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[Plea] S v The Recorder of Manchester [1971] AC 481

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On May 30, 1968, the appellant, then aged 16, appeared before a juvenile court on a charge of attempted rape. He consented to be tried summarily, and pleaded guilty. Before the end of that day’s hearing that plea had been accepted and the magistrates had entered a finding of guilt. The hearing was then adjourned until June 20, 1968, for the purpose of inquiry into the appellant’s physical and mental condition.
On the adjourned hearing the appellant was legally represented and his solicitor, having drawn the attention of the court to the appellant’s mental condition and to what were said to be instances of previous spurious confessions on his part, asked that he be allowed to withdraw his plea of guilty and to plead not guilty instead. The magistrates, however, refused the application on the grounds that they were functi officio and had no such authority. They thereupon proceeded to consider the medical reports and to make a hospital order against the appellant under section 60 of the Mental Health Act, 1959.
On appeal:-

Held, allowing the appeal, that a court of summary jurisdiction which had accepted a plea of guilty to the offence charged was not in law debarred from permitting (at any time before passing sentence) a plea of not guilty to be substituted. That, accordingly, on the facts found it was open to the juvenile court on June 20, 1968, to permit the appellant to withdraw his plea of guilty and to substitute therefor a plea of not guilty (post, pp. 491B, 498G – 499F,504E, G – 505A, 507H – 508A).

Observations of Lord Goddard C.J. in Rex v. Norfolk Justices, Ex parte Director of Public Prosecutions [1950] 2 K.B. 558, 569; [1950] 2 All E.R. 42, D.C. applied.
  • Footnote 1     Magistrates’ Courts Act, 1952, s. 13: “(3) If the accused pleads guilty, the court may convict him without hearing evidence.”
  • Footnote S. 14: “(3) A magistrates’ court may, for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with the case, exercise its power to adjourn after convicting the accused and before sentencing him or otherwise dealing with him; but, if it does so, the adjournment shall not be for more than three weeks at a time.”

[1971] A.C. 481 Page 482

Reg. v. Guest, Ex parte Anthony [1964] 1 W.L.R. 1273; [1964] 3 All E.R. 385, D.C. and Reg. v. Gore Justices, Ex parte N. (An Infant) [1966] 1 W.L.R. 1522; [1966] 3 All E.R. 991, D.C. overruled.
Rex v. Sheridan [1937] 1 K.B. 223, C.C.A. and Rex v. Grant [1936] 2 All E.R. 1156, C.C.A. considered.
Decision of the Divisional Court reversed.

The following cases are referred to in their Lordships’ opinions:

Burgess v. Boetefeur (1844) 7 Man. & G. 481.

Reg. v. Ackroyd and Jagger (1843) 1 Car. & Kir. 158.

Reg. v. Blaby [1894] 2 Q.B. 170.

Reg. v. Blandford Justices, Ex parte G. (An Infant) [1967] 1 Q.B. 82; [1966] 2 W.L.R. 1232; [1966] 1 All E.R. 1021, D.C.

Reg. v. Campbell, Ex parte Hoy [1953] 1 Q.B. 585; [1953] 2 W.L.R. 578; [1953] 1 All E.R. 684, D.C.

Reg. v. Clouter and Heath (1859) 8 Cox C.C. 237.

Reg. v. Cole [1965] 2 Q.B. 388; [1965] 3 W.L.R. 263; [1965] 2 All E.R. 29, C.C.A.

Reg. v. Drury (1849) 3 Cox C.C. 544.

Reg. v. Durham Quarter Sessions, Ex parte Virgo [1952] 2 Q.B. 1; [1952] 1 All E.R. 466, D.C.

Reg. v. Essex Justices, Ex parte Final [1963] 2 Q.B. 816; [1963] 2 W.L.R. 38; [1962] 3 All E.R. 924, D.C.

Reg. v. Gore Justices, Ex parte N. (An Infant) [1966] 1 W.L.R. 1522; [1966] 3 All E.R. 991, D.C.

Reg. v. Guest, Ex parte Anthony [1964] 1 W.L.R. 1273; [1964] 3 All E.R. 385, D.C.

Reg. v. McNally [1954] 1 W.L.R. 933; [1954] 2 All E.R. 372, C.C.A.

Reg. v. Miles (1890) 24 Q.B.D. 423.

Reg. v. Riley [1963] 3 All E.R. 949.

Reg. v. Stonnell (1845) 1 Cox C.C. 142.

Rex v. Grant [1936] 2 All E.R. 1156, C.C.A.

Rex v. Harris (1797) 7 Durn. & E. 238.

Rex v. Hertfordshire Justices [1911] 1 K.B. 612, D.C.

Rex v. Norfolk Justices, Ex parte Director of Public Prosecutions [1950] 2 K.B. 558; [1950] 2 All E.R. 42, D.C.

Rex v. Sheridan [1937] 1 K.B. 223; [1936] 2 All E.R. 883, C.C.A.

The following additional cases were cited in argument:

Conlin v. Patterson [1915] 2 I.R. 169.

Reg. v. Huntingdon Justices, Ex parte Simpkin and Coombes (1959) 123 J.P. 166, D.C.

Reg. v. Kent Justices, Ex parte Machin [1952] 2 Q.B. 355; [1952] 1 All E.R. 1123, D.C.

Rex v. London Sessions Appeal Committee, Ex parte Rogers [1951] 2 K.B. 74; [1951] 1 All E.R. 343, D.C.

Rex v. Manchester Justices, Ex parte Lever [1937] 2 K.B. 96; [1937] 3 All E.R. 4, D.C.

Rex v. Marsham, Ex parte Pethick Lawrence [1912] 2 K.B. 362, D.C.

Rex v. Plummer [1902] 2 K.B. 339.

Rex v. West Kent Quarter Sessions Appeal Committee, Ex parte Files [1951] 2 All E.R. 728, D.C.

Wemyss v. Hopkins (1875) L.R. 10 Q.B. 378.

[1971] A.C. 481 Page 483

APPEAL from the Divisional Court.
This was an appeal by leave of the Divisional Court of the Queen’s Bench Division from the decision of the Divisional Court (Lord Parker C.J., Edmund Davies L.J. and Caulfield J.), dated January 23, 1969, dismissing the appeal of the appellant, one S., an infant, from the decision of the Recorder of Manchester sitting at the Crown Court, Manchester, confirming a finding by Manchester City Juvenile Court of guilt of the offence of attempted rape and an order made by that court admitting and detaining the appellant in Calderstones Hospital.
On May 30, 1968, the appellant then aged 16, was charged before Manchester City Juvenile Court with attempted rape. He consented to be tried summarily and pleaded guilty. Before the end of that day’s hearing this plea had been accepted and a conviction was recorded. The appellant was thereupon remanded for a medical report until June 20, 1968.
On June 20, the appellant, who was not represented at the earlier hearing, was legally represented by a solicitor. He applied for the plea of guilty and finding of guilt on May 30, to be removed and for the court to accept an amended plea of not guilty. The magistrates, however, refused so to do on the ground that they were functi officio and they ordered the finding of guilt to stand and proceeded to make a hospital order against the appellant under section 60 of the Mental Health Act, 1959.
On August 1, 1968, at the Crown Court at Manchester the Recorder of Manchester dismissed an appeal by the appellant against the above conviction and order and refused to remit the matter to the juvenile court for rehearing.
The appellant, by his next friend Stanley Milmo Parsons, applied to the Divisional Court for an order of certiorari to bring up and quash the appellant’s conviction for the offence of attempted rape dated May 30, 1968, and for an order of mandamus directed to the magistrates of Manchester City Juvenile Court requiring them to enter a plea of not guilty to the charge of attempted rape and to hear and determine the matter afresh, and further for an order of certiorari to bring up and quash a refusal by the Recorder of Manchester on August 1, 1968, to allow the appellant’s appeal and to remit the matter to the juvenile court for rehearing.
The Divisional Court, applying Reg. v. Gore Justices, Ex parte N. (An Infant) [1966] 1 W.L.R. 1522, dismissed the application but subsequently gave leave to appeal to the House of Lords and certified that the following point of law of general public importance was involved in the decision:

1. Whether a court of summary jurisdiction, which has already accepted a plea of guilty to the offence charged, is in law debarred from permitting a plea of not guilty to be substituted at any time before passing sentence.

2. Whether the discretion of a court of summary jurisdiction to allow a change of plea is different from that exercised by a court of record.

3. Whether on the facts found it was open to the Manchester City Juvenile Court on June 6, 1968, to permit the appellant to withdraw

[1971] A.C. 481 Page 484

4. his plea of guilty of the offence charged which had been given and entered on May 30, 1968, and to substitute therefor a plea of not guilty.

