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Lees, R v [2002] NICC 2450 (18 February 2000)

Ref. HIGF 3151

IN THE CROWN COURT SITTING AT BELFAST

________

THE QUEEN

-v-

WILLIAM COLIN JOHN LEES

________

HIGGINS J

1. This is an application to vacate pleas of guilty entered by the accused to 68 counts in three bills of indictment on three separate dates. On 6 November 1997 the accused was arraigned and pleaded not guilty to 46 counts on Bill 5A/1997. On 12 April 1999 the accused was rearraigned on Bill 5A/1997 and pleaded guilty to Counts 2 - 5 and 8 - 48. Count 1 was left on the file not to be proceeded without leave. He was committed for trial on these charges on 19 December 1996. On 28 January 1999 he was arraigned and pleaded not guilty to 19 counts on Bill 336A/1998. On 7 September 1999 the accused was rearraigned on Bill 336A/1998 and pleaded guilty to all 19 counts on the indictment. He was committed for trial on these charges on 30 December 1998. On 11 June he was arraigned and pleaded not guilty to two counts on Bill 169/1999. On 30 September the accused was rearraigned on Bill 169/1999 and pleaded guilty to both counts on the indictment He was committed for trial on these charges on 12 May 1999. Bill 5A is referred to as the Fraud case, Bill 336A as the Customs case and Bill 169 as the Drugs case. In addition he is also charged with offences known as “the money laundering charges” in respect of which he is not yet returned for trial. These are all very substantial trials. With two exceptions his co-accused have each pleaded guilty to such charges as satisfied the prosecution and been sentenced. In Bill 169 D Jones contested the drugs charges. His trial commenced on 7 October 1999 and ended on 27 October 1999 when he was acquitted by the jury. N Bass was not proceeded against on Bill 336A and those counts against her were ordered to lie on the file not to be proceeded with without leave. On each Bill the accused was represented by Mr E Grant QC with whom appeared on Bill 5A Mr M Rodgers BL and on Bills 336A and 169 Mr G Talbot BL. They were instructed by Kearney Kelly & Co the principal of which firm Mr Brendan Kearney was in immediate control of the defence of the accused. The trial of Bill 5A was originally set for the beginning of January 1999. Towards the end of 1998 there were a series of pre-trial hearings during the course of which Mr Grant indicated that accountants briefed on behalf of the defence had not completed their investigations and might not have completed them by early January 1999. So it transpired. At the opening of the Crown Court in January Mr Grant applied for the case which was ready to proceed to be adjourned until April. This application was acceded to and the trial was fixed for 12 April 1999. On that date the accused pleaded guilty to 46 counts in Bill 5A.. On 9 December 1999 Mr Grant applied in person to vacate all the pleas previously entered and at the same time informed the Court that he was then withdrawing from the case. That application was adjourned to the new term and came on for hearing on Friday 4 February. Mr Harvey QC appeared instructed by Madden & Finucane both appearing pro bono.

2. The application to vacate the pleas of guilty concerned the events of 12 April 1999 and numerous dates thereafter as well as the conduct on those occasions of Senior Counsel who appeared on behalf of the accused at that time. By 12 April 1999 the accused had not yet been returned for trial on Bill 169 and was only returned for trial on Bill 336A on 30 December 1998. Central to the events in question is the accused himself. The witnesses to the principal events apart from Mr Grant included Mr Rodgers, Mr Talbot, Mr Kearney, Mr Brennan a solicitor in Kearney, Kelly & Co and three senior personnel from the Northern Ireland Probation Service. Mr Harvey QC opened in detail the facts which he stated he could prove in evidence. He informed the court that he had consulted with the principal witnesses and the accused and that the account which he detailed to the court was an accurate record of what occurred from the instructions which he had been given by these witnesses who included several professional lawyers well experienced in criminal law and practice. He informed the prosecution about these various witnesses and offered them the opportunity of consultation with them . The Crown, quite properly in my view, did not seek to follow up this invitation. Some of the matters outlined by Mr Harvey could only be deposed to by the accused. The major part of it could be deposed to by one or more or all of the lawyers concerned namely Mr Rodgers, Mr Talbot or Mr Kearney. In addition Mr Harvey also had written submissions from Mr Grant though those were not disclosed to the Court. The following is a chronological record of Mr Harvey’s opening of the factual background.

3. In June 1998 following judicial review proceedings office facilities were made available to the accused at Maghaberry prison in order to permit him to cope with the volume of papers in the substantial fraud case. In July 1998 the accountants Goldblatt and McGuigan were engaged to provide their professional services. Mr Anthony Brennan of Keaney Kelly and Company was allocated to work on the case full-time.

4. The fraud case Bill 5A was listed for hearing on 12 April 1999, which was the first day of term following the Easter vacation. In the three week period prior to 12 April Mr Rodgers, junior counsel, attended with the accused almost daily for consultation. At no time during the course of that preparation nor earlier had the question been broached with the accused as to the appropriateness or otherwise of a plea of guilty. It had always been the accused intention to contest these charges.

