Love & Anor, R. v

LORD JUSTICE RICHARDS: On 30th August 2012 in the Crown Court at Isleworth the applicants, Jae Love and Lee Hyde, each pleaded guilty to a count of burglary. The indictment charged them with an offence contrary to section 9(1)(a) of the Theft Act 1968, stating under the particulars of offence that they had entered "a building namely 36 Micawber Avenue Uxbridge" as trespassers with intent to steal therein. As all concerned were aware, the building at 36 Micawber Avenue was a dwelling; but the indictment did not refer in terms to a dwelling. The point is important, because section 9(3) of the Theft Act provides by paragraph (a) for a maximum sentence of 14 years where the offence was committed in respect of a building which is a dwelling, and by paragraph (b) for a maximum sentence for 10 years in any other case; and even more significantly because Hyde's antecedents included two previous dwelling burglaries which engaged a statutory minimum sentence of 3 years pursuant to section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 if this was a further instance of a burglary of a dwelling.

After the applicants had entered their pleas of guilty the matter was adjourned briefly for their antecedents to be obtained. During the adjournment, defence counsel pointed out to the prosecution that section 111 of the 2000 Act did not apply because the building in question was not particularised in the indictment as a dwelling. Prosecuting counsel thereupon made an application to amend the indictment to substitute the word "dwelling" for "building" in the particulars of the offence. The defence contended that the pleas already entered by the applicants could not be vacated in these circumstances. The judge rejected that contention and ruled that the pleas should be vacated and the prosecution be permitted to amend the indictment. The applicants were then re-arraigned on the amended indictment and each again pleaded guilty.

The judge then sentenced Love to 10 months' imprisonment, with 6 months consecutive for breach of an existing suspended sentence; and sentenced Hyde to 876 days' imprisonment, that is 3 years less credit for plea on the burglary count, with consecutive sentences of 2 months and 1 month respectively for breaches of existing suspended sentences.

Applications by both applicants for leave to appeal against conviction and sentence have been referred to the full court by the single judge. The focus is on the convictions. It is said that the applicants’ pleas to the indictment in its original form should not have been vacated and that the applicants fell to be sentenced for burglary of a non dwelling, in which case the sentences imposed were manifestly excessive. If they were lawfully convicted of burglary of a dwelling, there is a short argument advanced in respect of Love as to whether the length of sentence imposed was nonetheless excessive.

In referring the applications to the full court the single judge noted that the point raised in respect of the convictions was without any substantive merit but that it should be the subject of decision by the full court.

The argument set out by Mr Morris in his written skeleton argument on behalf of the applicants was in essence that the court did not have jurisdiction to vacate the pleas of guilty to the indictment in its original form. A plea can be vacated only on application by a defendant, pursuant to the procedures set out in rule 39.3 of the Criminal Procedure Rules. Further, the prosecution was not entitled to apply to amend the indictment after the applicants had pleaded guilty. Accordingly, the amended indictment to which they pleaded guilty on re-arraignment was itself defective and/or unlawful and the convictions based on those pleas are unsafe.

That, as we have said, is the essence of the argument advanced in writing. The attention of both counsel was subsequently drawn by the lawyer in the Criminal Appeal Office to the case of R v JW, a judgment of the Court of Appeal dated 21st April 1999. In that case the appellant had pleaded guilty to counts of indecent assault on a female. The particulars of each offence did not aver that the female in question was under the age of 13, which affected the maximum sentence available. There was no suggestion that the appellant had pleaded guilty on any basis other than that the victims were children under the age of 13. When the issue of maximum sentence was raised in the course of mitigation, the judge permitted the prosecution to amend the indictment, pursuant to section 5(1) of the Indictments Act 1915, to add the age of the victim to the particulars of each count. No application was made to vacate the plea; indeed counsel for the appellant said he did not wish his client to be re-arraigned lest it be taken as an indication of consent to the amendments to the indictment. The judge therefore ruled that the appellant need not be re-arraigned and the case proceeded in the usual way.

The argument advanced on the appeal was that once the appellant had pleaded guilty to the indictment in its original form, the trial was over and that the purported amendment therefore did not fall within the statutory power to amend "at any stage of a trial". The court, presided over by Judge LJ (as he then was), disagreed. It held that the argument confused the entry of a plea with the end of a trial. S v Recorder of Manchester [1971] AC 481 showed that the trial is not complete for this purpose until sentence has been passed (thus a plea can be changed up to a point of sentence). The amendment made therefore fell within the statutory power. There was moreover no unfairness in correcting what had been a complete oversight by the Crown. The appellant and his counsel both knew that the allegations in the indictment related to indecent assault on children under the age of 13. Any potential injustice was cured by the judge's offer to allow the appellant the opportunity to vacate his plea. The appeal was therefore dismissed.

