Sheikh & Ors, R v

A court has a residual discretion to permit withdrawal of a guilty plea where refusal may cause injustice. The discretion is exercised sparingly and usually where there is real doubt that the plea was a genuine and informed acknowledgment of guilt. A failure to advise of possible confiscation proceedings does not itself affect an admitted offender’s acceptance of guilt. Where the defendant was properly advised on the charge and any defence, and freely admitted guilt, refusal to vacate the plea will stand unless the judge erred in principle or exercised the discretion unreasonably.

Trading standards officers found substantial quantities of counterfeit mobile-telephone accessories at premises used by Nadia Traders Ltd. Hafeez, Saqeb and Junaid Sheikh pleaded guilty to offences under section 92(1)(c) of the Trade Marks Act 1994; other counts, including conspiracy to defraud, were left on the file.

After the Crown served a restraint order with a view to confiscation proceedings, each appellant applied to vacate his guilty pleas. His Honour Judge Khayat QC, sitting at Snaresbrook Crown Court, refused the applications. The sole issue on appeal was whether the absence of advice about the risk of confiscation required the pleas to be set aside.

1. The appeals were dismissed. The judge was entitled to refuse permission to withdraw the guilty pleas.
2. The court retained a residual discretion to prevent injustice by allowing a plea to be changed. The discretion is exercised sparingly. Its usual purpose is to address a real doubt whether the plea was intended, informed, or a true admission of guilt. Material misinformation about the charge or an available defence, or pressure causing a defendant not truly to admit guilt, may justify its exercise.
3. The court applied the approach in S (an infant) v The Recorder of Manchester (1971) AC 481. It also treated R v South Tameside Magistrates’ Court ex parte Rowland [1983] 3 All ER QBD 689 as illustrating that an unequivocal plea need not be withdrawn merely because the defendant seeks to avoid the consequences of conviction. Re McFarland’s Application for Judicial Review (2000) N I QBD 403 concerned a plea vitiated by a misapprehension that prevented true consent, and did not assist an appellant who freely accepted guilt.
4. Each appellant had received proper advice about the offences, the available defence, and what the prosecution had to prove. The only omission was advice about possible post-conviction confiscation. That possibility was peripheral to whether they were guilty and could not affect their acceptance of guilt. No misdirection, failure to consider a relevant matter, reliance on an irrelevant matter, or unreasonable exercise of discretion was shown.

• Court of Appeal (Criminal Division) — dismissed the three appeals against refusal to permit withdrawal of the guilty pleas: [2004] EWCA Crim 492.
• Snaresbrook Crown Court — His Honour Judge Khayat QC refused the appellants’ applications to vacate their guilty pleas after the Crown indicated that it would pursue confiscation proceedings.