…where the CCRC refers a conviction appeal following a guilty plea at the magistrates’ court

No5’s Philip Rule KC represented the Criminal Cases Review Commission in this important case that has clarified the procedure applicable to guilty plea appeals referred to the Crown Court by the Commission.

On 27 July 2023, the judgment of Edis LJ and Bennathan J in R (CPS) v Preston Crown Court [2023] EWHC 1957 (Admin) has been handed down. The question posed was whether or not the appellant was required to apply to vacate his guilty plea before he could proceed to a rehearing of the case. (Of course, in fact it must usually be a first hearing rather than rehearing so far as any trial evidence and witness is concerned).

On that question, the Court decides that the practice adopted in 2002 by HHJ Openshaw QC (as he then was), sitting in the Crown Court at Preston, was wrong and the contrary approach taken by the judge in the proceedings that gave rise to this judicial review (coincidentally sitting in that same Crown Court) was correct. Henceforth therefore there is no requirement that the Crown Court should first address the guilty plea entered at the lower court and decide if it is in the interests of justice to permit it to be vacated.

However, the Divisional Court was clear that the fact of the referral of the case by the CCRC to the Crown Court does not impact upon the existence of that conviction or the existence of the guilty plea itself. Those matters remain undisturbed until the Crown Court exercises its powers.

Indeed, the appeal court will wish to carefully consider the fact of the guilty plea when addressing the appeal. As Bennathan J’s judgment emphasises:

“it should be recalled that the plea of guilty is an admission of guilt which would be admissible in evidence at the re-hearing… No doubt there would be cases where the CPS, in the light of the CCRC’s researches, would choose not to seek to adduce the earlier plea as confession evidence, and any such application could be declined by the judge hearing the case either by way of the section 76 safeguards or the general exclusionary provisions of section 78 of PACE [1984]… The admission of guilt, if admitted in evidence, would be prima facie evidence of guilt. In the absence of any compelling explanation of why it does not prove the offence a court may dismiss the appeal on the merits.” [44].

Thus a guilty plea has full evidential potential, and may be sufficient proof of guilt if it is admissible at the ‘rehearing’.

In effect, the guilty plea issue is now one of admissibility and of weight. The prosecution would lead evidence of the plea, and (if admitted into evidence), an appellant would need to explain why it does not prove guilt. This would seem to be very similar to the procedure followed on a plea vacation hearing, though there the plea would always have been admissible as a matter of law, but its weight – what it proves in terms of guilt – would have been under challenge in the application to vacate (on factual grounds likely comparable to those that s76/78 may equally concern).

The Court also explains that “the decision whether to admit an earlier guilty plea as a confession is one to be taken by the Judge in any appeal on the basis of the criteria within the statute, but without any predisposition to either admission or exclusion” [46]. It is not, in this context, only to be admitted in ‘rare’ cases.

In general terms the need to satisfy the court as to a good reason why a guilty plea is not a confession that is evidence sufficient to uphold the conviction on appeal must heavily overlap factually with the grounds that would previously have been presented to support plea vacation.

For an applicant asking the CCRC to refer a conviction the underlying factual material still needs to address and explain the plea at the lower court in broadly the same manner in order to show a realistic possibility that an appeal would succeed notwithstanding the evidence of a plea given at first instance.

Post-script: In the course of its decision the Divisional Court also considered the practice of the Crown Court in an appeal brought to it directly by an appellant using section 108 of the Magistrates’ Courts Act 1980. It did not need to decide the issue, but it has undoubtedly placed a question mark over whether any unequivocal plea may be addressed by appeal to the Crown Court under s.108 MCA 1980 [31].

Philip Rule KC was instructed by In-House Counsel at the CCRC.