David John Mitchell (aka David John) v R

Advice on an early guilty plea should address the apparent strength of the prosecution case, the available evidence and credit for plea. It should also make clear that a defendant who is not guilty should not plead guilty. Advising about the established reduction for an early plea does not, without more, amount to improper pressure. Learning or literacy difficulties do not alone make a conviction unsafe where the defendant had an opportunity to discuss the case orally and give instructions. A guilty plea cannot be withdrawn as of right. An extension of time to challenge convictions following guilty pleas should be refused where there is no arguable basis that the pleas were uninformed or involuntary, that a probably successful defence was lost, or that the convictions are otherwise unsafe.

The applicant pleaded guilty in the Crown Court at Birmingham on 31 August 2017 to possession of crack cocaine and diamorphine with intent to supply, together with dangerous driving. He was sentenced on 22 January 2018. He later renewed an application for an extension of 1,163 days to seek leave to appeal against the drug convictions.

He alleged defective advice, pressure arising from advice about credit for plea, failures to investigate evidence concerning cash found on him, an erroneous fingerprint report and inadmissible telephone evidence. The central issues were whether the delay should be extended and whether the proposed grounds disclosed any arguable basis for treating the guilty pleas or convictions as unsafe.

The renewed application for an extension of time was dismissed.

1. Representation. Applying the guidance in R v Conaghan [2017] EWCA Crim 597, only exceptional circumstances would justify permitting a person without formal rights of audience to act as advocate. No such circumstances were established. The court nevertheless allowed the applicant’s brother to identify the key issues briefly.
2. Advice on plea. Legal representatives were required to advise on the strength of the prosecution case, the evidence apparently available and the credit for an early guilty plea, while making clear that a defendant should not plead guilty if he was not guilty. Credit for plea exists to encourage a guilty defendant to plead before full service of the case. Waiting for further evidence and then pleading guilty would necessarily reduce the available credit. That consequence did not make the advice improper pressure.
3. Learning difficulties. The applicant’s dyslexia and reported learning difficulties did not, by themselves, undermine the safety of the convictions. He had opportunities to discuss the case orally with both solicitor and counsel and to give oral instructions.
4. Evidence and withdrawal of plea. The fingerprint material, on its face, reported the applicant’s print on the inside of the Boots bag. The additional documents did not establish that a print from the vehicle had been confused with the bag evidence. The suggestions concerning telephone evidence did not establish inadmissibility merely because of an alleged breach of ACPO guidelines or because the telephone was recovered from the co-defendant. A guilty plea could not be withdrawn as of right, but only with the court’s permission following a successful application.
5. There was no arguable basis that the pleas were other than voluntary and informed, that the applicant had been deprived of a defence which would probably have succeeded, or that the convictions were otherwise unsafe. No extension of time was therefore justified.

1. Court of Appeal (Criminal Division): dismissed the renewed application for an extension of 1,163 days to apply for leave to appeal against the drug convictions.
2. Crown Court at Birmingham: the applicant pleaded guilty on 31 August 2017 and was sentenced on 22 January 2018 to concurrent terms of three years’ imprisonment for the drug offences, with a consecutive term for dangerous driving.