The facts are more fully stated in their Lordships’ opinions.
Rose Heilbron, Q.C. and C. B. K. Mantell for the appellant.
In courts of record there is a clear and consistent line of authorities which establish that for good cause a plea can be changed at any time before sentence. But in relation to criminal proceedings in magistrates courts, a problem has arisen for, on an appeal from magistrates to quarter sessions, there is no appeal on this type of question except as to sentence. The only exception is the “guilty but …” type of ease where quarter sessions can remit the case to the magistrates with a direction to enter a plea of not guilty. Owing to the difficulties that have arisen, the courts have tried to ameliorate the harshness that has grown up by such doctrines as, for example, the provisional plea doctrine and the functus officio doctrine.
Since 1952 magistrates have allowed a change of plea if they have deferred final acceptance of the defendant’s plea, but even this doctrine is limited and does not apply to the “guilty but …” type of plea. Moreover, unless the magistrates have all the relevant facts in relation to medical reports before them, they cannot accept a provisional plea where there has been a remand.
Section 35 of the Children and Young Persons Act, 1933, would appear to give extra protection to children and is meant to give the local authority time to investigate the background of the juvenile in order to give all relevant information for the court’s assistance. But on the authorities as they stand, it follows that if by an administrative oversight the court is not furnished with the necessary information and the court accepts a plea of guilty, then, when subsequently the magistrates court is given all the relevant facts, it is unable on the subsequent hearing to rescind a plea of guilty and accept a plea of not guilty.
As to a change of plea in courts of record, see Reg v. McNally [1954] 1 W.L.R. 933. It is entirely a matter for the trial judge whether he will allow a change of plea, but there is no power in the court to change a plea after sentence. [Reference was made to Reg. v. Clouter and Heath (1859) 8 Cox C.C. 237.]
In Reg. v. Campbell, Ex parte Hoy [1953] 1 Q.B. 585, the Divisional Court rightly refused to allow a plea to be changed before a magistrate after sentence.
The difficulties which have arisen in the present case stem from the ambiguous use of the word “conviction.” In relation to the doctrine of autrefois convict, it has been accepted for many years that the word “conviction” refers to the period after judgment. But there are authorities which refer to the period after verdict. It is this double use of the word “conviction” which has caused the difficulty. The primary meaning of the word “conviction” denotes the judicial determination of a ease and this necessitates a finding of guilt or the acceptance of a plea of guilty followed by sentence. Until there is such an adjudication, a ease is not concluded and the court is not functus officio and a plea of autrefois convict cannot

[1971] A.C. 481 Page 485

be entertained: see Hale’s Pleas of the Crown (1778), Vol. 2, ch. 32, p. 251. For the authorities: see Reg. v. Ackroyd and Jagger (1843) 1 Car. & Kir. 158; Burgess v. Boetefeur (1844) 7 Man. & G. 481; Reg. v. Stonnell (1845) 1 Cox C.C. 142; Wemyss v. Hopkins (1875) L.R. 10 Q.B. 78; Reg. v. Miles (1890) 24 Q.B.D. 423; Reg. v. Blaby [1894] 2 Q.B. 170; Rex v. Hertfordshire Justices[1911] 1 K.B. 612; Rex v. Marsham, Ex parte Pethick Lawrence [1912] 2 K.B. 362; Conlin v. Patterson [1915] 2 I.R. 169; Rex v. Sheridan [1937] 1 K.B. 223; Rex v. London Sessions Appeal Committee, Ex parte Rogers [1951] 2 K.B. 74; Rex v. Norfolk Justices, Ex parte Director of Public Prosecutions [1950] 2 K.B. 558; Rex v. Manchester Justices, Ex parte Lever [1937] 2 K.B. 96; Reg. v. Kent Justices, Ex parte Machin [1952] 2 Q.B. 355; Reg. v. Essex Justices, Ex parte Final[1963] 2 Q.B. 816.
As to authorities concerning a change of plea, Rex v. West Kent Quarter Sessions Appeal Committee, Ex parte Files [1951] 2 All E.R. 728 is the first case where it is suggested that a defendant might have a right to change his plea. In Reg. v. Durham Quarter Sessions, Ex parte Virgo [1952] 2 Q.B. 1, there was a plea of guilty, but the subsequent statement made by the defendant showed that he was mistaken as to the law and the Divisional Court held that the justices ought to have regarded his plea as a plea of not guilty. Similar considerations arose in Reg. v. Blandford Justices, Ex parte G. (An Infant) [1967] 1 Q.B. 82. These are examples of what have been termed the “guilty but …” type of case.
Reg. v. Guest, Ex parte Anthony [1964] 1 W.L.R. 1273 would appear to be the first reported decision where it was held that magistrates were debarred from allowing an accused to change his plea after “conviction” in the sense of acceptance of a plea of guilty. That case is indistinguishable in law from the present. It was wrongly decided: (i) The magistrates were certainly not functi officio as there stated where there was merely a conviction simpliciter and the defendant was remanded for reports before sentence was passed; (ii) There is no distinction in the reported decisions between summary trials and trials in courts of record; (iii) The entry of a conviction is purely a formal act; (iv) The observations there made on when a magistrate becomes functus officio are incorrect. There is no authority to support the proposition that a magistrate’s functions are divisible into two parts.
As to the present case, if there be power to allow a plea to be withdrawn after medical report has been received and before sentence has been passed, it as the magistrates’ duty to allow the appellant here to change his plea to “not guilty” and, as they did not do so, the rest of the proceedings were a nullity. Further, the magistrates were prevented from exercising their discretion because of the advice given to them. The magistrates therefore failed to take a step which the law requires of them; here a failure in procedure which amounts to a denial of natural justice.
The appellant concedes that Reg. v. Gore Justices, Ex parte N. (An Infant) [1966] 1 W.L.R. 1522 is indistinguishable from the present case. It was wrongly decided.
Difficulties which have arisen in the present and like cases arise from the application of the decision in Rex v. Sheridan [1937] 1 K.B. 223 where there was a misunderstanding of the word “conviction.” The decision in

[1971] A.C. 481 Page 486

Rex v. Sheridan was applied in Rex v. Grant [1936] 2 All E.R. 1156. “Conviction” denotes an adjudication, that is, a finding of guilt or the acceptance of a plea of guilty followed by sentence: see Rex v. Harris (1797) 7 Durn. & E. 238, which was not cited in Sheridan.
It is to be observed that there must be many cases where magistrates allow a defendant to alter a plea of “not guilty” to that of “guilty” and there has never been any suggestion that magistrates have no power so to do where the plea of “not guilty” has already been entered on the register. Certainly there is nothing in the Magistrates’ Courts Rules, 1952, which would prevent an alteration of an entry in the register: see rules 15, 26, 44, 53, 54.
As to Rex v. Sheridan [1937] 1 K.B. 223 it is not necessary for the House to hold that it was wrongly decided. The committal proceedings were bad in that the procedure laid down by the Criminal Justice Act, 1925, was not followed and therefore the trial before the justices and the proceedings before quarter sessions were bad. Alternatively, the trial before the justices was not concluded. In either event autrefois convict does not enter into the basis of the decision.
[Reference was also made to Stone’s Justices’ Manual, 100th ed. (1968), Vol. 2, p. 3145; 101st ed. (1969), Vol. 2, p. 3689.]
Derek Hodgson, Q.C. and Joyanne Bracewell for the respondents. The prosecution take up a neutral attitude on this matter, but the magistrates are of the opinion that if they had had the power to alter the plea they would have done so.
If Rex v. Sheridan [1937] 1 K.B. 223 and Rex v. Grant [1936] 2 All E.R. 1156 had never come before the courts, the cases of Reg. v. Guest, Ex parte Anthony [1964] 1 W.L.R. 1273 and Reg. v. Gore Justices, Ex parte N. (An Infant) [1966] 1 W.L.R. 1522, would have been differently decided. Guest is the first reported instance of the doctrine that the defendant cannot change his plea between its recording and sentence.
It is pertinent to consider those provisions of the Magistrates’ Courts Act, 1952, in which the word “conviction” is used. Section 126, the interpretation section, by subsection (1), declares that the word “fine” includes any pecuniary penalty or pecuniary forfeiture or pecuniary compensation payable under a conviction. In section 126 (3) the word “conviction” is plainly used in the sense of judgment, whilst in section 126 (9), conviction is used in its meaning of verdict. In section 63 (1) the word “conviction” is used rather in the sense of judgment than that of verdict. If section 13 (3) stood alone, it would be impossible to argue that the word “convict” is used in the sense of adjudicate but, in section 13 (1) and (2), it plainly is used in the sense of verdict and it would therefore be very difficult to argue that the word “convict” had a different meaning in section 13 (3). Plainly, in section 14 (3) the word “convicting” is used in the verdict sense.
The courts which decided Rex v. Sheridan [1937] 1 K.B. 223 and Rex v. Grant [1936] 2 All E.R. 1156 fell into error because they considered that the word “conviction” had only one meaning when in fact it has two. If the appellant is to succeed before this House, it is necessary for the reasoning in those two cases to be disapproved otherwise it would follow that if a magistrate committed an accused for trial, the accused could plead autrefois convict on his case coming up for hearing. Rex v. Sheridan was correctly

[1971] A.C. 481 Page 487

magistrate there had no power to commit the defendant and quarter sessions had no jurisdiction to hear the case. The Divisional Court, therefore, acted rightly in quashing the conviction.
If the appellant’s argument be accepted, it will follow that a magistrates’ court at its discretion could allow an accused to change his plea from “guilty” to “not guilty” at any time before judgment or the full trial of the case or before judgment and committal.
The following are the possible courses open to a magistrates’ court after verdict: (i) The accused can be sentenced. This would end the proceedings and if there had been a plain plea of “guilty,” there could be no appeal. The “guilty but” cases could be left either to develop or wither away. They were correctly decided. At any time before final adjudication or sentence there is no reason to differentiate between a magistrates court and a court of record.
(ii) Magistrates can in certain circumstances commit the accused for sentence (sections 28 (1), 29 of the Magistrates’ Courts Act, 1952) and if they so do, the magistrates become functi officio; see section 56 (5) of the Criminal Justice Act, 1967.
It is pertinent to observe that if this appeal were to succeed, there will doubtless be in the near future, where there has been a committal to quarter sessions pursuant to section 56 (4) of the Act of 1967, an application for a change of plea on analogy to the argument that a plea before a magistrate can be changed before sentence, but a committal under section 29 of the Magistrates’ Courts Act, 1952, is equivalent to an adjudication.
As to the powers of adjournment and remand contained in sections 43 and 26 of the Magistrates’ Courts Act, 1952, there is no reason of public policy which would disentitle magistrates who had ordered an adjournment or remand under those provisions from allowing in their discretion a change of plea from “guilty” to “not guilty” where new facts have come to light, when the case has come back to the court.
It was said that magistrates had no power to adjourn the case for a medical examination before verdict and certainly not before there is a plea. One would not expect the magistrates to have this power before plea because otherwise an innocent person might be remanded for reports. As to a remand for medical reports under section 26, this can and must be before verdict. The language of section 26 is quite different from that of section 14. It is plain that the legislature had in contemplation the possibility that the defendant might have done the act or acts alleged but that he was not guilty by reason of insanity.
In conclusion, the prosecuting authority desire to make plain that if the order against the appellant be quashed, the authority do not propose to take any further action in this matter.
Rose Heilbron, Q.C. replied.
At the conclusion of the hearing their Lordships conferred.
LORD REID stated that their Lordships were of opinion that the appeal succeeded and would give their reasons at a later date.

