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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Poole, R v  EWCA Crim 2633 (27th November, 2001)
Cite as:  1 WLR 1528,  EWCA Crim 2633
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|Royal Courts of Justice|
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE HALLETT
MR JUSTICE STANLEY BURNTON
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mark Fenhalls [Mr I. Acheson] (for the Appellant)
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Judge :
“Members of the jury… you have heard what has happened…. There are two ways of dealing with it, one would be to turn to you and ask you to appoint a foreman, and say “well, you have heard them say they are guilty, we find them guilty”; or more simply, if I discharge you, and accept their pleas as would have been done had they taken place before a jury was sworn in the first place”.
“I, Louise Rosalie Poole have decided of my own free will to plead guilty to count one in the indictment and I have made the decision after speaking with my advisors and my partner….. I understand that I will be sentenced on the basis that I did the sexual acts complained of by C. I understand that I could well receive an immediate custodial sentence when sentenced for this offence”.
The discretion of the judge during the course of the trial to permit a defendant to withdraw his “not guilty” plea and substitute a plea of “guilty” is uncontroversial. The essential requirement is that however the judge may be informed of the defendant’s intention, the validity of the process depends on the defendant’s re-arraignment on the indictment, or relevant counts of the indictment, and that the plea is tendered personally by him. This is no more than a manifestation of the elementary principle that the defendant is always personally responsible for the plea. If authority is needed however, it can be found in Hancock 23 CAR 16 (when the verdict was taken without the defendant being re-arraigned at all) and Heyes 34 CAR 161. These authorities further suggest that where such a plea is duly tendered while the defendant is in charge of the jury, the jury’s verdict must be taken. In Gatenby 34 CAR 255, Lord Goddard CJ described the process as a “technicality” adding, however, “it is a technicality that ought to have been observed…..the irregularity is one that rendered the trial a nullity”. These authorities form the basis for Mr Mark Fenhalls’ submission that his client’s plea was invalid. We note that in Tomey 2 CAR 329, when the defendant changed his plea and was sentenced without the jury entering a verdict, no criticism was made by this court, perhaps because the issue did not arise.
“There appears to this court no greater difficulty in altering the record following a jury’s verdict than doing so upon a change of plea in any other situation. The jury’s verdict where, as here, it is entered upon the discretion of the judge, is essentially a formality”.
We regard it as significant that this observation was made by Lord Lane CJ, whose dedication to the constitutional primacy of the verdict returned by the jury requires no emphasis.
“In our judgment logic and good sense dictate that the trial judge should have the same power to allow a change of plea even where the verdict of guilty has been returned formally by the jury. It would be a most unfortunate anomaly in the law were it otherwise. We have come to the conclusion that neither the authorities nor the intrinsic nature of the jury’s verdict compels such an unsatisfactory result”.
Mr Fenhalls focused our attention on the recent decision in the Court of Appeal in In Re Medicaments and Related Classes of Goods (No.2) (2001) 1 WLR 700. He suggested that “a fair minded observer would apprehend that there was a real danger that Judge Downes would have been unable to make “an objective and impartial appraisal of the... evidence”.