No substitution of verdict after guilty plea

Regina v Horsman; Court of Appeal, Criminal Division (Lord Justice Waller, Mr Justice Tucker and Mr Justice Bennett) 13 June 1997

The Court of Appeal had no power to substitute a verdict of guilty to another offence when allowing an appeal against conviction of an offence to which the defendant had pleaded guilty.

The Court of Appeal allowed the appellant's appeal against conviction of two counts of obtaining property by deception contrary to section 15(1) of the Theft Act 1968, and quashed the convictions.

The appellant had pleaded guilty in April 1994 to the offences, both of which involved the obtaining of cheques. He was sentenced to two years' imprisonment. Following the decision of the House of Lords in R v Preddy (1996) 2 Cr App R 524 he applied for an extension of time in which to apply for leave to appeal against his conviction.

It was held in R v Preddy that, where a payment induced by deception was made by cheque, the chose in action represented by the cheque never belonged to the drawer, but came into existence belonging to the payee. There could, therefore, be no question of the payee's having obtained "property belonging to another" within the meaning of section 15(1) and thus of having committed the offence.

An extension of time was granted by the deputy Registrar of Criminal Appeals, and leave to appeal was granted by the single judge.

Sarah Munro (Registrar of Criminal Appeals) for the appellant; Geoffrey Mercer (CPS) for the Crown.

Lord Justice Waller said that the single judge had clearly granted leave to appeal on the expectation that the Court of Appeal would have the power to substitute convictions for some other offence under section 3 of the Criminal Appeal Act 1968.

The appellant had, on any view, been guilty of serious dishonesty. There would have been no answer to an application at the trial to amend the indictment to allege two counts of procuring a valuable security by deception contrary to section 20(2) of the Theft Act 1968. The appellant would then have pleaded guilty to those offences. Accordingly, it could scarcely be said that any serious injustice had been done to the appellant in serving the term of imprisonment he had served.

It was submitted however that, unattractive as it might seem in the light of the appellant's admitted dishonesty, on the wording of section 3 of the 1968 Act the Court of Appeal had no power to substitute where the appellant had pleaded guilty. Subsection (2) expressly provided that the court might, instead of allowing or dismissing the appeal, substitute "for the verdict found by the jury a verdict of guilty of the other offence".

The Crown submitted that it would be most unfortunate and indeed anomalous if the power to substitute did not extend to appeals against conviction on a guilty plea. The powers of the Court of Appeal, however, flowed only from statute, and if the words of the section were clear, however anomalous, there was no room for construing them in any other way. The words of section 3 which provided the Court of Appeal with the power to substitute expressly contemplated a verdict from a jury.

Prior to the Criminal Appeal Act 1995, which had substituted section 2(1) of the Criminal Appeal Act 1968 with the shorter and simpler provision providing for the court to allow an appeal "if they think that the conviction is unsafe", in most cases following a guilty plea to an offence unknown to law where the appellant was clearly guilty of some offence, the Court of Appeal had simply applied the proviso then contained in section 2(1).

That was amply demonstrated by the decisions cited in R v Graham (1997) 1 Cr App R 302. That decision had also made clear that where as a matter of law the particulars of offence specified in an indictment could not, even if established, support a conviction for the offence charged, a conviction of such an offence must be considered unsafe.

It followed that, time having been extended and leave to appeal having been granted, the appeal must be allowed. Until there was an amendment to the law, applications for an extension of time and applications for leave to appeal where there had been a plea of guilty, unless leave was refused, should be considered by the full court so that the Court of Appeal's powers to see that justice was done were not hampered.