5. On the morning of 12 April 1999 Mr Kearney and Mr Brennan attended at Belfast Crown Court and discussed with the accused in an interview room the process of jury swearing. At approximately 11.30 the accused met Mr Grant, Mr Rodgers, Mr Kearney and Mr Brennan in a consultation room. At that consultation Mr Grant told the accused that he had been approached by the Crown prosecutor to see if he could come to an arrangement with the Crown on all his pending cases. (This was despite the fact that at this stage the accused had not yet been returned for trial on the customs and excise case, or the money laundering case and no judge had been allocated nor had he seen sight of the papers in those cases nor the drugs case). Mr Grant also informed the accused that the Crown approach was to treat the fraud case as “the number one case”. He said this was a significant shift in ground as the drug case potentially would carry a much higher or significantly higher sentence. The accused was told that an overall sentence for all the outstanding cases, including that for which it was proposed the trial would begin that day, could be achieved in single figures if the accused pleaded guilty to all outstanding charges. In addition he was told that charges against his partner Zara Lees would be taken care of. Mr Grant then went on to explain how this agreement would work. He told the accused that this arrangement would have to be ratified by a Crown Court judge but also told him that Mr Creaney would be in attendance with him and that the Judge hearing the case would be a judge of Mr Grant’s choice. The accused was shocked and taken aback by what he heard. Mr Grant asked the accused to consider what was on offer. He also told him that he was stupid not to accept the offer because of the risks involved in the drugs case. Mr Grant, Mr Rodgers and Mr Brennan left. The accused asked Mr Kearney to remain behind as he wished to speak to him on his own. He consulted with Mr Kearney and Mr Kearney advised him against taking the course of action set out by Mr Grant.

6. Sometime just before 2.00 pm the accused was again taken to the interview room and present were Mr Grant, Mr Rodgers and Mr Kearney and Mr Brennan. The accused informed senior counsel that he did not wish to accept the Crown’s proposed arrangement and that he wished to proceed with the selection of the jury. Mr Grant’s reaction to that was exceptionally hostile. He advised the accused of his experience in these matters and the need to look at all of the cases outstanding in pragmatic way. He told the accused he ought to accept the arrangement which was on offer. In relation to the question of sentencing the accused asked him what that would mean. Mr Grant again indicated that it would mean a single figure sentence for all the offences. The accused specifically then asked by single figures did he mean eight years and the answer was “probably”. The accused then said could it mean “nine”. Mr Grant answered that the chances of nine were minimal. The accused was told he would have to trust Mr Grant. The accused was distressed by the course of these developments. He then requested to speak to Mr Kearney on his own. Mr Grant responded by telling him that it would be entirely inappropriate for him to speak to Mr Kearney on his own. Mr Grant then informed the accused that he was privy to information which he could not discuss with any of those present and that he would personally guarantee the arrangement which he had set out earlier. As a result of that the accused eventually agreed to change his plea to guilty and on leaving the room stated to Mr Grant “I am depending on you”. Mr Grant said “Trust me”. At this meeting neither Mr Rodgers, Mr Kearney nor Mr Brennan spoke or expressed any opinion. The accused was then taken to court and pleaded guilty to Bill 5A. He was then put back for sentence.

7. Following the appearance of the accused in court on 12 April Mr Rodgers expressed grave reservations to Mr Brendan Kearney as to what had occurred during the course of the morning and early afternoon of the 12^th but on the basis that Mr Grant was privy to information that they were not, he felt he could not take those reservations further.

8. Following the court appearance of 12 April Mr Grant visited the accused in Maghaberry prison. During the course of those visits he reaffirmed the commitment to an overall sentence being achieved in single figures and of eight years. There were also discussions at those consultations in relation to ensuring that the charges against the accused’s partner Zara were dropped by the Director of Public Prosecutions and not proceeded with. At those consultations it was again indicated to the accused that the attitude of the Crown to his case had softened considerably and that the fraud case was viewed as the most significant.

9. A meeting took place with the accused early in July. (The accused dates the meeting as 1 July and Mr Grant dates it as 7 July). Present were Mr Grant, Mr Kearney, Mr Gordon Talbot and Mr Martin Rodgers who arrived late. At this meeting Mr Grant informed the accused that he had spoken with the judge and that an arrangement had been made whereby the accused would receive a sentence of eight years for the fraud case, five years for the customs case concurrent with the eight years, and a consecutive sentence of five years for the drugs case, making a total sentence of thirteen years. The accused was devastated and told Mr Grant of the personal undertakings that he had made to him on 12 April and went over those in detail. Mr Grant suggested to him that he could fight the drugs case. The accused pointed out to Mr Grant that the only reason why he had pleaded guilty to the first case was on Mr Grant’s advice as to “a wrap up sentence in all cases”. The accused indicated at all stages his absolute reluctance to plead guilty in the drugs case. Again matters became heated, and the accused made known his feelings of betrayal. Mr Grant then left saying that if he did not agree with what was happening then he could speak to Mr Kearney. Mr Kearney was only able to stay for a matter of moments as transport had been arranged to take all the parties back. Mr Rodgers expressed his concern that the position had altered from that which he understood it to be on 12 April when Mr Grant had informed those present that he was privy to information which they were not and invited the accused to trust him. (Mr Rodgers was only involved in the one case Bill 5A and had no input in to either the drugs or the customs cases in which Mr Talbot was the junior).

