admitted that he had had sexual intercourse with M and that he had put his finger into her anus. He asserted however that all activity between them had been consensual. The appellant's account was not accepted by the police. Accordingly, criminal proceedings were commenced.
Part 3: The Criminal Proceedings
10. On 5th May 2010 the justices in Blackpool committed the appellant for trial to the Preston Crown Court. The Crown Court prepared an indictment containing three counts. Count 1 was rape, contrary to section 1 of the Sexual Offences Act 2003. Count 2 was assault by penetration. This related to the penetration of M's anus with his finger by the appellant. Count 3 was theft and related to the stealing of the mobile phone.
11. A plea and case management hearing was fixed for 29th July 2010. The appellant instructed a firm of solicitors in Preston and gave them a version of events along the same lines as his police interview. Mr Michael Hayton, a member of Dean's Court Chambers in Manchester, was instructed as defence counsel. Mr Hayton spends a substantial proportion of his time in Preston and his chambers have an annex in Preston.
12. On 20th July 2010 the appellant attended a conference with counsel. At this conference counsel gave robust advice as to difficulties which the appellant would face at trial and the sentence reduction which could be achieved by a plea of guilty. The appellant was distressed by this advice and a further conference was arranged to be attended by the appellant and his mother. The further conference duly took place on 27th July. Counsel gave similar advice. On the day after that conference the appellant's mother telephoned the solicitors to say that the appellant would plead guilty.
13. On 29th July the appellant was arraigned at Lancaster Crown Court where Mr Hayton was conducting a trial. The appellant pleaded guilty to all three counts. Before doing so, he signed an endorsement, prepared by Mr Hayton, in the following terms:

"I have had explained to me the merits of my case... I have decided to plead guilty of my own volition."

14. On 20th September 2010 the appellant appeared for sentence before His Honour Judge Knowles QC at Preston Crown Court. Further information was required about injuries caused to M and about other matters concerning the appellant. In the circumstances, after the case had been opened, the judge adjourned the sentencing so that the necessary further information could be obtained. There was no application for bail. The appellant was remanded in custody.
15. Both the appellant and his mother were dissatisfied with the advice which they had received and the course which events had taken. Accordingly, they instructed different solicitors and counsel and sought advice from their new legal team.
16. As a result of advice received from the new legal team, the appellant applied to Preston Crown Court for leave to change his plea to not guilty, in respect of counts 1 and 2. The appellant did not seek to disturb his plea of guilty to count 3. This application was listed for hearing before His Honour Judge Knowles in November 2010. That hearing commenced on 18th November, and it occupied one-and-a-half days of court time spread over four days. The appellant and his mother gave evidence in support of the application. The appellant waived privilege in respect of advice which he had been given by his previous legal team.
17. In opposition to the application, the prosecution called Mr Michael Hayton, the appellant's former counsel, and Mrs Walton, a clerk who was employed by the appellant's former solicitors.
18. In essence, the appellant's case was that Mr Hayton had given unduly pessimistic advice about the prospects of acquittal if the appellant maintained his plea of not guilty. Mr Hayton had put the chance of conviction by a jury at 90%. Mr Hayton gave his advice without waiting to see what the CCTV footage from McDonalds revealed. Mr Hayton had wrongly advised that the appellant was at risk of imprisonment for public protection (with a minimum term of 8-11 years) if he was convicted after a trial. In all the circumstances, Mr Hayton put undue pressure on the appellant to plead guilty to two sexual offences which he did not commit.
19. Mr Hayton maintained that he had given robust but realistic advice to the appellant about the prospects of conviction by a jury. The CCTV footage from the McDonalds would not assist the Appellant's defence since it related to events before the alleged rape. So far as sentence was concerned, Mr Hayton denied that he had mentioned a minimum term of 8 to 11 years. Although Mr Hayton had given robust advice, he denied that he had put pressure on the appellant to plead guilty.
20. The judge considered the evidence of all four witnesses and delivered his ruling on 25th November 2010. In that ruling the judge held that Mr Hayton had given proper advice to the appellant and had not put undue pressure upon him to plead guilty. The judge concluded that the appellant's plea was a free and voluntary acceptance of guilt. Accordingly he refused the appellant's application to change his plea.
21. On 26th November 2010 the appellant appeared before Judge Knowles at Preston Crown Court for sentence. The judge said that he would give credit of one-sixth in respect of the appellant's plea of guilty. That credit was reduced from one-third because of the appellant's unsuccessful attempt to change his plea. On that basis the judge sentenced the appellant to 6 years 3 months' detention in a young offender institution on count 1, to two-and-a-half years' detention on count 2 and to 8 months' detention on count 3. All three sentences were concurrent, thus the total sentence imposed was 6 years 3 months' detention.
22. The appellant was aggrieved by the judge's decision that he could not change his plea. He was also aggrieved by the length of sentence imposed. Accordingly, he appealed to the Court of Appeal.
Part 4: The Appeal to the Court of Appeal
23. The appellant applied to the Court of Appeal for leave to appeal against both conviction and sentence. In his original notice of appeal the appellant raised a large number of grounds of appeal against conviction, all of which were rejected by the single judge. Following that rejection by the single judge, the appellant instructed different counsel, Mr Anthony Evans QC, who abandoned all of the grounds of appeal except one. The one surviving ground of appeal which Mr Evans pursued appears as paragraph (f) in the notice of appeal. That reads as follows:

