Berry, R. v

A guilty plea may be vacated only in exceptional circumstances. The defendant must have made a free and informed choice, so that their mind went with the plea. However, the ordinary pressure of facing a criminal charge does not itself vitiate a plea, and lawyers should give forthright advice.

An omission to discuss an issue such as intent or self-defence will not make a plea equivocal unless it deprived the defendant of a realistic defence or otherwise improperly narrowed their freedom of choice. Fresh evidence should not be admitted on an appeal against conviction where it is peripheral and does not afford a ground for finding the conviction unsafe.

The applicant pleaded guilty at the Crown Court at Chelmsford to causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861. The jury was directed to convict him. He later sought to vacate his plea, contending that he had not received sufficient advice about intent and self-defence.

The trial judge refused that application after hearing evidence from trial counsel and the applicant. Before a proposed Newton hearing, the complainant’s mother admitted that material parts of her police statement had been fabricated. The applicant then sought an extension of time, leave to appeal against conviction, and admission of that evidence under section 23 of the Criminal Appeal Act 1968.

The central issues were whether the plea was equivocal or otherwise unjust, and whether the new evidence could render the conviction unsafe.

1. All applications were refused. The guilty plea was unequivocal, and there was no arguable basis for concluding that the conviction was unsafe.
2. A plea may be vacated only exceptionally. The court applied the principles reviewed in R v McCarthy [2015] EWCA Crim 1185, including the requirement that a defendant’s mind must go with a guilty plea. A defendant nevertheless remains personally responsible for the plea and may receive forthright advice. The ordinary pressure arising from a criminal charge does not invalidate the choice.
3. The applicant had understood that he was pleading guilty to the section 18 offence and that a plea to section 20 would not be accepted. On his own written account, a lack-of-intent argument was unrealistic. Although counsel had not expressly discussed intent, recklessness or self-defence at every stage, there was no realistic self-defence case: by the time force was used, the applicant had the knife and the force and injuries were wholly disproportionate to any continuing threat.
4. The applicant’s later wish to advance an alibi did not establish equivocality. It was inconsistent with the plea’s acceptance that he was present and struck the complainant. Subject to the fresh-evidence ground, any failure to raise that defence at trial was his own responsibility.
5. The proposed evidence from the complainant’s mother did not satisfy section 23 of the Criminal Appeal Act 1968. Her evidence was peripheral. The complainant was the only eyewitness, had consistently identified the applicant, and the mother’s admitted fabrication neither undermined that evidence nor supported an allegation that the complainant had lied. The new evidence therefore afforded no ground for allowing the appeal.

• Court of Appeal (Criminal Division). Refused the applicant’s applications for an extension of time, admission of fresh evidence and leave to appeal against conviction.
• Crown Court at Chelmsford. The applicant pleaded guilty to an offence under section 18 of the Offences Against the Person Act 1861; the jury was directed to convict. On 3 May 2019, Judge Turner QC refused the applicant’s application to vacate the plea.