England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		8 September 2006

LORD PHILLIPS, CJ :

This is the judgment of the court.

Introduction

1. Three young men appeal by way of case stated against a decision of Central and South West Staffordshire Justices, sitting at Cannock Magistrates Court on 23 March 2006. By that decision the Justices refused to permit the appellants to withdraw pleas of guilty that they had entered to charges of dangerous driving. The appeal raises the question of whether the practice in relation to guilty pleas is compatible with Article 6 of the European Convention on Human Rights ('the Convention') and whether, on this occasion, the appellants received a fair trial in accordance with the requirements of that Article.

Background

2. The case stated contains no background facts, but to set it in context we will summarise the background as it appears from the documents that were placed before us.
3. At the time of the material events Ashley Revitt was 18 years old and the other two appellants were 19 years old.
4. On 9 November 2005 Mrs Carter, who was aged 53, was walking her dog in the early evening along a pathway when the appellants approached her on motorcycles at some speed. She was concerned for the safety of her dog, the more so when two of the motorcycles collided and one appeared to fall on her dog. That evening she reported the matter to the police. Unhappily, later the same day she died, sitting on the sofa in her lounge. She had a heart condition and it may be that the excitement of the events had proved fatal. It has not been suggested, however, that the appellants were, in law, responsible for her death.
5. On 12 November each of the appellants was arrested and interviewed on suspicion of causing a public nuisance. On 19 February 2006 each of the appellants was charged with:

(i) Dangerous driving contrary to section 2 of the Road Traffic Act 1988 ('RTA') and schedule 2 of the Road Traffic Offenders Act 1988 ('RTOA');

(ii) Driving otherwise than in accordance with a licence contrary to section 87 of the RTA and schedule 2 of the RTOA;

(iii) Using a motor vehicle without insurance contrary to section 143(2) of the RTA and schedule 2 of the RTOA;

(iv) Using a motor vehicle without a valid test certificate, contrary to section 47(1) of the RTA and schedule 2 of the RTOA.

6. The appellants appeared before the Bench at Cannock Magistrates' Court on 2 March 2006 and pleaded guilty to all charges in the circumstances set out in the case stated. Applications to withdraw their pleas of guilty to dangerous driving on that occasion were refused. Their cases were adjourned for sentencing. The appellants appeared for sentence on 23 March 2006.  Further applications to withdraw their pleas to dangerous driving were refused. It is the latter decision against which they appeal.
7. Each appellant was sentenced to four months detention in a Young Offender Institution and was disqualified from driving for 12 months, with appropriate licence endorsements. Bail was granted pending this appeal.

The case stated

8. The case stated has been drafted by the Justices' Clerk 'on behalf of all the Justices adjudicating'. It is not an impressive document in that two of the dates in the first paragraph are erroneous and the final "we" in the 5^th paragraph should read "they". We shall set out the case stated as drafted:

"CASE

1. On the 29^th February 2006 the 1^st, 2^nd and 3^rd Appellants were each charged with offences of Dangerous Driving, contrary to Section 2 Road Traffic Act 1988 and Schedule 2 Road Traffic Offenders Act 1988; Driving otherwise than in accordance with a licence, contrary to Section 87 Road Traffic Act 1988 and Schedule 2 Road Traffic Offenders Act 1988;Using a motor vehicle without insurance, contrary to Section 143 Road Traffic Act 1988 and Schedule 2 Road Traffic Offenders Act 1988; and using a motor vehicle without a valid test certificate, contrary to s47(1) Road Traffic Act 1988 and Schedule 2 Road Traffic Offenders Act 1988. The date of all offences was the 19^th November 2005.

2. The Court heard the said Informations on the 2 March 2006. We were advised by our Legal Adviser, from the file-notes for that date as follows: The Appellants appeared and were unrepresented. The Bench Legal Adviser explained the charges to the defendants and, after explaining each charge, asked each defendant if he understood that charge. Each defendant agreed that he understood each charge.

