The King on the application of the CPS v Crown Court at Preston (and interested parties)
In this case, the Court considered the correct procedure for appealing against conviction (by plea of guilty) following a referral by the CCRC. It found that there was no requirement under the Criminal Courts Act 1995 for a Crown Court to exercise its power to vacate an earlier plea of guilty, in contrast to an appeal brought under the more common route of s108 Magistrates’ Court Act 1980.
Details
MM was 15 when he was charged with and pleaded to eleven offences of making indecent photographs of a child and one offence of possessing an indecent photograph of a child. He had been 14 at the time the alleged offences were committed.
In 2017, MM submitted an application to the CCRC for his convictions to be sent to the Crown Court for appeal and in 2018, 2019 and 2021, he submitted further submissions to that effect. In 2022, the CCRC found that the case met the statutory test under s13 Criminal Appeal Act 1995, and the case was referred to the Crown Court.
The Crown applied for judicial review of the Judge’s decision that MM did not need to apply to vacate his earlier pleas before the Crown Court could hear the appeal.
They contended that in order to hear the appeal by way of re-hearing (as referred by the CCRC), the Crown Court first had to exercise its power to vacate the pleas that had been entered in the Youth Court. It was submitted that to circumvent that preliminary stage would place any defendant who was referred by the CCRC at an advantage over those appealing under s108 Magistrates’ Court Act, who would have to follow the restrictive route and re-open their plea.
The Court confirmed, as per the case law, that the power of the Crown Court to vacate a guilty plea on appeal from the Magistrates’ Court is limited and applies to equivocal pleas. On the facts of this case, it was not clear that the Crown Court would have had the power to allow the respondent to vacate his pleas. However, as his case had been referred by the CCRC, there was no necessity for his plea to be vacated prior to hearing the appeal.
The High Court King’s Bench Division held (Mr Justice Bennathan presiding) that there are significant statutory differences between a reference by the CCRC and an appeal by way of s108 of the Magistrates’ Court Act in that:
- The words of s11(2) CAA 1995 (“A reference…of a person’s conviction shall be treated for all purposes as an appeal by the person…against the conviction (whether or not he pleaded guilty)”.) are unequivocal in that the CCRC has the power to oblige a Crown Court to hear an appeal;
- The insertion of any preliminary stage requiring the Crown Court to first vacate a plea would frustrate the purpose of s11, as if it were refused, the applicant would be denied the opportunity to appeal and if it were granted, there would be no conviction against which the appeal could be heard, leaving only the option to remit;
- The effect of a CCRC reference is to circumvent the “vacation of plea” stage and therefore the judge had been correct to rule that MM’s appeal could be heard without that being done.
The application for judicial review was accordingly dismissed.
Commentary
S108 MCA 1980 appears to prevent appeal to the Crown Court following a guilty plea in the Magistrates’ Court. However, this decision outlines in some detail, with reference to the authorities, that the power to vacate a plea and remit to the Magistrates’ Court for trial does exist. It applies to equivocal pleas, and there may be other scenarios in which it can be argued. However, where a case is referred by the CCRC, it is not necessary for the Crown Court to engage that power.
The effect of this is that an appeal by way of CCRC reference obliges the Crown Court to hear the appeal, circumventing that preliminary stage.
Parties representing children (and adults, including those who entered their pleas as children in the Youth Courts) should be alive to this distinction between the routes of appeal, however it is also an important reminder that it is vitally important children are given full advice at the time of entering their plea and that consideration has been given to out of court disposals and other options open to the child.
Written by
Violet Smart, Doughty Street Chambers