202401229 B2 - [2025] EWCA Crim 945

Our attention has been drawn to a number of authorities. We need address only two.

The leading authority is now R v Tredget [2022] EWCA Crim 108; [2022] 4 WLR 62 (“Tredget”), a decision of this Court (Fulford LJ, VP-CACD, Hilliard J and Lord Hughes). The appellant had entered guilty pleas in 1981 to various offences of arson and manslaughter. He appealed on the basis of fresh evidence which was said to cast doubt on the veracity and reliability of his confessions. This Court dismissed the appeal on the facts, but the following two points of principle may be drawn from its judgment.

First, a guilty plea is a public confession of guilt. As a matter of logic and policy, the circumstances in which a guilty plea can be re-opened on appeal are heavily circumscribed. As Lord Hughes (sitting in this Court) explained in R v Asiedu [2015] EWCA Crim 714; [2015] Cr App R 8 (referenced in Tredget at [152]):

“19.

A defendant who pleads guilty is making a formal admission in open court that he is guilty of the offence. He may of course by a written basis of plea limit his admissions to only some of the facts alleged by the Crown, so long as he is admitting facts which constitute the offence […]. But ordinarily, once he has admitted such facts by an unambiguous and deliberately intended plea of guilty, there cannot then be an appeal against his conviction, for the simple reason that there is nothing unsafe about a conviction based on the defendant's own voluntary confession in open court. A defendant will not normally be permitted in this court to say that he has changed his mind and now wishes to deny what he has previously thus admitted in the Crown Court.

…

31.

[…] Of course a defendant who is confronted by a powerful case may have difficult decisions to make whether to admit the offence or not. He will of course be advised that if he does plead guilty that fact will be reflected in sentence, but that general proposition of sentencing law does not alter his freedom of choice in the absence of an improper direct inducement from the judge, such as there was in R. v Inns (1974) 60 Cr. App. R. 231. He will always have it made clear to him that a plea of guilty, should he choose to tender it, amounts to a confession. Only he knows the true facts, which usually govern whether he is guilty or not and did so here. If he is guilty, the fact that the choice between admitting the truth and nevertheless denying it may be a difficult one does not alter the effect of choosing to admit it. […].”

Secondly, Tredget identifies three categories of cases in which an appellant may submit that a conviction on the basis of a guilty plea is unsafe, albeit that the list of categories is not “necessarily closed” (see [153]). The three categories are as follows:

Category 3 was described by this Court as a “small residual third category” (see [162]). Its scope requires examination. In R v John Verney [1909] 2 Cr App R 107, a conviction for sacrilege was quashed on the basis that the appellant was in prison on the given date and could not have committed the offence. In R v Barry Foster [1985] 1 QB 115; [1985] 79 Cr App R 61, the subsequent admissions of another man showed conclusively that he and not the appellant had committed the offence the subject of one of the counts, and the Crown conceded the appeal on a linked count. Watkins LJ indicated that the court should intervene in a case of this kind only if the grounds were sufficiently compelling. In R v Noel Jones [2019] EWCA Crim 1059, the appeal was allowed against the appellant’s conviction for manslaughter on the basis that later DNA evidence wholly exonerated him.

This Court also examined cases such as R v Lee (1983, unreported) and R v Brady [2004] EWCA Crim 2230 where convictions were set aside on the application of less stringent criteria. Although these cases were held to have been rightly decided on their own particular facts, the Court identified (at [169] of Tredget) a “significant difficulty” with an approach which did not accord sufficient weight to the effect of a guilty plea as an informed public admission of the offence.

Drawing these strands together:

“171.

It can nevertheless exceptionally occur that a reasoned legitimate doubt may be entertained by this court about the verdict reached by the jury following disputed evidence, and this may be sufficient to establish that the conviction is unsafe. But following a freely made guilty plea, the conviction does not depend on the jury's assessment of disputed evidence. The evidence has never been heard, still less tested. It cannot be appropriate to enquire how it might have emerged and might have been assessed if there had been a trial. A submission that the evidence leaves a doubt about the guilt of the defendant is simply inappropriate. In such a case, of a free and informed plea of guilty, unaffected by vitiating factors, it will normally be possible to treat the conviction as unsafe only if it is established that the appellant had not committed the offence, not that he or she may not have committed the offence. Therefore, the test is not that of "legitimate doubt", still less a "lurking doubt", but instead it must be demonstrated that the appellant was not culpable. This is essentially consistent with four of the authorities set out above. In summary, the decision in Verney was based on the court's conclusion that the appellant could not have committed the offence because he had been [in] custody at the relevant time. In Barry Foster, although Watkins LJ did not describe the approach in precisely these terms, he nonetheless set a high test when he suggested that no jury could be sure of the appellant's guilt, adding that the court should only intervene in a case of this kind if the grounds were sufficiently compelling. In Saik, fresh evidence demonstrating the appellant was not guilty of the offence was said to represent a classic example of material that potentially undermined the safety of the verdict. The DNA evidence in Noel Jones wholly exonerated the appellant.

