Neutral Citation Number: [2015] EWCA Crim 1185
Case No: 201304402 B1, 201301935 B1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
HHJ John Plumstead, St. Albans Crown Court
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 09/07/2015
Before :
LADY JUSTICE HALLETT DBE
Vice President of the Court of Appeal Criminal Division
MR JUSTICE HADDON-CAVE
and
MRS JUSTICE PATTERSON DBE
--------------------Between :
JAMIE McCARTHY
- and REGINA
Appellant
Respondent
----------------------------------------Mr Ali QC and Mr Rimmer appear privately instructed under the Direct Public Access
Procedure for the Appellant
Mr S Heptonstall (representing the Crown Prosecution Service) for the Respondent
Hearing dates: 3 and 4 June 2015
---------------------
Approved Judgment
Judgment Approved by the court for handing down.
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Lady Justice Hallett :
Background
1.
This is an unusual case in that the applicant pleaded guilty to the offences charged
against him, yet the full court has been invited to hear an appeal against both
conviction and sentence and to receive evidence from a number of witnesses.
2.
The applicant initially pleaded not guilty to offences of wounding with intent to cause
grievous bodily harm contrary to section 18 of the Offences Against the Person Act
1861 (“section 18 offence”) and possession of an offensive weapon at a plea and case
management hearing (“PCMH”) on 9 July 2012. On the first day of trial, 18 February
2013, before a jury was sworn, he changed his pleas to guilty. A count of affray was
added to the Indictment in respect of the co-accused, his mother, and the prosecution
indicated that a plea to that count by her would be acceptable.
3.
On 15 March 2013 H.H.J. Plumstead sentenced the applicant to a total of 9 years
imprisonment: 9 years on the wounding offence and 2 years concurrent on the weapon
offence. The co-accused was sentenced to 18 months imprisonment for affray.
4.
The applicant was represented throughout by Darryl Ingram solicitors. Apart from
instructing counsel (Mr Shaun Wallace), taking a proof of evidence and recording
comments on the prosecution witness statements from the applicant, they do not seem
to have played much of a part. They claim that the terms of their legal aid certificate
did not permit them to attend any Crown Court hearings. If true, this is most
unfortunate, for reasons which will become apparent.
5.
The applications for extensions of time and leave to appeal sentence have been
referred to the Full Court by the single judge. We need not rehearse the reason why
the applications were not lodged in time because we are satisfied that, if there is any
merit in them, we would grant the necessary extensions.
6.
The provisions of s.39 of the Children and Young Persons Act 1933 are engaged in
this case because one witness, whom we shall call S, was aged seven at the date of the
incident. Nothing should be published which might identify her.
Prosecution case
7.
On Friday 13 April 2012 the applicant’s mother Tracey McCarthy reported to the
police that her house in Borehamwood had been burgled and the contents of the safe,
approximately £6,000 in cash and jewellery, stolen. Many of the items were of great
sentimental value. The McCarthy family became convinced that they knew who was
responsible: Asher Sapsford.
8.
The complainant, Lisa Sapsford, is his mother. Over the course of the weekend she
became aware from a number of sources that the McCarthys were looking for her son.
On the morning of 16 April Mrs McCarthy expressed dismay to the police that they
had not yet arrested Asher Sapsford. She referred to the Sapsford family as “scum”
and suggested her family would resort to violence. An officer specifically warned her
that the family should not take the law into its own hands. The conversation
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concluded with her saying that the police needed to arrest Asher as soon as possible
because if her husband got hold of him there would be trouble.
9.
About an hour later the complainant arrived in her car outside the house of a friend. In
the back of the car were two young children, S aged 7 and a child of three. The
complainant saw Tracey McCarthy knock on the door of her friend’s house and,
having heard what was said, wound down the window and asked: “Are you looking
for me?”
10.
She claims that Mrs McCarthy ran over to the car, with the applicant, shouting
“Where’s Asher? Get out of the fucking car.” She leant in through the passenger
window and called the complainant a “cunt”. At the same time the applicant was
standing behind her and threatening to kill Asher.
11.
The applicant pushed his way to the front of the car and lunged through the window.
The complainant felt an immediate sharp pain underneath her arm. She looked up and
saw the applicant pull back his hand. He was holding a kitchen knife with a twelve
inch blade. She shouted out that she had been stabbed. A neighbour saw both the
applicant and his mother get into their car. The applicant was angry; he was shouting
and waving a knife around in a stabbing motion saying, “You fucking tell Asher that
he’s dead”. The car drove off. Police and ambulance attended at 12:30. A knife was
found some distance from the scene but it was not established whether or not this was
the knife used in the assault.
12.
The complainant received injuries that were described by doctors as “superficial”: two
lacerations 1 ½ cm long and 3 cm long. The wounds became infected but were treated
with antibiotics and healed after eleven days. The psychological consequences were
said to be more severe both for the complainant and for S.
13.
At 14:30 the co-accused rang the police and told an officer who knew about the
incident: “It’s all gone wrong.” She asked: “Where shall I bring him? We need to get
out of Borehamwood.” It was agreed that mother and son would attend at Hatfield
police station. In expressing concern for the complainant’s welfare Mrs McCarthy
said, “I didn’t know he’d go this far.” Both she and her son attended the police station
at 17:30 that day.
Defence case
14.
The proposed defence case, until the change of plea, was that the complainant
produced the knife and the applicant acted in protection of his mother. During the
ensuing struggle he was able to disarm the complainant. She must have received her
injuries as he did so.
15.
