R v Desmond Lionel Ashdown Hughes

MRS JUSTICE STACEY: This matter comes before the court at the applicant's request to renew his application for leave to appeal the order of His Honour Judge Donne sitting in the Crown Court at Cardiff on 24 April 2024 dismissing his application to vacate his guilty plea to having been in breach of a restraining order on 9 June 2020. Leave was refused by the single judge on the papers.

The applicant was made subject to a restraining order on 24 July 2013 (“the Restraining Order”) made to protect Nick, Linda and Talia Hancock from further conduct amounting to harassment or causing fear of violence. It included the following restraint in prohibition 2:

“Not to conduct any video surveillance or cause any video surveillance to be conducted upon the property known as Wendover at Began Road, Old St. Mellon, Cardiff, CF3 6XJ (which for the avoidance of doubt includes pointing cameras at said property whether fully functioning or not) and in any way to cause Nick Hancock, Linda Hancock or Talia Hancock to be under the reasonable impression that they are under surveillance.”

The Restraining Order was varied on 30 June 2020 but prohibition 2 remained in identical terms and remains in force until further notice.

On 21 June 2020 the applicant was arrested on suspected breach of the Restraining Order and on 14 January 2021 was charged with four breaches alleged to have taken place on various dates - 28 May and 7, 8 & 9 June 2020. The case was committed to the Crown Court on 1 April 2021.

At the Plea and Trial Preparation Hearing the applicant pleaded not guilty to all counts. Later, after service of the Defence Case Statement, the applicant pleaded guilty to counts 2 and 4 on the indictment on a basis of plea that was accepted by the Crown on 24 July 2023. The remaining counts were left to lie on the file. The case was adjourned for sentence on 21 September for the preparation of reports.

Prior to an effective sentencing hearing, the applicant obtained a transfer of Legal Aid to new solicitors, made an application to vacate his plea, and provided a limited waiver of privilege to his previous solicitor and barrister so that they could each provide statements to the court about what took place at meetings with him on 21 and 24 July 2023.

Count 4 of the indictment was that the applicant had, without reasonable excuse, arranged for a photographer to take photographs of Mr Nick Hancock's property which gave a reasonable impression to Mr Hancock that the applicant had the property under surveillance, which he was prohibited from doing by the Restraining Order imposed by Cardiff Magistrates' Court on what was stated on the indictment to be 25 July 2023.

The basis of plea stated that previously the applicant had not appreciated that the commissioning of a photographer to take the photographs was a breach of the order. The basis of plea went on to explain that he was now advised and accepted that it was a breach of term 2 of the order of the Restraining Order.

At the hearing of the application to vacate heard by His Honour Judge Donne on 29 April 2024, the applicant was represented by counsel. It was not in dispute that a photographer had been present at the property on the instructions of the applicant and the CCTV evidence and photographs taken of the Hancock's property accurately showed the photographer at work on a step ladder at the boundary fence holding a camera looking towards the Hancock's property. A download of the applicant's phone revealed conversations about the photographs taken and images were also retrieved from the photographer's laptop.

The two grounds principally relied on to vacate the pleas were that the applicant had been wrongly advised that the attendance of a photographer was a breach of the Restraining Order. The applicant had not been advised by his then lawyers whether he had a defence of having a reasonable excuse for breaching the terms of the Restraining Order. The reasonable excuse that he now considered would be available to him was that he had applied for a variation of the Restraining Order to enable urgent investigation of potential damage to his property from the activities of the Hancocks next door and his chartered surveyor required photographs concerning a hedge. However because of delays in the court system it meant that his application to vary had not been heard and he could not be expected to wait any longer for it.

The hearing before His Honour Judge Donne lasted two hours and concluded with the judge allowing the application to vacate his plea to count 2. On the prosecution deciding not to seek a trial on the matter, the count was ordered to lie on the file. However, the application to vacate his guilty plea to count 4 was refused. The judge found that the guilty plea was not equivocal; that the taking of the photographs was a clear breach of the Restraining Order; and the taking of the photographs in advance of determination of the application to vary the Restraining Order would not amount to a reasonable excuse.

