NEIL ANTHONY JOHNSON v REGINA

A guilty plea is equivocal, and therefore a nullity, where the defendant adds a qualification which, if true, may show that he is not guilty. In the case of an unrepresented defendant, particular care is required where the judge’s questions or the surrounding material indicate a possible defence or uncertainty about mens rea. The judge must secure an unequivocal plea or enter a plea of not guilty and adjourn for trial. A later application to change an unequivocal guilty plea is different: it engages the court’s discretion and does not make the original plea a nullity. Consistent statements in police interviews may be relevant to whether a qualification made immediately before arraignment is genuinely inconsistent with the guilty plea.

The appellant pleaded guilty without legal representation to seven counts at the Crown Court at Worcester. Two pleas were later vacated when the prosecution accepted that the evidence did not support those counts. The remaining convictions concerned rape, assault by penetration and harassment.

Before entering his pleas, the appellant told the judge that he did not know whether, at the relevant time, he had known that his conduct was wrong. The judge raised the need for legal advice and briefly arranged a consultation, but the issue was not resolved before arraignment. The appellant appealed out of time, relying on the alleged equivocal nature of his pleas and seeking to adduce psychological evidence under section 23 of the Criminal Appeal Act 1968. The central issue was whether the pleas were equivocal and the resulting convictions unsafe.

1. Appeal allowed. The five convictions were quashed. The appellant’s guilty pleas were equivocal and the proceedings based on them were a nullity.
2. The question was considered within the first category identified in R v Tredget [2022] EWCA Crim 108, namely that an admission of guilt may nevertheless result in an unsafe conviction where the plea was equivocal.
3. A clear distinction exists between an equivocal guilty plea and a later application to change an unequivocal guilty plea. A court cannot accept an equivocal plea. It must obtain an unequivocal guilty plea or enter a plea of not guilty. By contrast, changing an unequivocal guilty plea before sentence is a matter of discretion: P (Foster (Haulage) Ltd v Roberts [1978] RTR 302.
4. In an undefended case, particular care is required to ensure that the defendant understands the elements of the offence, especially where the circumstances indicate a possible defence. The appellant’s lack of representation, his response to the judge’s specific question about whether he knew his conduct was wrong, and the consistency of that response with his police interviews demonstrated a clear doubt about the mens rea for the offences. The circumstances were analogous to The King v Ingleson [1915] 1 KB 512.
5. The judge correctly identified the central issue but did not obtain an answer or otherwise resolve it after the short consultation with the solicitor. He should therefore have entered not guilty pleas and adjourned the case for trial. The court received the fresh psychological evidence under section 23 of the Criminal Appeal Act 1968. As the sentence had been fully served, the respondent did not seek a retrial. The restraining-order issue was remitted to the Crown Court under section 5A(3) of the Protection from Harassment Act 1997.

• Court of Appeal (Criminal Division): [2022] EWCA Crim 790—permission to appeal granted; appeal allowed; five convictions quashed. The restraining-order issue was remitted to the Crown Court.
• Crown Court at Worcester: the appellant pleaded guilty and was sentenced to eight years’ imprisonment in total. The judgment appealed from is not separately cited.