[1971] A.C. 481 Page 488

October 21, 1969. LORD REID. My Lords, in May, 1968, the appellant was a boy of 16 with a mental age of 6½. He was residing in a hostel for subnormal males, having spent most of his life in the care of the local authority and having been for a time in a mental hospital. On May 18, a young woman was assaulted by a youth in a lavatory opposite the hostel. She gave a full description of her assailant and his clothing. On two occasions she failed to identify the appellant and none of the appellant’s clothes remotely resembled the clothes which she had described. On May 29, the appellant was being questioned by the police about another matter when this assault was mentioned and the appellant volunteered a confession. On being taken to the police station he made a written confession with much detail which showed that he had considerable knowledge of what had happened. It did not occur to the police that his confession was false or that he might have obtained his knowledge from another inmate of the hostel.
On May 30, he was brought before a juvenile court on a charge of attempting sexual intercourse with the young woman against her will. He was accompanied by an officer of the local authority who had little personal knowledge of him but had a full record. This record showed that on several occasions the appellant had confessed to the commission of criminal offences which he had not in fact committed. This officer says in his affidavit that as a result of his conversation with the appellant that morning he believed that the appellant was pleading guilty to get a transfer from the hostel and that the offence was not a matter properly considered by him. But when the chairman of the magistrates asked this officer if he could assist the court he, very surprisingly, said nothing about this. The chairman very properly says that if the magistrates had known this they would have regarded it as unsafe to accept the appellant’s plea of guilty. But all that the magistrates were told was that the accused had been in hospital as a result of his mental condition. So they thought that it was safe to accept his plea of guilty and did so. They appear to have had no power to obtain a report on his mental condition until they had found him guilty. Then they remanded him for a medical report.
The local authority then seem to have had second thoughts: on June 6, they instructed a solicitor to appear at the next hearing. Then all the facts came out and the solicitor applied to have the accused’s plea changed to a plea of not guilty. Obviously justice required that this should be done and the magistrates wished to do it. But they were advised by their clerk that they had no power at that stage to allow the plea to be changed, so they made a hospital order for the detention of the appellant. This advice was right if the cases which I must later examine were rightly decided. The main question for decision by your Lordships is whether those cases were rightly decided.
It has long been the law that when a man pleads guilty to an indictment the trial judge can permit him to change his plea to not guilty at any time before the case is finally disposed of by sentence or otherwise. I need only cite one early case as a rather extreme instance. In Reg. v. Clouter and Heath (1859) 8 Cox C.C. 237, two prisoners were indicted for forgery and pleaded not guilty. At an early stage in the trial Clouter changed his plea to guilty and was convicted by the jury. Then in the

[1971] A.C. 481 Page 489

evidence against Heath facts came out to show that Clouter had pleaded under a misapprehension, and he was allowed to change his plea again to not guilty, the jury’s verdict being withdrawn. This case has frequently been cited and never disapproved. It was referred to by Lord Parker C.J. in Reg. v. Cole [1965] 2 Q.B. 388, 394.
I do not find it easy to understand why a different rule has emerged in recent times with regard to the powers of magistrates in summary proceedings. Several cases have held that magistrates have no power to allow a change of plea during the interval between their acceptance of a plea of guilty and final disposal of the case. They appear to me to have arisen out of a misconception of purely technical matters.
Much of the difficulty has arisen from the fact that “conviction” is commonly used with two different meanings. It often is used to mean final disposal of a case and it is not uncommon for it to be used as meaning a finding of guilt. It is proper to say that a plea cannot be changed after “conviction” in the former sense. But it does not at all follow that a plea cannot be changed after “conviction” in the latter sense. It is perfectly true that “conviction” is used in this latter sense in the Magistrates’ Courts Act, 1952, and a number of other statutes. But I cannot infer from that any intention of the legislature to alter as regards summary jurisdiction the old rule that a plea can be changed at any time before final disposal of the case. I find nowhere any suggestion of any possible reason for making this alteration of the law, apart from a suggestion that once a plea has been recorded there is no power to alter it. But that cannot be right because every day accused persons who begin by pleading not guilty change their plea to guilty after the plea of not guilty has been recorded and the trial has begun, and that raises no technical difficulty.
It would seem that the first case which denies the right of magistrates to allow an accused to change his plea after “conviction” in the sense of acceptance of a plea of guilty is Reg. v. Guest, Ex parte Anthony [1964] 1 W.L.R. 1273. There a man, after being advised by a solicitor, had pleaded guilty in unequivocal terms. Then a question arose as to possible deportation and he sought to change his plea to not guilty. It is always for the court’s discretion whether to allow the accused to change his plea and the facts in this case were such that there was every reason to refuse to exercise that discretion in favour of the accused. But the court held that the magistrates had no power to allow the plea to be changed after they had directed a “conviction” to be entered and had remanded the accused so that deportation could be considered. I can find no clear explanation of why this should be so, apart from a statement (at p. 1276), that the authorities depend “in one way or another upon the question when a court is functus officio in the use of its powers to convict or acquit, as distinct from its powers to sentence.” This seems to me to be both novel and erroneous. The case of Rex v. Norfolk justices, Ex parte Director of Public Prosecutions[1950] 2 K.B. 558, does not appear to have been cited. As I read Lord Goddard’s judgment he holds that a magistrates’ court is not functus officio until final adjudication. And it seems to me to be clear that in the authorities dealing with the powers of a trial judge on indictment there is no such distinction: for otherwise

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how could the judge allow a change of plea if he were functus officio as regards power to “convict” as soon as a plea of guilty was accepted. In my judgment magistrates have only one officium – to carry the case before them to a conclusion. There is no reason to divide up their functions and hold that at some stage in the proceedings one officium comes to an end and another begins.
I think that the court were misled in Guest’s case [1964] 1 W.L.R. 1273 by cases which deal with the situation where one court finds the accused guilty and another court has to pass sentence, or where one court commits to another for trial. They relied largely on Rex v. Sheridan [1937] 1 K.B. 223. There the accused charged with obtaining credit by false pretences consented to be dealt with summarily. Evidence was led and he was found guilty. Then, when the magistrates found that he had previous convictions, instead of passing sentence they committed him for trial at quarter sessions. At quarter sessions he pleaded autrefois convict and it was held by the Court of Criminal Appeal that this was a good plea on the ground that he had been “convicted” at petty sessions. They founded on three cases none of which appears to me to support their conclusion. Reg. v. Blaby [1894] 2 Q.B. 170 was a case under the Coinage Offences Act, 1861, and it was clear from the context that in the relevant section “convicted” was used in the narrower sense of found guilty. That case appears to me to throw no light on the question whether conviction in this sense will support a plea of autrefois convict. Reg. v. Miles (1890) 24 Q.B.D. 423 was a case which had been brought to final judgment as appears from the quotation on p. 436. Plainly that did support a plea of autrefois convict. The third case was Rex v. Hertfordshire Justices [1911] 1 K.B. 612. There the accused consented to be tried summarily but after hearing some of the evidence the justices committed him for trial and it was held that quarter sessions must try him. The decision is of no assistance but Pickford J. said, obiter, at p. 622:

“Undoubtedly if the justices had proceeded to adjudicate on the case either by convicting or by acquitting the defendant, that would have afforded ground for a good plea to the indictment.”

This dictum may afford some support for the decision in Sheridan [1937] 1 K.B. 223.
I do not think it necessary to enter upon the technicalities of autrefois convict. Other authorities cited to us strongly suggest that this is not a good plea unless the earlier case was carried to a conclusion. But even if Sheridan’s case was rightly decided and a “conviction” in the narrower sense will support a plea of autrefois convict, that does not appear to me to lead to the conclusion that a “conviction” in the narrower sense must end the power of the court to allow a plea to be changed. No one has ever suggested that the decision of Sheridan’s case conflicts with the power of a trial judge to allow a plea of guilty on an indictment to be changed, so why should it conflict with a similar power in magistrates’ courts.
The only other case referred to in Guest’s case [1964] 1 W.L.R. 1273 which requires notice is Reg. v. Durham Quarter Sessions, Ex parte Virgo [1952] 2 Q.B. 1. There a man who had no legal aid pleaded guilty to stealing a motor bicycle but the statement which he then made showed

