Changing a guilty plea

The prosecutor waits in anticipation to hear whether the defendant pleads guilty or not guilty. When a guilty plea is entered the prosecutor is relieved as he needs only then to explain the facts to the court and generally not call any witnesses and the case should be concluded within a short period of time; but even in these circumstances glee can quickly change to gloom.

In mitigation the defendant may say something which may indicate a defence to the charge. The plea may well have appeared an unequivocal plea of guilty but does this mean that despite what they have heard the plea should remain one of guilty or can it be changed to one of not guilty?

At which point can a guilty plea be changed to a not guilty plea? For example when the case has been adjourned for reports and sentence can it at that stage be changed or is it too late?

R v Durham Quarter Sessions

In R v Durham Quarter Sessions ex-parte Virgo (1952) 2QB1 the unrepresented defendant pleaded guilty to stealing a motor bike. Before sentence he stated that by taking the bike it was a mistake as he thought it belonged to his friend. This clearly indicated he had no criminal intent and he was therefore not guilty of the offence. Despite this statement the justices did not direct the withdrawal of his guilty plea and sentenced him. Quarter Sessions remitted the case to the justices as a nullity.

The prosecution appealed to the High Court. The defendant stated that he had given this explanation to the police when he was arrested and argued that his plea was equivocal. Reference was made to R v Ingleton (1915) 1 KB 512 where the defendant was charged with receiving; he pleaded guilty stating: 'I am guilty of taking the horses not knowing them to be stolen'. In that case the court held that his guilty plea amounted to a not guilty plea and remitted the case for a full hearing.

In the Durham case Goddard CJ indicated: 'The present is not a case of a prisoner who has unequivocally pleaded guilty and then appeals on the grounds that his plea was a mistake; it is a case in which the prisoner.. . said 'guilty, but' and added a rider to his guilty plea which showed he was really pleading not guilty and which ought to be treated by the court as a plea of not guilty. . . His plea taken as a whole amounted in law to a plea of not guilty.'

In R v Blandford jj ex-parte G (an infant) (1966) 1AllER 1021, the 15 year old defendant was employed as a mother's help; she took jewellery from a bedroom in her employer's house placing it in a drawer in her bedroom. She told the police that she intended to keep it for a short while and return it later in the week. She pleaded guilty to the larceny and notwithstanding the explanation she had given to the police the court accepted her guilty plea.

According to Widgery J: 'In every instance when a magistrate receives a reply guilty. . . it is necessary to consider whether it is safe to accept the plea and enter the conviction. . . He ought'¦to defer a final acceptance of the plea until he has had the chance to learn a little more about it and to see whether there is some undisclosed factor which may render the unequivocal plea of guilty a misleading one.'

He continued: 'They were not in possession of an unequivocal plea at all; they were in possession of a plea, if properly understood, was a plea of not guilty.'

S (an infant) v Manchester City

In S (an infant) v Manchester City Recorder & Others (1969) 3AllER 1230, the 16 year appellant with the mental age of six and a half was charged with attempted unlawful sexual intercourse with a woman against her will.

He volunteered a confession with detail showing that he had considerable knowledge of what had happened. He had previously confessed to offences which he had not committed. He pleaded guilty and the case was adjourned for reports. A solicitor was instructed and she applied to have the guilty plea withdrawn on the basis of the instructions given to her but the justices indicated that they were unable to change the plea at that stage of the proceedings.

Although it had been possible for a change of plea in the Crown Court the old authorities had indicated that this was not possible in the lower courts. Reid J: 'I do not find it easy to understand why a different rule has emerged in recent times with regard to the powers of magistrates in summary proceedings.' He continued with: 'I can find no reason for there being a different rule in Magistrates Courts from the rule in cases tried on indictment that an accused can apply at any time before sentence to change his plea of guilty and that it is for the court then to decide whether justice requires that this should be permitted.'

