R v Cheryl McEwan

A guilty plea entered by a defendant who was unfit to plead is not evidence against that defendant. Convictions resting on such pleas must be quashed. Substitution under section 6 of the Criminal Appeal Act 1968 requires a proper basis for finding that the defendant should not be acquitted and committed the relevant acts while under a disability. The Court of Appeal cannot determine disputed facts afresh to supply that basis. Exceptionally lengthy extensions of time require very good reasons. Appeals against convictions entered in the magistrates’ court belong in the Crown Court.

The appellant sought extensions of time and leave to appeal against convictions arising from guilty pleas entered in 2016 and 2017. Her offences included dangerous driving, robbery, failing to surrender to bail and arson reckless as to whether life was endangered. She had also pleaded guilty to theft of a motor vehicle in the magistrates’ court and been committed for sentence. She had served aggregate sentences of four and a half years’ imprisonment.

In later criminal proceedings, the appellant was found unfit to plead. Those proceedings resulted in a hospital order with restrictions in April 2024. Two consultant forensic psychiatrists subsequently concluded that she had also been unfit to plead in 2016 and 2017. She sought to introduce their reports as fresh evidence and required extensions of approximately six and a half years and five and a half years.

The Crown accepted the psychiatric evidence and did not oppose quashing the convictions. It initially sought substituted findings under section 6 of the Criminal Appeal Act 1968, but withdrew that request. The central issue was whether the convictions should simply be quashed or could lawfully be replaced by findings of disability and commission of the acts charged.

The appeals were allowed and the convictions within the court’s jurisdiction were quashed.

1. The accepted psychiatric evidence established that the appellant had been unfit to plead when she entered the guilty pleas. Her serious mental conditions predated the offending, although their severity had not been appreciated at the time. The convictions based on those pleas could not stand. The court granted the lengthy extensions of time, permitted revised grounds of appeal and admitted the psychiatric reports as fresh evidence. Such lengthy extensions were rare and required very good reasons (paras 7, 10–11, 15–17).
2. Section 6 of the Criminal Appeal Act 1968 permitted substituted findings where the court had the requisite medical evidence and concluded that the case called for findings of disability and commission of the acts charged rather than acquittal. A jury conviction could provide an evidential foundation for a finding that the defendant had committed the acts. Here, the guilty pleas entered while the appellant was unfit supplied no evidence against her. The court adopted and applied the dicta in R v Kamaladin Ismael [2024] EWCA Crim 301, paragraph 72 (paras 11–13).
3. Determining whether the appellant had committed the acts would require a fact-finding exercise. The necessary material was absent, and the Court of Appeal had no function of determining those disputed facts afresh. Any dispute about whether she had set the fire would require determination in the Crown Court. Section 6 therefore provided no basis for substituted findings in these appeals (para 13).
4. The court further indicated, without full argument, that agreement between counsel could not supply a section 6 order in these circumstances. Such agreement would depend on instructions from a person found unfit to plead. The separate question whether the appellant had capacity to waive legal professional privilege fell away because the psychiatric evidence and substantive appeals were unopposed (paras 11, 13).
5. No retrial was sought or ordered. The court agreed that a retrial would serve no public interest, given the existing hospital order and the disposal that further proceedings could achieve. Quashing the convictions also removed the sentences previously imposed, which had already been served. The existing hospital order remained effective. Convictions entered in the magistrates’ court required appeals to the Crown Court, which the prosecution indicated it would not oppose; the Court of Appeal had no jurisdiction over those appeals (paras 14–17).

• Court of Appeal (Criminal Division): In [2026] EWCA Crim 1325 , granted extensions of time and leave to appeal, permitted revised grounds, admitted fresh psychiatric evidence and quashed the convictions within its jurisdiction. No retrial was ordered.
• Crown Court at Leeds: Guilty pleas were entered to dangerous driving, robbery and failing to surrender to bail on 17 May 2016, and to arson reckless as to whether life was endangered on 4 July 2017. Aggregate sentences of four and a half years’ imprisonment were imposed on 25 August 2017.
• Magistrates’ Court: A guilty plea to theft of a motor vehicle was entered on 29 June 2016, followed by committal to the Crown Court for sentence. Appeals concerning convictions entered in the magistrates’ court were to proceed separately in the Crown Court.