Can I change a plea of guilty?
Wednesday, October 29, 2014

Can I change a plea of guilty?


Changes to the criminal justice system of late have been very much focussed on encouraging defendants to plead guilty. ‘Early guilty plea’ schemes have been rolled out across the country and a full discount for pleading guilty is only available if the plea is entered at the first opportunity, often before the evidence has been served by the prosecution in proper and full form.


It is perhaps then no surprise that I have recently experienced a large number of clients who want to change a guilty plea to a plea of not guilty. This is not an easy exercise and requires specialist support and legal representation in fraud cases.


How do I change a plea of guilty to not guilty? How do I vacate a guilty plea?


The procedure for an application to vacate plea is set out in part 39.3 of the Criminal Procedure Rules:


39.3. (1)  The defendant must apply as soon as practicable after becoming aware of the grounds for making an application to change a plea of guilty, and may only do so before the final disposal of the case, by sentence or otherwise.


(2)   Unless the court otherwise directs, the application must be in writing and it must—

(a)  set out the reasons why it would be unjust for the guilty plea to remain   unchanged;

(b)    indicate what, if any, evidence the defendant wishes to call;

(c)     identify any proposed witness; and

(d)  indicate whether legal professional privilege is waived, specifying any material name and date.

(3)   The defendant must serve the written application on—

(a)    the court officer; and

(b)    the prosecutor.


If a plea is equivocal then it is relatively straightforward to vacate a guilty plea. Equivocality means ‘guilty but…’ An example of this is when a defendant says- ‘I am guilty of fraud but I did not act dishonestly’ The plea is equivocal and it is not a true plea of guilty as the defendant is not actually admitting guilt as dishonesty is an essential ingredient of the offence of fraud. In such circumstances a court should allow the plea to be vacated. An example is the discovery of an equivocal plea during mitigation such as in: R v Durham Quarter Sessions Ex parte Virgo [1952] 1 All ER 466


Even if the plea is not equivocal a plea can be vacated. In the case of Dodd (1981) 74 Cr App R 50, the Court of Appeal confirmed that


a) that the Crown Court had a discretion to allow a defendant to change a plea of guilty to one of not guilty at any time up until sentence;

b) that there remains a residual discretion if the plea of guilty was unequivocal;

c) that the discretion must be exercised judicially.


The onus lies on the party seeking to vacate a guilty plea to demonstrate that justice requires that this should be permitted. See R v Revitt and Others [2006] EWHC 2266 (Admin).


Often a defendant is legally represented and sometimes the defendant feels that their representative placed pressure upon them to plead guilty. In those circumstances the fact that a defendant was represented is no bar to applying to withdraw a guilty plea, and while the grounds in which such an application will be allowed are limited, the Court of Appeal has recognised that undue pressure or incomplete or deficient advice may provide such grounds.


In any event the court is entitled to take into account extraneous matters outside of strict equivocality. There remains a residual discretion to change a guilty plea in the case of R v Sheikh and others [2004] EWCA Crim 492, [2004], Mantell LJ, giving the judgment of the court at para 16, said:


“It is well accepted that quite apart from cases where the plea of guilty is equivocal or ambiguous, the court retains a residual discretion to allow the withdrawal of a guilty plea where not to do so might work an injustice. Examples might be where a Defendant has been misinformed about the nature of the charge or the availability of a defence or where he has been put under pressure to plead guilty in circumstances where he is not truly admitting guilt. It is not possible to attempt a comprehensive catalogue of the circumstances in which the discretion might be exercised.”


So it is clear that there are a wide range of circumstances in which a guilty plea can be changed however the position, as shown above, is complicated and specialist legal advice should be sought. Quentin specialises in the vacating guilty pleas. If you want to change a guilty plea to not guilty you may contact Quentin for a no obligation conversation.