McCarthy v R

A conviction following a guilty plea may exceptionally be set aside where deficient legal advice has improperly narrowed the defendant’s freedom to choose the plea. Ordinary pressure arising from a serious charge, realistic advice on the evidence, sentencing consequences, or concern for a co-accused does not itself invalidate a plea.

Before a defendant pleads guilty to wounding with intent under the Offences Against the Person Act 1861, the defendant must understand that the offence includes an intention to cause really serious bodily harm. An admission of unlawful wounding and possession of a weapon does not by itself establish that intent. Where the admitted facts prove the lesser offence of unlawful wounding, the appellate court may substitute that conviction rather than order a retrial.

The appellant initially denied wounding with intent and possession of an offensive weapon. On the first day fixed for trial, before the jury was sworn, he pleaded guilty to both counts. His mother then pleaded guilty to affray. The Crown Court imposed nine years’ imprisonment for the wounding and two concurrent years for the weapon offence.

He sought leave to appeal conviction and sentence. He alleged that his counsel’s preparation and advice had been deficient, that he had been pressured to plead, and that he believed he was accepting a lesser offence of wounding rather than the charged offence requiring intent. The court received evidence from the appellant, witnesses, and trial counsel. The central issue was whether pressure or inadequate representation had improperly narrowed his freedom to choose his plea.

Appeal allowed in part. The court set aside the conviction for wounding with intent, substituted a conviction for unlawful wounding, and varied the total sentence from nine to six years’ imprisonment. The conviction for possessing an offensive weapon remained in place.

1. The ordinary pressures identified by the appellant did not invalidate his pleas. His concern to protect his mother from imprisonment, and realistic advice that the prosecution evidence made acquittal unlikely, were normal forensic pressures. Applying R v Nightingale [2013] EWCA Crim 405, such pressures can inform rather than impair a defendant’s choice. The independent note of counsel for the co-accused showed that the appellant had time to consider the decision and that no improper pressure had been applied.

2. Counsel’s informal conferences, inadequate records, failure to obtain an endorsement of the brief, and other shortcomings merited criticism. Those matters alone did not justify vacating the plea. The material defect was that counsel had not adequately explained the mental element of the section 18 offence.

3. A valid plea to wounding with intent under the Offences Against the Person Act 1861 required the appellant to understand that he was admitting an intention to cause really serious bodily harm. The evidence showed that he understood he was admitting unlawful wounding with a knife, but not that additional intent. His freedom of choice was therefore improperly narrowed. There was a possible defence to the section 18 charge because a jury might not have found the required intent.

4. Under section 3A(2) of the Criminal Appeal Act 1968, the court substituted a plea of guilty to section 20 wounding. The appellant had intended to plead guilty to that lesser offence and his admissions proved it.

5. For sentence, the section 20 wounding involved greater harm and greater culpability and warranted four years’ imprisonment. The weapon offence was separate and serious. Its sentence of two years was ordered consecutively, producing a total of six years.

• Court of Appeal (Criminal Division): Allowed the appeal in part. It substituted a conviction for section 20 wounding for the section 18 conviction and varied the total sentence to six years’ imprisonment.
• Crown Court at St Albans: Following guilty pleas, HHJ John Plumstead sentenced the appellant on 15 March 2013 to nine years’ imprisonment for wounding with intent and two concurrent years for possession of an offensive weapon.