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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord
Wheatley
Lord
Clarke
Lord
Hardie
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[2009] HCJAC 12
Appeal No: XC554/07
OPINION OF THE COURT
delivered by LORD WHEATLEY
in
NOTE OF APPEAL AGAINST
CONVICTION
by
MARK DUNCAN
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Act: Shead: Beltrami
& Co, Solicitors
Respondent: Ferguson, Advocate Depute; Crown Agent
3 February 2009
[1] The
appellant appeared along with a co-accused Peter Duncan (who was not
related to him) at Inverness High Court on 24 May
2007 facing an indictment which contained five charges of assault. The appellant was not on the second
charge. The appellant pled not guilty to
charges 1, 3, 4 and 5, but on the second day of his trial he pled guilty to
charge 4 under certain deletions. In the
event, in terms of the fourth charge, the appellant pled guilty in the
following terms:
"on 2 July 2006 at The
Royal Oak Public House, Duke Street, Huntly you Mark Alexander Duncan
and Peter John Duncan did assault Gary Andrew Henderson,
c/o Grampian Police, Force Headquarters, Queen Street, Aberdeen, and did push
him against a wall and did punch him on the face causing him to fall to the
ground whereby he was rendered unconscious and thereafter repeatedly kick him
on the head and body all to his severe injury, permanent disfigurement and to
the danger of his life."
[2] The
appellant's trial began on Thursday 24 May 2007 at Inverness High
Court. The appellant had instructed his
solicitor, Mr Munro, that he wished to plead not guilty to the
charges. In particular, in respect of
charge 4, the most serious charge on the indictment, the appellant lodged
a notice of incrimination in respect of his co-accused and tendered a list of
six defence witnesses. Part of the
Crown case was presented on 24 May. The
following day, Friday 25 May 2007, the appellant, having
consulted with his counsel, Mr Moggach, tendered the plea as described above. The original charge had been one of attempted
murder. His plea of not guilty to the
remaining charges was accepted. On the
same day, following his plea of guilty, the appellant was instructed to provide
a precognition to the Crown. In the
course of doing so, the appellant made it clear that he did not accept
responsibility for the charge to which he had pled guilty.
[3] As
a result, on Monday 28 May 2007, the appellant's
solicitor withdrew from acting and a new solicitor was appointed. Fresh counsel were also instructed, and on the
following day, 29 May 2007, that counsel moved the Court to allow the guilty
plea tendered on the previous Friday to be withdrawn. The trial judge correctly refused this motion
as incompetent. The appellant thereafter
lodged the present Note of Appeal against conviction and sentence. At the hearing before us, only the appeal
against conviction was argued.
[4] The
grounds of appeal, taken from the Note, can be summarised as follows. The appellant says he was treated
oppressively by his solicitor prior to the trial. He was repeatedly coerced into pleading
guilty to charge 4. His solicitor
shouted at him on a number of occasions, and he felt intimidated, particularly
because he was a vulnerable person and lacked educational achievements. He was not properly advised of any
alternative course that might be open to him.
[5] The
appellant goes on to contend that he tendered his plea of guilty on 25 May 2007 under a material misconception, that
he misunderstood proceedings, and that the plea tendered constituted a "plea of
convenience". On that day, Mr Munro was
not in attendance at Court, but Sharon McKilligan, a solicitor from
Mr Munro's firm, attended along with Mr Moggach. Counsel advised the appellant, in the
presence of other members of his family, that the Crown had offered to accept a
plea of guilty from the appellant to charge 4 in reduced terms. The appellant maintains that the plea was
forced on him by counsel, who advised him that he had no other option. He was told that he had five minutes to
make up his mind, despite his repeated protestations of innocence. Counsel further advised him that if he pled
guilty he would get two to three years imprisonment, but that if he went
to trial he would get eight to ten years.
The appellant was advised by his counsel that he did not consider that
he could win the case in view of the overwhelming evidence against him. Furthermore, the appellant was advised that
his co-accused would also be pleading guilty to the charge. The appellant then states in his Note of Appeal
that he decided to accept the plea offered on counsel's recommendations, and
gave instructions to counsel accordingly.
He also accepts in the Note of Appeal that he confirmed the plea and
signed the Court Minute.
[6] The
appellant claims that he was led to believe that he had no other option but to
plead guilty, that he acted under duress, was wrongly advised and pled guilty
under real error and a material misconception as to what he was pleading guilty
to. He was thus coerced into accepting a
plea of guilty and has suffered severe prejudice as a result of defective
representation, amounting to a miscarriage of justice. In support of his grounds of appeal, the
appellant has produced affidavits from himself, his brother and his wife.
