R v Thomas Moore

A criminal defendant must be free to decide whether to plead guilty by reference to legal advice and personal choice. A judge must not give an unsolicited indication of sentence, save for the narrow case in which the sentence or type of sentence would be the same after a guilty plea or trial. Pressure arising from case-management demands cannot relax that rule. Where the judge places improper pressure on the defendant and the plea is equivocal or insufficiently investigated, convictions based on the plea may be unsafe. A conviction is also unsafe where the defendant pleaded guilty to an offence which, on the alleged date, could not legally have been committed because the relevant notification obligation had expired.

The appellant pleaded guilty at the Crown Court at Preston to two counts of breaching a Sexual Harm Prevention Order and one count of failing to comply with notification requirements. He was sentenced to nine months’ imprisonment. He appealed against conviction and renewed an application for leave to appeal against sentence.

The notification obligation underlying the third count had expired before the alleged offending date. The appellant also argued that the judge had placed improper pressure on him to plead guilty to the first two counts by giving an unsolicited indication that he would be released if he pleaded guilty. The issues were whether the third conviction was legally possible and whether the pleas to the first two counts were voluntary and safe.

1. The conviction on count 3 was necessarily unsafe. The notification requirements imposed in 2017 lasted only for the period of the conditional discharge and expired in September 2019. The charge alleged non-compliance on or before 16 November 2021. The appellant therefore could not in law or fact have committed the offence charged, notwithstanding his guilty plea.

2. The court adopted the principles identified in Nightingale [2013] EWCA Crim 405. A defendant must personally choose whether to plead guilty or not guilty. The judge must remain outside the confidential process in which that decision is made. Subject to limited exceptions, a judge must not give, or insist on giving, an advance sentence indication unless the defendant expressly requests one. The recognised exception permits an indication given on the judge’s own initiative where the sentence or type of sentence would be the same after a guilty plea or a trial.

3. Following R v AB and others [2021] EWCA Crim 2003, those principles apply equally in ordinary Crown Court proceedings. The pressure on courts to manage cases efficiently cannot justify any derogation from them. The judge here gave an unsolicited indication before the appellant had been brought to court, stated that a guilty plea would result in release, and contrasted that with a likely longer sentence after trial. This amounted to improper pressure. The appellant’s equivocal words when pleading guilty were not investigated adequately. The pleas on counts 1 and 2 could not stand and those convictions were unsafe.

4. The Crown’s application for a retrial on counts 1 and 2 was refused. The court was satisfied that the interests of justice did not require a retrial. All convictions were quashed. The renewed application for leave to appeal against sentence did not require determination.

• Court of Appeal (Criminal Division): The convictions were quashed and a retrial was refused: [2023] EWCA Crim 1685.
• Crown Court at Preston: The appellant pleaded guilty to three counts and was sentenced to nine months’ imprisonment on 3 May 2022.