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All England Law Reports/1970/Volume 2 /R v Turner - [1970] 2 All ER 281

[1970] 2 All ER 281

R v Turner

COURT OF APPEAL, CRIMINAL DIVISION

LORD PARKER CJ, WIDGERY LJ AND BEAN J

24 APRIL 1970

Criminal law - Trial - 'Plea-bargaining' - Change of plea to guilty during prosecution case - Duty of counsel
when advising change of plea - Whether accused's freedom of choice vitiated by belief that change of plea
recommended by judge to counsel.

The appellant pleaded guilty to the theft of his own car from garage proprietors who had a lien on it. On the
second day of his trial his counsel advised the appellant that a change of plea might result in a non-custodial
sentence, but that, if the trial proceeded and an attack was made on police officers accusing them of
complete fabrication (which were the appellant's instructions), the appellant's previous convictions would be
put before the jury and he ran the risk of going to prison. After a long discussion the appellant's counsel said
that he wanted to discuss the matter with the trial judge. When he returned he told the appellant as his own
personal opinion that there was a very real possibility that, if he was convicted by the jury and an attack had
been made on the police officers, with his previous convictions he might receive a sentence of imprisonment,
but that, if at that stage he pleaded guilty, he must take counsel's word that he would receive a sentence not
involving imprisonment. The appellant was repeatedly told that the choice was his, but nothing was done to
disabuse him of the impression, which he later confirmed he had formed, that counsel was repeating the trial
judge's views. Ultimately the appellant retracted his plea and the jury returned a formal verdict of guilty. On
appeal,

Held - There was no evidence that the appellant's counsel exceeded his duty in advising the appellant to
plead guilty (see p 284 a, post); nevertheless, as the appellant might have thought that his counsel's views
were those of the trial judge, in which case it was really idle to think that the appellant had a free choice in
retracting his plea of not guilty, the proper course was to treat the plea of guilty as a nullity, with the result
that there was a mistrial and an order should be made for a venire de novo (see p 284 j to p 285 a, post).

Observations on 'plea-bargaining' (see p 285 b to j, post).

Case referred to in judgment

R v Hall [1968] 2 All ER 1009, [1968] 2 QB 788, [1968] 3 WLR 359, 132 JP 417, 52 Cr App Rep 528.,
Digest Supp.

Appeal

This was an appeal by Frank Richard Turner against his conviction and sentence for theft at the
North East London Quarter Sessions by the deputy chairman (Judge J B Hobson) and a jury on 27
January 1970. The facts are set out in the judgment of the court.
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C L Hawser QC and P M Herbert for the appellant.

J B R Hazan QC and H M Self for the Crown.

24 April 1970. The following judgment was delivered.

LORD PARKER CJ

delivered the judgment of the court. On 26 January 1970 at North East London Quarter Sessions, the
applicant, to whom the court has now granted leave to appeal, pleaded not guilty to the theft of a car. On 27
January 1970, he retracted that plea of not guilty and pleaded guilty, whereupon a formal
[1970] 2 All ER 281 at 282

verdict was taken from the jury and he was fined £50, with four months' imprisonment in default of payment
within four months, his license was endorsed, and he was ordered to pay £75 towards the cost of the
prosecution.

