I will deliver the decision in this matter.
1.
This case has been referred to us in the normal manner and we heard from both Mr. Di Stefano who appeared for the Appellant and Mr. Penner KC who appeared for the Crown.
2.
This Application stems from a decision made by the COA Neutral Citation Number: [2020] EWCA Crim 702 dated the 18th of February 2020.
3.
The facts can be summarised as follows:
On the 30th of March 1987, in the Central Criminal Court before His Honour Judge Lymbery QC the Applicant pleaded guilty to the following offences on two Indictments:
On the first Indictment, to a single account of escape from lawful custody, the offence having been committed on the 20th of November 1984; and, the second Indictment, to robbery (Count1) and to possession of a firearm with intent to endanger life (Count 2), those offences having been committed on the 11th of June 1986.
4.
This Court is only concerned with the plea of guilty to the single Count of escape from lawful custody.
5.
Mr. Di Stefano made clear to us that this was a fundamental case of what can only be described as an “Americanised plea bargain” and that under no circumstances was the Appellant guilty of escape de jure. He would make submissions to this effect throughout the hearing.
6.
Mr. Di Stefano referred us to the Grounds of Appeal and that escaping from lawful custody is a common law offence and that the legal criteria to sustain a conviction is the same then in 1984 and remains so to this day.
7.
Mr. Di Stefano stated that the Appellant on the 20th of November 1984 during a transfer from HMP Maidstone to HMP Parkhurst the Appellant was handcuffed to a serious and extremely dangerous criminal called John Kendall. Mr. Di Stefano said that at that time the responsibility for transfers between prisons and, in fact, most of the Courts was vested in the Prison Service.
8.
Mr. Di Stefano said that at some stage men presumably recruited by John Kendall intercepted the prison vehicle and John Kendall was able to escape from lawful custody.
9.
Mr. Di Stefano reinforced the point that the Appellant could not have known who he would be handcuffed to or even the date of the transfer, so Mr. Di Stefano said the Appellant could play no active part in any planned escape. That would have required knowledge before any transfer took place and the Crown’s case was not founded on that basis.
10.
Mr. Di Stefano emphasised the point that since the Appellant was handcuffed to Mr. Kendall the Appellant would either have – he said jokingly – “chop off his own hand” and remain in the van or follow Mr. Kendall.
11.
The Appellant knew Mr. Kendall had a reputation for shooting people without hesitation and was extremely violent.
12.
In fact, we examined the antecedents of Mr. Kendall and the Appellant and there is some considerable cause for concern in how this matter then proceeded.
13.
For reasons that the Crown could not explain why the Appellant was tried for the common law offences on the 30th of March 1987 before his Honour Judge Petre but then sentenced by a different Judge on the 29th of September 1987 remains unanswered, but we found that whilst it is desirous for the trial judge to carry out a sentencing exercise there can be exceptions.
14.
Mr. Di Stefano explained to us that the Applicant pleaded guilty because at that time -at the Central Criminal Court – Mr. Kendall was, in fact, being tried separately for a series of armed robberies and shootings.
15.
Mr. Di Stefano told us that the Appellant was threatened into pleading guilty and if he failed so to do, he feared repercussions against himself and more important his family.
16.
In what can only be described in his usual approach of defining the law Mr. Di Stefano reminded us of the following factors that had to be taken into consideration before a conviction of escaping from lawful custody can be sustained.
17.
Mr. Di Stefano defined four factors:
a) That the defendant was in custody;
b) That the defendant knew that he was in custody;
c) That the custody was lawful; and,
d) The defendant intentionally escaped from custody.
18.
Mr. Di Stefano conceded without hesitation or argument that:
a) That the defendant was in custody;
b) That the defendant knew that he was in custody;
c) That the said custody was in fact lawful.
19.
Mr. Di Stefano pressed this Court in his usual robust manner that the Appellant does not under any circumstances concede that the said escape was in any way whatsoever to be construed as being intentional.
20.
The Appellant was handcuffed to an extremely dangerous person and that the Appellant could not in any way whatsoever have known who he would be handcuffed to.
21.
Mr. Di Stefano put it really in a simple manner:
“Since the escape was not intentional even a plea of guilty must be quashed”.
22.
Mr. Di Stefano referred us to the case of R v Brian Selwyn B, Neutral Citation Number (2003) EWCA Crim 319 and specifically to para 29 that states as follows:
“We have looked at all the circumstances of this case. We have sought to act in accordance with the principles we had set out earlier. In the end, we have come to the conclusion that this is one of those residual cases where in the interest of justice we must set aside this conviction.”
23.
Mr. Di Stefano also referred us to the case of R v Angel [1968] EWCA Crim JO315 – 1 where a plea of guilty was quashed because of procedural irregularities.
24.
Mr. Di Stefano immediately conceded that there were no procedural irregularities and he recognised that the bar to quashing a conviction where an Appellant who pleaded guilty is indeed high.
25.
Mr. Penner KC for the Crown was discreet in his approach. He told the Court that the Appellant was represented by Leading Counsel who was extremely able and would have protected the interests of the Appellant in accordance with the code of conduct at the Bar.
26.
Mr. Penner said the conviction is sound and that it has already been contested, and that both at trial and in the 2020 appeal there was no evidence that the Appellant’s guilty pleas were entered under duress.
27.
However, this Court is not so much concerned with there is, or there is not, admissible evidence more than 30 years ago regarding duress.
28.
What this Court is concerned with is Mr. Di Stefano’s submission that the Appellant could not have known when he was being transferred and, could not have known who he would be handcuffed to.
29.
Since it was common ground that the prison van was attacked to release Mr. Kendall, anyone handcuffed to him would have been forced into escape and as such the criteria required to sustain a conviction – even a guilty plea- of intention is missing.
30.
Mr. Penner for the Crown did not address us on the issue of “intent” and consequently the only safe conclusion must be that the conviction be quashed.
31.
For those reasons and those reasons only, we would quash the conviction for escaping from lawful custody.
THE VICE PRESIDENT OF THE INJUSTICE DIVISION (Lord Damyata): I agree.
THE DEPUTY VICE PRESIDENT OF NULLA BONA (Lord Datta): As do I.
The 18th September 2023
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