Neutral Citation Number:
[2015] EWCA Crim 390
Case
No: 201404029/B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 20th February 2015
B e f o r e
:
LORD JUSTICE LAWS
MR JUSTICE HICKINBOTTOM
MR JUSTICE KNOWLES
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R E G I N A
v
MARLEE DANN
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Mr R linford
appeared on behalf of the
Appellant
Mr I Dixey
appeared on behalf of the
Crown
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J U D G M E N T
1.
LORD JUSTICE LAWS: On 4th August 2014 before His Honour Judge Cottle at the Plymouth Crown Court this appellant pleaded guilty on re-arraignment to conspiracy to blackmail. The Crown case was in barest outline as follows. A man called Josh Pollard was serving a prison sentence in 2013 in Exeter jail. The appellant was on remand at the jail. Pollard was said to owe money to an associate of the appellant's called Mathew Bird. The accusation was that the appellant together with others attempted to force Pollard to repay by threatening to throw scolding water over him or slash him with a blade.
2.
There were three co-defendants, Mathew Bird, who pleaded guilty to the conspiracy and Joe Burkett and Ashton Hall. Ashton Hall was the appellant's partner and the mother of his two small children. Her role was allegedly that of a conduit through which the appellant in prison could communicate with Bird and Burkett. The Crown offered no evidence against Burkett and Hall, in respect of whom not guilty verdicts were duly entered. The appellant was sentenced to 18 months' imprisonment on 19th December 2014. He appeals against his conviction by leave of the single judge. As we shall explain the appeal concerns the circumstances leading to his plea of guilty on 4th August 2014 and the fact that on 9th October 2014 his application to vacate the plea was refused which His Honour Judge Darlow.
3.
All four defendants pleaded not guilty at a mention in the Crown Court on 6th December 2013. It was at that stage anticipated that the Crown would proceed to trial against all four. Mr Dixey for the prosecution this morning has indicated there were however some discussions in June 2014. At all events on 30th July 2014 at the Plymouth Magistrates' Court a representative of the CPS approached Mr Stephen Nunn, a solicitor, instructed in this case on behalf of Ashton Hall. In fact the proceedings in the Magistrates' Court involved this appellant's brother Luke Dann, who Mr Nunn also represented. The Crown representative indicated to Mr Nunn that if acceptable pleas were received in this case from the appellant, Bird and Burkett the Crown would not seek to proceed against Ashton Hall. The next day the indication was repeated but this time to the effect that pleas from the appellant and Bird only would be acceptable and in that case the other two would not be proceeded against. That is what in the event happened. Mr Nunn deposes to these events in a witness statement.
4.
The proposal to drop the case against Burkett and Hall if the appellant and Bird pleaded guilty was put to the appellant's counsel Mr Linford by counsel for the Crown, at court, on 4th August 2014, when the case was listed for trial. Mr Linford was concerned about it. He considered that his client was being put under very great pressure to plead. He and Ashton Hall has we have mentioned two children, they were aged 2 and 4 and would dependent on relatives if both parents were convicted and sent to prison. The judge gave Mr Linford plenty of time to consider the position.
5.
In the event the appellant pleaded guilty on 4th August 2014 having signed a statement which includes this:
"I have two children aged 4 and 2. I cannot countenance the possibility of their being without a mother for a period of time were Ashton to be convicted and sent to prison. Today is the first time this has been suggested to me ie that her fate may be in my hands ...
I am not guilty of the offence of which I am charged. My barrister Mr Linford, has advised me that I must not plead guilty unless I am guilty. However, I feel that the pressure that this offer has put me under leaves me with no choice but to admit to something that I have not done. I cannot take the risk of Ashton being convicted and imprisoned and me likewise when a plea from me will certainly avoid the risks of Ashton's conviction."
6.
In these circumstances it is submitted that the appellant's plea of guilty was obtained through improper pressure and should have been vacated and in the circumstances the conviction is unsafe.
7.
It is elementary that a conviction may be set aside if a defendant is put up under pressure to plead guilty by the judge or anyone else, even a member of his family including a member of his family - see for example
R v Nightingale
2 Cr App R 7 and
R v Jordan
73 Cr App R 194. Such cases however offer little assistance here. The case of
R v Herbert
(1992) 94 Cr App R 230
does. In that case the appellant was jointly charged with his wife and another which drugs offences. During the trial the wife's counsel approached prosecution counsel and asked if the Crown would wish to proceed against the wife if the husband pleaded guilty. The Crown indicated that in that case they would consider it in the public interest not to proceed against the wife. The appellant changed his plea while continuing to maintain his innocence. Just as happened here.
8.
He was very properly advised by counsel, as was this appellant, that he should only plead guilty if he was guilty. He was sentenced to five-and-a-half years' imprisonment. He appealed against conviction alleging that he had been put under improper pressure to plead guilty. The appeal was dismissed.
9.