The applicant signed a Defence Statement on 1 July 2012 and prepared an unsigned
Proof of Evidence dated 4 July in which he set out his defence. Mr Wallace had four
or five pre-trial conferences with the applicant at the weekend at the home of the
applicant’s grandmother (to which he was bailed). Counsel attended casually dressed
and without informing his instructing solicitors. No notes were taken and no advices
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on evidence submitted to solicitors as a result of the conferences. He also conducted
re-constructions of the incident without his solicitors being present.
The morning of the trial
16.
The applicant and his witnesses arrived early at court for a 11.00 hearing, as Mr
Wallace had advised them to do. However, they all complain that Mr Wallace himself
arrived only minutes before the hearing was due to start. He denies that and insists he
arrived in ample time. Whatever time he arrived, it is clear that the judge acceded to
defence requests to delay calling the case on until everyone was ready.
17.
As to what happened next we have heard the evidence of the applicant, his mother, his
aunt Karen Ashton, his grandfather Cecil Ashton and family friend Tracy de Heer.
We heard the evidence of Mr Wallace. Somewhat surprisingly no one sought to call
Ms Manley who represented the co-accused, but no-one objected to our receiving her
advice to her instructing solicitor explaining what happened at trial.
Ms Manley’s note
18.
Ms Manley’s note is dated 22 February 2014. In it, she explained that counsel for the
prosecution approached defence counsel. He indicated he would be unlikely to reduce
the charge for the applicant but would advise the Crown Prosecution Service that, if
the applicant pleaded guilty to the section 18 offence, they should accept a plea to
affray from his mother.
19.
A joint conference was then held; present were the accused, their counsel and
members of the family. There were about twelve people in a small room. It was
thought at the time that a joint conference was possible because there was no conflict
between the parties. With the benefit of hindsight, that was unwise given the fate of
one defendant might depend on the actions of another.
20.
Ms Manley stated “Mr Wallace explained in some detail and at length the state of the
evidence in the case. ….I agreed with his objective analysis of the case. …. At all
times Mr Wallace emphasised that any decision concerning altering pleas or pursuing
the matter to trial was a free decision on the part of the lay clients. They were under
no pressure from either him or me and he stated on more than one occasion that as the
decision was a momentous one for each of them he did not want them to make any
sort of snap decision but wanted them to take time to reflect and think” Ms Manley
showed both defendants the Sentencing Council Guidelines. She then saw her lay
client alone and advised her fully on the possible defences available to her, on the
legal definition of affray and on the fact she may still go to prison. She explained that
if Mrs McCarthy pleaded guilty, they would have to proceed on the basis she was
guilty. She asked the court for additional time to ensure her lay client understood fully
the implications of her decision. When Mrs McCarthy decided to plead guilty to
affray Ms Manley ensured her lay client endorsed her brief, in accordance with her
professional obligations. Unfortunately, Mr Wallace did not do the same.
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The applicant’s account
21.
The applicant described Mr Wallace’s very relaxed attitude to pre-trial conferences.
He would wear casual clothes and pop in sometimes unannounced. He would peck
Tracey McCarthy on the cheek and hug the applicant. On occasion he smelled of
cannabis and put his legs up on the sofa. At the time the lack of formality left him
feeling confident, as did Mr Wallace’s assurances that they had a very good defence.
Mr Wallace informed the family that he had had a run of seventeen wins in court and
did not intend to end his winning streak. He advised that, if convicted, the applicant
would face a sentence of 18-24 months and his mother would not go to prison. There
was no suggestion that either of them should plead guilty.
22.
The visits included a review of some of the witness statements and attempts at a
reconstruction of the incident. Mr Wallace had no papers with him and took no notes.
He raised the question of the admissibility of the applicant’s reprimand for affray as a
schoolboy and the complainant’s shoplifting convictions. There was also some
discussion about S’s evidence. Looking back, the applicant feels that Mr Wallace’s
approach failed to prepare him properly for what was to happen at trial. The only time
when Mr Wallace suggested there might be problems with the case (namely S’s
evidence, his mother’s account to police and his bad character) was on the Saturday
morning before trial.
23.
On the morning of 18 February Mr Wallace arrived late and gave no explanation. He
seemed out of sorts. He told the applicant he needed to see everyone because “it’s not
looking good. It’s taken a turn”. By which he explained that S would be giving
evidence and she was bound to convince the jury. The chances of getting acquitted
were now 30/70. Counsel said that he would not be able to cross-examine the child
witness as he would an adult and that the complainant’s bad character would not be
admissible as evidence. However, the applicant’s reprimand for an offence of affray
would be admissible. He advised that on conviction the applicant would get 6-10
years and his mother 3-6. He informed the applicant there was a deal on the table. He
could plead guilty to a lesser offence of section 20 wounding and the prosecution
would accept a plea to affray from his mother. He could not recall being advised
specifically as to intent and the distinction between section 18 and 20. He understood
he was to plead guilty to a lesser offence and he would not be admitting taking the
knife to the scene. If he did not admit taking a knife to the scene he did not admit
intending to hurt the complainant. Counsel advised them on the Sentencing Council
Definitive Guideline for section 20 offences. If they pleaded, Mrs McCarthy might
avoid an immediate prison sentence and his sentence would be in the region of 2-5
years with time deducted for his ‘tag time’ (time on electronically monitored curfew).
He was particularly concerned about his mother’s going to prison and the effect upon
his young siblings. He asked Mr Wallace if it was one of his relatives affected in this
way would he plead guilty and Mr Wallace said he would.
24.