10. The following morning the accused contacted his instructing solicitor, Mr Kearney, by phone and an arrangement was made to meet Mr Kearny and Mr Talbot during the course of his next remand at the magistrates’ court (the accused was on weekly remand at this stage in respect of the other charges for which he had yet to be returned for trial).

11. At this meeting both Mr Talbot and Mr Kearney were made aware by the accused of his extreme concern for the position he now found himself in and he asked for advice in relation to the pleas that he had already entered. The accused was told that Mr Grant was still hopeful of achieving the original outcome as set out on 12 April and that over the course of the summer Mr Grant would continue to negotiate on his behalf.

12. During the remainder of the summer the accused did not see or speak to Mr Grant.

13. During the first week of September the accused was contacted by Mr Kearney and told that there had been a major development and that Mr Grant wished to see him on Monday 6 September and also wished to see Zara Lees. An arrangement was made to meet for a meeting outside the prison on Monday 6 September. Mr Grant, Mr Kearney and Mr Talbot met Zara Lees outside the prison and went through with her what was proposed as a revised arrangement. Mr Kearney and Mr Talbot had been supplied with a note by Mr Grant in Mr Grant’s handwriting in relation to a proposed custody/probation order dealing specifically with the probation order aspects of such a sentence.

14. That document states:

“Custody/Probation - Highest Probation Officer

3½ years left

1. IN PRISON

See

1. Immediate expert occupational psychologist

Highest probation officer in N. Ireland (Brendan Fulton)

2. Open University?

3. I.T. Training?

4. LEDU - business enterprise programmes

you help them develop

5. Any other course eg English.

Ready for return to business or teach.

2. HALF-WAY HOSTEL

You will move to a form of open prison in “final year or earlier”. (2½ years or earlier). Definitely to be developed by Prison Service and probation within 2 years.

You can work at e.g. Shorts, Translink, ……. go voluntary. Or probation organize this.

If Briedge Gadd recommends you for work.

Then you go out.

Very relaxed regime. Simply report at night.

3. RELEASE/PROBATION

If in a job and family ok Probation Service may discharge the order early.

Very limited reporting.

4. MAGILLIGAN?

Strong representation can be made if you wish.

[5. 25% early weekend parole - at July next year? 2000]”

15. Mr Grant did not go into the prison on 6 September, but Mr Talbot and Mr Kearney were directed to outline to the accused the proposal now suggested by Mr Grant. This they did. Both Mr Kearney and Mr Talbot made it clear to the accused that they were speaking on behalf of Mr Grant as they had neither knowledge of nor involvement in the proposals now being put forward. The accused was told that his sentence in relation to all of the offences including those to be disposed of would be, at worst, eleven years imprisonment with an additional two years probation. He was told in accordance with the handwritten note that the Probation Service, given a number of different criteria, could in effect reduce the period to be spent in prison. (Mr Harvey commented that an analysis of the document would suggest that it was being indicated to the accused that he would be released within 2½ years or earlier.) This document had been prepared by Mr Grant after he had spoken Briedge Gadd the Chief Probationer Officer on Saturday 4 September. The accused retained a copy of this document. (Mr Harvey commented that the overall effect upon the mind of the accused was that Mr Grant had achieved by a different method the arrangement which he had promised on 12 April.)

16. That evening the accused spoke by telephone to his partner Zara and she confirmed that she had been given a similar understanding of what was being proposed by Mr Grant in the same terms as that being presented to the accused.

17. On 7 September 1999 the accused was produced at Belfast Crown Court on Bill No. 336A (the Customs case) for trial on that indictment. Mrs Briedge Gadd together with Mr Brendan Fulton (the Chief Prison Probation Officer at Maghaberry Prison) saw the accused in the consultation facilities in the cells in the Law Courts. They spent some time going through the suitability of the accused for probation and created the impression in the mind of the accused that what had been be outlined to him previously was correct. Neither Miss Gadd nor Mr Fulton went into the details set out in the handwritten document.

18. After this Mr Kearney and Mr Talbot saw the accused and again indicated to him that they had no knowledge of nor involvement in the arrangements but on the basis of the document that they had received from Mr Grant, went over the matters again.

19. At approximately 2.30 pm the accused asked Mr Grant to attend. Mr Grant did so and confirmed at the meeting the matter set out in the handwritten document. The accused was still reluctant to plead guilty to these outstanding charges. When asked what he wished to do he indicated that his only option as it seemed to him at that time was to discharge those representing him and obtain new legal representation or accept what was set out in the document. Mr Grant then left the interview room and for a short time Mr Kearney and Mr Talbot went over the arrangements now proposed by Mr Grant. On the basis of those arrangements the accused was then asked to give authority to proceed to plead guilty to the customs and excise charges. The accused gave that authority in writing in the following terms:

i. “I Colin Lees have been advised by my Senior Counsel that I will serve a maximum effective prison sentence of eleven years this sentence will be in respect of all charges that I presently face outstanding money laundering charge will be tic’d. I also consent to custody/probation order being made of two years and understand that it is an integral part of my sentence.

ii. Signed: Colin Lees

iii. Witness: Signature illegible

iv. Dated: 7/9/99.”

