ARGUING THAT A CONVICTION FOLLOWING A GUILTY PLEA WAS WRONG: GUIDANCE FROM THE COURT OF APPEAL

In  Munir v Revenue And Customs [2021] EWCA Civ 799 the Court of Appeal considered the steps available to a litigant who wished to argue that a criminal conviction was erroneous.  In particular a litigant most probably needs to waive privilege on the advice he was given if they were convicted on a guilty plea.

“There is no difficulty in a person who wishes to contend in any forum that he was wrongly convicted in a criminal court on his own plea waiving privilege and placing that advice in evidence.”

THE CASE

The appellant was attempt to appeal a finding of the Upper Tribunal that he had been involved in holding excise goods on which duty had not been paid. The appellant had pleaded guilty in the criminal courts of an offence of being knowingly concerned in a fraudulent attempt of evasion of duty.  The Upper Tribunal had relied on that conviction.

THE COURT OF APPEAL JUDGMENT ON THE RELEVANCE OF THE CONVICTION

31. Spencer J in CXX v. DXX [2012] EWHC 1535 (QB) helpfully summarises the law on the weight which should properly be given to a conviction, which, in a court, would be admitted under section 11 of the Civil Evidence Act 1968. He reviews a difference of opinion between Buckley LJ and Lord Denning MR in Stupple v. Royal Insurance Co Ltd [1971] 1 QB 50. Lord Denning held that a conviction was a “weighty piece of evidence of itself”. Buckley LJ preferred the view that the conviction was simply a trigger which reversed the burden of proof but had no weight of its own. Spencer J followed the view of the editor of Phipson on Evidence, now found in the 19^th Edition at 43-87 to 43-89. I agree with Spencer J as a matter of principle, but do not regard the question as fundamental to the resolution of this appeal. This conviction was entered by way of a guilty plea, by a person who had the benefit of legal advice and representation throughout the proceedings. The FTT judge had access to the underlying material, which set out the strength of the prosecution case as well as what criminal conduct was alleged. Whether as a matter of the law of evidence a conviction has a weight of its own is not decisive where, as here, the court has all the material necessary to assess its weight. The guilty plea was an admission against interest, and, even now, no aspect of the prosecution case is challenged. This could only rationally be regarded as weighty evidence.

1. 1. Given that section 11 of the Civil Evidence Act 1968 does not strictly apply, it is open to the FTT to adopt the same approach to evidence of a conviction if it thinks it right. That is what occurred in Atlantic Electronics Ltd. v. HMRC [2013] EWCA Civ 651, [23]. It was necessary to enact this common-sense approach to the evidential value of criminal convictions in order to modify the rule in Hollington v. Hewthorn &Co Ltd [1943] K.B. 587 in civil proceedings. No equivalent legislation is required where the strict rules of evidence do not apply. Criminal convictions are the result either of a confession by the entering of a guilty plea before a court, or proof to the criminal standard. There is a right of appeal, and a person may also apply to vacate a guilty plea to the trial court. On the face of it, a criminal conviction is compelling evidence of guilt in cases where the civil standard of proof is engaged, unless there is some compelling evidence to show that it would be wrong to accept it as such. That is particularly true in this case, for the reasons given in the previous paragraph. The FTT and the Upper Tribunal were not, therefore, wrong to apply the machinery of section 11 of the 1968 Act.

1. 1. In this case, there are suggestions that Mr. Munir has said that he pleaded guilty because he was advised to do so by his solicitor and was told that he would not be sent to prison if he did. He has never set out in writing exactly what he says about this, although it must have been obvious to him that his conviction was important, and that was carefully explained to him by the FTT in March 2018. There is nothing from his solicitor to explain how her client came to plead guilty to an offence of which he was not guilty, if that is what happened. The FTT judge said this when summarising part of HMRC’s submission:-

“13. ……The only important factor is that he pleaded guilty and not the reasons for doing so (which were the appellant had said that his solicitor advised him to so that he would get the kind of sentence he did and not go to jail).”

1. 1. The Upper Tribunal said this:-

“47. During the course of the hearing before us Mr Munir stated that he had told the FTT that his solicitor had advised him that he was guilty of the offence because he had driven the van without checking what was inside the van. It seems unlikely that the FTT would not have referred to such evidence from Mr Munir if that is what he had said. It also seems unlikely to us that any solicitor would give advice in such terms but of course it may be that Mr Munir misunderstood the advice he was being given. We take into account the possibility that Mr Munir misunderstood the advice he was given in our consideration of all the evidence.”

