No: 200207144/C4
Neutral Citation Number: [2004] EWCA Crim 816
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Friday, 19th March 2004
 
B E F O R E:

LORD JUSTICE MANCE 

MR JUSTICE FORBES 
 
MR JUSTICE RODERICK EVANS 

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R E G I N A 

-v- 

PAUL BARGERY
 
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MR C M GASKELL appeared on behalf of the APPELLANT
MR J PHILPOTTS appeared on behalf of the CROWN
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J U D G M E N T
1.	Lord Justice Mance: This is a reference from the Criminal Cases Review Commission, dated 9th December 2002, in respect of the appellant's plea of guilty on rearraignment on 8th July 1997 in the Crown Court at Carnaerfon before His Honour Judge Daniel to an offence of using threatening behaviour contrary to section 4 of the Public Order Act 1986.  This was a lesser alternative to the only count on the indictment which was one of affray.  The appellant was sentenced to a community service order for 150 hours and ordered to pay £200 towards the costs of the prosecution.  There was a co-accused, Charles William Craggs, who was jointly indicted with the appellant on the charge of affray and also pleaded guilty to the lesser offence of threatening behaviour.  He received a similar community service order and order for payment of costs.
2.	We need not go into the factual background, save to say briefly that it involved an alleged incident in the Butlins Star Coast World Holiday Camp near Pwllheli in North Wales in September 1996.
3.	The grounds of appeal are that the guilty plea was not entered freely and/or was equivocal.  The facts which have been very clearly and helpfully stated in the Criminal Cases Review Commission's report include certain material coming from counsel who acted for the appellant at the trial, consisting of a virtually contemporaneous advice, written on 22nd July 1997, when, as counsel said in it, his recollection of this recent matter was "perfectly clear".  Counsel has more recently, on 19th September 2002, confirmed that he cannot add to that contemporaneous and detailed account, although he goes on to say that his advice would have been intended as an advice against a conviction appeal since he was satisfied that the defendant entered his plea freely.
4.	Both sides accept the facts stated in the advice as accurately summarising the position.  In short, there were two meetings with the judge attended by counsel for both defendants.  In the first counsel for the co-accused sought an indication from the judge on behalf of Craggs as to whether a guilty plea to affray might attract a community sentence.  Counsel for this appellant had clear instructions to fight the affray allegation whatever indication might be obtained and so sought no such indication but was simply present.  The judge indicated to counsel for Craggs that he could give no such indication.  
5.	The CPS had from the Magistrates' Court onwards indicated that they would be prepared to accept a plea to section 4, that is threatening behaviour, and after the first meeting before the judge Crown counsel again sought advice from the CPS as to whether that plea was still available.  It was, and counsel for the appellant took further instructions from him.  According to the advice:
"His instructions were clear: since I could not assure him that a plea to section 4 was guaranteed to attract a community sentence he wished to proceed to trial.  I was quite content with these clear instructions, and I told my opponent that I was ready to start the trial since the offer was rejected."
6.	However the co-defendant took a different attitude.  He was so anxious to accept the offer of a plea to a lesser offence that he decided to plead to it and give evidence against this appellant.  In short, to turn Queen's evidence.
7.	There therefore followed a second meeting before the judge to tell him of that development.  During the course of that meeting the judge indicated to all counsel:
"... in terms which we all understood that if the defendants pleaded guilty to section 4 then he would not impose a custodial sentence."
8.	Counsel goes on to say in his advice:
"Given the gravity of the offence alleged and the injuries to the victims, I found this offer to be unexpected and surprising."
9.	Counsel went back to discuss the matter with this appellant, and informed him that there had now been two significant developments.  Firstly, in view of the decision of Craggs to turn Queen's evidence this appellant was much less likely now to win a trial on the affray issue and, secondly, counsel could now guarantee that if he pleaded guilty to section 4 he would receive a community sentence, whereas if he stood trial on the charge of affray, involving the kicking and beating of two victims while on the ground, then if convicted a custodial sentence was a virtual certainty.  Counsel says in his advice that he felt bound to advise the appellant at this stage that the offer that was on the table looked "extremely tempting".  But he says that he made it very clear to the appellant that the choice was his, not counsel's, and that if he wanted to proceed with an affray trial, fully aware of the risks, then he was perfectly entitled to do so, and that his arm was not being pulled to accept this offer.
10.	Counsel's advice goes on, and we think significantly, to say:
"After some deliberation and discussion with his girlfriend, the defendant decided to accept the offer to plead to the lesser offence and he received an order of CSO with no compensation and 200 costs.  At the conclusion of this hearing the defendant appeared to be happy with the outcome."
So, we observe, this was not an offer which the appellant immediately accepted.  It was one which he considered in the circumstances as they had developed.
11.	What is said on behalf of the appellant by Mr Gaskell reflects the basis on which the Commission referred the matter to us, and also regarded the circumstances as sufficiently exceptional to do so, despite the absence of an appeal or an application for an appeal.  The application for a review of the conviction was, we should interpose, made over a year after the conviction in the form of letter from the appellant's father of 16th September 1998 which refers to the appellant "reluctantly" accepting counsel's advice.  However, we cannot attach weight to that by itself since the appellant's father was not present at the trial.