20. This authority was written by Mr Kearney.

21. (Mr Harvey commented that the accused was signing not in relation to the customs charges which were before the court that day, but a document relating to a comprehensive sentence which was proposed in relation to all the counts which were outstanding against him as well as those to which he had already pleaded guilty).

22. The accused was then taken to court and pleaded guilty to all the charges on Bill 336A.

23. The accused was visited by Mr Grant at Maghaberry prison and discussed with him in full the custody/probation details previously outlined in the handwritten document. Mr Grant also made it clear that he personally would see that the accused would get all the benefits he had outlined. In addition he advised the accused in relation to matters concerning future meetings with the Probation Service. Mr Grant further confirmed that the maximum probation period was three years and informed the accused that he should be eligible for the maximum. Other matters of a general nature in relation to the preparation of a plea in mitigation were discussed.

24. On 30 September the accused met Mr Grant at the Crown Court prior to being rearraigned on Bill 169/1999 (the drugs case). Mr Grant said to him “everything is in order now, lets just get this over with”. When the accused asked if everything was all right he was told again “trust me”. He was then rearraigned on Bill 169 and pleaded guilty.

25. On 20 October the accused met with his designated probation officer a Mr Paul Shepherd. There were three meetings with regard to his suitability for probation. During those meetings it became apparent that Mr Shepherd had no knowledge of the “early release scheme” referred to by Mr Grant in the handwritten document. The accused was informed that the Probation Service could not offer special case arrangements to any prisoner other than what was generally available to all. As a result of those conversations the accused contacted Madden & Finucane, solicitors, by phone and informed Kearney, Kelly and Company that he had done so.

26. On Friday 22 October the accused met Mr Talbot and Mr Cormac McKeown (a solicitor in Kearny Kelly and Company). Mr Talbot was informed by the accused about his conversation with Mr Shepherd. Mr Talbot indicated to the accused that he accepted that something was wrong in what had been said to him.

27. On 2 November Mr Grant and Mr Kearney attended with the accused at Maghaberry prison. The accused was told by Mr Grant that his concerns relating to what he had been told by Mr Shepherd would be sorted out by a senior probation officer.

28. On 11 November 1999 a probation officer (believed to be called Rita O’Hara) visited the accused at Maghaberry prison. She outlined to him all aspects of home leave, prison work out schemes and early release at both Magilligan and Maghaberry prisons. She told him that there was no way that the Probation Service could grant any form of early release and there were no special arrangements for any prisoner on work out schemes. She told him that in Magilligan such schemes as were in existence were not available until the last twelve months of a sentence and at Maghaberry within the last six months of a sentence.

29. After this meeting the accused contacted Mr Kearney and indicated that he felt that he had been lied to in relation to the previous arrangements.

30. On 17 November 1999 Mr Grant and Mr Kearney consulted with the accused at Maghaberry. At that consultation Mr Grant outlined what appeared to be the strength of the accused’s pleas. The accused asked if these arrangements had been finalised with the judge and Mr Grant answered “I won’t be talking to him again I will doing this on my feet at the time of your sentence”. Again there was a heated exchange between Mr Grant and the accused. The accused made it clear to Mr Grant that he believed that he had been betrayed by him over a considerable period of time and that everything that he had done over this last number of months had little to do with the presentation of his defence but was an attempt to repair the damage that had been done on 12 April.

31. After this meeting the accused again contacted Madden & Finucane.

32. On Friday 19 November the accused met Mr Talbot at his weekly remand. Mr Talbot indicated to him that he had been told by Mr Grant that the arrangement previously guaranteed by Mr Grant would be reduced into writing by Mr Grant. Mr Talbot went on to say that again he was not party to those arrangements and all he could do was to pass on the information that he was being told. Once again, Mr Talbot expressed his professional reservations as to the developments that had occurred in this case, which were beyond his personal experience.

33. On 22 November 1999 Mr Kearney saw the accused at Maghaberry prison and informed him that his final appearance had been listed for Wednesday 24 November. The accused went over the concerns that he had in relation to the developments over the previous few months and was concerned once again he would be pressurised by unreliable information into following a course which he had never wished to proceed upon in the first place. There was a further discussion in relation to what had happened before and Mr Kearney informed the accused that unless there was a resolution of all of the outstanding matters in terms of the detail presented to the accused he would request an adjournment of the case on the basis of professional problems relating to his representation.

34. That evening the accused again contacted Madden & Finucane about what had happened during the course of that day.

35. On 24 November 1999 the accused was taken to Belfast Crown Court. He was put in a cell and told he was to be sentenced later that day but not before 2.00 pm. He did not see Mr Grant during the course of the morning, but at approximately 1.50 he was taken to the consultation room. Present were Mr Grant, Mr Talbot, Mr Rodgers and Mr Kearney. Mr Grant said he had considered his position and would be asking the judge for an adjournment in order to take the matter to the Court of Appeal in the next few days. He told the accused that he would accept in his application to the Court of Appeal that he had been over zealous in his advice and that the accused’s mind had been over borne at the time of the pleas. He informed the accused that there was legal precedent for this type of case. He further told him that he would resign from the case. Mr Talbot asked the accused if this course of action was acceptable to him to which the accused replied “yes”. Mr Grant then left the room. The accused was then taken to court. Mr Grant asked for the adjournment which was granted.

