Oliver v R.

An appellate court will exceptionally interfere with a conviction following a guilty plea only where the defendant was deprived of a defence that would probably have succeeded, or where the freedom to choose the plea was improperly narrowed. Realistic, forthright advice about the strength of the evidence and sentencing consequences informs rather than removes that choice.

Fresh representatives considering an appeal should ordinarily verify the facts with trial representatives. Expert evidence must remain independent, objective and within the expert’s field of expertise.

The appellant pleaded guilty at Chester Crown Court to one count of possessing and 15 counts of making indecent photographs of children. He received concurrent community orders with unpaid-work requirements.

After a substantial extension of time and permission to appeal, he challenged his convictions. He alleged that his trial team had withheld an agreed expert report and new material produced on the trial date, and that counsel had pressured him into pleading guilty. He also sought to adduce fresh evidence.

The central issue was whether any alleged irregularity deprived the appellant of a viable defence or improperly restricted his freedom to decide whether to plead guilty.

1. Appeal dismissed. The court held that the appellant had not established an irregularity capable of rendering his guilty pleas a nullity. The governing principles were those stated in R v McCarthy [2015] EWCA Crim 1185, drawing on R v Boal [1992] 95 Cr App R 272 and R v Nightingale [2013] 2 Cr. App. R. 7. Intervention is exceptional. It may be justified where a defendant has been deprived of a defence likely to succeed, or where the freedom to choose a plea has been improperly narrowed.

2. The appellant’s choice remained free. The pressures arising from a strong prosecution case, and clear advice that conviction and imprisonment were likely if he contested all counts, did not improperly restrict that choice. Counsel was required to give realistic advice. The appellant had received full and careful advice, including that the ultimate decision on plea was his.

3. There was no agreed expert report. The defence expert’s draft was lengthy, unsuitable as a joint report and did not materially assist the defence. The material produced on the trial date was not new evidence. It was a reconstruction of images and internet activity already relied on, which made the prosecution case easier for a jury to understand. The absence of malware on the laptop, the search history, saved websites and file-wiping evidence made the case overwhelming.

4. The court also reiterated that fresh representatives should ordinarily liaise with trial representatives before advancing criticism of them, following R v Achogbuo [2014] EWCA Crim 567 and R v McCook [2014] EWCA Crim 734. It further observed that an expert must provide independent and objective evidence within the proper limits of expertise, as reflected in Part 19 of the Criminal Procedure Rules.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction: [2016] EWCA Crim 1053.
• Single judge of the Court of Appeal: granted permission to appeal and extended time by two years, three months and 13 days; the application to adduce fresh evidence was referred to the full court.
• Crown Court at Chester: on 30 July 2012, the appellant pleaded guilty to 16 counts and received concurrent community orders with 120 hours’ unpaid work.