Background
Under the Magistrates’ Court Act 1980 (MCA), s108, a defendant who is convicted by a magistrates’ court [JB1] is entitled to appeal to the Crown Court against sentence if they pleaded guilty. Conversely, where a convicted defendant pleaded not guilty in the lower court and were subsequently found guilty after summary trial, they may appeal against their conviction and/or sentence. Where a defendant (who subsequently becomes an appellant) exercises their right to appeal under MCA, s108, the procedure to be followed, set out in Criminal Procedure Rules (Crim. PR) Rule 34, is engaged.
However, a different scenario arises where a defendant entered a guilty plea in a magistrates’ court but then wishes to withdraw their plea. Under Crim. PR Rule 24.10, a defendant may apply to withdraw a guilty plea as soon as practicable after becoming aware of the reasons for doing so, and before sentence. Accordingly, therefore, providing that the defendant has not been sentenced by the respective magistrates’ court, the question of withdrawing a plea remains under the jurisdiction of the lower court.
It is clear from Crim. PR Rule 24.10(2)(b) that an application to withdraw a plea in a magistrates’ court must be made before sentence. Indeed, the importance of timing an application to withdraw a plea is reinforced by the decision of the Court in McNally [1954] 1 W.L.R. 933, CCA; (1954) 38 Cr. App. R. 90, (which pre-dates the MCA and Crim. PRs); where an unequivocal plea is entered in a magistrates’ court and sentence had been passed, the time had passed for any court to hear the issue of vacating or withdrawing a plea.
What happens, therefore, after a defendant has pleaded guilty and has been sentenced for that matter, but wishes to apply to withdraw their plea? Are there other remedies?
Whilst there are several potential remedies, this article aims to answer the question of whether the Crown Court, in its appellate capacity, can assist.
The short answer is yes. The Crown Court is, in its appellate capacity, entitled to remit the matter back to the respective magistrates’ court if it is satisfied that a plea was equivocal. This article will consider where the Crown Court’s power comes from; the scope of the Crown Court’s inquiry; and the form which an inquiry should take.
Where does the Crown Court’s power come from?
It is to be noted that there is no express statutory provision or rule in the Crim. PRs which encompasses words to the effect of “the Crown Court may conduct an inquiry as to whether a guilty plea entered in a lower court was equivocal or unequivocal.” Instead, it is submitted that the appellant will be inviting the Crown Court to remit the case back to the magistrates’ court on the basis that the plea was equivocal. The Crown Court has the power to do this under the Senior Courts Act 1981 (SCA), s 48, which provides:
(1) The Crown Court may, in the course of hearing any appeal, correct any error or mistake in the order or judgment incorporating the decision which is subject to the appeal.
(2) On the termination of the hearing of an appeal the Crown Court –
(a) may confirm, reverse or vary [any part of the decision appealed against, including the determination not to impose a separate penalty in respect of any offence]; or
(b) may remit the matter with its opinion thereon to the authority whose decision is appealed against; or
(c) may make such other order in the matter as the court thinks fit, and by such order exercise any power which the said authority might have exercised.
This approach has been confirmed in judgment of the Court in Plymouth JJ, ex p. Hart [1986] Q.B. 950, DC; (1986) 83 Cr. App. R. 81 (post-MCA). The Court in Hart discussed and confirmed earlier authorities. Per Watkins LJ at pp963–964, 93:
Provided a proper enquiry into the issue of plea is made at the Crown Court the power to direct a re-hearing arises and such an order must be obeyed.
In summary, the Crown Court’s power to remit a case comes from the SCA, but case law dictates that it must conduct a proper inquiry before it exercises said power.
What is the scope of the Crown Court’s inquiry?
The consensus from the relevant authorities discussed below is that the Crown Court is limited to making an inquiry into whether the plea which was entered in the lower court was equivocal (save for circumstances where the autrefois acquit/convict principle is engaged or a referral is made by the CCRC). It is wrong to assume that the Crown Court, in its appellate capacity, adopts the same approach as that of the Court of Appeal when hearing an appeal against conviction on indictment.
What amounts to an equivocal plea?
Whilst there appears to be no strict definition in law as to what amounts to an equivocal plea, the matter has been addressed by the courts previously. In summary, an equivocal plea is where a defendant pleads guilty but seeks to qualify that plea with a statement which, if accurate, may amount to a defence in law or fact.
This subject was explored by Lord Goddard CJ (as he then was) in Durham QS ex p. Virgo [1952] 2 Q.B. 1. His Lordship distinguished a defendant who unequivocally pleaded guilty then appealing on the ground that the plea was a mistake from one who entered a “guilty, but” where a rider to that plea of guilty was added to show that he was pleading not guilty.
