Montague-Darlington, R v

An appeal against conviction following a guilty plea will be entertained only rarely, but the available circumstances are not confined to those identified in Forde. The decisive question is whether the appellant had a fair trial.

A guilty plea may be set aside where undisclosed material was such that the prosecution would have been obliged to disclose it but, because of its sensitivity, would instead have declined to prosecute or offered no evidence. In those circumstances, properly advised on all relevant material, the defendant would have been strongly advised not to plead guilty.

The appellant pleaded guilty at Croydon Crown Court to being knowingly concerned in the fraudulent evasion of the prohibition on importing cocaine. She received three years’ imprisonment.

After conviction, Customs and Excise identified sensitive material which had not previously been known to the prosecutor. The prosecutor accepted that it would have been disclosable, but that its sensitivity meant the prosecution would not have proceeded, or would have offered no evidence, rather than disclose it.

The appellant sought leave out of time to appeal against conviction. The central issue was whether her guilty plea prevented the court from allowing the appeal.

1. Appeal allowed. The court extended time, granted leave and set aside the appellant’s guilty plea. Her appeal against conviction was allowed.

2. Although an appeal against conviction after a guilty plea will only rarely be entertained, the circumstances in which it may succeed are not limited to those identified in Forde, (1923) 2 KB 400. As confirmed by Togher, [2001] 1 Cr App R 457, the question is whether the appellant had a fair trial.

3. The prosecution accepted that material existed which it had been obliged to disclose. Its sensitivity was such that it would not have been disclosed; instead, the prosecution would not have prosecuted, or would have offered no evidence. Had the appellant not pleaded guilty, the appeal would plainly have succeeded.

4. The plea did not cure that unfairness. Had the appellant’s advisers had access to all relevant material when advising on plea, they would clearly have advised her not to plead guilty, and there was no reason to suppose that she would have rejected that advice. A trial could not fairly be regarded as having occurred where the prosecution’s present position was that she should not have been tried at all.

5. The court did not reveal the content of the sensitive material.

• Court of Appeal (Criminal Division): extended time, granted leave and allowed the appeal against conviction, setting aside the guilty plea: [2003] EWCA Crim 1542.

• Crown Court at Croydon: on 11 April 2002, the appellant pleaded guilty and was sentenced to three years’ imprisonment.