172.

As Lord Salmon observed in DPP v Shannon [1975] AC 717 at page 769, "a plea of guilty is equivalent to a conviction", where entered, we would add, by an individual who knows whether he or she committed the offence. It would be wrong in principle for a defendant to be entitled freely to enter a guilty plea, thereby convicting himself or herself, only later to seek to appeal that conviction simply by producing evidence that might have led a jury to doubt his or her guilt if there had been a trial, or by subjecting the evidence which might have been led at trial to a theoretical paper analysis in the absence of the witnesses. The objectionable nature of such a course is demonstrated in the instant case where many features of the evidence have never been and are now incapable of being tested. Therefore, although we consider the decisions in Lee and Brady were no doubt correctly decided on their facts given the strength of the evidence demonstrating the appellants had not committed the offences in question, the test applied by the court in both cases was incorrect. In consequence, with respect to the editors of Archbold, the observation at 7-46 concerning Brady is in our view unjustified and fails to reflect the correct approach.

173.

An important common element across the three categories, therefore, is that the circumstances relied on by the appellant need to be established by him or her. That is merely an application of the normal rule that it is for an appellant to demonstrate that his conviction is unsafe. By way of summary, for the first category, the matters vitiating the plea must be demonstrated (e.g. that the plea was equivocal, unintended or affected by drugs etc.; there was a ruling leaving no arguable defence; pressure or threats narrowed the ambit of freedom of choice; misleading advice was provided or a defence was overlooked). For the second category, it must be shown that there was a legal obstacle to the defendant being tried for the offence or there was a fundamental breach of the accused's right under article 6 (whether he or she was guilty or not), and for the third category, it needs to be established that the appellant did not commit the offence. If that standard is not met, we would not expect an appeal against conviction following a guilty plea to succeed.” (emphasis in original)

It is clear that Category 3 cases are exceptional. As this Court stated in R v BRP [2023] EWCA Crim 40 at [56], cases can only fall within Category 3 where “a clear injustice has been done”. Tredget is authority for the proposition that, for a case to fall within in Category 3, it is insufficient to demonstrate that an appellant was probably not guilty of the offence to which he pleaded guilty; or, indeed, that he may not have committed the offence. The bar is considerably higher, recognising the status of the guilty plea and the public confession of guilt. An appellant must establish on appeal that he did not commit the offence.

We turn to the earlier decision of this Court in R v Young [2016] EWCA Crim 1321; [2017] 1 Cr. App. R 2 (“Young”) referred to in detail by Ms Lewis in her written Grounds,. The facts of Young were similar to the present case although at police interview the appellant admitted shaking the baby violently for up to a minute. Herargument before this Court was that his acquittal for manslaughter in 2014 was inconsistent with his guilty plea to the offence of inflicting grievous harm in 1999. As here, the guilty plea had been admitted in evidence under s. 74 of PACE.

The apparent factual similarities between Young and the present case end as soon as it is recognised that in Young there was evidence of other fractures and bruising to the child which amounted to grievous bodily harm. Although that evidence was excluded by the trial judge in 2014, the appellant pleaded guilty to an offence which included the commission of these fractures. It followed that there was no inconsistency between the jury’s not guilty verdict (necessarily related solely to the brain injury) and the appellant’s earlier guilty plea.

Thus, as this Court in Young proceeded to explain:

“36.

This appeal does not turn on reflecting the evidence from the manslaughter trial back into the circumstances in which the appellant faced his original trial. The evidence is and was different. Thus, Mr Waterman's premise that the appellant was wrong to plead guilty because the medical evidence proved that the ultimately fatal brain injuries were caused by CVST and/or infection and not by his admitted shake does not identify the correct starting point: the question is whether the medical evidence was sufficient properly to justify advice that the appellant had caused serious bodily injury to Michael in circumstances when it was not suggested that anyone else had injured him. Suffice to say that, in the light of the evidence available for the first trial, there is no basis for contending that a defence to a charge of inflicting grievous bodily harm would quite probably have succeeded. There is thus no basis for treating the plea of guilty as a nullity or the conviction as unsafe.” (emphasis added)

The factual dissimilarities between Young and the present case mean that this authority does not advance the Applicant’s case materially (by way of distinction or otherwise) and Ms Lewis was right not to dwell on it.