Almost three decades later, there was a suggestion that the Crown Court had jurisdiction to conduct an inquiry in circumstances where a plea which was seemingly unequivocal was entered under duress. The Court in Huntingdon JJ, ex p. Jordan [1981] Q.B. 857, DC; (1981) 73 Cr. App. R. 194 explored the issue, and Donaldson LJ stated:
As was put in argument by Bingham J., take two situations with husband and wife as co-accused. In the first the husband lifts a revolver, puts it to his wife’s head and says “My dear, you plead guilty or else.” If she did plead guilty, that would undoubtedly be an equivocal plea. In the second the co-defendant keeps the revolver in his pocket and manipulates it so that she can feel it pressing against her, and she then does exactly the same thing, enters in an apparently unequivocal plea of guilty. It would be a travesty of justice if the law treated these two cases differently. In my judgment it does not.
However, the Court in R v Rochdale Justices ex p. Allwork (1981) 73 Cr. App. R. 319 took a different view than the Court in Ex p. Jordan and reined in the scope of an inquiry. In Ex p. Allwork, the Court made clear (at 323) that:
It must be apparent to the justices that the defendant is saying “I am guilty but”: for instance, “I plead guilty to stealing, but I thought the article was mine,” that type of situation. If there is no such evidence, then that is the end of the matter. The issue of equivocality has gone, and the Crown Court will proceed to deal with the appeal against sentence.
The subject of equivocal pleas was canvassed in R (on the application of Khalif) v Isleworth Crown Court [2015] EWHC 917 (Admin). Lord Justice Burnett (as he then was) at [8] observed:
The question of whether a guilty plea in equivocal is confined to considering what happened before the court. That is because the rationale for concluding that a plea was equivocal is that the magistrates should not have accepted it in the light of what they were told, but rather should have directed a not guilty plea and proceeded to trial.
Of particular note is the Court’s judgment in R (on the application of Phillips) v Crown Court at Isleworth [2023] EWHC 617 (Admin); [2023] 2 Cr. App. R. 8, where Jay J adopted the approach taken in Ex p. Allwork. At [27], Jay J observed:
Next, an equivocal plea is one what amounts to “I am guilty … but” (Allwork). It is not sufficient that the defendant has simply changed her mind (Allwork) or that new facts have come to light (Rubens) after an unequivocal plea. The fact that a defendant was represented is not a bar on the justices’ discretionary power to permit a change of plea (P Foster (Haulage) Ltd).
More recently, Bennathan J in R (on the application of the Crown Prosecution Service) v Crown Court at Preston [2023] EWHC 1957 (Admin); [2023] 2 Cr. App. R. 18, stated at [31]:
It is clear that the power of the Crown Court to vacate a guilty plea on appeal from the Magistrates’ Court is circumscribed. It is not as broad as the power of a trial court to permit a change of plea before sentence, or the power of the Court of Appeal Criminal Division to entertain an appeal against conviction following a plea of guilty in the Crown Court. It applies to an equivocal plea, that is one which the justices ought not to have accepted. Whether it extends to cases where the plea was entered under duress exerted in court at the very moment when the plea was entered, as held in Huntingdon Justices ex parte Jordan, may perhaps be open to question.
The development of case law suggests clearly that the Crown Court’s inquiry is restricted to determining whether a plea was equivocal and nothing more. This seems to focus on what actually occurred in the hearings in a magistrates’ court. Whilst the judgment in Ex p. Jordan seemingly extends the jurisdiction of the Crown Court to cover pleas entered under duress, the observations in more recent authorities cast doubt on this proposition.[1] It is likely that the Crown Court may wish to hear legal argument on jurisdiction if faced with an application to withdraw a guilty plea on the basis of duress before conducting an inquiry.
Could improper legal advice result in an equivocal plea?
A scenario which the Crown Court often faces is whether an appellant can withdraw their plea after sentence on the basis that they were pressured to plead guilty by their advocate or that they received poor legal advice. The answer to this question is not particularly clear and each case will inevitably turn on its own facts.
Some prospective appellants will attempt to argue that the advice or actions of their legal representative resulted in an equivocal plea being entered. Common arguments include advocates informing defendants of the risk of immediate custody if convicted after trial or advising of how the weight of the Prosecution evidence may influence a decision to plead; the former being the case in Phillips.
Regardless of whether an appellant argues that they were placed under undue pressure from their legal team or that they were provided with poor advice, it is submitted that due to the restrictive nature of the scope of the Crown Court’s inquiry (discussed above), there would still need to be evidence of equivocality before the lower court. Simply raising the matter after the proceedings, in the absence of any evidence of equivocality, is likely to be insufficient.
