Law Report: 14 January 1998; Appeal will only lie where conviction is unsafe

The Court of Appeal no longer had the power, since the amendment of section 2(1) of the Criminal Appeal Act 1968 by the Criminal Appeal Act 1995, to allow an appeal against conviction if it did not think the conviction was unsafe but was dissatisfied in some way with the trial process, since there was no longer room for the separate notion of an "unsatisfactory" conviction. An accused who had changed his plea to guilty, following a ruling by the trial judge allowing the admission of prosecution evidence which made the case against him factually overwhelming, was not entitled to appeal against conviction, since his change of plea was not "founded upon" an erroneous ruling by the judge.

Regina v Chalkley and anor; Court of Appeal (Criminal Division) (Lord Justice Auld, Mr Justice Ian Kennedy and Mr Justice Blofeld) 19 December 1997

The Court of Appeal dismissed the appeals of Tony Michael Chalkley and Tony Brisbane McEwan Jeffries against their convictions on 30 October of conspiracy to rob, both men having changed their pleas to guilty after a ruling by the trial judge that the prosecution could adduce evidence of tape recorded conversations which were highly damaging to the defence case.

Timothy Cassell QC (Registrar of Criminal Appeals) for Chalkley; Thomas Brown (Registrar of Criminal Appeals) for Jeffries; Howard Morrison (Crown Prosecution Service) for the Crown.

Lord Justice Auld said that the sole test in deciding an appeal against conviction under the new section 2(1) of the Criminal Appeal Act 1968, substituted by the Criminal Appeal Act 1995, was whether the conviction was unsafe.

Section 2(1) in its old and new forms respectively entitled the Court of Appeal to quash as unsafe a conviction based on a plea of guilty where the plea was mistaken or uninformed or without intention to admit the truth of the offence charged. In the case of the old form it was commonly said that a conviction might also be quashed where the plea was "founded upon" a material irregularity, or, it was submitted for the appellants, an erroneous ruling on a point of law.

A plea of guilty could be said to be "founded upon" such a ruling where, once the error had been corrected on appeal, the appellant could not in law have been convicted of the offence charged on the admitted facts, or, on a broader interpretation, where the plea had been influenced by an erroneous ruling of law. That was the meaning urged upon the court on behalf of the appellants, and was that which the Court of Appeal and the House of Lords had apparently been content to apply, in the absence of the point being taken, in R v Khan (Sultan) [1995] QB 27, CA and [1996] 3 WLR 162, HL.

However, the earlier authorities and three decisions of the Court of Appeal, R v Eriemo [1995] 2 Cr App R 206, R v Bachu (unreported, 18 November 1994) and R v Greene (unreported, 8 April 1997) demonstrated the logical imperative of the first, narrow, construction of the expression "founded upon". The good sense of preferring that narrow interpretation lingered on even with regard to the new test of safety of a conviction under the new section 2(1).

It had also been suggested that the appellants' pleas of guilty had been induced by oppression by the police in obtaining the evidence and that the circumstances of the ruling, taken as a whole, entitled the court to go behind their pleas. Such a suggestion necessitated a return to the removal of the word "unsatisfactory" from section 2(1) of the 1968 Act as a ground of appeal against conviction.

Whatever might have been the use by the court of the former tests of unsatisfactoriness and material irregularity, they were not available to it now, save as thought processes leading to a decision on the safety of the conviction. The court had no power under the substituted section 2(1) to allow an appeal if it did not think the conviction unsafe but was dissatisfied in some way with what had gone on at the trial.

- Kate O'Hanlon, Barrister