Members of the family had differing views as to what he should do. He says he felt
rushed, extremely emotional and pressured into changing his plea to guilty to a
section 20 offence. He agreed to do so because he trusted his barrister. He was the
professional, very intelligent and a television personality. The applicant insisted he
never accepted he was guilty or that he had the knife. There was no discussion as to
basis of plea, and he did not sign an endorsement of Counsel’s brief. Counsel stood
next to him when the pleas were taken. He did as Mr Wallace indicated. When Mr
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Wallace was asked if the applicant had pleaded to an offence involving intent, he was
advised that he had but he was not to worry; the judge and prosecutor knew he did not
have the intent.
25.
He sent a text message to this effect to his friend Jason. We have a copy. It read:
“Took a plea bargain… I took a less charge to Gbh… I’m
looking at anything from 2 – 5 years”.
26.
Afterwards Mr Wallace told him he would have to accept in his interview with the
probation officer that that he had taken the knife with him. This was to show remorse.
Mr Wallace provided the whole story of taking the knife with him in case he
encountered a hostile reaction from the Sapsford family.
27.
The applicant informed the court that had he received a sentence of no more than 5
years as he expected, he would not have appealed.
Tracey McCarthy’s account
28.
Tracey McCarthy was present at the applicant’s pre-trial meetings with Counsel. She
also remarked upon the unusual lack of formality. She raised the possibility with Mr
Wallace of obtaining a forensic report on the knife to reveal any fingerprints or DNA
but he was not interested and this was not followed up. She also provided background
information on her son’s reprimand for affray. His school (where the incident
occurred) had accepted subsequently that he had acted in self defence rather than as
the aggressor and revoked his expulsion. The school was prepared to co-operate with
the defence but no statements were taken from them.
29.
She, too, remembers Mr Wallace’s great confidence in the defence and their prospects
of success. A guilty plea was never discussed.
30.
She gave an account of the conferences on 18 February that is broadly consistent with
her son’s account. Mr Wallace was no longer confident of an acquittal and advised
there was only a 30: 70 chance of success. He now said the evidence of S was
damning and her own account did not help the applicant. The complainant’s character
could not be admitted in evidence because she was a victim but the applicant’s
reprimand would be admitted because it related to an offence of violence. If convicted
of section 18, the applicant could expect a sentence of 8- 10 years. He wanted the
applicant to plead. Mr Wallace advised that if the applicant pleaded guilty to section
20 his sentence would be 2 to 4 years less ‘tag time’ and a reduction for plea. Part of
the sentence would be suspended. She had not heard of section 20 before that day.
She understood that the distinction between section 18 and 20 came down to whether
or not the applicant took the knife to the scene. Section 20 meant he had injured
someone but not taken the knife to the scene.
31.
She maintained that Mr Wallace would not allow them any additional time to discuss
the matter and that he became agitated and defensive as the family became
increasingly upset and emotional and debated what the applicant should do. The
applicant himself was tearful and stressed.
Judgment Approved by the court for handing down.
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32.
She confirmed with Mr Wallace before her son pleaded guilty that he was pleading to
an offence of wounding with no intent and that the applicant was under the impression
that he was pleading to an offence involving no intent. When the pleas were taken she
and others noticed the reference to intent and having a knife. They asked Mr Wallace
what the applicant had pleaded to and he assured them “it was in hand” and not to
worry. They, meaning the judge and the prosecutor, knew the applicant had no intent.
33.
The family did worry and Karen Ashton rang Mr Wallace a few days later saying the
applicant wanted to change his plea. Again Mr Wallace re-assured her. She, too,
claims that it was Mr Wallace who told the applicant what to say about taking the
knife to the scene.
Karen Ashton’s account
34.
Karen Ashton suggested instructing Mr Wallace because she grew up with him and
was aware of his success at the Bar and on television. She described Mr Wallace
arriving at about 11.00 on the morning of the trial. Almost immediately he gathered
the whole family and friends present in a small room and began to put immense
pressure on her nephew to plead guilty. He said the complainant’s character was not
admissible but the applicant’s reprimand was and it would go badly for him. S’s
evidence was powerful. Mr Wallace wanted her nephew to admit possessing the knife.
Wallace’s advice was that he would get 2 to 4 years rather than 8 to 10 years and his
mother would get a suspended sentence rather than 3 to 6 years, if he pleaded guilty to
section 20. She understood this was a lesser offence. None of the family wanted the
applicant to plead guilty to anything. Mr Wallace said if he was in the applicant’s
shoes he would plead guilty. When he agreed to plead, everyone there understood he
was to plead guilty to section 20.
35.
In her written statement to the court she confirmed that Mr Wallace informed the
applicant that if he wished to contest the trial he would fight the case for him. After
the hearing she asked Wallace if the applicant could change his plea and his advice
was that this was not possible. They had to stick to what they had said.
Cecil Ashton’s account
36.
Cecil Ashton saw Shaun Wallace at one of the pre-court meetings. He, too,
remembers assurances that the applicant had a great case and that Mr Wallace
intended to make this his eighteenth win in a row.
37.
On the day of trial he thought his grandson a nervous wreck before the conference
even began. Mr Wallace was late but gave no apology. He wanted the applicant to
plead guilty because S’s evidence was likely to convict him. He did not want to cross
examine her. The complainant’s character was not admissible and the applicant’s
reprimand would make him look bad in the eyes of the jury. He had only a 30 per cent
chance of an acquittal. If convicted, the applicant would get 8-10 years and his mother
3-6 years. If he pleaded to section 20 it would be a lesser sentence and his mother
would not go to prison. In his written statement, Mr Ashton mentioned that Mr
Wallace explained the difference between section 18 and section 20. Section 20 meant
the applicant did not have the necessary intent and did not take the knife. The
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applicant was guilty to section 20 because she did not stab herself. The applicant and
everyone else thought he was being offered a deal to plead guilty to a section 20
offence. He would get 2- 4 years and credit for ‘tag time’. Part of the sentence would
be suspended. The pressure for the applicant was unbearable.