"because the case centred on the professional abilities of Preston-based Counsel the case should not have been heard at Preston Crown Court where the Judge presiding would have difficulty remaining objective and justice would not seem to have been done."

24. On 22nd September 2011 the Full Court granted the appellant leave to appeal against conviction on ground (f) alone. The court adjourned the hearing of the application for leave to appeal against sentence to the court hearing the conviction appeal. The appellant's appeal has come on for hearing today. Mr Evans appears for the appellant, Mr McEntee appears for the prosecution. We are grateful for the assistance of both counsel.
25. A note from Mr Hayton, dated 26th October 2011, reveals that he has never conducted a trial before Judge Knowles. However, he has appeared before Judge Knowles at four plea and case management hearings, one preliminary hearing, one mention and two sentence hearings. As to social contact, Mr Hayton's note reads as follows:

"I have spoken to His Honour Judge Knowles QC over the years when he was at the Bar. This has to my recollection amounted no more than saying hello in the robing room. I met him once on a train station and he told me all about the case he was in. I have spoken to him briefly on perhaps two occasions at Bar Mess. Again this has amounted to an exchange of pleasantries."

26. It is common ground that Judge Knowles was appointed to the Bench in February 2010. Preston is his home court but he also sits at Lancaster and Birmingham. Mr Evans submits that the judge should have pointed out to the appellant and his counsel on 18th November that he knew the principal witness for the prosecution. In those circumstances the judge should have raised with the parties whether the issue should have been tried by another judge. Mr Evans suggested today that the judge should have said something like: "Do you have any objection?" If the judge had raised this issue, the appellant's counsel could have applied for the matter to be transferred to another court.
27. That course was not followed in the present case. The judge did not raise the question of recusing himself and counsel, who was then appearing for the appellant, did not raise the issue either. In the circumstances, says Mr Evans, the judge's decision refusing leave to change the plea of guilty should be set aside on grounds of actual or apparent bias.
28. Having studied the evidence in this case and the judge's detailed ruling, we are satisfied that there is no question of actual bias in this case. Indeed, that was not the main focus of Mr Evans' submissions.
29. The real issue here concerns apparent bias. It is common ground between counsel that the test which must be applied is that set out in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357. That House of Lords decision arises out of the well known "homes for votes" saga in Westminster. Westminster City Council's auditor certified that certain Councillors had caused approximately £31 million loss to the council by their wilful misconduct. The House of Lords held that the auditor's decision was valid. Despite the fact that the auditor had issued a press statement in the course of his investigations, the House of Lords dismissed allegations of bias or apparent bias against the auditor. In reaching this conclusion the House of Lords modified the common law test for bias in the light of the Strasbourg jurisprudence on ECHR Article 6. At paragraph 88 of his speech Lord Hope noted that there was a close relationship between the concepts of independence and impartiality. He continued:

"In both cases the concept requires not only that the tribunal must be truly independent and free from actual bias, proof of which is likely to be very difficult, but also that it must not appear in the objective sense to lack these essential qualities."

30. Lord Hope formulated the test for apparent bias in these terms at paragraph 103:

"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."