36. That afternoon the accused contacted Madden & Finucane and explained what was proposed.

37. With a view to taking the matter to the Court of Appeal Mr Grant then prepared grounds of appeal which are set out in Form 3:

i. Full Name Appellant William John Colin Lees

ii. “Grounds of application for extension of time (including reasons for delay).

iii. “At consultation for the sentencing procedure it became increasingly clear that the appellant’s mind did not go with his acts when he entered his pleas.”

iv. Ground of application for leave to appeal against conviction.

v. “The appellant’s mind was overborne by senior defence counsel when he entered his pleas and he lost the power to make a free, voluntary and deliberate choice of plea.”

vi. Dated this 26^th day of November 1999

vii. SIGNED: _______________________

1. Brendan Kearney, Kelly & Co

2. Clarendon House

3. 4 Clarendon Street

4. LONDONDERRY BT48 7EX”

38. As it transpired this was not the proper procedure. The case did not go to the Court of Appeal and was referred back to the Crown Court.

39. On 26 November the accused appeared at Belfast Magistrates’ Court on remand. There he spoke to Mr Talbot. They discussed the propriety of the application to have the plea set aside and the withdrawal of Mr Grant from the case. At that stage it was felt that this was the only course of action open to the accused. At that time the accused still had confidence in his two junior counsel Mr Rodgers and Mr Talbot.

40. On 8 December 1999 Mr Kearney met the accused and informed him that the attempt to refer the matter to the Court of Appeal had been found to be procedurally incorrect and that the matter would be referred back to the trial judge.

41. On 9 December 1999 the accused appeared at the Crown Court where Mr Grant attempted to vacate the pleas. As the procedure which Mr Grant proposed to adopt on that occasion was not appropriate, the case was further adjourned. There were then a number of meetings in relation to the case and the application then came on for hearing, as I have indicated, on 4 February 2000 and was moved by Mr Harvey.

42. Mr Harvey informed the court that he had tried to give as accurate a record of what occurred based on his instructions from Mr Rodgers, Mr Talbot and Mr Kearney. He said he had no reason to believe that any of them disagreed with any of the material which he had placed before the court. It is appropriate to record that Mr Kearney and Mr Talbot were present in the public part of the court throughout the application and that Mr Rodgers was present for a substantial part of the proceedings. Mr Grant was not present. Mr Harvey informed the court that the accused waived his legal privilege in relation matters stated during consultations with his solicitor and counsel.

43. As Mr Grant was not present on 4 February 2000 I considered it proper for Mr Grant to be given an opportunity to state whether he agreed with the factual matters set out by Mr Harvey or whether he disagreed with all or any of them. A transcript of that portion of Mr Harvey’s statement which referred to the factual matters was prepared. Mr Harvey showed this to Mr Grant. On 11 February Mr Harvey reported back to the Court and stated that with one exception “my instructions from Mr Grant are that he does not disagree with any of the factual matters” contained in the transcript. He also informed the Court that before the application was opened Mr Grant had provided him with two fairly detailed statements and from those statements he had attempted to extrapolate as much detail as was consistent with his instructions. (This had not been mentioned on 4 February 2000). The exception to which he referred related to 19 November when Mr Talbot told the accused that the arrangement originally guaranteed would be reduced into writing by Mr Grant. Mr Harvey’s instructions were that Mr Grant did not accept that he would reduce the matter to writing and Mr Talbot accepts that he was not told by Mr Grant that the matter would be reduced into writing by Mr Grant.

44. I return now to Mr Harvey’s submissions on 4 February.

45. Mr Harvey on behalf of the accused accepted that the pleas entered were unequivocal. In those circumstances the court could only vacate the pleas if it could be shown on proper evidence that the defendants mind did not run with those pleas. As to the procedure to be adopted and the evidence, if any, to be heard he relied on R -v- Cantor 1991 p 481 in which Watkins LJ, presiding, said:

i. “Doubtless there are a number of things according to the circumstances in hand which a trial judge can do in order to properly satisfy himself whether there is anything in so to speak the application. He may adjourn the matter for further enquiry. It would be quite wrong for this court to lay down any kind of practice which we think ought to be followed in any given circumstances. It must be left to a trial judge to decide what it is he will do, if anything, beyond listening to counsel in order to satisfy himself that he has sufficient material before him to deal properly with the application.”