38.
Afterwards when he asked Mr Wallace about what offences his grandson had pleaded
to, Mr Wallace assured him that everything was in hand.
Tracey De Heer’s account
39.
Tracey de Heer was also at the family conference at court. Mr Wallace said he would
not cross examine the child and that Mrs McCarthy’s evidence was not helpful.
Things were not looking good. It was 70/30 against Jamie. If he was convicted of
section 18 he would get 8-10 years and his mother 4-6. If he pleaded to section 20 he
would get a lesser sentence of 2-4 years. The applicant was upset and crying and
would have pleaded to any offence to keep his mother out of prison. Both the
circumstances and Mr Wallace put pressure on the applicant to plead guilty. Everyone
understood he would be pleading to a section 20 offence. She remembered Karen
Ashton asking what Mr Wallace would do if it was his mother and his indicating he
would accept the deal.
40.
Afterwards, Mr Wallace said not to worry about the fact he had pleaded to intent.
Other material
41.
Other members of the family and friends not called have provided statements as to
events at trial that are broadly consistent with the accounts provided by the applicant
and the co-accused and broadly consistent with each other.
Text message
42.
Jason Gillett, a friend of the applicant, has confirmed he received the text from the
applicant to which we have referred. Gillett then phoned the applicant who said that
whilst he was not happy with the plea bargain it was probably the best outcome for his
mother. The applicant expressly told him that he took a plea bargain to a lesser
charge.
Shaun Wallace’s response
43.
In his response, Mr Wallace insists that advices on evidence were not necessary and
that his conferences with his lay client enabled him to attend the trial fully prepared
for a contested hearing. He met the applicant for the first time at the PCMH where he
explained that he would need a number of conferences before trial. He lived not far
from the applicant’s bail address and was prepared to travel there to conduct them. He
did not inform his instructing solicitors. There were about four conferences on
Saturdays during which he took full instructions and explained a number of
difficulties with the defence. These included the contents of the co-accused’s
interview, the fact the defendants admitted they wanted to speak to Asher Sapsford
about the burglary and the fact that the applicant changed his clothes after the
incident.
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44.
He rejected the allegations of unprofessionalism, undue informality and association
with cannabis. He insists he always had his case papers with him and went through
every aspect of the case with his lay client in proper form. They had in depth
discussions and conducted a re-construction. He advised that the applicant had a good
defence.
45.
He dismissed the suggestion that expert evidence on the knife found nearby was
required. It would have been irrelevant. First, the knife found may not have been the
knife used in the incident. Second, even if it was the same knife, it had undoubtedly
caused injury to the victim and her DNA might well be on it.
46.
On the day of hearing, Mr Wallace informed us that he arrived in good time but spoke
first to his opponent and counsel for the co-accused, Miss Manley. Prosecuting
counsel announced he had no intention of accepting a plea to a lesser offence.
47.
He insists that he explained the elements of section 20 only because the family were
asking whether the prosecution would accept a plea to a lesser offence. In so doing, he
made it clear a plea to section 20 was not on offer. He also explained the offence of
possession of an offensive weapon. He accepted that the applicant always insisted he
did not take the knife with him to the scene and that, in his later advice on sentence,
he appeared to have equated taking the knife to the scene with intending to cause
really serious bodily harm. He said that he had phrased his advice badly.
48.
He had begun to have reservations about the strength of the defence on the Saturday
before trial. On the Monday he advised the applicant his chances of acquittal were 30
per cent if the complainant and S came up to proof. He explained about the difficulties
in applying to adduce evidence of the bad character of the complainant. She had
previous convictions for dishonesty but not violence and these went only to her
credibility whereas the applicant’s reprimand was for violence. If his character was
admitted, as was likely, this might be considered more relevant to the offence
charged.
49.
He denies that he said he could not or would not cross-examine the witnesses
particularly the child witness. The point he was making was how effective her
evidence was likely to be and how hard it would be to undermine it.
50.
He admits that, when asked by the family whether he would plead guilty in this
situation, he told them he probably would, if he did not want his co-accused to go to
prison. Asked about sentence, he said the applicant would still get credit (he did not
say how much) and would probably get 5-6 years.
51.
He advised the applicant this was a momentous decision and he wanted to discuss it
further after they had had a chance to discuss it. He emphasised he would support any
decision the applicant made.
52.
He saw the applicant separately in the presence of his step father by which time the
applicant had decided to plead guilty. Mr Wallace said that he advised the applicant
that if he pleaded it would have to be on the basis of the prosecution full facts,
namely, that he had the knife not the complainant. He denied he put pressure on the
applicant and maintained that the applicant and his family understood he would be
pleading guilty to the section 18 and the offensive weapon offences.
Judgment Approved by the court for handing down.
53.
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He agreed that, despite professional rules, he did not obtain his lay client’s
endorsement of his brief when the applicant changed his plea and he made no written
record of that or any conference.
Advice to solicitors on plea
54.