P Foster (Haulage) Ltd v Roberts

In P Foster (Haulage) Ltd v Roberts (1978) 2AllER 751 the defendant company pleaded guilty to forty eight offences of permitting drivers to drive excessive hours. The company were represented by a solicitor who considered that these offences were absolute whereas they were not. The company appealed on the basis that the solicitor had made a mistake and thus their guilty pleas were equivocal. It was held that if the defendant wishes to change his plea he must put forward a qualification, it had failed to do so and therefore the pleas were unequivocal. The court however did emphasise that it was possible for a plea to be changed any time up to the point sentence is passed but they do have a discretion whether or not to permit the change.

O'Connor J commented: 'They were entitled to test the validity of the asssertion that the reason for the guilty plea was the solicitor's mistaken belief about the law.

'Once an unequivocal plea of guilty has been made'¦.until sentence has been passed the court has power to permit a plea of guilty to be changed but the exercise of this power is entirely a matter of discretion.'

Reference was then made to the observation of Upjohn J in R v Recorder of Manchester 'The discretionary power is one that should only be exercised in clear cases and very sparingly.'

R v S Tameside Magistrates Court

In R v S Tameside Magistrates Court ex-parte Rowland (1983) 3AllER 689 the defendant was charged with burglary. She pleaded guilty and was remanded for reports, the magistrates informing her that they left open the option that a custodial sentence could follow. She consulted a solicitor who advised on instructions that her plea should be one of not guilty.

The justices however concluded that her plea had been unequivocal and that a likely reason for a plea change was her desire to avoid a custodial sentence and they accordingly refused her application. It was held that the justices were entitled to balance the instructions she had given to her solicitor against the prospect that she had changed her story because she might receive a custodial sentence; they were entitled to exercise their discretion not to allow the applicant to withdraw her unequivocal plea of guilty.

Glidewell J: 'In referring to R v Manchester Recorder that even where a plea is unequivocal the Justices have a discretion to allow a plea to be withdrawn at any time before sentence in appropriate circumstances. Referring to Foster Haulage Ltd v Roberts, 'the exercise of the power is entirely a matter of discretion.'

European Convention of Human Rights

However, is the exercise of the discretion a breach of the European Convention of Human Rights (ECHR). This point has now been taken in Revitt & Others v DPP [2006] EWHC 2266 (Admin). It was held that justices who refused to allow the withdrawal of unequivocal pleas of guilty made by defendants who appreciated the elements of the offence charged did not breach the defendants right to be presumed innocent until found guilty according to law. Was the practice in relation to guilty pleas compatible with Article 6 of ECHR and did the defendants receive a fair trial? Lord Phillips of Worth LCJ: 'The correct analysis seemed to be:

• Where a defendant made an unequivocal plea of guilty which the court accepted the defendant was guilty according to law within the meaning of Article 6.2 of ECHR.
• The presumption of innocence ceased to apply and he could be sentenced on the basis that he had been proved guilty.
• A guilty plea could only found a conviction and bring to an end the presumption of innocence where it was unequivocal. If it was equivocal it must be treated as a plea of not guilty.'

He then indicated the principles which govern allowing an application to withdraw a guilty plea. If the defendant did not appreciate the elements of the defence then it was likely to be appropriate to permit him to withdraw his plea. 'Such a situation should be rare for it was unlikely to arise where the defendant was represented and where he was not it was the duty of the court to make sure that the nature of the offence was made clear to him before a plea of guilty was accepted. 'The onus lay on a party seeking to vacate a guilty plea to demonstrate that justice required that that should be permitted.'

Domestic legislation

Revitt reinforces the authorities prior to the incorporation of the ECHR into our domestic legislation. It confirms that a guilty plea can in certain circumstances be changed any time prior to sentence being imposed. It also confirms that the court has a discretion which must be exercised judicially. In other words the courts must balance the interest of the defendant being able to have a full hearing as against the public interest of a guilty plea without any evidence being presented. Revitt confirms that a guilty plea is an appropriate process within the English law and that the ECHR in no way affects this.