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that, if it was true, he had no criminal intent. The justices did not suggest that he should alter his plea and sentenced him. It was held that they ought to have regarded this as a plea of not guilty. That seems to be both good law and good sense.
In my view Guest’s case [1964] 1 W.L.R. 1273, was wrongly decided and ought to be overruled. I can find no reason for there being a different rule in magistrates’ courts from the rule in cases tried on indictment that the accused can apply at any time before sentence to change his plea of guilty and that it is for the court then to decide whether justice requires that that should be permitted.
The decision in Guest’s case has led to much difficulty and to undesirable narrow distinctions. In Reg. v. Blandford Justices, Ex parte G. (An Infant) [1967] 1 Q.B. 82, a girl aged 15, engaged as a mother’s help, took some of her employer’s jewellery. She was charged with larceny and pleaded guilty, but it came out that she had said that she only intended to keep it for a few days and then return it. She had only received the summons the evening before the court hearing and had no opportunity of engaging legal assistance. The justices remanded her and at the next hearing her solicitor applied to have her plea changed to not guilty. This was held to be incompetent but it was held that the justices at the first hearing ought to have regarded her plea in the same way as was done in the Durham case [1952] 2 Q.B. 1. But from what is stated in the Blandford case [1967] 1 Q.B. 82, at p. 90, the difficulties arising out of Guest’s case [1964] 1 W.L.R. 1273, become evident. It all depends on whether the plea of guilty was unequivocal and finally accepted or was equivocal and only accepted provisionally. Such a distinction is bound to cause doubt and sometimes injustice and I am glad to say that if Guest’s case is overruled it will not be necessary to go into these refinements.
Then in Reg. v. Gore justices, Ex parte N. (An Infant) [1966] 1 W.L.R. 1522 a different result was reached. A subnormal youth of 17 was charged with indecent assault. He pleaded guilty. He was not legally represented but was accompanied by his father. When asked whether they had anything to say, neither the boy nor his father said anything. The boy was then remanded on bail, and at the next hearing a solicitor applied to change the plea on the ground that the boy was not guilty but had been persuaded by the police to plead guilty. Again the troublesome question arose whether the justices ought only to have accepted the plea provisionally, but it was held to be proper for the justices to accept the plea of guilty without qualification and the conviction must stand. In my view this case must be overruled. We do not know whether the justices’ discretion ought to have been exercised in favour of this subnormal boy or not. But they ought to have considered the matter.
The present case has been decided against the appellant because on the information before them at the first hearing the justices were entitled to accept and did accept his plea of guilty: and when the true facts emerged at the next hearing it was too late to do anything. I am glad to say that if your Lordships decide that Guest’s case [1964] 1 W.L.R. 1273, was wrongly decided this highly unsatisfactory result will be avoided. I would allow this appeal and quash the hospital order. As counsel for

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the prosecutor intimated that no further proceedings will be taken, it is unnecessary to remit the case.



LORD MACDERMOTT. My Lords, the question for decision in this appeal may be introduced briefly and without going into details. On May 30, 1968, the appellant appeared before the Manchester Juvenile Court on a charge of attempted rape. He consented to be tried summarily and pleaded guilty. Before the end of that day’s hearing, this plea had been accepted, and the magistrates had entered a finding of guilt. The hearing was then adjourned until June 30, for the purpose of inquiry into the appellant’s physical and mental condition. Accepting, as I do, the Divisional Court’s view of the evidence, I can find no fault with the juvenile court’s conduct of the proceedings up to this point.
On the adjourned hearing the appellant was legally represented and his solicitor, having drawn the attention of the court to the appellant’s mental condition and to what were said to be instances of previous spurious confessions on his part, asked that he be allowed to withdraw his plea of guilty and to plead not guilty instead. It is clear that if the court had authority to accede to this request it ought, in the circumstances, to have done so; and it is also clear that that is the course it would have followed had it been satisfied as to its powers in that respect. After argument, however, the court held that it was functus officio and had no such authority. Having reached this conclusion, it proceeded to consider the medical reports and to make a hospital order against the appellant under section 60 of the Mental Health Act 1959.
On January 23, 1969, this ruling was upheld by a Divisional Court (Lord Parker of Waddington C.J., Edmund Davies L.J. and Caulfield J.). The appellant then appealed to your Lordships’ House by leave of the Divisional Court which certified that a point of law of general public importance was involved in its decision. This point was described in the certificate under three heads, but it will suffice if I mention only the first of these as it poses in general terms the question for your Lordships’ consideration. It reads thus:

“Whether a court of summary jurisdiction which has already accepted a plea of guilty to the offence charged is in law debarred from permitting a plea of not guilty to be substituted at any time before passing sentence?”

My Lords, the Divisional Court, basing its conclusion on previous decisions, held that the juvenile court, having accepted a plea of guilty and reached a finding of guilt was functus that part of its adjudication and could not go back upon it. The authorities bearing on this conclusion, which with it enshrine what I may refer to as the “functus doctrine,” must therefore be examined; but before I come to them it is, I think, desirable to consider two broad prefatory questions. The first is whether a decision such as that under appeal is appropriate or adverse to the proper functioning of the judicial process; and the second is whether there is anything in the statutes and regulations governing magistrates’ courts to require or justify such a decision.
As to the first of these questions, the exercise of a complete criminal

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jurisdiction – and I use that expression to exclude special statutory procedures in which guilt is found by one court and punishment awarded by another – naturally falls into two parts, whatever the status of the court concerned. There is the ascertainment of guilt or innocence; and after that there is the sentencing or determination of what should be done with the guilty. In a sense these parts are distinct, and the temporal gap between them has tended of recent times, in certain types of case, to become longer as the need for a closer investigation of the convicted person’s health and background has obtained wider recognition. But that is far from saying that each part stands isolated from and independent of the other. The evidence relevant to the commission of an offence is generally relevant to the sentence. And that part of the hearing which is directed to the sentence may well cast new light on the question of guilt or innocence. I think it is safe to say that this has long been recognised and that the tenor of English law has been against erecting any barrier between these two parts or stages which would place them, as it were, in watertight compartments and so reduce the scope of judicial ascertainment and discretion. There must, of course, be an end to all things and any court becomes functus eventually. But such a platitude does nothing to establish the barrier under discussion which is arbitrary in nature and, in my opinion, prejudicial to the due administration of criminal justice. Every experienced judge knows that, even in uncontested matters, the truth has a habit of emerging in bits and pieces, and that the legal ingredients of the offence charged may not be fully understood by the accused. Pleas of guilty of stealing where there has been no intention to deprive the owner permanently, or of receiving where there has been no guilty knowledge at the time of receipt are but notorious examples of what has happened and can still happen through this sort of ignorance or misunderstanding which, be it noted, may not proclaim itself when the plea is made. The risk of this is certainly not rare enough to be left out of account. Legal aid may reduce it, but it would be rash to assume that it will eliminate such mistakes entirely; and it must also be remembered in this connection that quite a number of modern statutory offences are sufficiently complex in their make-up to confuse both the lay and the learned. Once made, a mistaken plea may be properly accepted and the mistake may never stand revealed. But if, as can happen, the truth comes to light during the second stage of the proceedings, when the question of what to do with the accused is under consideration, why should it not be acted upon and a changed plea of not guilty allowed where the interests of justice so require? There is no good reason for thinking that such a course would create an administrative problem or open the door to a widespread abuse of process. As respects trials on indictment, including trials before justices at quarter sessions, the attitude of the common law on this matter has been clear for generations. Such a change may, at the discretion of the court, be allowed at any time before the case has been disposed of by sentence. On principle I see no reason why this discretionary power should be denied to courts of summary jurisdiction. It is as necessary there as elsewhere if the justices are to be free to do justice while they have seisin of the proceedings.

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For these reasons I would hold that the decision under appeal is not appropriate but adverse to the proper functioning of the judicial process.
Now, as to the second question. Can the decision be justified by statute or regulation? I have been unable to find anything in the material legislation and rules of procedure which could do that. The conjoint effect of (a) the growing tendency, already noted, to adjourn after a finding of guilt with a view to obtaining further information relative to the task of sentencing, and (b) the difficulties, such as they are, of reconstituting the same bench of lay justices for the further hearing, suggested the possibility of some provision to meet such a situation by the adoption of a step by step conception of adjudication with each step regarded as complete in itself. My Lords, I have been unable to discover any provision of the kind. Subsection (6) of section 98 of the Magistrates’ Courts Act, 1952, lays down as the general rule that “the justices composing the court before which any proceedings take place shall be present during the whole of the proceedings. …” But subsection (7) provides for an exception to this. It runs:

“(7) Where the trial of an information is adjourned after the accused has been convicted and before he is sentenced or otherwise dealt with, the court which sentences or deals with him need not be composed of the same justices as that which convicted him; but, where among the justices composing the court which sentences or deals with an offender there are any who were not sitting when he was convicted, the court which sentences or deals with the offender shall before doing so make such inquiry into the facts and circumstances of the case as will enable the justices who were not sitting when the offender was convicted to be fully acquainted with those facts and circumstances.”

That provision, in my view, does nothing to support the decision of the Divisional Court. It does not divide the officium. On the contrary, as it seems to me, it is couched in language which recognises the unity of the proceedings on either side of the adjournment. If, as this enactment acknowledges, it is right that the justices should know what has happened at the first hearing in order to deal justly with the accused at the second, it is hard to understand why they should be debarred from coming to the conclusion, on the strength of what is revealed at the resumed hearing, that despite his plea the accused was not guilty, or else that his guilt was so much in doubt as to justify fresh consideration after a change of plea.
I would therefore answer my second question by saying that there is nothing in the relevant legislation or regulations on which to found the decision under appeal.
That leaves the authorities. I do not propose to enter upon an exhaustive review of all the cases cited in argument. A number of them have little bearing on the present issue. Some turn on whether the plea made should have been accepted as a plea of guilty or not guilty – the “guilty but …” cases; some depend on the meaning to be given to the ambiguous word “conviction”; some seem to touch on the exercise of the alleged discretion rather than on its existence; and some relate to proceedings raising special issues because two courts rather than one

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were involved. At the outset it is helpful to remember that the present is a limited issue. After a properly accepted plea of guilt, have justices power before finally disposing of the case to allow a change of plea in the due exercise of their discretion? It will be convenient to start with the decisions relied upon by the Divisional Court and to work backwards.
The Divisional Court cited two cases. The first of these, in point of time, was Reg. v. Blandford Justices, Ex parte G. (An Infant) [1967] 1 Q.B. 82. That was one of the “guilty but …” cases and the decision to convict on the plea was declared a nullity. However, after referring to Reg. v. Durham Quarter Sessions, Ex parte Virgo [1952] 2 Q.B. 1, and Reg. v. Guest, Ex parte Anthony[1964] 1 W.L.R. 1273, Widgery J., giving the judgment of the court, said at p. 90:

“In my judgment it follows from those two cases, which are in no sense in conflict, that a time comes when the magistrate is functus officio and cannot reconsider or re-open the question of whether the accused’s plea of guilty should be accepted or not. Following the language used in Guest’s case, that point is reached when an unequivocal plea has been made and has been accepted by the magistrate in the sense that the magistrate is satisfied that it is safe to act upon the plea, he being further satisfied that the defendant really intends to put in a plea in that sense.”