After sentence, there was an email exchange dated February 2013 with his instructing
solicitors in which he set out the conferences he had held at the bail address, the
prosecution case, the defendant’s instructions and his advice. He did not address the
issue of intention to cause really serious bodily harm. He described the issues for the
jury to determine in the event of a trial as being whether James armed with a knife
unlawfully attacked the complainant or was James acting in self defence because he
was instinctively reacting to the knife that was produced by the complainant. In
relation to the events of 18 February, he stated:
“James asked me if he pleaded guilty to either s18 or a lesser
charge, would that mean he would have to accept that he had
the knife and used it in the manner suggested by the
prosecution and I told him that they wouldn’t accept anything
less.
I told him that if he was going to plead guilty, it would be on
the basis that he had the knife for protection because of the
reputation for handling stolen goods and its potential for
violence.”
I advised him that if he decided to change his plea, then the
Crown would drop the s18 charge against Tracey…”
Advice on sentence
55.
In his written advice on sentence to the lay client and the solicitors he set out
everything again in some detail including the fact that he advised the applicant on the
Definitive Guideline. He asserted that he had explained fully the applicant’s options
and given him ample time to consider whether he wished to contest the trial (for
which he was fully prepared) or plead guilty to the offences as charged. The
advantages of doing the latter were that the prosecution would accept a plea to affray
from the co-accused and the applicant would get some credit for his plea of guilty.
56.
He stated: “Counsel makes it clear that the Appellant pleaded guilty to s.18 GBH with
intent and does not seek to go behind that fact and the ‘intent’ in terms of bring (sic) a
knife out in a public place with the initial aim for protective purposes and his
deliberate intention to frighten or scare a seated vulnerable victim with two young
children present demonstrates and is another example, it is submitted, of the
Appellant’s failure to show any clear thinking of the risks and the consequences of his
actions”.
GROUNDS OF APPEAL
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Conviction
1. The applicant’s case was inadequately and / or incompetently
prepared by his trial representatives in that:
a. Counsel failed to comply with the Bar Standards Board’s
Written Standards of Professional Conduct;
b. Counsel failed to conduct conferences in a professional
manner;
c. Counsel failed to instruct an expert to inspect the knife for
forensic links to the complainant.
d. Counsel failed to record in writing the reason for the plea
and the fact the lay client had been given the opportunity to
endorse a declaration stating that he had given instructions,
of his own free will, to plead guilty;
e. Counsel failed to make a contemporaneous note of his
advice as to plea at trial.
57.
Many of the breaches of the BSB’s Written Standards are effectively admitted. Mr Ali
went further: he invited the court to find that the quality of pre-trial conferences was
poor, informal and unprofessional; that Mr Wallace never attended with the case
papers; never took notes; never arranged conferences in the presence of solicitors; and
failed to give adequate advice on the strength of the evidence and the evidence
generally in pre-trial conferences.
58.
Mr Ali insisted that any competent counsel would have asked for a forensic
examination of the knife.
Mr Wallace’s instructions were that “the
complainant…produced in her right hand, which she quickly transferred into her left
hand, a kitchen knife”. He maintained that if the knife found nearby had been
examined it might have revealed a link to the incident. Mr Wallace has failed to
consider the fact that if Lisa Sapsford’s fingerprints or DNA, were found on the knife
handle, it would support the applicant’s contention that she (not he) produced the
knife.
59.
Mr Ali also claims that Mr Wallace gave inadequate or inaccurate Legal Advice in
that:
a. he failed to explain sufficiently or at all the differences
between section 18 and section 20 apart from the fact one was
a lesser offence. In particular he failed to spell out that to
plead guilty to a section 18 offence one would have to admit
an intention to cause really serious bodily harm. Those
present at the conference on the morning of trial, in particular
the applicant, were clearly confused about the advice given.
b. he advised that even if Mrs Sapsford produced the knife,
the Applicant was guilty of the section 20 offence because he
accepted he stabbed her.
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c. his advice on the prospect of the judge’s agreeing to admit
the complainant’s bad character and on the likelihood of the
applicant’s bad character being admitted was unduly
pessimistic.
d. he failed to explain that the applicant had the option to
plead on a written basis, which could accept and reject
specific facts (if necessary to be litigated at a Newton
hearing);
60.
Mr Ali invited the court to bear in mind the cumulative effect of all the circumstances
on the applicant. He arrived at court to receive advice, for the first time, that he had
little or no prospect of success. If he pleaded guilty (which his barrister said he would
do) his mother might avoid prison. Both of them would be allowed to plead guilty to a
less serious offence and receive a reduced sentence. This all combined to amount to
improper pressure on the applicant and his freedom of choice was thereby narrowed.
The legal principles
61.
There are two essential principles which govern the present situation where a
defendant pleads guilty and subsequently attempts to appeal against his conviction.
Boal
62.
The first principle is derived from R v. Boal [1992] 95 Cr App R. 272. The Court will
only take the exceptional course of intervening if a defendant has been deprived of a
defence which it believes would probably have succeeded. Boal pleaded guilty to an
offence under the Fire Precautions Act 1971 following legal advice that he was
incontestably a ‘manager’ within the meaning of section 23 of the Act. This advice
was wrong. The Court of Appeal accepted that, through no fault of his own, the
defendant had been deprived of a good defence and quashed the conviction. The
Court of Appeal added the following word of warning (at p. 278):
“This decision must not be taken as a licence to appeal by anyone who
discovers that following conviction (still less where there has been a plea of
guilty) some possible line of defence has been overlooked. Only most
exceptionally will this Court be prepared to intervene in such a situation.
Only, in short, where it believes the defence would quite probably have
succeeded and concludes, therefore, that a clear injustice has been done. That
is this case. It will not happen very often.”
Nightingale
63.