12.	The principles on which Mr Gaskell relies are clear enough.  They were not observed in this case.  Firstly, the discussions in the judge's chambers were not, so far as appears, recorded in any way.  That was wrong.  Secondly, it is only in the most exceptional circumstances that plea and sentence should be discussed in chambers, and, insofar as they are discussed in such circumstances, any indication given should never go beyond a communication of intended sentence whatever happens about the accused's plea.  Here there was an indication in relation to the affray charge that clearly communicated, as regards the co-accused Craggs, that he was likely to go to prison if he was found guilty of the affray count, even if he pleaded guilty.  It might be said that that was not directly relevant to this appellant since his record was considerably less serious than his co-accused's.  But we think that it would probably have been understood by this appellant also as a fairly clear indication of the risk of imprisonment in respect of the affray charge, particularly if he fought it.
13.	The matter goes further, however, because, when the matter came back before the judge at the second meeting, the judge indicated a contrasting situation which would could only arise on the basis of a plea to a lesser offence.  He indicated that if there was such a plea there would be no custodial sentence.  From that this appellant was clearly entitled to conclude that he was at risk of a custodial sentence if he fought the case, but that if he accepted the Crown Prosecution Service's offer of a plea to section 4 he was not at risk.  That, as counsel says in his advice, must have been a tempting offer.
14.	The principles have been further elucidated in the recent case of Nazham and Nazham 2001/06522/3/C2, dated 9th March 2004.  In that case the Court, in a judgment given by Kennedy LJ, identified the need for an appellant to show not only that there was an irregularity in the judge's room, but also that the irregularity brought about his subsequent change of plea, that being what was relevant in that case, in such a way as to render the plea a nullity because it could be attributed to improper pressure: see paragraph 19.
15.	At paragraph 8 Kennedy LJ gave an example of a situation where there would be no such causative link:
"Suppose for example, that a judge were to send for counsel and give a wholly improper indication as to sentence.  Counsel would then go to tell his client what had been said, but before he says anything the client informs him that he has now made up his mind firmly to plead guilty.  It could not possibly be said that the change of heart was caused by the impropriety, so that the plea of guilty should be treated as a nullity."
16.	At paragraph 38, in dealing with the facts of Murtaza Nazham's case, Kennedy LJ said:
"When she [that is counsel] reported back she did not say anything about the judge's attitude to the strength of the case, but she did convey the judge's indication as to the sentences which he would impose if Murtaza Nazham were to plead guilty, and Murtaza Nazham was relieved to receive that information.  Relief is quite different from oppression, and we are completely satisfied that when Murtaza Nazham changed his plea he exercised, and willingly exercised, a free choice.  It was only much later, after his release from prison, that his researches led him to his present ground of appeal ..."
17.	The question is not as to the correctness of those principles, which both sides accept before us, but as to their application on the facts of this case.
18.	The Criminal Cases Review Commission drew attention to the principal point which arises.  Can it be said here that a plea to section 4 on the basis that there would be no custodial sentence was something which this appellant was independently willing to enter, so that after the judge's indication he was effectively doing no more than giving effect to what was, or would have been, anyway his intention, or has he shown sufficiently the contrary?
19.	Unlike Nazham this is not a case where we have been invited to hear oral evidence.  We have considered whether we should direct that, but we have come to the conclusion that it would not be a proportionate or necessary exercise.  Counsel has disclosed that he has no independent recollection beyond his advice.  The facts are ancient and we doubt whether it would realistically be possible to carry them beyond the content of the advice.
20.	One reading of the passages in the advice which we have summarised might be that this appellant had given clear instructions to counsel even before the second meeting with the judge, to the effect that he would be prepared to plead to section 4 if he could be guaranteed that there would be community sentence.  However, we notice that after the second meeting it took some deliberation and discussion with his girlfriend before he decided to accept the offer.  He did so, it seems to us therefore, at that stage rather than in advance or independently; and he did so in circumstances where there were on the table facts which did, as Mr Gaskell has submitted, put in front of him a stark choice: fight the affray case, lose and you are going to go to prison, or, accept a plea to section 4, which the Crown Prosecution Service have been suggesting, and you will avoid prison.
21.	That was a choice which, however it came about that it was offered, and as have outlined the circumstances, should not have been one which was put before him.  It involved disregard of the numerous authorities in this Court of considerable standing and age.  It was a choice which, in our view, must have had some considerable effect in the deliberation and discussion which he had with his girlfriend.  In those circumstances, we have come to the conclusion that this verdict is unsafe and should be quashed. 
22.	We therefore allow the appeal and quash the conviction.  No recovery of defence costs order.