Even if the Crown Court was comfortable to proceed with making its inquiry on the basis that a plea was equivocal through, for example, undue pressure from legal representatives, appellants should be reminded of the difficulties with pursuing this argument generally. Advocates are under a duty to advise defendants of the strength of the evidence against them and to explain the benefits of pleading guilty. If necessary, this advice can be given in forceful terms,[2]and it is submitted that the bar is high for establishing an involuntary plea.
The answer is not clear, however, in the rare circumstances where an appellant was provided with advice which was unquestionably wrong but pleaded guilty without uttering words which amounted to equivocality. On a strict interpretation of the authorities alone and the requirement for prima facie evidence of equivocality, it is submitted that the Crown Court should not embark on an inquiry in these circumstances.
What should a Crown Court inquiry look like?
There is no strict provision which prescribes the form of an inquiry of this nature. The judgment of the Court in Phillips, however, is helpful. Whilst the Divisional Court in Phillips was not tasked specifically on addressing the question of jurisdiction, the judgment does provide helpful and relatively recent guidance on the procedure which the Crown Court should adopt when conducting an inquiry.
In Phillips, the Appellant had pleaded guilty to charges of harassment in the lower court and was sentenced. She applied to the lower court for the matter to be re-opened under MCA, s142; this was refused. She later argued that her lawyers pressured her to plead guilty and wanted to change her plea. Shortly after, the Appellant appealed the Crown Court after her application to re-open the case under MCA, s142, was refused.
At [23] – [28] and in summary, Jay J sets out the following propositions:
1. The Crown Court must conduct a proper inquiry into whether the plea was equivocal and there must be sufficient evidence before the court on which it could find that the plea was equivocal.
2. The appellant must produce prima facie and credible evidence that a plea was equivocal.
3. The Crown Court must receive an account of what happened at the hearing in the lower court. It should receive an affidavit from the lower court regarding the hearing where the plea was entered but can look at other evidence if the lower court refuses to provide one.
4. An equivocal plea is one which amounts to “I’m guilty…but” (Ex p. Allwork is referred to in Jay J’s judgment). The defendant cannot simply state that they had changed their mind or that new facts had become available.
The requirement for prima facie and credible evidence is vital in persuading the Crown Court that it should embark on its inquiry; this will usually be determined at the first hearing in the Crown Court. It is suggested that prima facie evidence of an equivocal plea could take the form of the specific contents in an appeal notice, observations in a pre-sentence report, or admissible evidence from someone who was present at the relevant hearing. If there is no credible, prima facie evidence, case law makes it clear that the Crown Court should not commence an inquiry.
If the Crown Court is satisfied that it can proceed with its inquiry, efforts should be made to obtain records from the respective magistrates’ court (an affidavit from the relevant individuals from the lower court is referred to in Phillips). Legal privilege may need to be waived if the appellant was represented in the lower court, and statements from persons present may need to be obtained. Witnesses may, of course, need to be warned. If, after conducting a proper inquiry, the Crown Court took the view that the plea was equivocal, it would need to remit the case back to the respective magistrates’ court.
Concluding Thoughts and Practical Considerations
The Crown Court has limited scope in considering an application to withdraw a plea which was entered in a magistrates’ court when compared with the power which a trial court has when dealing with an application before sentence. To stand a chance of being successful (and save for several exceptions identified earlier), an appellant is required to demonstrate that their plea was equivocal; this is ultimately the test. It is submitted that this is a relatively high threshold which will only occur on limited occasions.
The following, practical considerations may be of note:
- Firstly, there must be prima facie and credible evidence that the plea was equivocal. This, it is submitted, is a relatively high bar to achieve in most circumstances, and appellants should be advised that the scope of the Crown Court’s inquiry is limited when compared to a trial court determining an application to vacate a plea. Prospective appellants should be under no illusion as to the potential difficulties which they face and the chances of success.
- An appeal notice must be served in compliance with the Crim. PRs and within the time limits set out.
- Depending on the circumstances, legal privilege may need to be waived and evidence may need to be called.
James prosecutes and defends in the Crown Court, particularly at trial. His practice encompasses cases involving violence, drug trafficking, theft and fraud, public order, and sexual offences. James has been both led junior and junior alone in multi-handed cases, and accepts instructions in the Midlands, Oxford and the Thames Valley, and London.
[1] See Archbold Criminal Pleading, Evidence and Practice 2024 (at 7 – 518)
[2] See Blackstone’s Criminal Practice 2024 (at D12.102)
Further information
For more information from the crime team, contact clerks@36crime.co.uk
Involving James Ball