It is in some ways a curious case, because this car was his own car, and to a layman no doubt that raises a
curious conception. But what had happened was, on the prosecution case (because in the light of the plea of
guilty no evidence was, of course, called for the defence), the appellant had left his car at a garage the
proprietors of which were a father and son by the name of Brown. He had left it some time in February 1969,
asking for new piston rings to be fitted. It was the prosecution case that, after a discussion, there was an
agreement that the engine should be reconditioned for a cost of £65. The work was begun, and completed
on 7 March 1969. On that day, and this it is always to be remembered is the prosecution case, the appellant
called at the garage and said that he would come the next day to collect the car. I should have added that,
when the car was left, rather naturally so was the ignition key. The garage not having very much space,
parked the car, when the repairs were completed, in the street, and by 6.30 pm on 7 March 1969 the garage
found that the car had been taken away from the place in the street where it had been parked. The garage
still had the key and so the police were rung up. However, the next thing that happened was that, on 16
March 1969, Mr Arthur Brown found this car parked in the very street where the appellant lived, and, I
suppose rather indignantly, took the car back to the garage, took the engine out, and then towed the car, less
engine, back to the place in the street where it had been found. The matter then got into the hands of the
police, and in the end a prosecution was commenced at the instigation of the garage proprietors. The police
gave evidence first, that there had been an interview on 16 March 1969 when enquiries were made of the
appellant as to his car, when he told an admitted lie, because he said that he had never taken the car to the
garage at all. The very next day, however, in answer to Detective Sergeant Thompson, the appellant
acknowledged that that had been a lie. He then said that he had gone and taken the car away but that he
had taken it with the full consent of the proprietors, who had handed back the key to him, the prosecution
case being that Mr Arthur Brown still had the key. In those circumstances there clearly was, as the deputy
chairman ruled, a case to go the jury of theft of his own car, because there was evidence from which the jury
could find that the garage proprietors had a proprietary interest, namely, a lien on the car, and that, by
reason of the alleged lies that had been told to the police, this had been done dishonestly. I should add that
the appellant is 46, that he lives with a Miss Nelson, by whom he has two children, and that he has three
findings of guilt, 14 previous convictions, and in his favour that he seemed, under the influence possibly of
Miss Nelson, to be turning over a new leaf in that his last conviction was in 1966.

Pausing there, there is really nothing to enquire into. But, of course, the matter does not end there, there is
really nothing to enquire into. But, of course, the matter does not end there, because this case has attracted
considerable publicity as a result of what the appellant is said to have said to his solicitor the next day, and
as a result of what the solicitor has made extremely public throughout the country. What is said now, in the
amended grounds of appeal which have been put in, is really that the appellant did not have an opportunity
of exercising a free choice in retracting his plea of not guilty and pleading guilty, and that, as it were, his mind
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did not go with the plea of guilty. Accordingly, it was in those circumstances, as indeed it was in R v Hall, the
Dulwich picture case, for the court to look into the matter, to hear evidence in regard to it in order to see, as
was stated in that case ([1968] 2 All ER at 1011, 52 Cr App Rep at 534), whether the prisoner in the
circumstances had a free choice, since the election must be his, and the responsibility his, to plead guilty or
not guilty.

The uncontested facts are that, by the luncheon adjournment on the second day,
[1970] 2 All ER 281 at 283

the prosecution witnesses had been called (in effect the garage proprietors) but not the police evidence, and
up to that stage, at any rate, it could be said that things were going very well for the appellant. Indeed, the
garage proprietors were saying in effect that they thought that they were suing for their money, that it was a
civil case. At any rate, the time had come when the police were going to give evidence. The appellant was
represented by counsela, and he very rightly was worried in the matter, because he had instructions not
merely to challenge the police and suggest that they had misunderstood the appellant's answers or had
failed to remember what he had said, or anything of that sort, but his direct instructions were to attack the
police, accusing them of complete fabrication in conjunction with the garage proprietors. Naturally he was
faced with this, that, if he observed these instructions, it would be almost certain that the jury would have put
before them the appellant's previous convictions. Accordingly, he did what is the duty of every counsel to do,
to give the best advice in the interests of the prisoner as he can. Having explained the legal position, how
this could amount to a theft assuming the lien was proved, he went on to ask the appellant seriously to
consider changing his plea to one of guilty. He did that quite openly in the presence of the solicitorb then
representing the appellant and he said on more than one occasion, putting it in strong words, that, on a plea
of guilty, it might well be a non-custodial sentence, but that, if he continued and these convictions came out,
the appellant ran the risk maybe of going to prison.

a Counsel who represented the appellant at the trial was not either of counsel who represented the appellant on the appeal
b The appellant subsequently changed his solicitor