The second principle is that a defendant charged with an offence is personally
responsible for entering his plea, and that, in exercising his personal responsibility, he
must be free to choose whether to plead guilty or not guilty.
In R v Nightingale
[2013] EWCA Crim 405; [2013] 2 Cr. App. R. 7 the court was concerned not with
alleged incompetence of counsel but with the effect of inappropriate judicial
intervention on the appellant’s freedom of choice to enter his plea.
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10.
…….. It is axiomatic in our criminal justice system
that a defendant charged with an offence is personally
responsible for entering his plea, and that in exercising his
personal responsibility he must be free to choose whether to
plead guilty or not guilty. Ample authority, from R v Turner
[1970] 2 QB 321 to R v Goodyear [2005] 1 WLR 2532, which
amends and brings Turner up to date, underlines this immutable
principle. The principle applies whether or not the court or
counsel on either side think that the case against the defendant
is a weak one or even if it is apparently unanswerable. In view
of the conclusion that we have reached, we shall express no
opinion whatever of our view of the strength of the case against
the appellant.
11.
What the principle does not mean and cannot mean is
that the defendant making his decision must be free from the
pressure of the circumstances in which he is forced to make his
choice. He has, after all, been charged with a criminal offence.
There will be evidence to support the contention that he is
guilty. If he is convicted, whether he has pleaded guilty or
found guilty at the conclusion of a trial in which he has denied
his guilt, he will face the consequences. The very fact of his
conviction may have significant impact on his life and indeed
for the lives of members of his family. He will be sentenced -often to a term of imprisonment. Those are all circumstances
which always apply for every defendant facing a criminal
charge.
12.
In addition to the inevitable pressure created by
considerations like these, the defendant will also be advised by
his lawyers about his prospects of successfully contesting the
charge and the implications for the sentencing decision if the
contest is unsuccessful. It is the duty of the advocate at the
Crown Court or the Magistrates' Court to point out to the
defendant the possible advantages in sentencing terms of
tendering a guilty plea to the charge. So even if the defendant
has indicated or instructed his lawyers that he intends to plead
not guilty, in his own interests he is entitled to be given, and
should receive, realistic, forthright advice on these and similar
questions. These necessary forensic pressures add to the
pressures which arise from the circumstances in which the
defendant inevitably finds himself. Such forensic pressures and
clear and unequivocal advice from his lawyers do not deprive
the defendant of his freedom to choose whether to plead guilty
or not guilty; rather, the provision of realistic advice about his
prospects helps to inform his choice. …….
16.
In the final analysis, the question is not whether the
Judge Advocate here contravened the principles which govern
the giving of sentence indications. Of itself that would not be
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decisive. The question is whether the uninvited indication given
by the judge, and its consequent impact on the defendant after
considering the advice given to him by his legal advisers on the
basis of their professional understanding of the effect of what
the judge has said, had created inappropriate additional
pressures on the defendant and narrowed the proper ambit of
his freedom of choice.
17.
Having reflected on the facts in this case, we conclude
that the appellant’s freedom of choice was indeed improperly
narrowed. Accordingly, the plea of guilty is in effect a nullity.
It will be set aside. The conviction based on the plea will be
quashed.
Conclusions
64.
The grounds of appeal provide two principal issues for this court to determine:
namely was there i) undue pressure and ii) inadequate representation that, individually
or cumulatively, improperly narrowed the applicant’s freedom of choice.
Undue pressure
65.
The undue pressure is said to stem from the events at court on 18 February. The
accounts from the applicant’s family as to what happened and from Ms Manley and
Mr Wallace differ. That is hardly surprising in that no one (save possibly Ms Manley)
was taking a note and the applicant and his supporters became distressed and
confused. They had come to court bolstered by Mr Wallace’s earlier advice as to the
applicant’s ‘good chances’ and suddenly they were met with advice that he should
plead guilty.
66.
The applicant and his witnesses called before us gave remarkably similar accounts in
some respects; for example that the applicant was advised to plead guilty to a lesser
section 20 offence and would receive a sentence of 2-4 years; in other significant
respects they have clearly got things wrong. We give one example: namely Mr
Wallace’s attitude to the examination of S. The applicant is clear, as is Mr Wallace.
The applicant was advised that Mr Wallace said he could not cross examine S in the
way he would an adult. Other members of the family remember Mr Wallace refusing
to cross examine her and/or saying he could not cross examine her. In the light of Ms
Manley’s note we are confident the applicant and Mr Wallace are correct.
67.
Mr Heptonstall for the Crown suggested, in as polite a way as possible, that the
similarities between accounts suggested that members of the family had got their
heads together to produce a story. However, some of what they said was confirmed by
Mr Wallace himself and we did not get the impression the witnesses were deliberately
trying to mislead the court. In our view, it was more likely that where their accounts
differed from Ms Manley’s note (for example as to the extent of the pressure put on
the applicant) they had unwittingly allowed their emotions, and possibly ‘group
recall’, to cloud their memory.
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68.
There was undoubtedly pressure on the applicant. He was under pressure in two
particular respects: from his desire to keep his mother out of prison and from the
advice that his chances of an acquittal were no more than 30 per cent. However, this
kind of pressure is perfectly normal just before a trial commences. As the Lord Chief
Justice explained in Nightingale at paragraphs 11 to 12 the pressures stem from the
fact that the applicant was charged with a serious criminal offence. It is also far from
uncommon for members of the same family to be charged on the same indictment and
for negotiations to take place in which the prosecution offer or the defence invite the
prosecution to accept a lesser plea from one member of the family if the other pleads
guilty as charged.