In the light of the decision in JW, Mr Morris now accepts, as he must, that the judge in the present case did have power to allow the amendment to the indictment. Nonetheless, he adheres to his submission that there was no power to vacate the pleas. He submits that the judge's action in causing those pleas to be vacated without an application by the defence constituted a material irregularity, such that this court can and should interfere by quashing the convictions based on the amended indictment and, in effect, substituting convictions in respect of the indictment in its original form.

The Crown's response, as set out by Mr Patterson in his written skeleton argument, is that these convictions cannot be said to be unsafe since both applicants entered pleas of guilty to the amended indictment and both have continued to accept their guilt of the offence charged in that indictment. They were aware in the Magistrates' Court that they were charged with burglary of a dwelling and the case was sent to the Crown Court on charges of burglary of a dwelling. The amendment of the indictment in the Crown Court, once the error in the particulars was identified, caused the applicants no prejudice or unfairness beyond denying them the opportunity to take advantage of the error. No statutory provision or principle of law has been identified which prohibits a court from vacating a defendant's plea where it is appropriate to do so in the interests of justice, and the judge's approach was consistent with the overriding objective of the Criminal Procedure Rules. In any event, as JW shows, the amendment could have been made without vacating the pleas. Even if there was a procedural irregularity it is submitted that it did not render the convictions unsafe.

On the reasoning in JW it is clear, in our judgment, that there was power to amend the indictment notwithstanding that the applicants had already entered pleas of guilty to the indictment in its unamended form, and it was not a procedural irregularity for the judge to allow the prosecution to make the amendment. The amendment caused no injustice whatsoever, since it reflected the position as everybody understood it to be and accepted to be correct.

We have been shown nothing to support the submission that the judge had no power to vacate the applicants' pleas of guilty in the absence of an application by them or on their behalf to vacate those pleas. It appears to us that the court must have that power. But the point does not in fact matter one way or the other for present purposes. That is because it is established by JW that the judge could have dealt with the case by offering the applicants an opportunity to vacate their pleas but allowing their pleas to stand as pleas to the amended indictment if they did not wish to vacate them. In substance that is exactly the position that was reached by the alternative route adopted in this case, that is by vacating the pleas and allowing the applicants to enter fresh pleas. Since they did enter fresh pleas of guilty the end result was exactly the same as if the judge had adopted the course approved in JW.

There was no unfairness in any of this. The outcome was that the applicants unequivocally accepted their guilt of the offence particularised in the amended indictment. There is nothing to cast the remotest doubt on the safety of their convictions. Accordingly, the applications in respect of the convictions are refused.

There is one outstanding point, as we have mentioned, in respect of sentence, that is that Mr Morris seeks to contend that the sentence imposed on Love was manifestly excessive even on the basis that this was a dwelling-house burglary.

In order to consider that point we should briefly refer to the facts of the burglary. The owner of the property was a disabled lady who was on holiday at the time. The applicants broke into a shed at the rear of the property and used a shovel from the shed to force entry into the house. They broke in by the back door, damaging the hinges. They carried out an untidy search but there was no evidence that anything was stolen. Jewellery boxes were disturbed and cupboard doors opened. What happened was that a neighbour had seen them breaking in, called the police and the applicants were arrested as they tried to flee the scene.

Love, who is 36 years of age, had 47 previous offences against his name, including a number of thefts and similar offences. In sentencing him the judge found that this was a Category 2 burglary, with a starting point of 1 year’s custody and a sentencing range going up to 2 years. He referred to Love's criminal record which, in his view, increased the starting point. He took the starting point as one of 15 months and gave full credit for the plea. There was, in addition, a consecutive sentence for the breach of the suspended sentence, in respect of which no complaint is made.

What is submitted by Mr Morris is, in short, that the judge was wrong to treat this as a Category 2 burglary; he should have treated it as a Category 3 burglary; indeed from his sentencing remarks it is apparent that he was in some doubt as to the correct categorisation. In our judgment, however, the judge was entitled to treat this as a Category 2 burglary, and in any event when everything is taken into account and in particular when regard is had to Love's antecedents we do not accept that the judge's starting point of 15 months was arguably excessive or therefore that the sentence of 10 months, after full credit for plea, was arguably excessive.

Accordingly the renewed application in respect of sentence in the case of Love is also refused.