R v Desmond Lionel Ashdown Hughes

A defendant may be permitted to change a guilty plea at any time before sentence, even where the plea was unequivocal. The discretion must be exercised judicially and in the interests of justice.

Where a restraining order is known to prohibit conduct, making an application to vary the order does not ordinarily provide a reasonable excuse for breaching it before the variation application is determined. The proper course is to seek an expedited hearing. An incorrect date in an indictment will not necessarily undermine the proceedings where the defendant understood the order relied on and the material facts are undisputed.

The applicant renewed an application for leave to appeal against the refusal of His Honour Judge Donne KC, sitting at the Crown Court at Cardiff, to permit him to vacate his guilty plea to breaching a restraining order. He had pleaded guilty to arranging for a photographer to take photographs of a protected property, creating a reasonable impression that it was under surveillance.

The Crown Court allowed the application in relation to another count but refused it in relation to this count. The applicant relied on alleged legal misadvice, a reasonable excuse connected with a pending application to vary the order, disclosure failures, an error in the indictment, inadequate legal representation and ill-health. Leave had previously been refused on the papers. The central issue was whether the Crown Court had erred in refusing to allow the guilty plea to be changed.

1. Application refused. The application for leave to appeal was refused. The application to adduce fresh evidence was also refused because the proposed evidence afforded no ground for allowing the appeal.
2. The court confirmed that a defendant may change a guilty plea at any time before sentence. That discretion exists even where the plea is unequivocal, but it must be exercised judicially and in the interests of justice.
3. The Crown Court had carefully considered the discretion. There was no evidence that the applicant had been compelled to plead guilty, no underlying merit in the proposed defence, and no suggestion that the plea resulted in a miscarriage of justice. The plea was not equivocal: the asserted reasonable excuse amounted to mitigation rather than a basis for vacating the plea.
4. The applicant knew that the restraining order prohibited arranging for photographs to be taken and had sought its variation. Proceeding with the photography before the variation application was determined did not provide a reasonable excuse. He could not take the law into his own hands and should instead have sought an expedited hearing.
5. The alleged disclosure failures were unclear and immaterial because the facts proving the breach were undisputed. The reference in the indictment to an order dated 25 July 2013, rather than the correct date of 24 July 2013, caused no confusion about the order or its terms. The criticisms of the previous lawyers and the applicant's ill-health likewise disclosed no arguable basis for interference.

• Crown Court at Cardiff: His Honour Judge Donne KC refused the application to vacate the guilty plea to count 4 and imposed a suspended sentence, rehabilitation and activity requirements, costs and a surcharge. The court had allowed the application concerning count 2, which was subsequently left on the file.
• Court of Appeal (Criminal Division): The single judge refused leave on the papers. On renewal, the court refused leave and refused the application to adduce fresh evidence.