O'Neil, R v

A guilty plea does not prevent an appeal against conviction where the agreed facts disclose no offence in law and the plea was not material to proving disputed facts. A failure to return from authorised leave is an offence under Prisoners (Return to Custody) Act 1995, section 1(1), but is not escape where the offender was not in custody at the material time.

The power under section 3A of the Criminal Appeal Act 1968 to substitute an alternative conviction arises only if the alternative offence was available on the indictment. It cannot be used to substitute a summary-only offence which was not before the Crown Court.

The applicant, serving a sentence of imprisonment, failed to return after one day of authorised town leave. He pleaded guilty on 1 August 2007 to escape.

On the previous day, the Court of Appeal had decided R v Montgomery [2007] EWCA Crim. 2157. It established that failure to return from such leave was an offence under section 1(1) of the Prisoners (Return to Custody) Act 1995, but was not escape because the offender was not in custody. The appellant sought to have his conviction quashed and the court considered whether it could substitute a conviction for the statutory offence.

1. Appeal allowed; conviction quashed. On the agreed facts, the applicant had not committed escape. Applying R v Montgomery [2007] EWCA Crim. 2157, failure to return from authorised leave was an offence under section 1(1) of the Prisoners (Return to Custody) Act 1995, but did not amount to escape because the applicant was not in custody when he failed to return.
2. The guilty plea did not bar that conclusion. This was not a case in which the plea supplied a material factual admission necessary to establish the offence. The facts were agreed and, as a matter of law, they did not disclose escape.
3. No substituted conviction. Section 3A of the Criminal Appeal Act 1968 permits substitution only where the accused could have been convicted of, or pleaded guilty to, the alternative offence on the indictment. The section 1(1) offence was not an alternative offence available to a jury on an indictment for escape. It was a summary offence, and no mechanism allowing it to be dealt with in the Crown Court applied.
4. The court added observations for future cases. A guilty plea will ordinarily preclude a later factual challenge where facts were disputed. Further, a late application concerning an earlier escape conviction of this kind would likely be refused under the principles explained in R v Ramzan [2006] EWCA Crim. 1974, where correct understanding of the law would have shown that another offence had plainly been committed. Those observations did not affect this timely appeal.

• Court of Appeal (Criminal Division): allowed the appeal against conviction and quashed the conviction: [2007] EWCA Crim 3490.
• Lower court: the applicant pleaded guilty to escape. The lower court citation and identity are not stated in the judgment.