46. Based on that quotation Mr Harvey argued that it should not be necessary for him to call any evidence in support of the application and that the application could proceed on the factual material which he had outlined based upon his consultations with the accused and others, but in particular, with Mr Rodgers, Mr Talbot and Mr Kearney together with the written submission of Mr Grant. The approach and attitude of the Crown to this matter is not unimportant. Mr Creaney in reply stated that it was not for the Crown to have a concern for or to seek to cross-examine witnesses as to what happened or is alleged to have happened at consultations or conferences between the accused and his legal advisors. In those circumstances where senior counsel has, after consultation with colleagues and a solicitor, satisfied himself as to the course of events and as to the detail of what occurred, should the court require evidence to be called about those matters? Having heard Mr Harvey I am satisfied that I do not require to hear evidence but can proceed to consider whether or not the accused should be permitted to vacate the pleas entered in all or any of the bills of indictment. I have reached that conclusion because the relevant material was provided by Mr Rodgers, Mr Talbot and Mr Kearney and according to Mr Harvey, could be averred by them on oath.

47. In relation to the events of 12 April 1999 Mr Creaney as counsel for the Crown declared, that if the accused was told or given to understand that he would receive a comprehensive sentence of eight years and that in addition the charges against Zara Lees “would be taken care of” that such a statement could have no foundation in fact, so far as the Crown was concerned. He further declared that if the accused was so informed, such statements could not be regarded as either reliable or correct nor could anyone seek to stand over them.

48. Where a plea of guilty has been entered by the accused the Crown Court does have a discretion to permit an accused to vacate that plea at any time up to sentence - see S (an infant) -v- Manchester City Recorder and Others 1969 3 AER p 1230. On that authority Mr Harvey submitted that in order for a plea to be a valid plea it must one where the defendant has a full appreciation of what he is doing, has an adequate understanding of what is involved and also that he is fully and freely acknowledging and confessing to the court that he is guilty of the offence charged in the indictment. He submitted that this was a matter for the exercise of the discretion of the court. It is a discretion which requires to be exercised judicially. The exercise of a trial judge’s discretion to vacate a plea of guilty or not, differs from the approach taken by a Court of Appeal when reviewing the exercise of the discretion by a trial judge whether to vacate a plea of guilty or not. Mr Harvey submitted that in this case the accused’s mind did not run with his plea on the basis that his mind was over borne by the approach of senior counsel and that he had lost the power to make a free and voluntary choice of plea in full appreciation of all the facts. The law on this subject is comprehensively set out in Blackstone (9^th ed 1999) at 10.46:

i. “While confirming the existence of the discretion now under consideration, the cases tend to show that it should be sparingly exercised in favour of the accused. Thus, in McNally [1954] 1 WLR 933, where the accused had indicated even in the magistrates’ court an intention to plead guilty, could not possibly have misunderstood the nature of a straightforward charge of burglary and had unequivocally admitted guilt when the indictment was put to him, the Court of Criminal Appeal approved the trial judge’s decision to refuse a change of plea. Even if the accused was unrepresented when he pleaded but instructs solicitors during adjournment prior to sentencing and is advised by them that he has a defence, the court is not obliged to accede to a change of plea (South Tameside Magistrates’ Court, ex parte Rowland) [1983] 3 All ER 689). In Ex parte Rowland, R unequivocally pleaded guilty to theft of a handbag and asked for a further similar offence to be taken into consideration. Having heard the facts and considered R’s record, the magistrates indicated that they were considering a custodial sentence and offered R an adjournment to obtain legal aid. She accepted and gave instructions to her solicitor indicating a possible defence along the lines that her co-accused actually took the bag and she neither abetted her co-accused nor knew what she was going to do. On an application for a change of plea, the magistrates ‘rightly, balanced the instructions which the accused had given to her solicitor after [the original plea] against the prospect that she was changing her story because of the possibility that she might be sentenced to a custodial sentence’ (per Glidewell J at p. 692J). Furthermore, the magistrates ‘were perfectly entitled to come to the conclusion to which they did come’ (i.e. that fear of a custodial sentence was the real motivation for the change of plea), and thus were justified in exercising their discretion against R. Glidewell J approved the advice given to the magistrates by their clerk that, ‘to allow a change of plea was a matter for [the magistrates’] absolute discretion and that once an unequivocal plea had been entered the discretionary power should be exercised judicially, very sparingly and only in clear cases’ (at p. 692A). However, the implication is that, had the magistrates thought the plea to have been entered under a misapprehension of law as to the nature of the offence, then their only proper course would have been to allow the application. Although Ex parte Rowland was a case concerning change of plea in the magistrates’ court, it is submitted that the same principles must apply in the Crown Court. If the accused was represented when he entered his plea of guilty there would seem to be no absolute bar to his applying to withdraw the plea, but it will obviously be very difficult to convince the court that the plea was entered by a genuine mistake. (See also Drew [1985] 1 WLR 914 where Lord Lane CJ said (at p. 923C): ‘… only rarely would it be appropriate for the trial judge to exercise his undoubted discretion in favour of an accused person wishing to change an unequivocal plea of guilty to one of not guilty. Particularly this is so in cases where, as here, the accused has throughout been advised by experienced counsel.’) Provided the court at first instance recognised that it had a discretion to allow a change of plea and applied the correct principles in determining the application, the Court of Appeal will not interfere with the trial judge’s exercise of discretion - see Dodd (1981) 74 Cr App R 50 (above) and Cantor [1991] Crim LR 481.”

