Lawrence, R v

The statutory power to substitute a guilty plea to another offence is a limited exception to the rule that conviction follows a defendant’s own plea or proof before a jury. It must be construed strictly. The alternative offence must have been available on the indictment as it stood, and the guilty plea must itself admit every fact required for that offence.

The power cannot be exercised by treating the indictment as one which might hypothetically have been amended. Similarly, the power to order a retrial cannot be used to remit an unproved count merely to enable its later amendment into a different offence.

The applicant pleaded guilty at Kingston-upon-Thames Crown Court to possessing a prohibited weapon and received the mandatory minimum sentence of five years’ imprisonment. She sought an extension of time and leave to appeal despite her guilty plea.

The shotgun was later found not to meet the statutory dimensions of a prohibited weapon. It was, however, a firearm for which a firearm certificate was required. The Crown accepted that the conviction should be quashed, but invited the court either to substitute a conviction for possessing a firearm without a certificate or to order a retrial.

The central issues were whether the court could use section 3A of the Criminal Appeals Act 1968 to substitute that different offence, and whether section 7 permitted a retrial for it.

1. The court granted the extension of time and leave to appeal, and quashed the conviction. The applicant had pleaded guilty to possessing a prohibited weapon, but the shotgun did not satisfy the dimensions required for that offence.

2. No substitute conviction could be entered under section 3A of the Criminal Appeals Act 1968. The power is a limited exception to the fundamental rule that a defendant may be convicted only on a plea or on proof before a jury. It must therefore be construed strictly.

   Section 3A required the alternative offence to have been one of which the applicant could have pleaded guilty, or been found guilty, on the indictment. That meant the indictment actually before the court, not an indictment which might have been amended. The guilty plea also did not admit the absence of a firearm certificate, since that fact was irrelevant to the prohibited-weapon count. The court’s construction accorded with R v Graham and others [1997] 1 Cr. App. R. 302 C.A..

3. Nor could the matter be remitted for a retrial under section 7. The offence of possessing a firearm without a certificate fell outside each category in section 7(2). A retrial of the prohibited-weapon count would be inappropriate because a conviction on that count was impossible. The court could not use a retrial and a later amendment to circumvent the statutory limits on its power.

4. The court observed that nothing appeared to prevent a fresh charge of possessing a firearm without a certificate. It also stressed the need, in streamlined guilty-plea procedures, to ensure that the elements of a specific offence are provable before a plea is accepted.

• Court of Appeal (Criminal Division) — granted an extension of time and leave to appeal, allowed the appeal, and quashed the conviction. It refused both substitution of a different offence and a retrial.

• Kingston-upon-Thames Crown Court — on 12 October 2012, following a guilty plea to possessing a prohibited weapon, imposed five years’ imprisonment.