3. The Legal Adviser on 2 March 2006 explained to the defendants their right to "advance disclosure", and explained what that meant and that any solicitor representing them would ask to see those documents. Each defendant said that he understood, but declined the offer.

4. The Legal Adviser, explained to the defendants that the charges were serious, particularly that of dangerous driving, and explained that the starting-point for sentencing, if they pleaded guilty or were convicted of it, was a custodial sentence. The Legal Adviser then advised the defendants that they had the right to be legally represented and that it was in their interests to be represented, again explaining that they could receive a custodial sentence if convicted. Each defendant in turn was offered the opportunity of an adjournment to seek legal representation. Each defendant declined that offer.

5. The charges were put to the Appellants by the Bench Legal Adviser and each defendant pleased "Guilty" to each of the offences. The magistrates retired to consider sentence. The Bench Legal Adviser again explained to the defendants, in the absence of the magistrates, that they could be sentenced to custody. We understand that the advance disclosure was supplied either before we returned to the courtroom or immediately after the hearing.

6. The defendants left the courtroom. We were advised that, when the magistrates returned to court, the defendants were accompanied by solicitors, who made representations that the defendants had not understood what they were charged with, believing that they were charged with causing a nuisance. The magistrates rejected that view, and announced their decision to adjourn for Pre-Sentence Reports. The Court adjourned until 23^rd March 2006 for Pre-Sentence Reports.

7. We heard the case on the 23^rd March 2006. The Appellants appeared with solicitors. The Court was asked to hear an Application on behalf of the Appellants to vacate the Guilty pleas entered on 2^nd March 2006.

8. The solicitor for the 1^st Appellant and 3^rd Appellant contended that his clients had been arrested for nuisance, interviewed without representation and had appeared at Court on 2^nd March without representation. We were advised by our Legal Adviser in open court of the circumstances outlined in paragraphs 2 to 6 above.

9. The solicitor for the 2^nd Appellant contended that her client had not seen a solicitor before a plea was entered. She said that a solicitor from the same firm had made representations to the Court on the 2^nd March 2006 that he did not believe the 2^nd Appellant understood the matter that he was charged with, believing that he was charged with nuisance. The solicitor wished to make representations to the Crown Prosecution Service about the charge of dangerous driving.

10. We were of the opinion that the application to vacate please should not be allowed, because the defendants had been advised in detail of:

i. their right to advance disclosure,

ii. their right to legal representation,

iii. what the charges were and what they meant.

iv. Each defendant had signed their charge sheet, clearly setting out what the charges were – none of the charge-sheets referred to nuisance, so there could have been no misunderstanding in that regard.

v. We were satisfied that their rights had been explained to them at the relevant times, and that they had understood their rights and the charges against them and had entered their pleas unequivocally and with knowledge of the potential sentences.

vi. No application had been made to vacate pleas to any of the charges other that the dangerous driving charge. As the appellants' solicitors were satisfied that the appellants had understood those other charges, the assertion that they had not understood the dangerous driving charge was inconsistent.

QUESTION

The question for the opinion of the High Court is:

Whether, in the circumstances relevant to the decision we made on 23^rd March 2006, we were correct in law in deciding not to allow the Appellants to vacate their guilty pleas in relation to the allegation of Dangerous Driving."

Article 6 of the Convention

9. The relevant part of Article 6 provides as follows:

"(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly, but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interest of justice.

(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

(3) Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; …"

10. The procedure under which there is no trial of a defendant's guilt if the defendant pleads guilty is not known in many of the civil law jurisdictions, where an admission of guilt is treated as evidence at the trial. Is a defendant who pleads guilty without a trial properly to be considered to have been 'proved guilty according to law' under Article 6(2) and, if so, when and on what basis?
11. The 'guilty plea' procedure has been considered and approved by the Commission at Strasbourg on at least two occasions to which our attention has been drawn thanks to the industry of counsel. In X v UK (Application No 5076/71- 23 March 1972) the applicant complained that he had been put under pressure to plead guilty. The following observations of the Commission are material:

"The Commission examined this complaint under Article 6 (1) (Art. 6-1) of the Convention which guarantees the right to a fair trial, and also under Article 6(2) (Art. 6-2) of the Convention, which provides that "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".