The other case cited by the Divisional Court was Reg. v. Gore Justices, Ex parte N. (An Infant)[1966] 1 W.L.R. 1522. The facts there were much akin to those of the present case. Lord Parker of Waddington C.J., delivering the judgment of the court, referred to what Widgery J. had said in Reg. v. Blandford Justices, Ex parte G. (An Infant) [1967] 1 Q.B. 82, on the strength of Reg. v. Guest, Ex parte Anthony [1964] 1 W.L.R. 1273, with apparent approval. But the case seems to have turned on the soundness of the justices’ acceptance of the plea of guilty and their jurisdiction to allow such a plea to be changed subsequently does not appear to have been closely canvassed.
That brings me to the two decisions on which Widgery J. based the views I have quoted from his judgment in Reg. v. Blandford Justices, Ex parte G. (An Infant) [1967] 1 Q.B. 82. In Reg. v. Durham Quarter Sessions, Ex parte Virgo [1952] 2 Q.B. 1 the accused had pleaded guilty before a court of summary jurisdiction to stealing a motor bicycle. Asked if he had anything to say, he replied: “It was a mistake, I thought it was my mate’s cycle. My mate said: ‘Take it home.’ My mate’s bike is identical.” The justices, notwithstanding this statement, let the accused’s plea of guilty stand and sentenced him to six months’ imprisonment. The accused appealed to quarter sessions against both his conviction and sentence. Quarter sessions decided that the justices ought to have entered a plea of not guilty and the case was sent back. The matter was then brought before a Divisional Court (Lord Goddard C.J., Jones and Parker JJ.) which affirmed the ruling of quarter sessions. Now that was another of the “guilty but …” cases and the Divisional Court acted on the view that the accused’s plea was not unequivocal and that the justices entered a plea of guilty when they should have entered a plea of not guilty. The decision does not therefore establish the functus doctrine as

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advanced in this case. Logically it may, as Widgery J. seemed to think, be compatible with it. But in that event the result would appear to be either that justices who wrongly enter a plea of guilty in the first part of the proceedings and find out their error from what transpires in the second part can then do nothing about it; or else that they can go back on their finding of guilt if the plea was equivocal, but not if it was unequivocal. I think this is all too confusing and difficult to be sound. And the confusion becomes worse confounded if, as I am inclined to think may have happened in some of the cases, the “guilty but …” or equivocal factor was only revealed to the court by statements made in mitigation during the sentencing stage of the proceedings. These fine distinctions between what pleas are acceptable and what not, between the equivocal and the unequivocal, between provisional acceptance and final acceptance of the plea made, and between one stage and another of the same proceedings owe much to the introduction of what I have called the functus doctrine and suffice in themselves to cast a grave doubt on its validity.
I come now to the second of the decisions relied upon in Reg. v. Blandford Justices, Ex parte G. (An Infant) [1967] 1 Q.B. 82 – the case of Reg. v. Guest, Ex parte Anthony [1964] 1 W.L.R. 1273. There the accused was charged with being in possession of house breaking implements by night and with assaulting a police officer in the exercise of his duty. He consented to a summary trial and pleaded guilty to each charge. The case was then adjourned to enable a deportation order to be served. At the resumed hearing counsel on behalf of the accused asked that the plea be changed to one of not guilty. The magistrate held he had no power to comply with this request and a Divisional Court (Winn, Fenton Atkinson and Widgery JJ.) sustained his ruling. It may be that this reflected the merits of the case, but the point of the decision is that it approved the functus doctrine with which this appeal is concerned. Before the adjournment the accused’s pleas of guilty had been properly accepted and entries of conviction had been directed. In these circumstances Winn J., who delivered the leading judgment, held, at p. 1278, that certiorari

“… will not go where there has been a conviction in summary proceedings to require any further proceedings to be taken which would be inconsistent with that conviction …”

Fenton Atkinson J. agreed and so did Widgery J., who added, at p. 1278:

“I am quite satisfied that a magistrate cannot entertain an application by an accused person to change his plea once the magistrate has convicted under section 13 (3) of the Magistrates’ Courts Act, 1952.”

Section 13 (3), it will be remembered, provides that if the accused pleads “guilty, the court may convict him without hearing evidence.” Guest’s case, therefore, is very much in point. If its ratio was right this appeal should fail. If it was wrong, the decision in the Gore Justices’ case [1966] 1 W.L.R. 1522 can only be justified on its facts and the decision in this case cannot be justified at all. It is therefore necessary to see on what grounds Guest’s case [1964] 1 W.L.R. 1273 was decided. The first comment here must be that the decision was not based on any analysis of the principles involved but on the authority of a series of four earlier decisions which

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in the view of Winn J. constituted “ample binding authority.” Of these earlier decisions most reliance seems to have been placed on two cases which came before the Court of Criminal Appeal within a few weeks of each other in 1936. The first is Rex v. Sheridan [1937] 1 K.B. 223. In that case the appellant had been convicted at quarter sessions of, inter alia, obtaining credit by fraud. At petty sessions he had been informed of his right to trial by jury, but had consented to be dealt with summarily and had pleaded not guilty. At the close of the hearing on that issue the magistrates announced that they had found the appellant guilty. On the question of sentence certain previous convictions were then proved by a police officer. Having considered this evidence, the magistrates said that they would not deal with the case and committed the appellant for trial at quarter sessions. There the appellant pleaded autrefois convict in respect of the charge mentioned, but this plea was overruled. Before the Court of Criminal Appeal (Lord Hewart C.J., Humphreys and Hilbery JJ.) the submission of the Crown was that a mere conviction would not support a plea of autrefois convict unless the person convicted had also been sentenced. The court held otherwise. Humphreys J., who delivered the judgment, having referred to Reg. v. Blaby[1894] 2 Q.B. 170, in which the word “convicted” in a statute was held to mean “found guilty,” stated that in the opinion of the court that decision was in point. The court accordingly held that, as the justices had found the appellant guilty, they had convicted him in a manner which established the plea of autrefois convict. In Rex v. Grant [1936] 2 All E.R. 1156 the same point arose and was decided in the same way. There the appellant had been convicted by a magistrate on his plea of guilty and not as in Sheridan’s case [1937] 1 K.B. 223. Having received a report on the appellant, the magistrate then changed his mind and decided to send him to quarter sessions. The Court of Criminal Appeal made it clear that magistrates were not debarred from committing an accused person for trial after they had commenced to deal with him summarily, but emphasised that once they had acquitted or convicted the accused this was no longer possible. The court was unable to distinguish Sheridan’s case and again the plea of autrefois convict was upheld.
Before your Lordships issue was joined on whether the cases of Sheridan and Grant were properly decided, the contention against the decisions being that a plea of autrefois convict only lies where there has been a conviction in the broader sense of the word, that is to say, a finding of guilt followed by an adjudication on what should be done with the convicted person by way of punishment, or otherwise. This raised a debatable point, but one which I do not find it necessary to decide in the present appeal. Assuming that these decisions were correct they supply, in my view, no ground whatever for the decision in Guest’s case [1964] 1 W.L.R. 1273. The Court of Criminal Appeal did not purport to examine what I have called the functus doctrine and there is nothing in its judgments to suggest that justices, while retaining seisin of a case are precluded from allowing a change of plea in the exercise of their discretion.
It remains to notice the two other decisions on which Winn J. relied in Guest’s case. The first is Reg. v. Campbell, Ex parte Hoy [1953] 1 Q.B. 585. There a Divisional Court (Lord Goddard C.J., Byrne and

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Gerrard JJ.) had to consider the case of a woman charged with a customs offence who elected to be tried summarily and pleaded guilty. The magistrate convicted her and imposed a prison sentence. Later the same day, on the application of the woman’s solicitor, the magistrate allowed the plea to be altered to one of not guilty and remanded the prisoner on bail. The prosecution then applied for an order prohibiting the magistrate concerned, Miss Sybil Campbell, from proceeding with the charge otherwise than by issuing a committal warrant. The Divisional Court held that the magistrate was functa officio when she allowed the plea to be changed and had therefore no power to do so. In my opinion this case gives no more support than the cases of Sheridan [1937] 1 K.B. 223 and Grant [1936] 2 All E.R. 1156 to the doctrine under discussion. Miss Campbell had heard the case before her fully. She had accepted the plea of guilty and had concluded the second stage of the proceedings which determined the matter by sending the accused to jail. She was in law truly functa officio, and that being so the case affords no guidance on the question in debate here, namely, whether the same conclusion could have been reached after the plea had been accepted but before sentence had been pronounced. The last of the four decisions mentioned by Winn J. in Reg. v. Guest, Ex parte Anthony [1964] 1 W.L.R. 1273, was Reg. v. Essex Justices, Ex parte Final [1963] 2 Q.B. 816. This case, too, seems completely beside the point. There the accused had been charged with permitting the use of a motor vehicle when some of its parts or accessories were in a condition likely to cause danger. The accused appears to have pleaded not guilty. But when all the evidence had been heard the chairman announced the decision of the justices, which was to the effect that the case had been proved and that a fine of £3 would be imposed. The accused’s solicitor then continued the argument, contending that the prosecution had not proved certain ingredients of the charge, whereupon the justices changed their minds and dismissed the information. It was held by a Divisional Court (Lord Parker of Waddington C.J., Gorman and Salmon JJ.) that the justices had no jurisdiction to make this change as they were then functi officio. I do not think there can be any dispute about that conclusion, but it begs the question before your Lordships, for the process of adjudication, however informal it may have been, had been completed and was effective in point of law. I note that in the course of his judgment, Salmon J. said at p. 823, “once the justices have convicted or acquitted, they are functi officio and cannot alter their decision.” I think the learned judge must here have been using the word “convicted” in its wider sense and as including not only the finding of guilt but the subsequent adjudication as to punishment. There is nothing in the context or in the case to suggest that he meant to refer to a finding of guilt and nothing more.
My Lords, I have found it impossible to derive the functus doctrine, as accepted by the Divisional Court, from any of the authorities cited in its support. In my opinion Guest’s case [1964] 1 W.L.R. 1273 was wrongly decided in point of law and, in so far as it purports to follow that decision, I would say the same of the Gore Justices case [1966] 1 W.L.R. 1522. Here I would like to refer to one other decision which was brought to your Lordships’ attention by counsel for the appellant and which seems, unfortunately as I think, to have escaped the notice it deserves in the

