Refusal of leave to appeal against a conviction following a guilty plea consequent on the refusal of a stay of proceedings for abuse of process. In cases where a judge had heard the evidence relating to an application to stay for abuse of process, the Court of Appeal was most unlikely to reverse his findings of fact unless satisfied that they were findings that no judge in his position could reasonably have reached.Application for leave to appeal against a conviction based on a guilty plea made after the dismissal of an application to stay the proceedings on the ground that they were an abuse of process. The applicant ('P') was charged with two counts of soliciting to murder. The first count related to when P had allegedly proposed to a police informer ('M') to murder an alleged co-conspirator ('N') in a conspiracy to defraud. The second count related to when P had made the same proposal to an undercover police officer. P applied to stay the proceedings on the basis that he had been entrapped by M and the police officer. A voir dire was held, following which the judge ruled that there was no abuse of process in relation to either count. He held that M was not acting on behalf of the State when he had the conversations with P that led to the charge of soliciting to murder and that P's prosecution on the second count would not be an affront to public conscience. Subsequently P pleaded guilty to the second count. The Crown offered no evidence on the first count. P challenged the judge's ruling on the first count chiefly on the basis that the judge should have excluded the evidence of M. P criticised the judge's failure to draw an adverse inference against M due to his refusal, on the basis of the privilege against self-incrimination, to answer a question put to him on the voir dire suggesting that he was the instigator of the plan to murder N. P's main challenge to the ruling on the second count was that that count was dependent on the first count. Alternatively it was submitted that the undercover operation was authorised on a false basis and/or amounted to a State created crime and was not in accordance with the law. The Crown argued that the guilty plea on the second count and the fact that no evidence was offered by the Crown on the first count effectively prevented P from contending that his conviction on the second count was unsafe.HELD: (1) Where the circumstances of the instant case were as narrowly confined as here, namely even if there was entrapment it could provide no defence if the matter went to trial, it had to be in the interests of justice generally that a defendant could plead guilty and still retain the right to challenge the judge's ruling. That said, the Court of Appeal would only hold unsafe a conviction following a plea of guilty if it would be inconsistent with the due administration of justice to allow the plea to stand (R v T & Ors (2001) 1 CAR 457). (2) In cases where a judge had heard the evidence relating to an application to stay for abuse of process the Court of Appeal was most unlikely to reverse his findings of fact unless satisfied that they were findings that no judge in his position could reasonably have reached. (3) The only issue for an appellate court, in determining whether P's conviction on the second count was safe, was the correctness of the judge's ruling in relation to the second count. However that did not altogether exclude consideration of the evidence of M. It was not for the judge to rule at the voir dire on the admissibility of M's evidence by reference to his claim for privilege. The judge had to assess the evidence called on the voir dire as it was before him. The judge was not bound to draw the inference, from M's refusal to answer the question, that M was the instigator of the planned murder of N. Once, as the judge found, M was not an agent of the State in conducting the relevant conversations with P it did not matter, in relation to the second count, whether it was M or P who instigated the plan to murder N. P, as he accepted by his guilty plea and as was clear from the transcript of his conversations with the undercover police officer, positively sought to develop a plan with that officer under which N would be killed. (4) The whole operation was duly authorised and the judge was entitled to find that any infractions of the provisions of the Regulation of Investigatory Powers Act 2000 were minor. The judge's conclusion that there was no affront to the public conscience in relation to the undercover operation was entirely justified. His reasons were unassailable. (5) It was not contrary to the due administration of justice to allow the guilty plea to stand.Application dismissed.

[2003] EWCA Crim 3109

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