[7] The
principal members of the legal team who advised the appellant were asked to
answer the appellant's claims and their responses were before this Court. Mr Munro produced a detailed statement
refuting the appellant's complaints over the entire period of preparation
leading up to the trial, and describing in detail the work which he did in
preparing the appellant's case. For
reasons that will become clear however it is not necessary to describe Mr Munro's
statement in greater detail. Mr Moggach
and Ms McKilligan also provided detailed responses relating to their
involvement in the case and both emphasised that the appellant had been given a
careful and full explanation of what was involved in accepting the plea offered
by the Advocate Depute, and in particular maintained that the appellant had
been given a significant measure of time in which to consider his position, in
consultation with his family.
[8] The
law in this matter is now relatively settled.
It is perhaps sufficient to cite passages from the leading authorities
on the question of withdrawing a plea of guilty. In Boyle v H M Advocate 1976
S.L.T. 126 Lord Cameron (at p. 129) said:
"It is obvious, however,
that very grave difficulties must lie in the path of an applicant who seeks to
complain of a miscarriage of justice in a case in which he himself has not only
tendered a plea of guilty to the charge libelled against him on which the
conviction sought to be appealed against is recorded, but has done so when
acting with legal advice and in full knowledge of the nature and detail of the
charge to which deliberately and falsely he has tendered that plea and,
further, has through the mouth of his counsel, presented a precise and detailed
plea in mitigation of sentence."
[9] Further,
in Healy v H.M. Advocate 1990
S.C.C.R. 116 at 119 Lord Justice Clerk Ross indicated that in these
circumstances:
"...the court would require
to be satisfied that there were exceptional circumstances justifying such a
course. As the advocate depute put it, it
would have to be shown that the pleas had been tendered under some real error
or misconception or in circumstances which were clearly prejudicial to the
appellant. We are satisfied that this is
the approach that must be made because it is a recognised principle of the law
that there must be some finality in litigation and it would not be in the
interests of justice if individuals after they had been sentenced were permitted
lightly or easily to withdraw pleas of guilty which had been tendered merely by
asserting that on their part there had never been any real willingness to make
the plea."
[10] Finally,
in Reedie v H M Advocate 2005 SCCR 407 Lord Justice Clerk Gill
(paragraph 11) said:
"A plea of guilty
constitutes a full admission of the libel and all its particulars (Healey v H M Advocate). It is not a
conditional admission that is subject to reconsideration in the light of a
subsequent decision of the Court (Dirom
v Howdle), nor, in our view, in the
light of a subsequent verdict of a trial of another party on the same
charge. In view of the conclusive nature
of such a plea, it can be withdrawn only in exceptional circumstances (Dirom v Howdle); for example, where it is tendered by mistake (MacGregor v MacNeill) or without the authority of the accused (Crossan v H M Advocate). There is
little scope, if any, for the withdrawal of a plea that has been tendered on
legal advice and with the admitted authority of the accused (Rimmer, Petitioner)."
It only remains to add at this stage
that in terms of the principles set out in Anderson
v H M Advocate 1996 JC 29; 1996 SLT 155; 1996 S.C.C.R. 114, a challenge based on defective
representation has no application in the context of a prosecution resolved by a
plea of guilty (paragraph 56).
[11] It
is plain therefore that a plea of guilty tendered with legal advice can only be
withdrawn where (first) it has been tendered without the authority of the
accused, (second) under some real error or misconception, or (third) in
circumstances which were clearly prejudicial to the appellant (Pickett v H M Advocate 2008 SLT 319, 2007 SCCR 389). On the basis of the submissions made before
us, we are satisfied that in the present case the argument is that because of
the oppressive nature of the way in which matters were handled leading up to
the appellant's plea of guilty, the appellant maintains that he was
significantly prejudiced, leading to a miscarriage of justice. In dealing with the present appeal, which is
not one where evidence for the petitioner was led other than the
three affidavits mentioned earlier, we consider it appropriate in the
first instance to see whether the appellant's averments, if proved by credible
and reliable testimony, would succeed against the test outlined above.
[12] At
the outset we note that counsel for the appellant specifically departed from
the complaints directed against Mr Munro, for reasons which can readily be
understood. Whatever Mr Munro may or may
not have done prior to the trial starting, the subject matter of the present
appeal centres round the events of 24 and 25 May
2007, particularly the latter date, when Mr Munro was not present. On 24 May graphic evidence had been
given by the complainer, who could not identify his attackers, of what was
clearly a serious and unpleasant assault.
On the morning of 25 May, counsel for the appellant apprehended
that evidence would be led from impartial and sober witnesses who would
identify the appellant as being significantly involved in the assault. It was against that background that the plea
offered by the Crown was intimated to the appellant. Counsel for the appellant gave firm and
unequivocal advice that the plea offered should be accepted, notwithstanding
the appellant's acknowledged wish to maintain his innocence.
[13] It
is not now suggested that the advice tendered in these circumstances by counsel
amounted to defective representation.
