Director of Public Prosecutions v Toney

LORD JUSTICE KENNEDY: This is an appeal by way of case stated from a decision of Judge Mervyn Roberts sitting in the crown court at Wood Green on 7th February 2005. The facts, as set out in the case stated, can be summarised thus: Mr Randy Toney was arrested in relation to an allegation that he had assaulted his wife, Mrs Sainga Toney on 20th October 2004. She had made a statement on 21st October indicating prolonged and serious domestic violence. He was interviewed with the benefit of legal advice. His solicitor was in consultation with him for 1 hour and 19 minutes before he was interviewed, and when interviewed he declined to comment on the allegations put to him.

On Saturday, 23rd October 2004, he was charged with causing grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861. On Saturday, 23rd October, he pleaded guilty to that offence being represented by counsel, who in turn had an opportunity to speak to him before his plea and according to the record made by counsel, not counsel who is representing him today, she did so for some 18 minutes.

The Justices then sent the matter to the crown court for sentence considering their powers of sentence to be inadequate. Mr Toney was remanded in custody. On 3rd November 2004, Mrs Toney made a statement withdrawing her complaint. On 19th November 2004, legal representation of Mr Toney was changed and on 7th February 2005 Mr Toney, by fresh counsel, applied to the crown court to vacate his plea of guilty. At that hearing he produced a copy of a note made by counsel who had attended in the Magistrates' Court. That is annexed to the case stated as appendix A. The material part of that note reads as follows:

Mr Toney also gave evidence. He claimed that the police had been violent to him and made a number of other claims during the course of that evidence which he gave in the crown court. During the course of his cross-examination the learned judge said that having listened to Mr Toney he found him neither credible nor reliable and accordingly cross-examination was brought to a somewhat premature end.

The court at that stage did have available to it the committal papers and some skeleton arguments, but, of course, it had no evidence before it other than the note made by counsel and the evidence tendered by Mr Toney which had been found to be, in the judge's words: "neither credible nor reliable." It did, however, emerge that Mr Toney had previous experience of being arrested apparently for allegations of domestic violence, although he had never been convicted, so he would not have been wholly unfamiliar with what happened when he was arrested on this particular occasion.

By way of submission to the crown court judge it was said that the plea, which was tendered in the Magistrates' Court did not represent a genuine admission of guilt. That Mr Toney had really only intended to admit that the injuries had been caused by accident. There was, of course, no credible evidence to indicate that they had been so caused. It was further submitted that he was wrongly advised to enter a plea of guilty. It was pointed out that he has difficulties; he can neither read nor write, and it was submitted that when he tendered his plea he was distressed. It was further submitted that the withdrawal statement made by Mrs Toney showed her first statement to have been dishonest, and what she was now saying was in line with his account, at least the account he wished to present if given an opportunity to do so.

On behalf of the prosecution it was submitted in the crown court that the plea was a clear admission of guilt and that the power to permit withdrawal should be sparingly used. It was pointed out that Mr Toney had been extensively advised by counsel and solicitor and that he was familiar with criminal procedure. Furthermore, the concept of an assault, as opposed to, for example, an accident was not one which was at all difficult to understand. Mrs Tony's second account did not accept that her earlier account was dishonest and her significant injuries and distress spoke for themselves.

The learned judge when he came to give judgment in relation to the question of whether or not the plea could be withdrawn, recited the history, including referring to the note made by counsel in the Magistrates' Court. He said this:

With respect what mattered was not whether what he was admitting was radically different to the prosecution allegation, but whether he was admitting guilt of the offence charged. In the case stated at paragraph 20 there appears this:

The only other matter which was of some significance is that during the course of the hearing, and when Mr Toney was giving his evidence, as appears from paragraph 10 of the case stated, he was asked whether he was prepared to waive privilege regarding the discussions with and his account to his solicitor at the police station. He declined to do so. So far as counsel originally instructed is concerned, we are told that she was invited to attend at the hearing in the crown court, but there had been no waiver of privilege, so far as she was concerned, and certainly she had not been told that privilege had been waived so as to enable her to expand upon what she recorded in her attendance note on 23rd October.

In those circumstances, to my mind, it is not in the least surprising that counsel recognising her obligations by way of legal professional privilege thought it appropriate not to attend and the judge, we are told, made no criticism of her, nor would it have been right for him to do so.

So the position emerged, as it seems to me, in which the only admissible evidence in support of this application to vacate the plea of guilty was the written record made by counsel on 23rd October. That no longer seems to be a matter of dispute. There was simply nothing else, save perhaps for the background fact that no waiver of privilege of any kind had been granted by Mr Toney himself.

In those circumstances it is appropriate to consider the law. In R v Drew [1985] 1 WLR 914 Lord Lane CJ at 923 said this:

In precise terms that did not happen here. There had been no earlier change of plea, but there had clearly been, according to the note, considerable change of account.

