Henderson, R. v

A guilty plea does not remove the appellate court’s jurisdiction to quash an unsafe conviction. An unequivocal and intended plea ordinarily makes the conviction safe because it admits the facts constituting the offence. Exceptional routes remain where the plea was equivocal or unintended, compelled by a ruling, legally unavailable, founded on inappropriate legal advice causing loss of a probably successful defence and clear injustice, or supported by admissible fresh evidence. Fresh evidence must satisfy the Criminal Appeal Act 1968. Evidence available at trial, or further expert analysis that cannot displace the defendant’s own admission of knowing possession, will not suffice. A lengthy delay also requires a cogent explanation.

The applicant pleaded guilty before a Court Martial to 19 offences concerning possession of indecent images of children and extreme pornographic images. He was sentenced to Service Community Orders, made subject to a Sexual Harm Prevention Order and dismissed from the Service.

More than four years later, following refusal by a single judge, he renewed an application for an extension of time to seek leave to appeal against conviction. He relied on alleged pressure and inadequate advice from his former representatives, further expert computer evidence and a possible alternative downloader. He also sought directions for access to seized devices. The central issue was whether the proposed work could realistically support a ground that the convictions were unsafe.

1. Disposition. The full court refused both the application for an extension of time and the requested directions. The proposed grounds could not realistically establish that the convictions were unsafe, and the delay was inadequately explained.
2. A guilty plea does not deprive the court of jurisdiction to quash an unsafe conviction. Ordinarily, however, an unequivocal and deliberately intended plea is a formal admission of the facts constituting the offence. The resulting conviction is therefore not ordinarily unsafe merely because the defendant later wishes to deny guilt. The court applied the general principle stated in Asiedu [2015] 2 Cr App R 8.
3. The recognised exceptions include an equivocal or unintended plea, a plea compelled by an adverse ruling, and a legal obstacle to trial. A conviction may also be unsafe where the plea followed inappropriate legal advice, but, applying Boal (1992) 95 Cr App R 272 at 278, this is a most exceptional course. The advice must have deprived the defendant of a defence which would quite probably have succeeded, and clear injustice must have resulted.
4. Fresh evidence may provide another route under section 23 of the Criminal Appeal Act 1968. The court must consider whether receiving it is necessary or expedient in the interests of justice and, in particular, whether there is a reasonable explanation for failing to adduce it below. The proposed evidence was available at the time of trial. No new scientific discovery or newly available material was identified, so the statutory criteria could not be satisfied.
5. The applicant knew the factual basis of his proposed defence when he pleaded guilty. Further computer analysis could not establish who operated the devices and, even if it showed that the applicant could not have carried out some downloads, the issue of knowing possession in 2011 would depend principally on his own evidence and the totality of the evidence. In the absence of a waiver of privilege, and without the procedural steps concerning contact with former representatives identified in McCook [2014] EWCA Crim 374, the court could give no significant weight to the complaints against them.

1. Single judge: refused the application for an extension of time to apply for leave to appeal against conviction.
2. Court of Appeal (Criminal Division): the full court refused the renewed application and the related request for directions.