Even if it had, it would not form the basis of an Anderson appeal. Setting aside the complaints directed at
Mr Munro, what is said by the appellant in his Note of Appeal is that his
plea was forced on him by counsel. This
took place in the presence of other members of his family. The appellant states that counsel strongly
advised him to plead guilty as he did not consider that his defence was likely
to succeed, in view of the overwhelming evidence against him. He infers that he was advised that no other
option was available to him. He
therefore accepted that he gave instructions to plead guilty in terms of the
plea offered, and that he confirmed the plea in Court and signed the Court Minute. The appellant maintains that he was not
advised at any stage that he could maintain his plea of not guilty or seek
alternative representation if he was unhappy, although these claims do not sit
particularly well with the fact that he had earlier been advised by counsel at
his consultation of the likely sentence he could receive if he went to trial or
the fact that he had earlier changed his solicitors. The appellant then maintains that he considered
the plea to be one of "convenience", submitted in order to secure a lesser
sentence.
[14] It
is clear therefore that the only basis on which, in the light of the
authorities, the appellant can advance his appeal at this stage is contained in
the third category described in Pickett
v H M Advocate. The appellant cannot claim that the plea was
tendered without his authority, or under any real error or misconception. The only remaining opportunity for the
appellant to complain about what happened is to maintain that the circumstances
under which he came to tender his plea were clearly prejudicial to such an
extent that there was a miscarriage of justice.
He has to maintain, as his counsel did in argument, that this was a
truly exceptional case. He has argued
throughout that he was innocent of the charge.
He argues that he instructed the plea of guilty under a genuine misunderstanding,
and in addition was left with the perception that no other choice was available
to him. In response the Advocate Depute maintained
that it was inconsistent for the appellant to argue that he had been put under
pressure and that he had submitted a plea of convenience; in any event,
submitting a plea of convenience can never be the basis for subsequently
claiming that a miscarriage of justice has occurred.
[15] We
are quite satisfied that there are in the present case no grounds for allowing
the appellant's plea of guilty to be withdrawn.
There are a number of incontrovertible features which wholly preclude
the possibility of such a course.
Firstly, it cannot be, and is not, disputed that the evidence which the
appellant's counsel apprehended was about to be led by the Crown was in any way
misrepresented to the appellant.
Secondly, it is evident that the appellant's counsel gave clear and unambiguous
advice about accepting a plea which, in his view, afforded significant benefit
to the appellant. While that may have
placed pressure on the appellant, there can be no suggestion that counsel was
doing anything other than discharging his professional duty towards his
client. It is difficult to describe the
choice available to the appellant as being anything other than stark. The kind of pressure complained of by the
appellant is exactly what would be expected to be visited on anyone unfortunate
enough to be in such a situation. The
appellant was given this advice when members of his family were present to
assist and advise him. It is plain from
the timing of events that he was thereafter given a sufficient amount of time
with his family to consider his decision; the Court did not sit until nearly
lunchtime.
[16] More
importantly, we are satisfied that what the appellant has described in his Note
of Appeal, and what he in fact did, was to give his unequivocal and informed consent
to a plea of guilty. He understood the
issues involved, and the significant benefit in sentence which he would, and
did, receive from a plea of guilty. Had
he continued with his trial and been found guilty, as in Mr Moggach's
professional view was the most likely outcome, his prison sentence would have
been greater. He clearly understood what
was involved in what is referred to in his Note of Appeal as a "plea of
convenience". In this latter respect,
the idea of which was central to the appellant's submissions, we wish to take
this opportunity to repeat that the phrase "a plea of convenience" has no
significance whatsoever in our criminal law and practice. Lord Justice Clerk Cullen made this clear, in
stark and unequivocal terms in Kerr v
Friel 1997 J.C. 166 at
167:-
"A plea which is a plea of
guilty is a plea without reservation.
There can be no question of accused persons being able to come back at a
later stage and invite the court, whether it be this court or the sheriff court,
to withdraw the plea that had been 'a plea of convenience'. That would undermine the administration of
justice and is not to be tolerated. If
there is any view afoot that it is possible for accused persons to put forward
pleas of guilty as a matter of convenience, then the sooner that idea is
brought to an end the better."
With that view we respectfully
agree.
[17] In
these circumstances we can only conclude that any pressure put on the appellant
was what could be expected in the circumstances, that there was no misrepresentation
in any way of the position which he faced, that the advice he was given was
sound and proper even on his own averments, and that the consent which he gave
to pleading guilty was informed and considered.
In these circumstances it cannot reasonably be said, on the basis of the
claims in his Note of Appeal, that the appellant suffered any form of
oppression in the events leading up to his tendering and signing a plea of
guilty. There are no grounds for
suggesting that a miscarriage of justice occurred. For these reasons, this conviction appeal
must be refused.