69.
We note that the applicant was a grown man with no identified vulnerability who was
perfectly capable of asking questions. If he did not do so, his family did. His text
message to his friend reveals a man who had understood that as a result of agreeing to
plead guilty to an offence he might get as much as five years. That does not suggest a
man under pressure to plead guilty to a stabbing of which he was not guilty.
70.
Further, we do not accept that the applicant, whom we found to be an articulate and
relatively robust young man, misunderstood the impact of what Mr Wallace was
saying. His understanding was that if he pleaded guilty to taking the knife to the scene
and stabbing the complainant unlawfully, he would be sentenced on that basis and
would receive a reduced sentence. The serious charge against his mother would be
dropped and she might not then go to prison.
71.
It was on that basis he pleaded guilty to both offences and made no attempt to change
his plea until after he was sentenced. As he told us, he would not have appealed had
he received a sentence of 5 years.
72.
Importantly, we have Ms Manley’s clear note. Her account is a nearly
contemporaneous explanation of events and it comes from an independent, legally
trained and objective source. She described how Mr Wallace provided a detailed and
lengthy exposition of the state of the evidence. She agreed with his analysis. Mr
Wallace emphasised the decision to plead guilty was a serious one and one the
applicant had to make. She makes no reference to any undue pressure being applied to
the applicant from counsel or indeed from the court. On the contrary when she wanted
more time from the court, she was given it.
73.
Mr Wallace’s advice could have come a bit sooner but it was a proper reflection of the
state of the evidence. The case against the applicant was strong. The defence of selfdefence was hardly likely to succeed. The McCarthy family was incensed by the
burglary and looking for the culprit. The applicant and his mother came across the
alleged culprit’s mother. She was enjoying a pleasant family outing with small
children in the back of her car. She was sitting in the driver’s seat. Even if a jury
could be persuaded that she might suddenly have produced a knife, she posed no
threat whatsoever to either the applicant or his mother. Further, eye witnesses
described the applicant behaving aggressively.
74.
Thus, we do not accept that Mr Wallace put improper pressure on the applicant or that
the cumulative effect of the circumstances did so. In this respect, his freedom of
choice was not narrowed.
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Inadequate representation
75.
There are a number of aspects in which Mr Wallace’s conduct of the case is open to
possible criticism. These include:
a.
Holding conferences with his lay client at his home
without a solicitor present and without keeping the
solicitor informed of what he was doing and advice he
was giving;
b. Failing to keep notes of his conferences;
c.
Failing to explain the obvious strengths of the
prosecution case until fairly late in the day;
d.
Failing to consider whether a joint family conference
in the circumstances was appropriate;
e
Failing to ensure that the applicant endorsed his brief
to indicate that he knew what has doing and the
consequences of what he was doing and that he had
made the decision to plead guilty of his own free will;
f.
Failing to explore the basis of plea and record the
same;
g.
Failing to record his advice at court and client’s
agreement with it leading to change of plea;
h.
Adopting far too informal an approach throughout
which either exceeded or came close to exceeding the
boundaries of the client and advocate relationship.
76.
This case is a paradigm example of why some formality and distance is required
between advocates and their lay clients and lessons should be learned by those who
seek to blur the boundaries. The advocate should remain an independent and objective
adviser.
77.
However, even accepting that all these criticisms of Mr Wallace are justified, it does
not follow that the applicant should be allowed to vacate his plea. The answer to that
question turns on the nature and extent of the legal advice he was given.
Inadequate legal advice
78.
We have been careful to explain that we are satisfied that the applicant understood he
was admitting and was prepared to plead guilty to taking a knife to the scene and
stabbing the complainant unlawfully. However, those admissions would only make
him guilty of wounding and possession of an offensive weapon. Before the applicant
could properly and freely plead guilty to an offence of wounding with intent contrary
to section 18, his advocate had to explain all the elements of the offence to him and
the applicant had to understand that he was thereby accepting that when he stabbed
the complainant he intended to cause her really serious bodily harm.
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79.
We have analysed carefully Ms Manley’s note, Mr Wallace’s account of his advice
generally, his advice on the day of trial, his advice by email and in his written advice
on sentence. We have compared them all with the evidence from the applicant and his
witnesses. We can find no reference to Mr Wallace’s ever explaining to the applicant
in appropriate terms the nature of the intent necessary to constitute a section 18
offence; not even in Mr Wallace’s own account. Mr Wallace’s advice on sentence and
his email to his instructing solicitors both seem to equate taking the knife to the scene
with the necessary intent for a section 18 offence. A plea of guilty on the “full facts”
was said to be on the basis that the applicant, rather than the complainant, was in
possession of the knife. No mention is made of the applicant’s intending to cause
really serious bodily harm when he stabbed Mrs Sapsford.
80.
On the one hand, therefore, we have a possible and significant lacuna in the advice
given by Counsel and, on the other, we have an applicant who clearly understood he
was pleading guilty to a lesser offence of wounding. His text messages to his friend,
Jason Gillett, almost immediately after he entered his plea make that plain. It is also
the common refrain of every one of the defence witnesses called that the applicant
intended to plead guilty to a lesser offence.
81.
In our view, this is one of those exceptional cases where we should intervene. We are
far from confident that when the applicant pleaded guilty to the offence of wounding
with intent he had a proper understanding of the elements of the offence. In that sense,
his freedom of choice was improperly narrowed. It cannot be argued that he had no
defence on a charge of wounding with intent. The prosecution case on wounding and
offensive weapon may have been strong, but the applicant may have persuaded a jury
his appalling behaviour did not extend to intending to cause Mrs Sapsford really
serious bodily harm.
