Nazham & Anor, R v

A judicial indication of sentence in private discussions with counsel is irregular, but it does not automatically invalidate a later guilty plea. The appellate court must decide whether the irregularity in fact caused the plea by improperly depriving the defendant of a free choice. That inquiry may require evidence of what the judge said, what counsel conveyed, and how the defendant reached the decision. A conviction founded on a guilty plea is unsafe only where the plea is undermined, including because improper pressure caused it. Judicial plea and sentence discussions in chambers should nevertheless be avoided because they risk misunderstanding and undermine open justice.

The appellants had pleaded guilty in the Crown Court to conspiracy to defraud and received custodial sentences and confiscation orders. They appealed with leave limited to the contention that a conversation between the trial judge and counsel in chambers, before their change of plea, improperly fettered their freedom to choose whether to plead guilty.

The judge had indicated that a guilty plea would attract substantial credit and a sentence of less than four years. The Court of Appeal received evidence from each appellant and from their former counsel concerning both the conversation and the advice subsequently given. The central issue was whether the admitted irregularity had caused the guilty pleas through improper pressure.

1. The appeals were dismissed. The judge’s chambers discussion was irregular. He had given an indication of the sentence he had in mind if the appellants pleaded guilty, contrary to the guidance in Turner [1970] 54 Cr App R 352 and the relevant Practice Direction.

2. Irregularity alone did not make the pleas nullities. The decisive question was whether it caused a later change of plea by improperly inhibiting the appellants’ freedom of choice. The court rejected the submission that an improper indication followed by a guilty plea required an automatic inference of impaired choice. In an appropriate case, evidence may be needed to determine what was said in chambers, what counsel relayed, and the actual effect on the defendant.

3. Under section 2(1) of the Criminal Appeal Act 1968, a conviction based on the defendant’s own guilty plea will ordinarily be unsafe only where the plea is undermined, for example because it was equivocal, the defendant did not understand the charge, or did not intend to admit guilt. An appellant alleging an improper judicial indication must therefore establish both the irregularity and causal improper pressure rendering the plea a nullity.

4. On the evidence, counsel had conveyed only the prospective sentence on a guilty plea. They had not conveyed that the judge considered the prosecution evidence overwhelming or that a conviction after trial was inevitable. Both appellants were informed, had considered their options, and chose to plead guilty in the face of a strong prosecution case and the prospect of a lesser sentence. Relief at receiving that information was not oppression.

5. The court reaffirmed that judges should not conduct inappropriate plea negotiations in private. Such conduct can create serious evidential and fairness problems. But here it neither improperly inhibited either appellant’s free choice nor caused injustice, apparent or real.

• Court of Appeal (Criminal Division): Dismissed the appellants’ conviction appeals.
• Crown Court at Warwick (sitting at Birmingham): The appellants changed their pleas to guilty to conspiracy to defraud. Each received three and a half years’ imprisonment and a confiscation order.