Neutral Citation Number: [2014] EWCA Crim 573
Case No: 2012/02112/B4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Blackfriars Crown Court
HHJ Pillay
T2011/0407
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 27th March 2014
Before :

LADY JUSTICE HALLETT VICE PRESIDENT OF THE CACD
MRS JUSTICE COX DBE
and
MR JUSTICE EDER

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Between :

	REGINA	Respondent	
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	RITESH BRAHMBHATT	Appellant	

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(Transcript of the Handed Down Judgment.
Copies of this transcript are available from:
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MR M HOLLAND QC & MR S MOSES for the APPELLANT
MR R D'CRUZ & MR JAMES-DAWSON for the RESPONDENT

Hearing dates : 25TH – 27TH February 2014

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Judgment
Lady Justice Hallett Vice President of the Court of Appeal Criminal Division : 
1.	On 22 July 2011 in the Crown Court at Blackfriars before His Honour Judge Pillay the appellant pleaded guilty to conspiring to convey a List A article into a prison (count 1) and two counts of conspiring to convey a List B article into a prison (counts 2 and 4).  
2.	On 12 March 2012 he was sentenced to 54 months’ imprisonment on count 1, 1 year concurrent on count 2, and 18 months consecutive on count 4 making a total period of 6 years imprisonment. 
3.	He now seeks to have his plea of guilty set aside and his conviction quashed claiming his plea was entered under duress of circumstances. He has leave to appeal. 
The Prosecution case 
4.	The appellant was a practising solicitor at the material time.  Between March and September 2009 he entered into a criminal conspiracy with his clients David Sterling and Desmond Brown, who were serving prisoners at HMP Pentonville, and also with Danielle Porter and Calvin Chance on the outside.  Over the six-month period the appellant covertly conveyed prohibited items, namely drugs, mobile telephones and their component parts, into the prison during a series of legal visits to Sterling and Brown. 
5.	On 17 September 2009 the appellant went to HMP Pentonville for a scheduled legal visit with Sterling.  Prison officers had become suspicious that Sterling was receiving prohibited items from his legal visitors.  When the appellant was informed on arrival that all visitors were to be subject to a sniffer dog search, he asked if he could return to his locker.  Two sniffer dogs positively indicated the presence of a controlled substance.  He denied being in possession of a controlled substance.  He was searched and asked to remove his shoes. He replied that he would rather not.  The shoes had been bought five days earlier from High & Mighty – a shop for larger men. They were at least three sizes too big for him.  When questioned further about removing his shoes, he replied, “I’d rather do it with the police here.”  He eventually agreed to remove his shoes and a three-inch cling film package was found at the end of each one.  He stated he had another similar packet hidden in his trousers.  This was also cling film wrapped and was about five inches long.  He claimed he did not know what the packages contained.  He then disclosed there was something else in his locker, where officers found a further cling film package and an envelope containing £300 cash. 
6.	The package at the end of his right shoe contained 3.43g of white powder containing mephedrone, together with mobile phone parts, electronic scales and a sim card.  The package at the end of his left shoe contained 25.7g of skunk cannabis.  The package in his trousers contained 27.3g of skunk cannabis.  The packet in his locker contained two mobile telephones.  Sim cards were also seized from the cell shared by Brown and Sterling.  In the six months prior to his arrest, the appellant visited Sterling fifteen times and Brown six times.  During the same period, £22,963.78 was paid into his bank account.  His gross salary was £14,358.14.  An analysis of his bank accounts and phone records supported the suggestion that this was not an isolated incident and that the appellant and co-accused had been involved in smuggling items into the prison for some six months.  
7.	Following arrest, his reply to caution was: “I was forced to do this.  Someone held me at gunpoint”.  At the police station he advanced the defence of duress and explained that he had been threatened a week earlier by a man with a gun. A few days later he was given the items to smuggle in. 
8.	He was charged in relation to the Pentonville matters in June 2010.  The case was committed to Blackfriars Crown Court in September 2010 and a trial date set. 