The Commission notes that, under English criminal procedure, if a person pleads guilty there is no trial in the usual sense; if the judge is satisfied that the accused understands the effect of his plea his confession is recorded, and the subsequent proceedings are concerned only with the question of sentence.

The Commission, having examined this practice in the context of English criminal procedures and also the other systems among those States Parties to the Convention where a similar practice is found, is satisfied that the practice as such is not inconsistent with the requirements of Article 6(1) and (2) (Art. 6-1, 6-2) of the Convention. In arriving at this conclusion, the Commission has had regard to the rules under which the practice operates and in particular to the safeguards which are provided to avoid the possibility of abuse."

12. The 'safeguards' referred to must, it seems to us, have included the discretion that a court has to permit a plea of guilty to be withdrawn. That Article 6 does not require the court always to accede to a request to withdraw a guilty plea is apparent from R.O. v United Kingdom (Application No 23094/93 – 11 May 1994). There the applicant complained of a refusal to permit him to withdraw a plea of guilty. The Commission observed:

"It is in the first place for the domestic authorities to determine rules regulating procedural aspects of criminal proceedings, subject to the supervisory jurisdiction of the Convention organs in considering the fairness of proceedings (cf. the Commission's approach in No. 12002/86, Dec. 8.3.88, D.R. 55p.218).

The Commission considers that a rule which militates against changes of pleas which are unequivocal and voluntary cannot be said to compromise the fairness of proceedings as such. The Commission will therefore consider the impact of the refusal to permit the applicant to change his plea on the proceedings as a whole."

13. The correct analysis seems to us to be as follows. Where a defendant makes an unequivocal plea of guilty which the court accepts, the defendant is thereupon "proved guilty according to law" within the meaning of Article 6(2). The presumption of innocence ceases to apply and he can be sentenced on the basis that he has been proved guilty. This accords with the approach of the House of Lords in the leading case of S v Recorder of Manchester [1971] AC 481 to sections 13(3) and 14(3) of the Magistrates Courts Act 1952, which provided:

"If the accused pleads guilty, the court may convict him without hearing evidence…

A magistrates' court may, for the purpose of enabling enquiries to be made or of determining the most suitable method of dealing with the case, exercise its power to adjourn after convicting the accused and before sentencing him or otherwise dealing with him."

14. The House held that the concept of 'conviction' in these sections was that of a finding of guilt, but not a formal order rendering the court functus officio.

"The finding of guilt may involve reaching a conclusion in regard to disputed or contested facts. It may involve proceeding on the basis of  or "accepting" a confession made in court by way of an unequivocal and unambiguous plea of guilty which so far as the court can tell was intentionally made with full appreciation of all that it involved."

15. It is clear on the authorities that a guilty plea can only found a 'conviction' and bring to an end the presumption of innocence where it is unequivocal. If it is equivocal, it must be treated as a plea of 'not guilty'. S v Recorder of Manchester; P.Foster (Haulage) Ltd v Roberts [1978] 2 All ER 751 at pp 754-5.
16. What principles should govern allowing an application to withdraw a guilty plea? In S v Recorder of Manchester at p. 507 Lord Upjohn observed that the discretionary power was one which should "only be exercised in clear cases and very sparingly". That guidance is not of great practical assistance. Better general guidance appears from the comments of Lord Morris of Borth-y-Gest at p. 501:

"The duty of any 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 it also may be confessed. The court will, however, have great concern if any doubt exists as to whether a confession was intended or whether it ought really ever to have been made."