82.
For the reasons we have already given, these arguments do not apply to the offensive
weapon count and his plea of guilty to that must stand.
Substitution
83.
The question now arises as to whether we should simply quash the conviction for the
section 18 offence and order a re-trial as Mr Heptonstall invited us to do, or whether
we substitute a conviction for a section 20 offence of wounding as Mr Ali suggested.
It was common ground that the latter is a course open to us pursuant to 3A(2) of the
Criminal Appeal Act 1968. The applicant could have pleaded guilty to, or been
convicted of, an offence of section 20 wounding on the indictment. If we are satisfied
that his plea of guilty indicated an admission of facts which prove him guilty of
wounding, we may substitute for the applicant’s plea of guilty to section 18, a plea of
guilty to section 20 rather than dismiss or allow the appeal.
84.
It appears to us that the applicant intended to plead guilty to a section 20 wounding.
He has told us in terms he would have pleaded guilty to a section 20 offence. As we
have indicated, subject to the issue of intent, it also appears to us that his pleas were
entered freely and his freedom of choice was not improperly narrowed. His guilty
pleas to a section 18 wounding and possession of an offensive weapon indicate an
admission of facts which prove him guilty of section 20 wounding.
Judgment Approved by the court for handing down.
85.
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In all the circumstances of this case, we are prepared to accept Mr Ali’s submission
that the most sensible course is to use our powers of substitution. We give leave and
substitute a plea of guilty to the wounding offence. The records will be amended
accordingly.
Sentence
86.
We proceed to sentence on that basis. We bear in mind the grounds of appeal but do
not address them specifically, aimed as they were at a different set of circumstances.
We give leave to appeal against sentence.
87.
The material before the sentencing judge, and now us, included a pre sentence report.
To the author of that report, the appellant (as he now is) denied any intent to cause
harm but accepted responsibility for his actions. He expressed remorse and regret.
However, he was not prepared to admit to premeditation nor to any sense of grievance
which had prompted an attack. He was assessed as presenting a low risk of reoffending. There were grounds for concluding that the behaviour was uncharacteristic
of him.
88.
There were two character references on behalf of the appellant with the papers. There
was also a statement from the complainant and a report from her doctor explaining her
pre-existing difficulties and the impact the incident had had upon her and upon S.
Conclusions
89.
This was a serious offence of section 20 wounding. The appellant and his mother
went out, he armed with a large knife, seeking to take the law into their own hands.
Their offence was clearly premeditated. Lisa Sapsford’s only ‘crime’, as they saw it,
was to be the mother of the man who may have burgled their house. They found Mrs
Sapsford inside a motor car with two children in the back and, effectively, unable to
escape. She was particularly vulnerable. Within a very short time of confronting her,
the appellant had stabbed her with the knife for no obvious reason. She posed no
threat to him or to his mother. After the stabbing the appellant tried to dispose of the
weapon and cover his tracks.
90.
Although the complainant’s physical injuries were limited, this was merely fortuitous.
They could have been worse. In any event, Mrs Sapsford also suffered from an
infection to her wound that caused a lack of sensation requiring further neurological
investigation and, more significantly, she sustained psychological injury for some
time after the incident.
91.
We are conscious of criticisms made of the judge's description of her injuries as
“catastrophic” and “life changing”. We have the benefit of an up to date message
from the complainant herself. It may well be that had the material before us been
available to the judge he may not have used those precise words. However, the fact
remains that this offence caused both physical and psychological harm to the
complainant and harm to the other occupants of the car. There has been a distressing
and protracted effect upon S. Her distress has exacerbated the complainant’s
suffering.
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92.
In the circumstances, and applying the Sentencing Guidelines, we find that there was
greater harm, in the context of an offence of section 20 wounding, and there was
greater culpability. The most appropriate category into which to place this offence
would be category 1 with a starting point of 3 years and a category range of 2 years 6
months to 4 years custody, but the circumstances of this case, in our view, take it
outside the category range.
93.
The factors which reduce the seriousness of the offence are the lack of previous
convictions, the fact it was an isolated incident, the appellant’s youth and remorse and
the fact he was under the influence of his mother. In addition, there must be a ten per
cent reduction for what would have been a plea of guilty on the day of the trial.
94.
Carrying out the sentencing exercise on section 20 results, in our view, in a sentence
of 4 years imprisonment.
95.
The appellant pleaded guilty also to an offence of possession of an offensive weapon.
He was sentenced to 2 years imprisonment for that offence to be served concurrently
to the sentence on the section 18 offence. Having settled on a sentence of 9 years for
the more serious offence, the judge no doubt took account of the principle of totality
in so ordering. In our view the carrying of the knife is a particularly aggravating factor
of the crime. Had he not taken the knife to the scene, it would not have been to hand
to use when tempers flared. The appellant must have been well aware that was a
distinct possibility. The offence of possession of an offensive weapon is a separate
and serious offence which should be reflected in the overall sentencing structure. For
the seriousness of knife crime generally: see the decision in Povey [2008] EWCA
Crim 1261; [2009] 1 Cr.App.R.(S.) 42 at paragraph 4 which guidance has been
recently repeated by Lord Thomas CJ in Gomes-Monteiro [2014] EWCA Crim 747 at
[4]).
96.
In all the circumstances, we are satisfied that the sentence for possession of an
offensive weapon should be ordered to run consecutively to the sentence of 4 years on
the section 20 offence. That means that the total sentence of imprisonment to be
served is now 6 years. To that extent this appeal succeeds.