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authorities I have reviewed. It is Rex v. Norfolk Justices, Ex parte Director of Public Prosecutions[1950] 2 K.B. 558, an application for an order of mandamus which came before a Divisional Court consisting of Lord Goddard C.J. and Humphreys, Byrne, Morris and Finnemore JJ. There an accused person had appeared before a court of summary jurisdiction on charges of seven bankruptcy offences. He was convicted on all these charges and then asked for six similar offences to be taken into consideration. The justices thereupon committed him to quarter sessions for sentence. This committal was, for reasons which are not now material, invalid and quarter sessions made no order except to discharge the accused’s bail. Fresh summonses were then taken out calling on the accused to come before the justices for sentence in respect of the offences of which he had been convicted. On the return day the justices refused to proceed further and the Director of Public Prosecutions then caused mandamus proceedings to be taken against them. The main argument was simple. The Attorney-General submitted that as the committal was a nullity the proceedings before the justices had not concluded and they were therefore not functi officio. Counsel for the accused, on the other hand, argued that the cases could not be sent back for sentence as the justices had given judgment and were functi officio. The Divisional Court unanimously decided that the justices were not functi officio. Lord Goddard, after examining what a judgment means, summarised his conclusion, thus, at p. 569:

“… there must have been something which puts an end to the case; there must be a final adjudication; and there has been no final adjudication in the present case. Therefore in my opinion the justices were not functi officio.”

That, in my view, remains an acceptable proposition and one which points clearly to the principle that should govern this appeal.
Such are the reasons which have led me to hold that the appeal should be allowed and the hospital order quashed.
LORD MORRIS OF BORTH-Y-GEST. My Lords, when on May 30, 1968, the appellant, then aged 16, appeared before the juvenile court in the City of Manchester he consented to summary trial. He pleaded guilty to a serious offence alleged to have been committed on May 18, 1968. He was not legally represented. The court inquired as to the whereabouts of his parents and was informed that he was in the care of the Manchester City Council. An officer of the children’s department (in whose charge the appellant was) was present on behalf of the appellant. Before the appellant consented to summary trial the chairman of the court explained to him the different forms of trial and advised him to consult the officer of the children’s department before he said anything. Such consultation took place before the appellant consented to summary trial and pleaded guilty. The appropriate procedure appears to have been followed which enables a court to try a young person summarily for an indictable offence.
The appellant had been arrested on May 29 and on that date had signed a confession. After the facts of the case had been outlined to the court the appellant was asked whether he had understood. He said that

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he had. He was given an opportunity (of which he did not avail himself) to ask questions and to say anything that he wished to say. When the stage came for the court to be informed about the appellant they were given a history of his having been in the care of the local authority since babyhood, of his having been in a mental hospital and of his having been transferred early in May, 1968, to a hostel for subnormal children. In the Divisional Court there was a conflict of testimony as to whether a further circumstance (and one of high relevance) was brought to the attention of the court, viz., that the appellant was one who was in the habit of making spurious confessions. The Divisional Court accepted that the court was not made aware of that circumstance. The chairman of the court had deposed that had the court been so made aware they would not have accepted the appellant’s plea of guilty but would have directed a change of plea. In The result the juvenile court remanded the appellant in order that a medical report should be obtained. The procedure indicated by section 14 (3) of the Magistrates’ Courts Act, 1952, was followed. That subsection is as follows:

“14. – (3) A magistrates’ count may, for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with the case, exercise its power to adjourn after convicting the accused and before sentencing him or otherwise dealing with him; but, if it does so, the adjournment shall not be for more than three weeks at a time.”

The remand was for a period of three weeks. In the register of the court the minute of adjudication recorded that the appellant was “found guilty” and was remanded to Risley for a period of three weeks. The period of three weeks would expire on June 20. Before that date (i.e., on June 6) an application was made by a legal representative of the appellant for the plea of guilty to be set aside and a plea of not guilty to be entered. No decision was then made. The matter was adjourned to June 20. On that date, after argument and after a consideration of certain cases which were binding on the court, the application was refused. The magistrates would have wished to accede to it and, having regard to what they were then told and having regard to various circumstances which later were set out in affidavits (but which need not for present purposes be recounted), it is clear that it would have been very desirable to allow a withdrawal of the plea of guilty so that there should be a hearing at which the facts could be investigated. The ground of the magistrates’ decision was that, inasmuch as a conviction had been entered, it was not then in their power, and that it had not, after the conclusion of the proceedings on May 30, been in their power to allow the plea of guilty to be withdrawn and a plea of not guilty to be substituted.
Having regard to the authorities no criticism can be made of the magistrates for having decided as they did. Nor do I think that they erred in their view as to the events of May 30. The appellant had stated clearly that he pleaded guilty. He had done so after consultation with someone who was acting as his parent. The magistrates heard the facts as outlined by counsel for the prosecution. The facts were not challenged and nothing was said which made the magistrates feel that it was unsafe to accept the plea of guilty. In the result, though the court did not at any particular

[1971] A.C. 481 Page 501

stage on May 30 indicate that they formally accepted the plea, it is a reasonable and natural inference from the events that the court accepted the plea when the case was adjourned for a period of three weeks and when the court “after convicting” the appellant “and before sentencing him” remanded him in custody so that medical reports should be obtained. The remand was made for the purpose of “determining the most suitable method of dealing with the case” (see Magistrates’ Courts Act, 1952, s. 14 (3)).
The case is not, therefore, one in which there was an ambiguous or equivocal plea or one in which there were circumstances casting doubt on the safety of accepting a plea. Though reference is often made to the “acceptance” of a plea there is no necessity for any formal pronouncement. All that is denoted by such an “acceptance” is that a court is proceeding to consider what is the appropriate course to take in regard to a person who, as the court thinks, with full appreciation of what he is doing and with adequate understanding of what is involved in and what are the ingredients of a charge preferred against him, has fully and freely acknowledged and confessed to the court that he is guilty of the charge. That the court is fully entitled to accept a plea is made clear by section 13 (3) of the Magistrates’ Courts Act, 1952, which provides that: “If the accused pleads guilty, the court may convict him without hearing evidence.” The words “convict” and “conviction” in the Act are not always used with the same meaning. If, however, the word “convict” in this subsection is used in the sense of a finding of guilt (as opposed to a finding of guilt coupled with the making of some order) the question that is now raised is whether the fact that there is an acceptance of a plea of guilty made by an accused (which may amount to “convicting the accused” – see section 14 (3)) – prevents a court from allowing a withdrawal of the plea at any time before sentence.
If, before the court has completed its task in regard to the case, an application to withdraw the plea is made and if it is made for reasons which the court deems valid and which perhaps it had previously had no opportunity of considering, is the court powerless to accede to it? It would be lamentable it that were so. The court might feel that having regard to the reasons advanced it would be wholly wrong to hold a person to some previous acknowledgment of guilt. The desire of any court must be to ensure, so far as possible, that only those are punished who are in fact guilty. The duty of a court to clear the innocent must be equal or superior in importance to its duty to convict and punish the guilty. Guilt may be proved by evidence. But also it may be confessed. The court will, however, have great concern if any doubt exists as to whether a confession was intended or as to whether it ought really ever to have been made. When, in the present case, the court, on June 20, heard the reasons for the application made to them, they felt, and rightly felt, that the proper course in the interests of justice would be to accede to it. It would be a grave defect in our law and system if there is some rule which thwarts the course which the interests of justice prompt.
If magistrates are trying a case summarily they will not have completed their duty in regard to the case until they either (a) dismiss the case or (b) find the accused guilty and deal with him on that basis. The finding of guilt may involve reaching a conclusion in regard to disputed or contested

[1971] A.C. 481 Page 502

facts. It may involve proceeding on the basis of or “accepting” a confession made in court by way of an unequivocal and unambiguous plea of guilty which so far as the court can tell was intentionally made with full appreciation of all that it involved. But if there is a finding of guilt the court will only have advanced part of the way in the discharge of its duty. There must be a separation in time between the one part of the duty and the other part. If the court has to consider what course to follow in regard to someone who is found to be guilty it will be relevant and generally necessary to have information which will include information as to previous convictions. It would be quite wrong for the court to have such information before the time when there is a finding of guilt. But after such time and before the court has disposed of the case by making whatever order it deems appropriate the court is still engaged upon its duty. Applying this reasoning to the present case it seems to me that it is wrong to say that, at the end of the hearing on May 30, the magistrates were functi officio. They were not. They still had an important part of their duty to perform. It was because they had such a duty that they remanded the appellant in custody for three weeks. They are not to be criticised for accepting the plea of guilty on the basis of which they were going to decide what to do with the person who had pleaded guilty. They were warranted in what they did. But on June 6, and again on June 20, the case was still before them. The entry made in the register as to what had taken place on May 30 (whether made impliedly or expressly by their authority) could have no other effect than that of recording the events of May 30. The entries then made have the effect of confirming that the magistrates had further duties to discharge and that they were not functi officio. When, therefore, on June 6, and June 20, the appellant made the request to withdraw his plea it was, in my view, open to the magistrates, if for good reasons they saw fit, to accede to the request.
The word “conviction” may sometimes be used to denote merely a finding of guilt and sometimes to denote such a finding followed by an appropriate order. The language of section 14 (3) of the Act of 1952 illustrates use in the former sense. A magistrates’ court may in order to determine “the most suitable method of dealing with the case” exercise its power to adjourn “after convicting” the accused and before sentencing him or otherwise dealing with him. So “the case” is merely adjourned. It is still before them. The magistrates are clearly not functi officio. They will have reached a stage in their task but I see no reason why that stage should be regarded as having been finally reached or why steps in reaching it could not for good and valid reasons be retraced. Section 26 (1) of the Act likewise illustrates that before the “method of dealing with” a person is decided upon “the case” may be adjourned after the court is satisfied that “the offence has been committed.” In section 56 of the Criminal Justice Act, 1967, may be found an illustration of the use of the word “convicted” as denoting a finding of guilt.
On a trial on indictment it has been accepted that after arraignment but before sentence a plea may – in the discretion of the court – be withdrawn (see Reg. v. McNally [1954] 1 W.L.R. 933 and Reg. v. Clouter and Heath (1859) 8 Cox 237). A different rule has been held to apply to magistrates’ courts. This was so decided in Reg. v.