We were also invited to consider a number of recent authorities dealing with this particular topic, for example, in R v Isleworth Crown Court and Uxbridge Magistrates' Court, ex parte Petrus Buda [2000] 1 Cr App R (S) 538, R v Sheikh and Others [2004] EWCA Crim 942 and R v Saik The Times 29 November 2004; [2004] EWCA Crim 2936. I take simply one paragraph from that last authority: paragraph 57 where there appears this passage:

I accept, as has been submitted by Miss Maroof, that if there is evidence to show that when the plea was tendered the defendant did not fully understand the nature of the offence with which he was charged, or if there is evidence to show that the defendant was put under pressure of an improper kind which may have led to him pleading when he would not otherwise have done so, then it may indeed be appropriate for a judge, in the position of the judge in this case, to allow him to vacate his plea. But here if one reads the note made by counsel on 23rd October in context, it seems to me that there is not the slightest evidence to indicate that on this occasion there was any misunderstanding on the part of the defendant as to the nature of the offence charged: the offence of assault.

Furthermore, on any fair reading of that note it is quite clear that he admitted an assault. He gave more than one version as to how his wife came by her injuries, but reading the note for what it was the note does not suggest, for a moment, that she came by her injuries accidentally, as the judge recognised, or in any way short of a criminal assault.

If the note was to be interpreted in any other way it was fundamental that counsel, who was present at the time, would have to give evidence to explain fully what happened. She did not do so because this defendant chose not to waive privilege. On the material which was available to the judge, it seems to me that nothing can be made of the fact that the note does not record the possibility of a Newton hearing, or of a note being prepared as to the basis on which a plea was being tendered. This was the very first hearing in the Magistrates' Court, and, as I indicated to counsel during the course of submissions, there may have been quite pressing reasons why at that stage counsel felt a certain reluctance to go public as to the basis of plea on behalf of the defendant. He had after all, according to her note, already changed his version of events twice and who knew whether or not he might wish to change them further when he knew a little more about the precise injuries that his wife had sustained.

In my judgment there was simply no basis on which it was possible for the learned judge to say that what was recorded by counsel could properly lead him to the conclusion that it would be appropriate to allow this defendant to vacate his plea of guilty. In those circumstances I, for my part, would answer the question posed at the end of the case stated by indicating that the learned judge was not correct in law to determine that the substantial difference between the account of admissions, given to defence counsel at the Magistrates' Court, and the prosecution allegation, indicated that those admissions could not be taken as indicating the true intention properly advised to plead guilty to assault occasioning actual bodily harm, contrary to section 20. In other words, I would answer the question posed in the negative and I would allow this appeal.

MR JUSTICE WALKER: I agree. I find it a curious feature of this case that the respondent was allowed to rely upon the note to which my Lord has referred and at the same time to say that he was not waiving privilege. I would not regard the course that was followed in this case as a useful precedent when issues of this kind arise in the future.

LORD JUSTICE KENNEDY: Thank you both for your assistance.

MR RULE: I wonder if I could ask for an order granting relief in this case?

LORD JUSTICE KENNEDY: The matter will be remitted to the crown court with the direction that the crown court should proceed to sentence. It would be advisable, though not mandatory, that the matter go before a different judge.

MR RULE: I know the defendant is unemployed. There is a matter of costs. I did discuss it with those instructing me and they suggested a figure of £500 taking account of the defendant's means. I do not know whether your Lordships are prepared to entertain it. He is on conditional bail. An application for costs in that sum.

LORD JUSTICE KENNEDY: What we would be disposed to do, unless you want to say something about the figure, or for that matter about the appropriateness of the order, would be to make the order but subject to a condition not to be enforced without further order.

MISS MAROOF: I was not clear with regard to the issue of costs because of course this was an appeal by way of case stated of His Honour's decision by the prosecution. In those circumstances we were required to take part in these proceedings.

LORD JUSTICE KENNEDY: I do not think so. You are fully entitled to. Of course, you are. One would expect you to. I do not think you are required to.

MISS MAROOF: The only issue that I raise is, of course, this is not an appeal brought by this defendant, or indeed against this defendant's actions or decision. It was the decision of the crown court judge.

LORD JUSTICE KENNEDY: I think your difficulty may be that you took the point in the court below which brought us here. g

MISS MAROOF: Yes, but the issue being debated today.

LORD JUSTICE KENNEDY: They have not thus far asked for the costs of the hearing. I do not know when it was. In January, I think.

MISS MAROOF: No, and I accept that is a different issue with regard to today's hearing. My Lord, the issue that is being discussed was the decision, right or wrong, of His Honour Judge Mervyn Roberts which had nothing to do with Mr Toney.

LORD JUSTICE KENNEDY: I see the force in that. At the moment Miss Maroof, what we are minded to do is to say no order for costs in this court, but to leave it open to you, and those instructing you, if so minded, when the matter goes back to the crown court to apply for the costs of 7th February 2005.

MR RULE: I am grateful. In any event, the sum I asked for did not take into account the full costs of this hearing.

LORD JUSTICE KENNEDY: Yes, I am sure of that. I do not think the reality is you will get very much, in any event. That is the form of order. Thank you very much.