Bargery, R v

An irregular judicial indication concerning plea and sentence does not by itself invalidate a guilty plea. The appellant must show that the irregularity caused the change of plea through improper pressure, so that the plea is a nullity. Plea and sentence discussions in chambers are exceptional, must be recorded, and must not present an accused with a judicially induced choice between a lesser plea and imprisonment if the charge is contested. Where such an indication materially affected a considered decision to plead guilty, the resulting conviction is unsafe.

The Criminal Cases Review Commission referred the appellant’s 1997 conviction for threatening behaviour under section 4 of the Public Order Act 1986. At the Crown Court at Carnaerfon, he had pleaded guilty to that lesser offence after being indicted jointly with a co-accused for affray.

In unrecorded meetings in the judge’s chambers, the judge first indicated the risk of custody on an affray conviction and later indicated that a plea to the lesser offence would not attract custody. After the co-accused decided to give evidence against him, the appellant accepted the lesser plea following discussion with counsel and his girlfriend. The issue was whether the plea had been freely entered or was equivocal because the judicial indication improperly caused it.

1. Appeal allowed; conviction quashed. The court held that the conviction was unsafe because the appellant’s plea was materially affected by an improper judicial indication.

2. Plea and sentence discussions in chambers were permissible only in the most exceptional circumstances. They should have been recorded. Any indication should not go beyond communicating the sentence the judge intended to impose whatever course the accused took on plea. Those principles were not observed.

3. The court applied the causative requirement explained in Nazham and Nazham. An irregularity does not invalidate a plea unless it brought about the subsequent change of plea through improper pressure. The question was therefore whether the appellant was independently willing to plead guilty to the lesser offence, or whether the indication caused his decision.

4. There was no need for oral evidence. Counsel had no recollection beyond the contemporaneous advice, and the age of the facts meant that further evidence would not realistically improve the account.

5. The appellant had not immediately accepted the prosecution’s earlier offer. He deliberated after being presented with a stark choice: contest affray and risk imprisonment, or plead guilty to threatening behaviour and avoid custody. That choice should not have been put before him. It had a considerable effect on his deliberations and rendered the verdict unsafe. No recovery of defence costs order was made.

• Court of Appeal (Criminal Division): On a Criminal Cases Review Commission reference, the court allowed the appeal and quashed the conviction: [2004] EWCA Crim 816.

• Crown Court at Carnaerfon: On 8 July 1997, the appellant pleaded guilty on rearraignment to threatening behaviour, a lesser alternative to affray, and received 150 hours’ community service and a costs order.