[1971] A.C. 481 Page 503

Guest, Ex parte Anthony [1964] 1 W.L.R. 1273. In that case a magistrate in a situation comparable with that in the present case (though on very different facts) had held that he had no power to allow a change of plea. That view was upheld in the Queen’s Bench Division on an application for orders of certiorari and mandamus. The applicant had been legally represented before the magistrate: he had consented to summary trial and had pleaded guilty. The magistrate had accepted the plea and had directed an entry in the register. There was a remand under the power given by section 14 (3) of the Magistrates’ Courts Act, 1952, and section 8 (2) of the Commonwealth Immigrants Act, 1962. It was laid down in the Divisional Court that a magistrate cannot entertain an application by an accused person to change his plea once the magistrate has convicted under section 13 (3) of the Act of 1952. I cannot accept this conclusion. Support for it was said to be found in Rex v. Sheridan [1937] 1 K.B. 223. But no question of the withdrawal of a plea arose in Sheridan’s case. In that case there had been a plea of not guilty, but after hearing evidence the magistrates found the accused guilty. When they learned of his previous convictions they did not pass sentence but committed him for trial at quarter sessions. At such trial he raised a plea of autrefois convict. That plea was overruled and he was convicted by quarter sessions. That conviction was set aside by the Court of Criminal Appeal who held that in order to support a plea of autrefois convict it is not necessary that a conviction should have been followed by sentence: they held that the plea of autrefois convict should have been accepted at sessions. I do not find the case very helpful for present purposes. Nor was it a very satisfactory case. It seemed doubtful whether the correct procedure had been followed before summary trial had been embarked upon. It may be that the case could have been decided on the basis that once magistrates had made a finding in the case, they had no jurisdiction (as the statutory provisions then stood) to commit to quarter sessions. But in any event it seems to me to be unnecessary for present purposes to consider whether Sheridan’s case [1937] 1 K.B. 223 was rightly decided or to consider whether a conviction in the narrow sense (i.e., of a finding of guilt not followed by some appropriate order) is sufficient to support a plea of autrefois convict. Sheridan’s case was followed and applied in Rex v. Grant [1936] 2 All E.R. 1156. Again, in that case (where there had been a plea of guilty before a magistrate) no question arose concerning the withdrawal of a plea. In that case there was a committal for trial which was quite unwarranted. Both cases were referred to without disapproval by Lord Goddard C.J. in his judgment in Rex v. Norfolk Justices, Ex parte Director of Public Prosecutions [1950] 2 K.B. 558. In that case magistrates decided to convict and then decided to commit to quarter sessions for sentence. That committal, however (for reasons which need not be elaborated), was invalid. Quarter sessions quite properly declined to deal substantively with the case. It was held that a mandamus must issue directing the justices (who had convicted) to proceed to impose a sentence. They were not functi officio. There had been no judgment or final adjudication. Again, in that case no question arose as to the withdrawal of a plea but the case is important as showing that (leaving out of account the procedure where section 29 of the Act of 1952 is applicable and is properly

[1971] A.C. 481 Page 504

followed) magistrates who try a case are not functi officio until they have passed a sentence or have otherwise finally adjudicated.
I do not think either Sheridan’s case [1937] 1 K.B. 223 or Grant’s case [1936] 2 All E.R. 1156 compelled the decision in Guest’s case. In neither of those cases did the point arise whether a plea of guilty could be withdrawn after acceptance of it and before a case is disposed of by a sentence or by some appropriate order. After such a disposal of a case a magistrate would be functus officio: see Reg. v. Campbell, Ex parte Hoy [1953] 1 Q.B. 585.
The facts which gave rise to the later case of Reg. v. Gore Justices, Ex parte N. (An Infant) [1966] 1 W.L.R. 1522 were considerably similar to those in the present case. Magistrates who had accepted pleas of guilty which they regarded as unequivocal remanded an accused for a report; convictions were recorded; at the resumed hearing there was an application to be allowed to change the pleas to pleas of not guilty. The magistrates held that they had no discretion to accede to the application. Their ruling was upheld in the Queen’s Bench Division and Guest’s case [1964] 1 W.L.R. 1273 was followed. For the reasons which I have already given I consider that this decision was wrong.
The question now being considered did not arise in Reg. v. Blandford Justices, Ex parte G. (An Infant) [1967] 1 Q.B. 82 but it follows that I cannot agree with that part of the judgment in that case which endorsed and summarised the decision in Guest’s case [1964] 1 W.L.R. 1273.
In regard to the specific points of law which were submitted for our decision I consider that a court of summary jurisdiction which has accepted a plea of guilty to the offence charged is not in law debarred from permitting (at any time before passing sentence) a plea of not guilty to be substituted. It follows that on the facts found it was open to the Manchester City Juvenile Court on June 6 and 20, 1968, to permit the appellant to withdraw his plea of guilty and to substitute therefor a plea of not guilty.
I would allow the appeal.
LORD GUEST. My Lords, I have had the advantage of reading the opinion of my noble and learned friend, Lord Reid, with which I agree.
I would allow the appeal.
LORD UPJOHN. My Lords, the appellant appeals to your Lordships’ House by leave of a Divisional Court of the Queen’s Bench Division who have certified that the following questions are of general public importance and fit for consideration by this House:

“1.     Whether a court of summary jurisdiction which has already accepted a plea of guilty to the offence charged is in law debarred from permitting a plea of not guilty to be substituted at any time before passing sentence.

“2.     Whether the discretion of a court of summary jurisdiction to allow a change of plea is different from that exercised by a court of record.

“3     Whether on the facts found it was open to the Manchester City Juvenile Court on June 6, 1968, to permit the defendant to withdraw his plea of guilty of the offence charged which had been given and

[1971] A.C. 481 Page 505

entered on May 30, 1968, and to substitute therefor a plea of not guilty.”

The relevant facts are not in dispute. On May 30, 1968, the appellant, then aged 16, was charged before the juvenile court with attempted rape. He pleaded guilty. There is an unhappy dispute as to what the magistrates were told on that day by the officer of the children’s department of the Lancashire County Council in whose charge the appellant was and Miss Heilbron for him does not seek to challenge the conclusion of the Divisional Court in preferring the evidence of the chairman and deputy clerk of the court, respectively, to that of the children’s officer, but in my opinion it is really irrelevant.
It is conceded that at the conclusion of the hearing on May 30, the magistrates by their conduct accepted the appellant’s plea of guilty which had been provisionally accepted earlier and was accepted as a final and unequivocal plea; and a conviction was recorded. The appellant was remanded for a medical report until June 20.
On that day the appellant, previously unrepresented, was legally represented by a solicitor. He applied for the plea of guilty and finding of guilt on May 30 to be removed and for the court to accept an amended plea of not guilty. The magistrates refused to accept an amended plea on the ground that they were functi officio and they ordered the finding of guilt to stand.
My Lords, I turn to the first question which may, I think, be better stated by asking whether a court of summary jurisdiction which has unequivocally accepted a plea of guilty is functus officio so that an amended plea of not guilty cannot be accepted although sentence has not yet been passed.
Certain matters are quite clear:
(1)     Summary jurisdiction courts are the creatures of statute, but no statute has been referred to which bears on this question.
(2)     The question whether a plea of guilty has or has not been formally recorded in the record of convictions is for relevant purposes quite immaterial; that is a purely administrative act. 
(3)     In the High Court and quarter sessions it is clear that the court is not functus officio after a plea of guilty or even a finding of guilty by a jury but an amended plea of guilty may be accepted until sentence has been passed, for only then is the judgment of the court complete. (See Reg. v. Clouter and Heath (1859) 8 Cox C.C. 237; Rex v. Plummer [1902] 2 K.B. 339; Reg. v. McNally [1954] 1 W.L.R. 933.)
My Lords, the rule in the High Court and at quarter sessions seems very sound and based upon common sense and justice. The court must continue to exercise its jurisdiction over the whole case until the judgment of the court; and there can be no ground in law or common sense which requires a court to become functus officio as to part of its jurisdiction, namely, the finding of guilt, during the hearing of the case.
How, then, has this division of functions come about in the case of a court of summary jurisdiction?

