Court of Appeal in Northern Ireland Decisions

1. On 24 November 1999 at Omagh Crown Court the applicant Leslie James White was sentenced by His Honour Judge Foote QC to four years' imprisonment on a count of arson. He had pleaded guilty to that charge on 13 September 1999, but when he came up for sentence on 24 November he applied to the court to be permitted to change his plea to one of not guilty. The judge refused his application and proceeded to pass sentence. The applicant sought leave to appeal to this court against conviction and sentence. The single judge refused leave, and when the application came before this court on 27 June 2000 we refused leave to appeal against conviction, stating that we would give our reasons at a later date. We adjourned the application for leave to appeal against sentence to obtain a further pre-sentence report. In this judgment we shall set out our reasons for refusing leave to appeal against conviction.

2. On the evening of 8 October 1997 a fire occurred at the premises 3-7 Queen Street, Enniskillen, and a small amount of money was stolen from a cash box. The cost of repair of the damage occasioned by the fire was estimated at approximately £15,000. The fire officer in charge concluded that entry had been effected by a person using a key, because there was no sign of a forced entry, and that several fires had been lit in an attempt to cover up the theft. The applicant was one of four keyholders of the premises. At an identification parade held on 4 November 1997 two police officers picked him out as a man whom they had observed, somewhat unsteady on his feet, as he emerged from the premises at 5-7 Queen Street around 9 pm on the evening of 8 October, locking the door behind him.

3. The applicant had been interviewed by the police on 10 October, when he confirmed that he was a keyholder for the premises, but denied having been back to them on the evening of the fire. He claimed to have won a sum of money on gaming machines that day and not to have been in need of money. He had gone home relatively early, after drinking in various establishments, and had looked over at the premises when he passed along the street, but claimed that he had not gone nearer than about six feet from them as he made his way to The Cornerstone public house.

4. Mr JP Lavery QC, who appeared with Mr Moore for the applicant in this court, told us that when he came up for trial on the first occasion on 8 September 1999 he was represented by Mr HM Rodgers of counsel. Mr Rodgers, who is very experienced as defence counsel, advised the applicant strongly to plead guilty, because of the strength of the Crown case against him. He warned him that if convicted on a contest he would face a sentence of up to seven years' imprisonment, whereas if he pleaded guilty the judge might consider making a custody probation order, in which the custody element could be as low as two or two and a half years. The applicant insisted on contesting the case, as he wished to challenge the fairness and reliability of the identification parade. During the course of the trial he expressed dissatisfaction with his counsel in such terms that Mr Rodgers felt that he did not have sufficient authority to continue to act for him and asked the judge for leave to withdraw from the case. The judge acceded to his request, discharged the jury and re-listed the trial for 13 September 1999.

5. On 13 September the applicant was represented by Mr FG McCrory QC and Mr Campbell. Mr McCrory, who is also very experienced in criminal matters, again warned him that his case was weak and that he faced the risk of a substantial prison sentence. He advised him in his own interests to plead guilty, in which event the sentence would probably be much shorter. The applicant eventually accepted this advice, though Mr Lavery informed us on instructions that he did so reluctantly, feeling that his counsel showed lack of will to fight his case for him. Be that as it may, the transcript of the proceedings on that day shows that the applicant was re-arraigned and unequivocally pleaded guilty to the charge. He was put back for sentence pending the production of reports. When the probation officer interviewed him for the purpose of preparing a pre-sentence report, the applicant continued to deny adamantly that he had committed the offence and stated that he had pleaded guilty because he was advised to. He maintained that he was not the culprit, but that nobody would believe him because of his alcoholism and his criminal record.

