Nightingale, R. v

A guilty plea must remain the defendant’s free and personal choice. Ordinary consequences of a criminal charge, and clear advice from defence lawyers about prospects and sentencing, properly inform that choice.

A judge must not give an uninvited indication that creates an additional inducement or deterrent to a plea. The court must assess the indication’s practical effect, including how counsel reasonably conveyed it to the defendant. If it improperly narrows freedom of choice, the plea is a nullity and the resulting conviction must be quashed.

At a Court-Martial at Bulford, the appellant re-arraigned and pleaded guilty to possessing a prohibited firearm and ammunition contrary to the Firearms Act 1968. He received concurrent terms of 18 months’ and six months’ detention.

During an adjournment sought by defence counsel, the Judge Advocate gave an uninvited indication concerning the markedly different sentencing consequences of a contested trial and a guilty plea. Counsel advised the appellant that conviction after trial could lead to five years’ imprisonment in a civilian prison, whereas a guilty plea was likely to lead to a materially shorter military-detention sentence.

The appellant appealed against conviction and sentence. The earlier appellate judgment is cited as [2012] EWCA Crim 2734. The central issue was whether the judicial indication had improperly induced the guilty pleas.

1. Appeal against conviction allowed. The guilty pleas were set aside, the convictions were quashed, and a fresh trial was ordered before a Court-Martial on the present indictment, subject to any future amendment.
2. A defendant is personally responsible for entering a plea and must be free to choose between guilty and not guilty. The ordinary pressures of being charged, the consequences of conviction, and realistic advice from lawyers about prospects and sentencing do not detract from that freedom. They inform its proper exercise.
3. In contrast, a judge must remain outside the confidential plea-advice process. R v Turner [1970] 2 QB 321 and R v Goodyear [2005] 1 WLR 2532 permit a judicial indication when the defendant seeks one. A judge may also state, on the judge’s own initiative, that the sentence or type of sentence will be the same whether there is a guilty plea or conviction after trial. Neither exception permitted an uninvited indication of a long sentence after trial and a substantially shorter one after a guilty plea.
4. The Judge Advocate’s intervention was not merely an inquiry about sentencing parameters. It conveyed that a contested case could expose the appellant to the five-year mandatory term under section 51A of the Firearms Act 1968, while a guilty plea was likely to result in a sentence of no more than two years, served in military detention, with a possible continuation of his military career.
5. The decisive question was the practical effect of that uninvited indication after it had been explained by counsel. It created inappropriate additional pressure and improperly narrowed the appellant’s freedom of choice. The plea was therefore a nullity.

• Court Martial Appeal Court: Allowed the appeal against conviction, set aside the guilty pleas, quashed the convictions and ordered a fresh Court-Martial trial.
• Court Martial Appeal Court: Earlier in the appellate process, granted leave to appeal against conviction and reduced the sentence to 12 months’ detention, suspended for 12 months; the earlier judgment is cited as [2012] EWCA Crim 2734.
• Court-Martial at Bulford: On 6 November 2012, the appellant pleaded guilty on re-arraignment. On 7 November 2012, he received concurrent terms of 18 months’ and six months’ detention.