There were long discussions beginning about 1.50 pm in the interview room of the courts, which continued to
approximately 3.30 pm. Part of the time Miss Nelson, with whom the appellant lived, was present and part of
the time his sister, a Mrs Crowe, was there. There was also the solicitor then acting for the appellant, and his
clerk, and of course counsel then representing the appellant. But quite clearly none of those persons, except
the appellant, was there all the time; in particular counsel was not there all the time. The time came when
counsel said that he wanted to discuss the matter with the deputy chairman; he went, and when he came
back he gave what the court accepts was his own personal opinion. His own personal opinion in the matter,
and I take this from the evidence of the solicitor then acting for the appellant who appeared before us, was
this:

'There is a very real possibility that if you are convicted by the jury and an attack has been made on the police officers,
with your sixteen previous convictions, you may receive a sentence of imprisonment. If at this stage you plead guilty,
you must take my word for it, you will receive a fine or some other sentence which will not involve imprisonment.'

Those were counsel's views, and, as I have said, the court accepts that he was passing on his own views.
The interview continued, and throughout the appellant adhered to his view that he was going to fight, that he
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was not going to retract his plea of not guilty. By about 3.30 pm it was intimated to the court that it would
continue to be a fight, and counsel then representing the appellant and the appellant left the interview room
to go back into court. A further interview took place (there is some dispute over what happened at that) in the
cell adjoining or below the dock. It was only for a minute or two, but at the end of that interview the appellant
said that he was going to retract his plea. Accordingly when everybody assembled in court the indictment
was put to him again, he pleaded guilty, and the formal verdict of the jury was taken.

The first point taken by counsel now for the appellant was that counsel then representing the appellant
exercised such pressure on the appellant, undue pressure,
[1970] 2 All ER 281 at 284

something beyond the bounds of his duty as counsel, so as to make the appellant feel that he must retract
his plea, that he had no free choice in the matter. The court would like to say that it is a very extravagant
proposition, and one which would only be acceded to in a very extreme case. The court would like to say
with emphasis that they can find no evidence here that counsel then representing the appellant exceeded his
duty in the way he presented advice to the appellant. He did it in strong terms. It is perfectly right that
counsel should be able to do it in strong terms, provided always that it is made clear that the ultimate choice
and a free choice is in the accused person. The one thing that is clear from all the evidence is that, at every
stage of these proceedings, certainly up to the interview in the cell, it was impressed on the appellant by
counsel, by the solicitor then acting for the appellant, by Miss Nelson herself, that the choice was open to
him, and, insofar as it rests on undue influence by counsel, the court is quite satisfied it wholly fails.

The matter, however, does not end there because, although it may be sufficient in the majority of cases if it is
made clear to a prisoner that the final decision is his, however forcibly counsel may put it, the position is
different if the advice is conveyed as the advice of someone who has seen the judge, and has given the
impression that he is repeating the judge's views in the matter. As I have said, the court is quite satisfied that
counsel then representing the appellant was giving his own views and not the judge's at all. But it had been
conveyed to the appellant that counsel had just returned from seeing the deputy chairman; what was said
gave the solicitor then acting for the appellant the impression that those were the judge's views, and counsel
then representing the appellant very frankly said that, in the circumstances, the appellant might well have got
the impression that they were the judge's views. Accordingly one asks: was he ever disabused of that, did
anything happen to show that these were not the judge's views on the case?

Apparently a time came when the discussion had been going on for a long time, when the acting temporary
clerk of the court came down to inform counsel (although he does not remember it, I think it must be right)
that the judge could not allow much longer. He saw the prosecuting counsel in the robing room and
conveyed this to him, and he went into the interview room and said something to counsel then representing
the appellant. The clerk of the court is quite satisfied in his own mind that what he said was that he was
authorised to say that, whatever happened, that is whether there was a plea of guilty or whether the plea of
not guilty stood, the result would be the same, it would not be a term of imprisonment, and, of course, if that
were so, that was really the end of the matter. There was absolutely no reason whatever for the appellant to
alter his plea, he would be no worse off if he kept to his plea of not guilty. Counsel then representing the
appellant at any rate did not get that impression; he got the impression from the clerk of the court that the
message that he was authorised to give was that, if at this stage there was a plea, it would be a fine, and of
course that would, if true, really bear out the impression which the appellant already had. This court is quite
satisfied that the clerk of the court must be wrong in his recollection-- no doubt he was not asked about this
until some time after the event--because we should not be here today if that really had happened.
Accordingly, nothing was conveyed by the clerk of the court which could have disabused the appellant of the
impression which he had formed earlier. Indeed, it may well have confirmed it. True, as I have said, he was
warned that the choice was his, but, once he felt that this was an intimation emanating from the judge, it is
really idle in the opinion of this court to think that he really had a free choice in the matter.
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Accordingly, although not without some doubt, the court feels that this appeal must succeed. I say with some
doubt because, despite all that I have said, the appellant drafted grounds of appeal himself originally, and
really there is nothing of this in those grounds. However, the solicitor then acting for the appellant said that
he was informed of this point the day after the trial, and in all the circumstances of the case
[1970] 2 All ER 281 at 285