6. After Mr McCrory received this report he felt that he and Mr Campbell could not make a plea in mitigation on behalf of the applicant and that they had to withdraw from the case. When the applicant came up for sentence on 24 November 1999 he was represented by Mr Moore, who told the court that because of the applicant's denial of his guilt he could not enter any plea in mitigation. He made an application to have the applicant re-arraigned, so that he could withdraw the plea of guilty and contest the case. He did not put forward any reasons or factors which might weigh with the court in support of his application, but stated simply that it was within the discretion of the judge and left the matter in the judge's hands.

7. The judge then stated:

8. When he sat again Mr Moore informed him that the applicant's instructions remained the same. He was allowed to withdraw from the case and counsel for the Crown outlined the facts and told the judge what he could about the applicant's background. The judge asked the applicant if he wished to say anything, but the applicant declined. The judge then passed sentence in the following terms:

9. It is clearly established that a judge has a discretion to permit a defendant to withdraw a plea of guilty and plead not guilty in order to contest a case: see the authorities discussed in Blackstone's Criminal Practice, 2000 ed, para D10.46. It is equally clear that the discretion should be exercised very sparingly, and rarely where the defendant has had legal representation, has pleaded guilty freely without pressure and has not been misled or mistaken about the meaning and import of his plea of guilty. In R v South Tameside Magistrates' Court, ex parte Rowland [1983] 3 All ER 689 at 692 Glidewell J approved the advice given by their clerk to a bench of magistrates that –

10. Mr Lavery submitted on behalf of the applicant that the judge had failed to exercise his discretion when he refused outright to consider a change of plea. He referred us to R v Cantor [1991] Crim LR 481, in which the Court of Appeal held that it would not lay down any kind of practice which ought to be followed when a judge is considering the exercise of his discretion. It must be left to the trial judge to decide what he will do, if anything, beyond listening to counsel in order to satisfy himself that he has sufficient material before him to deal properly with the application. The judge plainly considered that the applicant was merely being obstructive and was unwilling to countenance his changing his plea which had been unequivocally given after advice from experienced counsel. Nevertheless, Mr Lavery submitted, he should have made some inquiry to satisfy himself that there had been no misapprehension or undue pressure upon him before he concluded that he would not allow a change of plea.

11. We feel constrained to agree with this submission. We have every sympathy with judges who try to run a court in fair and orderly fashion, when defendants discharge counsel and solicitors and appear to change their instructions. They must frequently feel that such persons are attempting to take advantage of the criminal justice system by obstruction and delay for their own ends. Nevertheless, when a judge is invested with a discretion which has to be exercised judicially, he must as a minimum address his mind to the considerations relevant to his decision and satisfy himself that he has not overlooked a possible ground upon which the defendant may properly rely. The judge may possibly have done this in the present case, but he did not spell out his reasons, and so we cannot tell what was in his mind when he refused the application. Accordingly we cannot be satisfied that he did in fact exercise his discretion along the proper lines.

12. This does not, however, end the matter. Where a judge has failed to exercise a discretion vested in him, the Court of Appeal may itself consider, in the light of the facts then known, how he should have exercised it: see R v Quinn [1996] Crim LR 516. We have done so, and we cannot see any ground on which the judge ought to have exercised his discretion in the applicant's favour. Mr Lavery argued that the applicant's stance had not varied, that he wished to contest the case, and that his will had been overborne. There is nothing before us on which we could reach the conclusion that he did not plead guilty of his own free will. We were not asked to receive any evidence from the applicant himself or from counsel who had appeared for him at the time when he pleaded guilty. Everything put before us by Mr Lavery on his instructions points to the applicant accepting, albeit reluctantly, advice strongly given by experienced counsel that it was clearly in his best interests to plead guilty, to avoid the risk of a heavy sentence. We cannot regard this as one of the rare cases in which a court should allow a plea of guilty unequivocally made to be withdrawn. We do not consider that any injustice will be caused by our so deciding, in view of the strength of the prosecution case appearing from the committal statements.

13. We therefore came to the conclusion that we should not exercise the discretion in such a way as to allow a change of plea. On this ground we upheld the judge's decision and refused the application for leave to appeal.