[1971] A.C. 481 Page 506

Unfortunately it all stems from a misunderstanding of the word “conviction” in the case of Rex v. Sheridan [1937] 1 K.B. 223. The primary meaning of the word “conviction” denotes the judicial determination of a case; it is a judgment which involves two matters, a finding of guilt or the acceptance of a plea of guilty followed by sentence. Until there is such a judicial determination the case is not concluded, the court is not functus officio and a plea of autrefois convict cannot be entertained. This has been the law from the earliest times: see Hale’s Pleas of the Crown (1778), Vol. 2, ch. 32, p. 251, and it is equally applicable in a court of summary jurisdiction (see Rex v. Harris (1797) 7 Durn. & E. 238).
In two cases in the first half of the nineteenth century Cresswell J. made this very plain: see Reg. v. Ackroyd and Jagger (1843) 1 Car. & Kir. 158, and in Burgess v. Boetefeur, 7 Man. & G. 481, Cresswell J. expanded what he had said in Ackroyd’s case. See also Coleridge J. in Reg. v. Drury(1849) 3 Cox C.C. 544, 545. The principle was summed up very neatly by Patteson J. in Reg. v. Stonnell (1845) 1 Cox C.C. 142. The Act 7 & 8 Geo. 4, c. 28, s. 11, provided that a certificate for a previous conviction for felony need contain only “the substance and effect” of the indictment and conviction for the previous felony. Patteson J. said of the words substance and effect “that they must mean not only the fact of the conviction by the jury, but also the sentence of the court, for till judgment there is no perfect conviction.” Put in another way, there is no decision until sentence, see Reg. v. Essex Justices, Ex parte Final [1963] 2 Q.B. 816.
But the word “conviction” is used also in a secondary sense, that is, to express a verdict of guilty or acceptance of a plea of guilty before the adjudication which is only completed by sentence. Not only is the word used frequently in this sense in many judgments, but also in many places in statutes dealing with these matters. As Tindal C.J. said in Burgess’s case, 7 Man. & G. 481, 504: “The word ‘conviction’ is undoubtedly verbum equivocum. It is sometimes used as meaning the verdict of a jury, and at other times, in its more strictly legal sense, for the sentence of the court.”
Mr. Hodgson for the respondents drew our attention to a number of sections in the Magistrates’ Courts Act, 1952, where the word “conviction” was used in its primary sense of an adjudication upon the whole matter and to other sections where it was used in the sense of verdict. Indeed, in section 126 (3) it is used in the one sense and in section 126 (9) in the other sense.
So, too, in the Coinage Offences Act, 1861, the word “conviction” was used in its secondary sense. This was clearly pointed out by Hawkins J. in Reg. v. Blaby [1894] 2 Q.B. 170, 171 and 172, but for the purposes of that case it was not necessary that there should have been a judgment.
In Sheridan’s case [1937] 1 K.B. 223 the magistrate proceeded to deal with the matter in a summary way and he found the accused guilty, but he then decided that it was too serious for him to deal with and, as then there was no procedure whereby he could send the matter to sessions for sentence, he committed the accused for trial. The accused came before London Sessions and pleaded autrefois convict. The matter came before the Divisional Court where it was urged by well-known counsel for the

[1971] A.C. 481 Page 507

prosecution that there was no conviction for the purposes of the plea but he did not cite the earlier cases which I have mentioned and referred only to Reg. v. Blaby [1894] 2 Q.B. 170. Unfortunately the Divisional Court misunderstood that case and the use of the word “conviction” in its secondary sense, and sustained the plea of autrefois convict. This was contrary to all earlier authority and cannot be regarded as stating the law correctly, though it may well be that the actual decision can be supported on other grounds.
Sheridan’s case [1937] 1 K.B. 223 was very shortly afterwards followed by Rex v. Grant [1936] 2 All E.R. 1156, where the magistrates accepted a plea of guilty but then committed the accused for trial, and it was held that the plea of autrefois convict must succeed.
These cases lead understandably enough, in order to do justice to the accused, to some rather artificial practices such as accepting a plea of guilty provisionally, as explained by Widgery J. in Reg. v. Blandford Justices [1967] 1 Q.B. 82; or in the “guilty but …” cases, an expression used by Lord Goddard C.J. in Reg. v. Durham Quarter Sessions, Ex parte Virgo [1952] 2 Q.B. 1 to describe the type of case where the accused pleaded guilty but then or at some later stage of the trial showed that he misunderstood the nature of the plea for his explanation showed that he should have pleaded not guilty.
But the logical conclusion to the reasoning of Sheridan’s case [1937] 1 K.B. 223 was that not only could the accused plead autrefois convict but that he could not thereafter be permitted to withdraw his plea. And so it was interpreted in Reg. v. Guest, Ex parte Anthony [1964] 1 W.L.R. 1273, where the court felt driven to reach the conclusion that the magistrate was functus officio as to the finding of guilt but not so as to sentence; and so in Reg v. Gore Justices, Ex parte N. (An Infant) [1966] 1 W.L.R. 1522.
My Lords, it seems to me clear that the law plainly took the wrong turning in Sheridan’s case[1937] 1 K.B. 223. The court, whether High Court, quarter sessions or a court of summary jurisdiction, retains full jurisdiction over all matters before it until sentence, that is, until the final adjudication of the matter; and the reasoning in Sheridan’s case and the cases of Grant [1936] 2 All E.R. 1156; Guest [1964] 1 W.L.R. 1273, and Gore Justices [1966] 1 W.L.R. 1522, which followed that reasoning must be treated as overruled. In future it will be quite unnecessary to accept a provisional plea or to resort to the “guilty but …” artifice. If the court upon all the facts before it, thinks it is proper to accept a plea of guilty then the court may permit that plea to be withdrawn and a plea of not guilty accepted at a later stage up to sentence, that is, until the complete adjudication of conviction.
But my Lords, it is hardly necessary to add that this discretionary power is one which should only be exercised in clear cases and very sparingly. I would only add that your Lordships have not had to consider the complications caused by the statutory power of magistrates to send cases to a higher court for sentence – see, for example, Reg. v. Riley [1963] 3 All E.R. 949 and I express no opinion thereon.
So I would answer the first question in the negative.
So I turn to the second question. This has not been argued before

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your Lordships so I shall content myself with saying that I can see no reason, as at present advised, why there should be any difference.
As to the third question I would answer it in the affirmative.
For these reasons I would allow this appeal.
Appeal allowed.
Solicitors: Adam Burn & Metson for Conn, Goldberg & Co., Manchester; Sharpe, Pritchard & Co., for D. S. Gandy, Manchester.

J. A. G

Chan Ching-chi v R [1965] HKLR 598

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CHAN CHING-CHI v THE QUEEN
3 June, 1965

Appellate Jurisdiction

AJ

(Criminal Appeal No. 261 of 1965)

Citations:
[1965] HKLR 598

Presiding Judges:
Huggins, J.

Phrases:
Criminal law and procedure – Criminal law – dangerous drugs – unlawful possession – plea of guilty – appeal against conviction out of time permitted – doubtful whether plea was unequivocal – appeal allowed – trial de novo

Facts:
The appellant, a first offender, had pleaded guilty to possession of dangerous drugs and sentenced by a magistrate. He appealed for a review of sentence which was refused. He appealed against sentence.

In support of his appeal he urged his innocence.

The Court granted leave to appeal out of time against conviction.

Held:

1. Although the appellant admitted the facts outlined by the prosecutor, there was no admission that he knew that the bags in his possession contained dangerous drugs;

2. The presumption of knowledge under section 15 of the Dangerous Drugs Ordinance, Cap. 134, was rebuttable;

3. There was some doubt whether the appellant appreciated that knowledge was an essential ingredient of the offence;

4. To eliminate the possibility of injustice it was desirable for a trial de novo.

Appeal allowed, new trial ordered.

Counsel In The Case:
Appellant in person.
N. R. Macdougall, Crown Counsel, for the Crown.

Cases Cited in the Judgement:
R. v. King’s Lynn Justices, ex parte Fysh, [1964] Crim.L.R. 143.
R. v. McNally, [1954] 2 All E.R. 372.
R. v. West Kent Quarter Sessions, ex parte Files, [1951] 2 All E.R. 728.

Details of Judgment:

Huggins, J.:-

HKLR 599

The appellant, a first offender, was sentenced to two and a half years’ imprisonment for unlawful possession of one ounce of diacetylmorphine hydrochloride. He appeals against sentence. In fact five days after the hearing he applied to the learned magistrate for a review of sentence but no review was allowed. The ground of the refusal to grant a review was that the ground of the application was one which did not commend itself to the learned magistrate, namely, that the appellant alleged he was not in possession of the drugs at all. The magistrate said that there had been an unequivocal plea of guilty and he was convinced that the application was merely a consequence of the appellant’s having received a greater sentence than he had hoped for. In his reasons and findings the learned magistrate has set out the well-known English cases of R. v. King’s Lynn Justices Ex parte Fysh ([1964] Crim. L.R. 143), the R. v. West Kent Quarters Sessions, Ex parte Files ([1951] 2 All ER 728), and the R. v. McNally ([1954] 2 All ER 372) as the basis of his decision.

Before me the appellant again urged his innocence in support of his appeal against sentence and I thought it right to give him leave to appeal out of time against his conviction so that I might consider the matter. The authorities cited by the learned magistrate are very clear but there is one aspect of this case which has caused me some concern. The charge, as I say, was unlawful possession of dangerous drugs and “possession” is a concept which causes difficulty even on occasions to lawyers. The magistrate has very reasonably emphasized that the appellant admitted the facts outlined by the prosecutor but, as recorded, they show only that two bags containing drugs were found in his pocket and that when cautioned he asked for a chance. There was no admission that he knew what the bags contained. Of course by virtue of s.15 of the Dangerous Drugs Ordinance possession of the bags would create a presumption that he knew the nature of the contents but it is a presumption which could be rebutted. The question is whether the appellant appreciated that knowledge was an essential ingredient of the offence. He may well have done so but what *600 he said upon the application for a review makes it just possible that all he meant to admit at the original hearing was that he had possession of the bags without knowing the contents. That would not be an unequivocal plea of guilty. Whether he would have been believed had he given evidence on the lines of his statement upon the review may be questionable but I cannot say that must have been disbelieved. The case is a doubtful one and do not criticize the learned magistrate for the view he took. Nevertheless, it is, as I have indicated, just possible that injustice could result and I think it would be desirable to put the matter beyond doubt by ordering a trial de novo. The appeal is allowed accordingly and in the circumstances J say nothing about the sentence which was imposed.