the court feels that the proper course is to treat the plea that was given as a nullity, with the result that the
trial which took place was a mistrial, and that there should be an order for a venire de novo.

Before leaving this case, which has brought out into the open the vexed question of so-called
'plea-bargaining', the court would like to make some observations which may be of help to judges and to
counsel, and indeed to solicitors.

1. Counsel must be completely free to do what is his duty, namely, to give the accused the best advice he
can, and if need be advice in strong terms. This will often include advice that a plea of guilty, showing an
element of remorse, is a mitigating factor which may well enable the court to give a lesser sentence than
would otherwise be the case. Counsel of course will emphasise that the accused must not plead guilty
unless he has committed the acts constituting the offence charged.

2. The accused, having considered counsel's advice, must have a complete freedom of choice whether to
plead guilty or not guilty.

3. There must be freedom of access between counsel and judge. Any discussion, however, which takes
place must be between the judge and both counsel for the defence and counsel for the prosecution. If a
solicitor representing the accused is in the court he should be allowed to attend the discussion if he so
desires. This freedom of access is important because there may be matters calling for communication or
discussion, which are of such a nature that counsel cannot in the interests of his client mention them in open
court. Purely by way of example, counsel for the accused may by way of mitigation wish to tell the judge that
the accused has not long to live, is suffering maybe from cancer, of which the accused is and should remain
ignorant. Again, counsel on both sides may wish to discuss with the judge whether it would be proper, in a
particular case, for the prosecution to accept a plea to a lesser offence. It is, of course, imperative that, so far
as possible, justice must be administered in open court. Counsel should, therefore, only ask to see the judge
when it is felt to be really necessary and the judge must be careful only to treat such communications as
private where, in fairness to the accused person, this is necessary.

4. The judge should, subject to the one exception referred to hereafter, never indicate the sentence which he
is minded to impose. A statement that, on a plea of guilty, he would impose one sentence but that, on a
conviction following a plea of not guilty, he would impose a severer sentence is one which should never be
made. This could be taken to be undue pressure on the accused, thus depriving him of that complete
freedom of choice which is essential. Such cases, however, are in the experience of the court happily rare.
What on occasions does appear to happen, however, is that a judge will tell counsel that, having read the
depositions and the antecedents, he can safely say that, on a plea of guilty, he will for instance, make a
probation order, something which may be helpful to counsel in advising the accused. The judge in such a
case is no doubt careful not to mention what he would do if the accused were convicted following a plea of
not guilty. Even so, the accused may well get the impression that the judge is intimating that, in that event, a
severer sentence, maybe a custodial sentence, would result, so that again he may feel under pressure. This
accordingly must also not be done. The only exception to this rule is that it should be permissible for a judge
to say, if it be the case, that, whatever happens, whether the accused pleads guilty or not guilty, the
sentence will or will not take a particular form, eg a probation order or a fine, or a custodial sentence. Finally,
where any such discussion on sentence has taken place between judge and counsel, counsel for the
defence should disclose this to the accused and inform him of what took place.
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Appeal allowed. New trial ordered.

Solicitors: Morris, Williams & Co (for the appellant); Solicitor, Metropolitan Police.

N P Metcalfe Esq Barrister.