Khalif, R (On the Application Of) v Isleworth Crown Court

A very late challenge to a conviction following a guilty plea is not determined solely by the apparent strength of the proposed defence. The court must assess the interests of justice, including the length and reasons for delay, the merits, possible substantial injustice, whether the conviction is spent, the ability to investigate whether the plea was equivocal, and the practical prospect of an effective retrial. An equivocal plea requires a prima facie case based on what occurred before the magistrates. General mitigation or an explanation of the circumstances will not suffice unless it indicated that the defendant was qualifying the admission of guilt.

The claimant pleaded guilty before magistrates in 2006 to an offence under section 2(1) of the Asylum and Immigration (Treatment of Claimants) Act 2004. Almost eight years later, he sought an extension of time to appeal to the Crown Court, asserting that erroneous legal advice had led to his guilty plea and that he could have relied on the reasonable-excuse defence in section 2(4)(c).

The Crown Court refused permission out of time because the advice given at the time could no longer be properly investigated. It also refused to state a case. The Administrative Court treated the proceedings as a challenge to the refusal to extend time. The central issues were whether the judge had applied the correct approach and whether the available material showed a prima facie case that the guilty plea was equivocal.

1. The claim was dismissed. The Administrative Court proceeded on the basis that the real challenge was to the Crown Court judge’s discretionary refusal to extend time.

2. Section 108(1) of the Magistrates Courts Act 1980 prevents an appeal against conviction following a guilty plea. The Crown Court may nevertheless investigate whether the plea was equivocal and, if so, direct the magistrates to rehear the matter. Before holding an oral hearing, it must be satisfied that there is a prima facie case of an equivocal plea. The inquiry is confined to what occurred before the magistrates, because the issue is whether the plea should have been accepted.

3. In deciding whether to extend time, the court must consider the interests of justice for both the accused and the public. Relevant considerations include the length and reasons for delay, the apparent merits, any substantial injustice, whether the conviction is spent, the ability to investigate the plea effectively, and the practical possibility of a fair and effective retrial.

4. The judge was entitled to conclude that the application was too late. The former solicitors no longer traded, relevant documents had been destroyed, and the magistrates’ court had destroyed its papers. After nearly eight years, investigating what was said in court would have been extremely difficult. That was a cogent and realistic reason and was not Wednesbury unreasonable.

5. The material also failed to show a prima facie equivocal plea. The reference to full mitigation did not establish that the claimant had indicated a reasonable-excuse defence. Even if the circumstances of his journey had been explained, they could have been advanced as mitigation rather than as a qualification of the guilty plea.

6. The court noted that a referral to the Criminal Cases Review Commission under sections 11 and 13 of the Criminal Appeal Act 1995 would not be subject to the same constraints, but any referral and its outcome would be matters for the Commission.

• Crown Court: refused the claimant’s application for permission to appeal out of time and refused to state a case.
• High Court (Administrative Court): treated the proceedings as a challenge to the exercise of the Crown Court’s discretion and dismissed the claim under [2015] EWHC 917 (Admin).