Court of Appeal
| Published date | 01 January 2004 |
| Date | 01 January 2004 |
| DOI | 10.1350/jcla.68.1.25.25843 |
| Subject Matter | Court of Appeal |
Court of Appeal
Guilty Plea: Grounds for Setting Aside
R v Montague-Darlington [2003] EWCA Crim 1542
The appellant and another were arrested upon their arrival at Gatwick
airport. Tests carried out on the appellant proved positive for cocaine
and eventually she passed 90 packages which contained some 366
grams of the drug at 100 per cent purity. In interview the appellant
provided an explanation of how she came to be carrying the drugs. In
due course those representing the appellant properly advised her that
this explanation could found a defence of duress. Despite this advice the
appellant chose to plead guilty to the one count of being knowingly
concerned in the fraudulent evasion of the prohibition on the importa-
tion of a Class A controlled drug. In passing a sentence of three years, the
judge stated that the lower than normal sentence reflected not only her
guilty plea but her recognition that any pressure to which she had been
subjected had fallen short of duress.
Approximately 10 months after sentence was passed, the appellant’s
solicitors were informed by the Customs & Excise solicitor that he had
recently become aware of material in the case which, had it been
available at the time of the trial, he would have regarded as disclosable
but sufficiently sensitive to have attracted public interest immunity. He
suggested that the appellant might wish to seek to appeal against her
conviction out of time.
During the course of the appeal which followed the court was able to
see the relevant material. Those acting for the prosecution conceded that
there would have been an obligation to disclose the material at trial, but
that rather than do so, Customs & Excise would either have not prose-
cuted the case at all or, if proceedings had already commenced, offered
no evidence.
Those acting for the appellant argued that her guilty plea should, in
these circumstances, make no difference to whether or not the appeal
ought to be allowed.
HELD, SETTING ASIDE THE PLEA OF GUILTY AND ALLLOWING THE
APPEAL:
1. This court would only rarely entertain an appeal against convic-
tion following a plea of guilty.
2. However, as had been made clear in R v Togher, Doran and Parsons
[2001] 1 Cr App R 457, the circumstances in which such an appeal
might be successful were not limited to those set out in R v Forde
[1923] 2 KB 400.
3. The court had to consider whether the appellant had a fair trial. It
was difficult to see how this could be said to be so where the
prosecution now stated that she should not have been tried at
all.
25
The Journal of Criminal Law
4. Furthermore if those advising the appellant had been given access
to all relevant material, it is clear that she would have been
strongly advised not to plead guilty. There was no reason to
suspect that she would not have followed this advice.
COMMENTARY
The importance of this case will rest upon whether it is seen as an
extension of the approach set down in Togher, a case in which the Court
of Appeal rejected the narrow test as set out in Forde (i.e. that appeals
against conviction following a guilty plea would be limited to situations
where either (a) the appellant did not appreciate the nature of the
charge or did not intend to...
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