McPeake, R v

A guilty plea tendered after a jury has been sworn may be treated as a plea entered before the jury was sworn. The defendant’s protection lies in the freedom to choose the plea. A jury verdict following the plea is ordinarily a formality and does not prevent the judge from discharging the jury where appropriate.

The point is stronger where the jury has never been put in charge of the newly added count. On sentence, a plea to a count which was not previously available should be treated as entered at the first opportunity. A planned and persistent arson which endangers rescuers may properly attract a substantial custodial term and an extended licence period.

The appellant pleaded guilty at Bradford Crown Court, on the third day of his trial, to arson being reckless as to whether life was endangered. The danger alleged in the amended count was to persons entering the premises as rescuers. He had set a series of fires at his home during a determined suicide attempt and sought to prevent neighbours from extinguishing one of them.

The count was added during his cross-examination. The jury had not been put in charge of it when he pleaded guilty. The judge discharged the jury from returning a verdict and imposed an extended sentence of five and a half years, comprising three and a half years’ custody and a two-year extension period.

The appeal against conviction contended that the absence of a jury verdict made the procedure a nullity. The renewed application for leave to appeal against sentence challenged the length of the custodial term.

The court dismissed the appeal against conviction and refused the renewed application for leave to appeal against sentence.

1. The court applied Poole [2002] 2 Cr App R 13. A guilty plea tendered after a jury trial has begun may be accepted and treated as if it had been tendered before the jury was sworn. The defendant suffers no unfairness from that course, provided the plea is freely made. The return of a jury verdict is a formality and should not limit the judge’s discretion to discharge the jury where appropriate.

2. The earlier decisions in Hancock 23 Cr App R 16 and Heyes 34 Cr App R 161 were no longer to be followed in light of the legislative and procedural changes explained in Poole. In any event, this case was stronger: the jury had never been put in charge of count 2. Requiring it first to be put in charge and then to return a verdict would have been an empty formality.

3. For sentencing purposes, the guilty plea was treated as entered at the first opportunity because the amended count had not previously been available. The court nevertheless held that the planned and persistent arson was serious. The appellant had endangered neighbours and firefighters who entered the premises as rescuers, had set fires in several places, and had resisted attempts to extinguish them. The psychiatric material and personal mitigation did not render the custodial term of three and a half years, or the two-year extension period, excessive or wrong in principle.

• Court of Appeal (Criminal Division) — In [2005] EWCA Crim 3162, dismissed the appeal against conviction and refused the renewed application for leave to appeal against sentence.
• Crown Court at Bradford — The appellant pleaded guilty to arson being reckless as to whether life was endangered and received an extended sentence of five and a half years, comprising three and a half years’ custody and a two-year extension period.