49. A review of the authorities would indicate the following propositions to be relevant.

(1) On a trial on indictment the court has a discretion whether to allow an accused to change a plea of guilty to one of not guilty at any time before sentence is passed.

(2) The discretion exists where the plea of guilty is unequivocable.

(3) That the discretion must be exercised judicially.

(4) That if the plea of guilty is not freely made that is an important matter to be taken into account in the exercise of the discretion.

(5) That the discretion should be exercised sparingly and only in clear cases.

(6) The judge in determining how to exercise his discretion has the right to decide what he will do, if anything, beyond listening to counsel in order to satisfy himself that he has sufficient material before him to deal properly with the application.

50. The law in relation to whether a plea of guilty is freely made is concisely stated by Blackstone’s Criminal Practice (9^th edn, 1999) p 1185, para D10.43:

1. “A plea of guilty must be entered voluntarily. If the accused is deprived of a genuine choice as to plea and in consequence purports to plead guilty, the plea is a nullity and the conviction will be quashed on appeal (see [R -v- Turner] [1970] 2 QB 321 and D 9.24).”

51. In Turner’s case it was held that the promise of a non-custodial sentence in the event of a guilty plea, coupled with an implied threat of a custodial sentence should the not guilty plea be unsuccessfully maintained, took away T’s free choice.

52. In this jurisdiction the case of R -v- McNeill 1993 NI 46 is relevant. In that case the headnote states:

i. “Held - A plea of guilty had to be entered voluntarily. If an accused was deprived of choice in respect of his decision about whether or not to contest a charge and in consequence purported to plead guilty, then the plea was a nullity.”

53. Mr Harvey submitted that counsel, in particular experienced counsel, has a duty not only to the accused but also to the court and to the administration of justice. Those duties include where appropriate to make clear to an accused the advice which he is giving in relation to the merits of the case and if necessary to do so in robust terms. However, he submitted that in this case what happened was a departure and a significant departure from the standards expected from senior counsel. He submitted that when one looks at the facts as outlined the Court would be driven to the conclusion that a serious error of judgment was made on 12 April 1999 and that subsequent events were “an attempt to repair that which was irreparable and to achieve by a circuitous route that which was unobtainable”. While counsel are entitled to be robust he submitted there is a distinction to be drawn between what is robust and what is not acceptable. In this instance he submitted that events became so bad that senior counsel, Mr Grant, entered into a series of arrangements which were beyond his professional competence and in so doing deprived the accused of the opportunity to make a decision to plead guilty with a full appreciation of what he was doing and with an adequate understanding of what his pleas involved. He submitted that in circumstances where counsel had erroneously taken it upon himself to guarantee a sentence which was solely within the province of the court and at the same time indicated to the accused that he was able to do so because he was privy to specialised information he deprived the accused of that complete freedom of choice to which he was entitled, whether to plead guilty or not guilty. He further submitted that for defence counsel to allege that he could select a judge or make arrangements for senior probation officers to see an accused before sentence is passed to explain a sentence which had not yet been handed down, was something which deprived the accused of a proper appreciation of how the criminal justice system operates. It had the effect of distorting the function of defence counsel, prosecuting counsel and the judge as well as the position of the accused himself. He went on to submit that this situation was not one in which the accused had received a higher sentence than what he was expecting as occurred in several of the English cases to which he referred. This was a case in which an indication was given to the accused as to the precise nature of a sentence that he would receive at a time when no judge was in possession of all of the papers and could not have made an appropriate decision. He submitted that no conscientious counsel should allow himself to fall into the position of guaranteeing such a sentence and that there was only one course open to the court and that was to vacate the pleas.

54. Mr Creaney on behalf of the Crown accepted Mr Harvey’s analysis of the legal principles involved having commented on the Crown’s attitude to the events of 12 April. He drew the attention of the court to the events as they subsequently occurred. The accused pleaded guilty to two other bills when to his knowledge co-accused had pleaded not guilty and trials had then proceeded. The accused had not been deprived of a trial as he had available to him two specific occasions on which he could have contested the issues and chose not to do so. Those trials proceeded and they proceeded without him. The crux of the matter so far as Mr Creaney was concerned was that the accused was dissatisfied in the terms of the extent of the sentence that he was told would be imposed. Mr Creaney made clear that he was not suggesting that these matters had not been raised with Madden & Finucane before the acquittal of Mr Jones on 27 October 1999. However he submitted, it is a fact that the matter was brought back to court only after those trials had been concluded. He submitted that at the latest by early July the accused should have had independent advice and the whole issue brought back to court and ventilated before the other cases were allowed to proceed. He submitted that it was a matter for the court to decide but commented that if the facts are as stated by Mr Harvey then the events of 12 April 1999 could not be stood over and that it was quite wrong for counsel to have addressed his client in those terms. Nonetheless he submitted that what happened thereafter might, so far as the court was concerned, be pertinent. He contrasted this case with the usual type of case in which pressure is exerted in relation to sentence should an accused plead guilty or not guilty. This case on the other hand seemed to centre on a complete misrepresentation of fact by counsel to the accused.