31. In Gillies v Secretary of State for Work and Pensions [2006] UKHL 2, [2006] 1 WLR 781 the House of Lords was considering an allegation of apparent bias by a Tribunal member. In paragraph 17 Lord Hope elaborated the test as follows:

"The fair-minded and informed observer can be assumed to have access to all the facts that are capable of being known by members of the public generally, bearing in mind that it is the appearance that these facts give rise to that matters, not what is in the mind of the particular judge or tribunal member who is under scrutiny. It is to be assumed, as Kirby J put it in Johnson v Johnson (2000) 201 CLR 488, 509, para 53, that the observer is neither complacent nor unduly sensitive or suspicious when he examines the facts that he can look at. It is to be assumed too that he is able to distinguish between what is relevant and what is irrelevant, and that he is able when exercising his judgment to decide what weight should be given to the facts that are relevant."

32. The Privy Council returned to this issue in Belize Bank Ltd v Attorney-General Belize [2011] UK PC 36. At paragraph 39 of his judgment Lord Kerr cited with approval the following dictum of Lord Bingham in Prince Jefri v State of Brunei 2007 UK PC 8:

"The requirement that the observer be informed means that he does not come to the matter as a stranger or complete outsider; he must be taken to have a reasonable working grasp of how things are usually done."

33. With reference to the facts of that case, Lord Dyson stated at paragraph 68:

"... in the absence of any evidence to the contrary, the fair-minded and informed observer

would have confidence in the independence and impartiality of the judge. The fact

that judges have years of relevant training and experience and swear an oath to make

decisions impartially would be likely to be fatal to an argument of apparent bias..."

34. It is clear from this review of authority that the test which we must apply is the test of the fair-minded and informed observer. This fictional character is neither complacent nor unduly sensitive or suspicious. He or she has access to all facts known by the general public. He or she knows how things are usually done. He or she is aware that judges have years of relevant training and experience. He or she is aware of the terms of the judicial oath.
35. It may be thought that there are conceptual difficulties in creating a fictional character, investing that character with an ever growing list of qualities, and then speculating about how such a person would decide the question before the court. Nevertheless, this approach is established by high authority, and we shall follow it.
36. In our view, given all the circumstances of this case, the fair minded and informed observer would not suspect Judge Knowles of bias. There was no personal friendship between the judge and Mr Hayton. Their relationship was essentially a professional one, which had been supplemented by occasional brief meetings of no consequence. Any competent judge would be well able to put those matters out of his or her mind and evaluate the evidence of Mr Hayton, the appellant, and the other two witnesses fairly. We therefore conclude that the judge's decision of 25th November must stand and the appellant's appeal against conviction is dismissed.
37. Before parting with this issue however, we would add this following comment. At many court centres a safer practice is adopted for dealing with applications to change pleas. If an application is likely to involve a conflict of evidence between the defendant and his former counsel, a judge from elsewhere, who has no personal knowledge of the counsel involved, is brought in to deal with the matter. We commend that practice. It would have been better if this course had been adopted in the present case. If such a course had been adopted, the outcome of the appellant's application to change his plea would no doubt have been the same. But the appellant would not then have been able to raise the arguments which Mr Evans has so skilfully deployed on this appeal.
38. We turn now to the question of sentence. According to the sentencing guidelines, published by the Sentencing Guidelines Council, the starting point for an offence of rape against an adult victim is 5 years custody. In this case there were a number of aggravating features, in particular the appellant caused injury to M's anus by digital penetration. He forced her to lie naked on the ground. He ejaculated over her chest. There are also some mitigating features, in particular the appellant's youth and previous good character. There is also a discount of one-sixth for the plea of guilty which was given by the judge and which we regard as appropriate in the circumstances of this case.
39. We have carefully considered and weighed up the conflicting factors and special features of this case. Having done so, we conclude that a sentence, which was 1 year 3 months above the starting point is manifestly excessive. We grant leave to appeal against sentence and, on the appeal, we reduce the sentence to a term of 5 years' detention, less the time spent in custody on remand and half the time spent under curfew, all as set out in the judge's sentencing remarks. The concurrent sentences on counts 2 and 3 must remain as set by the judge.
40. Let us now draw the threads together. For the reasons set out above, we dismiss the appeal against conviction but allow the appeal against sentence to the extent indicated.