As a general rule, where there has been a guilty plea an appeal against the resulting conviction may be based on the grounds that (i) the resulting conviction was unsafe because D pleaded guilty following an erroneous ruling by the trial judge which removed the defence; (ii) there exists fresh evidence which undermines the safety of the plea, e.g. fresh psychiatric evidence supporting a defence not advanced at trial; or (iii) where D’s guilty plea was involuntary and thus a nullity (because of erroneous advice or judicial pressure.).
This article looks at recent cases from the Court of Appeal that confirm that a person may seek to appeal their conviction even where they pleaded guilty if this was as a result of incomplete or erroneous legal advice. However, there now appears to be a conflict of approach by the Court of Appeal: whether such a plea is to be regarded as a nullity or whether it is a question of the safety of the conviction. This is not an academic distinction. The consequences may be very different. If the plea was a nullity the procedure leading to the guilty plea was invalid, and so would need to be dealt with by way of a writ of venire de novo[i]. If the resulting conviction was unsafe, it can be quashed. The major difference is that with the safety approach the Court is able to substitute an alternative verdict and re-sentence, a nullity requires a complete re-starting of the proceedings.
It is axiomatic that a person is presumed innocent until proven guilty. That guilt may be proven at trial or by a formal admission of guilt by plea. What if that plea is tendered in ignorance of the fact that D would have a good defence, perhaps as a result of incompetent legal advice or undue pressure? As a matter of principle, surely the plea is invalid and the whole process of proving guilt by formal admission is a nullity, just as if there had been no real plea (or trial) at all.
In Nightingale  EWCA Crim 405, N, a sergeant in the SAS, pleaded guilty following an uninvited Goodyear indication of sentence from the judge at his court martial. The Court of Appeal, Lord Judge LCJ presiding, held that this ‘uninvited’ intervention had created inappropriate judicial pressure on him and had ‘narrowed his freedom to choose’ whether to plead guilty or not guilty. The effect was that the plea was a ‘nullity’ – there had been no real plea at all and the only remedy was to set it aside by a writ of venire de novo.
In Chukwu  EWCA Crim 1405, C was a Nigerian national who served in the Irish Guards. He pleaded guilty to failing to surrender under the Bail Act 1976. He was not advised, nor was it put to him in court, that, on the facts, he had a defence of ‘reasonable cause’ for failing to surrender. The Court of Appeal approached the issue as one of ‘nullity’ and the conviction was ‘set aside’. However, the Court went on to examine the facts of his potential defence and was swayed by the fact that the conviction prevented C obtaining British citizenship and so there was a ‘serious injustice’.
In other recent cases, however, the Court of Appeal has approached the issue by looking at the safety of the conviction. This is important because it is imposes an additional hurdle for the prospective appellant. It will not be sufficient to demonstrate that there had been no real plea at all – requiring the Court of Appeal simply to remit the matter back to the lower court to start again. In safety cases, the Court of Appeal will not intervene unless the defence which was not advanced (because the appellant was ignorant of it) would have had good prospects of success at trial.
R. v Nguidjol (Richard Sohe) (unreported 18 June 2015) is the latest in a recent spate of cases in which potential refugees arrive at an airport with a false passport and claim asylum. They then plead guilty to possessing the false passport under s.25 of the Identity Cards Act 2006 following legal advice which either fails to advise of, or incorrectly dismisses, the potential defence under s.31 of the Immigration and Asylum Act 1999. That is (i) D is refugee who has presented himself to the UK authorities without delay; (ii) showed good cause for his illegal entry; (iii) made an asylum claim as soon as reasonably practical; and (iv) where he had first stopped in another state he could not reasonably have expected to be given asylum in that third state.
Nguidjol followed the authorities of AM and others  EWCA Crim 2400 and Mateta and others  EWCA Crim 1372, both of which were presided over by Leveson LJ. In those authorities, the Court of Appeal went on to assess the safety of the conviction. That is to say it was not sufficient that the appellant had not been advised about a potential defence open to him – the facts of which would be for a jury to determine. It was not a question of his ‘freedom of choice’ being narrowed such that his plea was a nullity. The Court of Appeal conducted an examination of the facts of each case and determined whether the appellant had a ‘good prospect of successfully establishing the defence’. Only if the s.31 defence would ‘quite probably’ have succeeded was the conviction unsafe.
In McGuffog  EWCA Crim 1116, M pleaded guilty to the relatively new offence of driving whilst unlicenced and thereby causing death contrary to s.3ZB of the Road Traffic Act 1998. That plea followed counsel’s advice that the elements of the offence did not require any contributory fault by the driver. A Court of Appeal decision later held that advice was correct. However, a number of years later the Supreme Court in Hughes  1 WLR 2461, held that s.3ZB required something open to proper criticism in the driving of the defendant, beyond mere presence on the road. And so in McGuffog, legal advice which was expertly and correctly given at the time it was sought but was subsequently held to be wrong gave rise to a ground of appeal. However, that did not mean the plea was a nullity. The Court of Appeal went on to assess the safety of the conviction, concluding on the facts that M would not be convicted if there were a trial today.
It is now clear that a conviction following a plea of guilty after erroneous legal advice may be appealed but it may no longer be sufficient to show that the plea was involuntary and so a nullity. The Court of Appeal may seek to step into the shoes of the tribunal of fact and assess the merits of any potential defence before regarding the conviction unsafe. That imposes a much more onerous burden on any potential appellant. That approach also appears to be troubling in terms of first principles. If the plea was made in ignorance of a potential defence then surely the whole process of proving guilt by a formal admission by the defendant is simply invalid. If the defendant had open to him a potential factual defence, surely it is for the tribunal of fact, the jury, to say whether they are ‘not sure’ of guilt rather than that the defence had ‘good prospects’. After all in the seminal case of Wang  UKHL 9, deciding that there are no circumstances in which a trial judge may direct a jury to return a guilty verdict, the House of Lords reminded us of the words of Lord Keith in Stonehouse  AC 55 at 94: “A lawyer may think that the result of applying the law to a certain factual situation is perfectly clear, but nevertheless the evidence may give rise to nuances which he has not observed, but which are apparent to the collective mind of a lay jury.”
It is not easy to decipher the circumstances in which the Court of Appeal will approach the case on the basis of nullity or safety. At the moment, there appears to be a conflict of approach by different constitutions of the Court. One suspects that the safety approach is one of public policy, to prevent an opening of the floodgates of such appeals. The ‘nullity’ approach is regarded as ‘an exceptional course’ and is certainly assisted by the prospect of some potential defence if remitted for trial: see McCarthy  EWCA Crim 1185. What is clear is that any appeal based upon an allegation of incompetent legal advice by the previous legal team imposes professional obligations on the new legal team to obtain waiver of privilege and affidavits from the previous lawyers in order to check that those allegations are factually correct (see McCook  EWCA Crim 734 and commentary at Bulletin 1.).
[i] A writ of venire de novo is part of the inherent jurisdiction of the Court preserved by section 53(2)(d) of the Senior Courts Act 1981. The basis for the exercise of this jurisdiction is where the ‘trial’ proceedings were so flawed they did not amount to a trial and could properly be termed a ‘mistrial’ and set aside as a ‘nullity’.
See R. v Evans  EWCA Crim 2243 at