The judge said this:

The judge went on to sentence him to a 16 month term of imprisonment suspended for two years, imposed 20 days of Rehabilitation and Activity Requirements, and ordered the applicant to pay prosecution costs of £1,630 and a statutory surcharge of £156.

In wide-ranging grounds of appeal, the applicant asserts that there had been a failure by the Crown Prosecution Service to provide full disclosure of the case files as directed at the PTPH; that the indictment was flawed because reference was made to a restraining order dated 25 July 2013 when the first restraining order was in fact imposed on 24 July 2013 and in any event had been varied by the 2020 restraining order; that he had a defence to the breach; there was criticism of his then legal advisers in forcing him to plead guilty and also for not obtaining expert evidence and his final ground of appeal was his ill-health.

The law is well-settled. The court has a discretion to allow a defendant to change their plea any time before sentence. The discretion exists even where a plea of guilty is unequivocal and the discretion must be exercised judicially.

In his extempore judgment His Honour Judge Donne set out that he had considered the points put forward by the applicant and had carefully considered the exercise of his discretion and concluded that it was not in the interests of justice to permit a change of plea. There was no evidence of compulsion in the applicant's guilty pleas, there was no underlying merit in the defence he now said that he considered was available to him and there was no suggestion of the guilty plea amounting to a miscarriage of justice.

It cannot have been correct that the applicant had never been advised that if he had had a reasonable excuse he would have a defence available to what would otherwise have been a breach of the Restraining Order. This was evidenced by the Defence Case Statement signed by the applicant which deals at length with why he considered that he had a reasonable excuse for engaging the photographer to take the photographs on 9 June 2023. What must have happened is that on quiet reflection some weeks later the applicant considered that he did not have a reasonable excuse or convincing defence to the breach of the Restraining Order.

It is not reasonably arguable that the judge erred in his approach or his conclusions and that he was not entitled to exercise his judicial discretion in the way that he did.

It is not clear what the alleged disclosure failures by the prosecution are. In any event, the material facts that proved the commission of the offence were not in dispute - the applicant had engaged the photographer as evidenced by the photographs taken by the photographer, the photographs of photographer at work and the digital footprint from the photographer’s computer and camera were all agreed and were not in dispute. Although the indictment refers to a restraining order dated 25 July 2013 when the order was in fact first imposed on 24 July 2013 the applicant was not under any confusion about the terms of, or the date of, the order which he refers to accurately in his applications and correspondence.

The statements from the applicant's previous lawyers undermine his assertion that he was somehow forced to plead guilty. Criticism of his lawyers is also made by their failure to obtain expert evidence. However it is not clear how this would have assisted in his defence. It would perhaps go to the argument that there was a reasonable excuse in not wanting to wait for the hearing of the application to vary the Restraining Order, but as the judge explained, it was not for the applicant to take the law into his own hands, but he should instead have asked for the variation hearing to be expedited. The fact that he made the application to vary the Restraining Order is also evidence that he knew he that engaging a photographer to take photographs of the Hancock’s house would be a breach unless and until the Restraining Order was varied.

Finally, there is no evidence of a causal connection between the applicant's health and his actions that constituted a breach of the Restraining Order. The hearing before the Crown Court was also delayed for medical reasons on several occasions at the applicant’s request, but on 24 April 2024 before His Honour Judge Donne there were no compelling medical reasons to postpone the hearing.

The application also seeks to adduce fresh evidence of Clare Anderson, Jon Laws, Richard Phelps, Stefan Gray and The Earl of Lytton. That application is refused. The proposed evidence does not afford any ground for allowing the appeal.

For the above reasons, the application for leave to appeal is also refused.