17. If after an unequivocal plea of guilty has been made, it becomes apparent that the defendant did not appreciate the elements of the offence to which he was pleading guilty, then it is likely to be appropriate to permit him to withdraw his plea – see R v South Tameside Magistrates' Court, ex parte Rowland [1983] 3 All ER 689 at p. 692 per Glidewell LJ. Such a situation should be rare, for it is unlikely to arise where the defendant is represented and, where he is not, it is the duty of the court to make sure that the nature of the offence is made clear to him before a plea of guilty is accepted.
18. It may happen, and again this is likely to be rare, that the court hearing an application to withdraw a guilty plea will or should appreciate that the facts relied upon by the prosecution do not add up to the offence charged. In such circumstances, justice will normally demand that the defendant be permitted to withdraw his plea. R v Bournemouth Justices, ex parte Maguire [1997] COD 21 DC appears to have been such a case.

The merits in this case

19. The onus lies on a party seeking to vacate a guilty plea to demonstrate that justice requires that this should be permitted. As Kennedy LJ said in  Maguire:

"Of course the court will be slow to allow such a change of plea unless there is some obvious reason why it is appropriate in the circumstances to allow it."

20. Where an appeal is made by way of case stated, rather than judicial review, it is particularly important that those acting for the appellants ensure that the case contains the facts that they need in order to make good their grounds of appeal.
21. The principal point relied on before the Justices, both on 2 March and on 23 March, was that the appellants did not appreciate the nature of the offence to which they were pleading guilty. It was claimed on their behalf that they believed that they were pleading guilty to public nuisance, the offence for which they had been arrested. It is clear that neither on 2 March nor on the 23 March did the Justices find this averment to be credible. There is no basis upon which we can hold that the Justices were wrong so to conclude. On the contrary, having regard to the fact that the appellants signed the charge sheet containing four separate offences, none of which had any resemblance to public nuisance, and to the fact that the case stated records that the Legal Adviser explained the charges to the appellants and asked each if he understood them and explained that the charge of dangerous driving, in particular, was very serious and could attract a custodial sentence, we find the suggestion that the appellants thought that they were pleading guilty to public nuisance incredible.
22. Two further points are made on behalf of the appellants. The first is that they may not have appreciated the nature of the offence of dangerous driving. The problem with this submission is that there is no basis of fact to support it. The case states that the charges were explained to the defendants. Section 9 of the Magistrates Courts Act 1980 required that the 'substance of the information' should be stated to the appellants, and there is no reason to believe that this was not done.
23. The other point taken is that the solicitors who were advising the appellants were not confident that the facts of the case warranted the entry of guilty pleas. The case stated contains nothing to ground a contention that the material facts did not amount to the offence charged. Nonetheless, if it had appeared on the material before us that the appellants had pleaded guilty to offences of which they were probably not guilty, we would have attempted to ensure that appropriate procedural steps were taken to enable reliance to be placed on that fact. That is not, however, the position. The appellants had been riding motor cycles along a footpath at dusk at some speed. While on the information before us we cannot say that this was an open and shut case, there is no reason to believe that the appellants were not acting realistically in entering guilty pleas.
24. We consider that Mr Peter Cooper, who appeared for the respondent, summarised the position accurately in his skeleton argument:

"34. … before entering their guilty pleas the appellants were informed promptly, in a language which they understood and in detail, of the nature and cause of the accusation against them (Case Stated, paragraph 2); were given every opportunity to obtain further information about the nature and cause of the accusation by means of advance disclosure (ibid, paragraph 3); were offered the opportunity of an adjournment of the case for the preparation of their defence; and were not only told of their right to be legally represented, but were positively advised that it was in their interests to be represented, since they could receive a custodial sentence if convicted (ibid, paragraph 4).

35. It is worth noting that, just as Article 6 affords a right to legal assistance of a defendant's own choosing, it also affords a right for a defendant to represent himself: the court can advise, but cannot in these circumstances insist on a defendant being represented.

36. It is difficult to see what more the court could reasonably have done. … "

25. For these reasons, the question posed by the Justices in the case stated falls to be answered in the affirmative. We so indicated at the end of the hearing, reserving only the reasons for our decision.