9.	The appellant continued to work as a solicitor on bail, surprisingly without any conditions. On 23 February 2011, while visiting a client at HMP Winchester, he attempted to convey a mobile telephone into the prison.  When searched, he stated that he had forgotten it was on his person.  His own mobile phone was in his locker. 
10.	Days before the trial was due to start on 18 July the Appellant filed a second Defence Case Statement in which he provided a more detailed defence. He claimed to have been threatened and set up by Brown. He blamed the smuggling on his co-accused and accused Brown and others of supplying intelligence to the prison authorities. 
Court proceedings
11.	For reasons that need not concern us for the purposes of this judgment, the appellant arrived at court on the morning of Friday 22 July 2011. He had been on bail throughout but was remanded in custody. His counsel and solicitor arrived a few hours later. 
12.	Sir Desmond de Silva QC, his junior Paul Mylvaganmam and their instructing solicitor Mr Nicholls saw the appellant in consultation and took the opportunity to consider possible lines of defence with him. They told us in evidence that, in so doing, he volunteered for the first time that he was guilty of the offence. He admitted his defence of duress was false and apologised to them for misleading them in his earlier instructions. 
13.	In the light of this change of instruction, he was advised as to his options. These included obtaining a new legal team to replace them if he wished to maintain his not guilty plea. Sir Desmond assured us there was no pressure of time or circumstances albeit the appellant was obviously stressed and worried on a number of fronts. Nevertheless the appellant’s lawyers were each satisfied he was fit to make decisions. 
14.	The appellant signed a handwritten statement which included reference to his other options but declared he would plead guilty because “I am guilty”. When the prosecution refused to drop the Winchester count he signed another endorsement to the effect that he was pleading guilty of his own free will. 
15.	The trial of the co-accused continued with reliance being placed on his pleas. On 9 Sept 2011 his fellow conspirators were convicted. The appellant then belatedly tried to vacate his plea. 
Change of plea 
16.	He first applied for a change of solicitor. This was refused. He applied again accusing his solicitors of giving him negligent advice at the consultation on 22 July. He now seems to accept the advice was far from negligent. The judge relented and granted a change of representation. Mr Paul Garlick QC (sadly not well enough to appear before us) and Mr Moses were instructed. 
17.	They advanced three applications: that the judge recuse himself, that the judge hear the application in camera and that the plea be vacated. In relation to the first application, the judge refused to recuse himself. It is now accepted by Mr Holland that the application lacked substance. We agree and we do not need to consider it further. 
18.	In relation to the second application, counsel submitted that unless the hearing to vacate his pleas of guilty was heard in camera, the evidence that the appellant would have to give in support of the application would put him at grave risk of personal attack by his co-defendants or members or the criminal organisations with which his co-defendants were associated. The Appellant’s co-defendants objected strenuously to the hearing of the application in camera both orally and in writing. 
19.	On the application to vacate the plea, the Appellant claimed he had only pleaded guilty because he felt pressurised by the circumstances. He insisted he was not in his right mind at the time. He told us he was “confused, distressed, feeling suicidal and fearful”.
20.	On 17 February 2012, the judge ruled that the co-accused had locus standi in respect of any application by the appellant to vacate his pleas, especially if any allegations were to be made against them. Open justice demanded that the hearing be in their presence. The judge also found no cogent evidence that might raise a prima facie case that the appellant’s Article 2 rights were engaged. He ruled that the application should be heard in public. 
21.	It is said that as a result of the judge’s rulings, the Appellant was left with no option other than to abandon his application to vacate his plea of guilty. The judge proceeded to sentence the Appellant and his co-accused on 12 March 2012. 
Appeal
22.	There were originally three grounds of appeal upon which the single judge gave leave: 
i)	The judge erred in refusing to recuse himself. 
ii)	The judge erred in refusing to hold the application to vacate the plea in camera. 
iii)	The pleas were entered under duress of circumstances and were equivocal in nature.
23.	Mr Holland has focussed on the first half of the third ground. He accepted that if there was no basis for the application to vacate, there is no basis for the appeal. He further accepts that the pleas were not equivocal and that a represented defendant, who enters an unequivocal plea, faces a high hurdle in persuading this court to intervene. 