55. In reply Mr Harvey accepted Mr Creaney’s declaration to the court about what Mr Grant said on 12 April. However, he stated that the other counsel in the case indicated to him that these matters were indeed conveyed to the accused. On the day in question Mr Rodgers indicated to Mr Kearney his complete bewilderment at the suggestion which was made to the accused. Mr Harvey agreed with Mr Creaney that it was regrettable that costly trials were allowed to proceed without an attempt made to resolve these issues at an earlier stage. However, he considered that the attempts made were frustrated by the persistence of senior counsel in trying to repair the damage caused on 12 April. Finally, he submitted that the interests of justice are greater than that of any individual or accused person and in this case there was only one course open to the court and that was to permit the accused to vacate the pleas of guilty on all the bills of indictment.

56. The first matter for consideration is the events of 12 April. Several promises were made to the accused none of which had any basis in fact either then or since. Thus the situation was misrepresented to the accused. In effect the accused was being asked to plead guilty to all charges in return for which he would receive a sentence in single figures and that the charges against Zara Lees would not be proceeded with.

57. In early July the accused was informed that the expected outcome for him was now different. No trial was then pending and almost three months had elapsed since his plea of guilty in the fraud case Bill 5A. If he was not guilty of the fraud charges and wished to contest them he had ample time to reflect on that and make his legal advisers aware of any misgivings he may have had. He did not do so. He was prepared to acquiesce in whatever Mr Grant could arrange. In early July Mr Grant presented a “new package” on what might be described as a ‘take it or leave it’ basis with the suggestion that the accused could contest the drugs charges. The accused was not happy about the entire situation. The months of July and August passed during which he had further time to reflect on his position. By the end of August 4½ months had passed from the plea of guilty in the fraud case Bill 5A. Still the accused was prepared to acquiesce in whatever was ongoing. Then in early September another package was offered which carried with it the fulfilment of the original promise, in effect a short period of incarceration and an early release. On the package as presented the accused was content to enter pleas of guilty not just to the customs charges in Bill 336A but also to the drugs charges in Bill 169 late in September. Thus despite his concerns he was prepared to acknowledge his guilt to all the charges on the understanding that the outcome presented in April would in effect be achieved. It was only when the junior probation officer sowed doubts in his mind about the early release scheme did the accused seek to unravel his pleas of guilty in all three cases. The accused is no fool. He is a mature man with many years experience in business behind him. If he was not guilty of all or any of these charges would he have pleaded guilty to all of them. If he was guilty of some but not all, he might be tempted to plead guilty to all on a “wrap up” basis, in the knowledge that the sentence which he might have received for all bills was modest but justified for one or perhaps two of the Bills. On the other hand it is difficult to dismiss Mr Harvey’s analysis of the conduct of senior counsel - having promised that which he could not achieve he set about trying to do so by other means, at the same time securing the compliance of the accused to enter guilty pleas on two further occasions. At the same time the accused was complicit in permitting Mr Grant to do what he could for him. However the information he was given in September was both incorrect and incomplete.

58. This is a unique situation. The accused has pleaded guilty to 68 counts, entered on three separate occasions over a period of almost 5 months. He has had throughout that period available to him the assistance of two experienced junior counsel and a number of solicitors. No court would vacate pleas in such circumstances lightly. Furthermore each Bill of Indictment requires to be consider separately as they occurred on widely separated dates and in different circumstances.

59. An accused is entitled to complete freedom of choice in the plea which he makes in response to a criminal charge. No undue pressure should be exerted on him nor should his situation then or in the future be misrepresented to him. How do these circumstances measure up to those principles. Regrettably they do not. The statements made by Mr Grant on 12 April 1999 were in effect inducements. Such inducements (or even one of them) are sufficient to deprive the accused of that freedom of choice as to his plea to which he is entitled. Can a distinction be drawn between the events of 12 April and the pleas entered in September. Six matters appear to be relevant. First, the statements made on 12 April referred to all the charges which the accused faced. Second, the interlinkage of the second and third pleas with each other and the first. Thirdly, the hostile nature of some of the exchanges. Fourth, the gross nature of several of the misrepresentations. Five, the terms of the authority signed by the accused. Six, the statement by senior counsel that he was privy to information which he could not disclose and which was not known to the other lawyers. For counsel to proffer or promise inducements of this type or make statements of this nature to an accused person, is a grave departure from the duty of counsel in a criminal case and from the code of conduct of the Bar of Northern Ireland, as well as a desertion of the professional standards and ethics of the Bar which the judiciary and the public are entitled to expect from all members of that profession.

60. Having reviewed the facts as presented I find impossible to differ from Mr Harvey’s submission that a serious error of judgment was made on 12 April 1999 which was irreparable and that subsequent events were an attempt by senior counsel to achieve by a circuitous route that which he had promised to the accused. The only conclusion I can come to therefore is that the accused was placed in a situation in which he no longer had that freedom of choice to which he was entitled and that his position in the event of the pleas of guilty was misrepresented to him. Therefore the application to vacate the pleas in all three Bills must be granted.


 
IN THE CROWN COURT SITTING AT BELFAST

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THE QUEEN

-v-

WILLIAM COLIN JOHN LEES

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J U D G M E N T

O F

HIGGINS J

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