Inkster v R.

A guilty plea is valid only where the defendant retains a genuine freedom to choose between pleading guilty and not guilty. Ordinary pressures arising from a criminal charge, and realistic advice from lawyers, do not invalidate that choice. However, an unsolicited judicial indication founded on legal error, particularly one which disregards an available defence, may create inappropriate pressure and improperly narrow the defendant’s freedom of choice. Where that pressure means the plea is not a true acknowledgement of guilt, the plea is a nullity and the resulting conviction must be annulled.

The appellant, who was unrepresented, pleaded guilty in the Crown Court at Guildford to three breaches of a non-molestation order and received concurrent six-month conditional discharges. He accepted directly sending a letter and text messages to his former wife, but maintained that he had a reasonable excuse because agreed intermediaries were not facilitating communication about their children.

Before the jury was sworn, the trial judge told him that an admitted technical breach was still a breach and suggested that he should not be pleading not guilty. After a luncheon adjournment, during which court-appointed counsel spoke with him, the appellant changed his pleas. The central issue was whether the judge’s interventions improperly deprived him of a free choice to maintain his not-guilty pleas.

1. Appeal allowed. The guilty pleas to counts 1, 2 and 4 were set aside as nullities and the convictions based on them were annulled. The respondent did not seek a further trial.
2. The court applied the principle in R v Nightingale [2013] EWCA Crim 405: the decisive question is whether an unsolicited judicial indication, together with its impact on the defendant after legal advice, created inappropriate pressure and improperly narrowed the proper ambit of the defendant’s freedom to choose a plea. This accords with R v Inns (1974) 60 Cr App R 231, in which a plea made under improper judicial pressure was not a proper plea and the ensuing proceedings were a nullity.
3. The judge knew that the appellant intended to rely on reasonable excuse. An admission of a technical breach of the order did not itself establish guilt if that defence might succeed. By telling the appellant that he should not be pleading not guilty, without addressing the defence, the judge conveyed the clear but legally erroneous message that the appellant had no defence and would be convicted after a five-day trial.
4. The appellant’s intelligence and engagement with the proceedings did not remove the effect of that error. He was unrepresented and entitled reasonably to assume that the judge understood the law. Counsel’s well-meaning discussion during the adjournment compounded the effect of the judge’s interventions rather than restoring an informed free choice.
5. Applying the approach stated in R v Evans [2009] EWCA Crim 2243 and R v Saik [2004] EWCA Crim 2936, the pleas did not amount to a true acknowledgement of guilt. The judicial pressure had improperly narrowed the appellant’s freedom of choice.

• Court of Appeal (Criminal Division) Allowed the appeal against conviction, set aside the guilty pleas and annulled the resulting convictions.
• Crown Court at Guildford On 8 May 2018, the appellant pleaded guilty to three counts of breach of a non-molestation order and received concurrent conditional discharges for six months. The judgment appealed has no citation stated in the judgment.