24.	He took us through the evidence which we have heard de bene esse from the appellant and his representatives at trial. He accepted that the court might well prefer the evidence of the appellant’s trial lawyers to that of the appellant. Nevertheless, he insisted the right approach was not to focus on whether or not the appellant admitted his guilt to his lawyers but whether that admission was reliable and made willingly.  He invited us to look closely at the build up to the appellant’s decision to plead guilty. 
25.	In brief, he relied upon:
i)	The effect of the passage of time on the appellant’s mental state and the time it took for the proceedings to get from arrest to trial. 
ii)	The fact that there was a real threat to the appellant’s safety and that of his family from his co-accused for as long as he remained in the trial. 
iii)	The fact that judge remanded him in custody to the cells where he thought he might be in danger. 
These factors coupled with all the surrounding circumstances, it was said, combined to overwhelm the appellant and effectively to deprive him of his free will. 
Conclusions
26.	We have concentrated on the appellant’s mental state as requested. We have no hesitation in finding that there was no basis whatsoever for the application to vacate the pleas of guilty. Unfortunately we found little in what the appellant said remotely credible. He gave us the clear impression of someone prepared to say or do anything to escape the consequences of his actions. 
27.	The appellant (although still young) was an experienced criminal solicitor; he was represented by very experienced counsel and solicitor. He was put under no pressure of time or circumstances by the judge or his counsel. Yet he chose to volunteer the fact of his guilt. He apologised for misleading his legal team. Counsel explained in words of one syllable, that a layman could have understood, that he should not plead guilty unless he was guilty. He was advised he had several options. Yet, the appellant decided he would plead guilty. He signed a statement and an endorsement to the effect he was guilty. We do not underestimate the effect of the strain he was under (faced with the loss of his career for which he had worked hard and with imprisonment) but that strain was not such as to deprive him of his free will. There is nothing to suggest he was forced to plead or that the plea is unreliable. 
28.	Had the single judge had the benefit of this information we doubt that she would have given leave on any of the grounds. However, she did not know what had happened at trial, because by the time the application was lodged the appellant had not yet waived privilege. 
29.	We remind all concerned of the judgment of the court in Doherty and Mc Gregor [1997] 2 Cr App R 218 given by the then Lord Justice Judge.  The facts were different in that fresh counsel instructed by McGregor alleged incompetence on the part of trial counsel whereas Mr Holland has carefully avoided an attack of that nature here. However, much of the guidance in Doherty and McGregor applies more generally. Where a fresh advocate is instructed to advance an application for leave to appeal based on the conduct of the trial, s/he should consider very carefully whether it is necessary to contact the trial lawyers and or advise their client to waive privilege. This should be done at an early stage and preferably before the application for leave is put before the single judge so that, where appropriate, the single judge can have the benefit of the trial lawyers’ comments. 
30.	Here, waiver was inevitable and should have been made much earlier. This appeal could not be advanced properly without a response from those who advised the appellant and represented him on the day he entered his pleas of guilty. 
31.	Having concluded that any application to vacate the plea was doomed to fail, we need not consider in any detail the impact of the judge’s refusal to hear the application in camera. Suffice it to say the judge was obliged to take into account the interests of all the parties including those of the co-accused when considering the openness of a hearing. He had a difficult balancing exercise to perform and he did so fairly and with absolute propriety. We have no doubt that he would have found a way to conduct the hearing without increasing any potential threat to the appellant. 
32.	For all those reasons, as indebted as we are to Mr Holland, who has advanced his case with skill, moderation and good sense, we are satisfied the convictions are safe. The appellant was not driven to plead guilty by the force of circumstances and it is not in the interests of justice to allow him to vacate his plea.