The single judge refusing leave in this case said this:
"I see no reason why, having obtained the benefit of your decision to admit guilt by getting the charge against your partner dropped, you should now be allowed to disown it. The case of Steven Herbert
(1992) 94 Cr App R 230
confirms that you cannot.
Nevertheless, there is a difference in the case of Steven Herbert in that the approach and proposal, were in this case made and instigated by the Prosecution. While I doubt that this difference is material, the issue raised by your appeal is in my view one of sufficient general importance that it should be considered by the Full Court of appeal."
10.
The essential reasoning in
Herbert
is with respect contained in the following passages from the judgment of the court in delivered by Taylor LJ (as he then was):
"It is common ground that, either when asked or of his own initiative, it is perfectly proper for prosecuting counsel to state the Crown would accept a plea to unlawful wounding on a charge under
section 18
of
the Offences Against the Person Act 1861
, or allow counts charging earlier offences of dishonesty to lie on the file, should the defendant plead guilty to the latest offence charged. Such 'offers' could be said to be inducements or to involve pressure, but making them has long been accepted as properly part of the discharge of his duty by counsel for the Crown. That duty requires him to balance the need to bring serious wrongdoing to book and, on the other hand, not necessarily to pursue every charge to a conclusion regardless of the public interest and the public purse ...
Mr Lucas sought to distinguish between offers or inducements relating solely to the particular defendant's own case and offers or inducement relating to interest of others. He submitted that the former category may be permissible as in the instance examples of agreeing to accept a lesser plea or dropping certain counts. This case, however, comes into a letter category, for here the inducement relates not only to the appellant's case by also to that of his wife. The second category involves a form of 'pressure' which should not, counsel submits, be permitted. Although it may be that many defendants would be more influenced by the effect of their plea on their wives than on themselves, we can see no valid distinction in principle."
Then finally a little later:
"In the end, therefore, the appellant's case comes to this. Nobody did anything wrong; not the judge not prosecuting counsel, not defending count. Indeed defending counsel carried out his duty to his client to the letter and beyond. But, despite that, prosecuting counsel's answer, which was not in truth an offer but a statement of how the Crown saw its duty, has had the effect of rendering this appellant's plea a nullity. We cannot accept that argument. Of course there are, as Mr Lucas accepts, always pressures on an accused person, and sometimes the factors he has to weigh in deciding how to plea make for difficult decisions. By in our judgment, the course of events here involves no fault on anyone's part. The appellant had the benefit of the post conscientious advice and he made his own free choice."
11.
It seems to us there is a principle to be derived from the reasoning of this court in
Herbert
. A defendant faced with the prospect that if he pleads guilty he may obtain some advantage may of course feel pressurised to plea guilty, depending no doubt on the attraction of the advantage, the strength of the case against him and, if he has any moral centre, his own knowledge of his guilt or otherwise.
Herbert
and other cases show that the fact of such pressure will not always render a resultant plea of guilty unlawful. In our judgment the principle is that a plea of guilty following a proposal made or endorsed by the Crown will not be vulnerable on grounds of improper pressure if it is made or endorsed by the Crown only by reference to Crown counsel's judgment as to what the public interest in the prosecution taken as a whole, including the case against other defendants, demands.
12.
In the present case there is nothing to suggest that the Crown's proposal or offer was moved by anything other than a proper apprehension of the public interest. Mr Linford has very properly this morning shown us the case of
R v Najera
and referred us to a passage starting at paragraph 49. It is not necessary to look into the facts. At that paragraph Kay LJ giving the judgment of the court says think:
"The question of the pressures on one defendant when a close relative is a co-accused were considered and acknowledged by the court in Herbert. They are an inevitable part of the process unless the prosecution have 'cynically' proceeded against the relation to put pressure on the accused. It is not suggested in this case that in prosecuting the appellant's husband the prosecution were 'cynically' trying to bring pressure to bear on the appellant or that they were acting with any improper motive in not dropping the prosecution against him."
13.
While this reasoning does not in terms state the principle that we have sought to articulate, it seems to us that it is consonant with it and it; is this principle that underlies what was said in that case. The principle assumes that the defendant has been properly and carefully advised by his counsel. That was well fulfilled here. For completeness we should say that it says nothing about the kind of case where a plea is induced or apparently induced by an indication of sentence from the judge. That is addressed in other authorities which we need not cite for the purpose of the present appeal.
14.
In all these circumstances we conclude that this appellant's appeal was not improperly induced and his application to vacate it was rightly refused. It follows this appeal must be dismissed.
15.
We should add by way of postscript that a further point arose on the papers. Mr Linford reports what was said in conversations in July 2014 between Josh Pollard's father and Luke Dann and between Luke Dann and Josh Pollard himself. It is not necessary to go into these. We mention them only because there was a suggestion that they might constitute material casting doubt on the safety of the conviction. However, Mr Linford rightly accepts that in the events that happened nothing arising from those conversations can advance the case. The merits of the prosecution are closed by the appellant's proper plea of guilty. The appeal is dismissed.