1. 1. I understand the last part of this passage to mean that the Upper Tribunal was having regard to a possibility, namely that the appellant did not understand the legal advice he received, which it then discounted in making its finding that he would have no reasonable possibility of showing that he was wrongly convicted. It appears that the explanation of the plea recorded by the FTT judge must have come to him during the hearing, because it is not written down anywhere, although the judge does not say that. It is not what the appellant said he had said when appearing before the Upper Tribunal. What the FTT judge has recorded does not involve a denial of guilt. People often plead guilty to offences where they recognise their chances of acquittal are slim and they hope for a lighter sentence. That does not mean that the conviction is unsafe or not probative of guilt in subsequent civil proceedings. What emerged for the first time before the Upper Tribunal is a denial of guilt, and a short account of the faulty advice which is said to have led to the pleas. The Upper Tribunal’s first observation, namely that it seems unlikely that the FTT judge would have written down something so different from what the appellant was saying, seems to me to be the most telling. That observation would justify a finding that the appellant’s case as to why he had pleaded guilty had changed between the FTT and the Upper Tribunal. At all events, it appears that the appellant never said in terms to the FTT judge that he was innocent, but had pleaded guilty anyway because of advice from his solicitor. Had he done so, I would expect the judge to have ensured that full details of what he said about that advice were recorded in the judgment. As I have said, there is nothing at all in his representations to the Review or in his written materials prepared for the appeal which deals with this, and so care was required in establishing exactly what was being said before reliance could be placed on it. The FTT judge failed to record what was being said, it seems, and certainly failed to subject it to any real scrutiny. Given that he was being asked to decide whether the appellant had anything to say of sufficient credibility which might undermine the probative effect of the conviction, these were serious failures. When considering whether a defence has a real prospect of success, a judge must not abandon his critical faculties and is not obliged to accept what a defendant says without analysis: Calland v. Financial Conduct Authority [2015] EWCA Civ 192, [28]-[29].

1. 1. It is easy to see why the appellant may have concluded that his chances of being acquitted were slim. When he saw the police he first tried to escape by driving away, and then by running away. His explanation, that he feared nothing worse than being prosecuted for driving without a licence or insurance, is an obvious lie. He had £4,065 cash about his person (not in the back of the van) which belonged to his boss, so he said, and which was the proceeds of crime. That led to the second charge to which he pleaded guilty, and which he explained in interview had been given to him by a friend of his boss whose name he did not know. The money was to be taken to the boss. Even assuming that any of this is true, it is inconsistent with the appellant being merely an innocent dupe who was paid £30 to drive a van from one place to another without any idea what was in it. It generates an inference that he was a highly trusted accomplice of the person who trusted him with the cash. The evidence is silent on the reason why he did not have a key to the back of the van when he was arrested, but the reason does not appear to be that the owner of its contents did not trust him to exercise his control of them in accordance with their agreement. If that were the position, he would not have been trusted with £4,065 in cash. The owner of the cash, according to the appellant, is the same person for whom he was working when driving the van. The appellant told the police that he did not know what sort of work this man does and only knows him because he sometimes offers casual work through the local market. He was not sure that the name he gave, Hama Hussein, was his real name. It is unsurprising that the appellant entered guilty pleas and did not put this forward at a trial. It is also unsurprising, if it is the case, that he was advised he would probably be convicted if he did.

1. 1. For these reasons I conclude that the Upper Tribunal’s findings at its paragraph [36], which I have set out at [25] above, were entirely right. The FTT judge had erred in law by failing to take account of all the relevant facts. Had he done so, he would have been driven to the same conclusion which the Upper Tribunal later reached.

1. 1. As I have recorded above, the Review of the Assessment concluded that the appellant was the holder of the goods within HMDP Regulation 10(1). The Upper Tribunal summarised the issue before it as:-

“The only ground on which Mr. Munir might possibly succeed is that he had no knowledge that the van contained excise goods on which the duty had not been paid. If Mr. Munir were able to establish that fact then he might reasonably argue that he was not holding the goods or involved in holding the goods within regulation 10(1) or regulation 10(2) HMDP Regulations.”

1. 1. The potential significance of Regulation 10(2) to this case appears first to have been raised in the HMRC Grounds of Appeal to the Upper Tribunal. An issue might perhaps arise as to whether it is appropriate to uphold an assessment made against a person under Regulation 10(1) as the holder of goods, on the basis that he is liable under Regulation 10(2) on the basis that he is not the holder, but is involved in holding the goods. In this case, in my judgment, that issue does not arise because the Assessment correctly identified the appellant as the holder. He had de facto control over the goods, subject perhaps to obligations to his boss in relation to how he exercised that control. He was the driver of the van and in sole control of where they went. The only live issue in this case was whether he knew that they were in the back of the van. That was resolved against him by the conviction which he had no reasonable prospect of showing was wrong. Accordingly, it is not necessary to decide whether HMRC should be permitted to put its case in the alternative at the appeal stage, having not done so when making and reviewing the Assessment.

1. 1. The second issue which the judge identified when granting permission has not been argued before us. Mr. Ahmed accepts in his skeleton argument that it is open to the appellant to waive privilege in the advice he received prior to pleading guilty if he wishes to rely on it. There is no difficulty in a person who wishes to contend in any forum that he was wrongly convicted in a criminal court on his own plea waiving privilege and placing that advice in evidence. The Court of Appeal Criminal Division frequently encounters cases of this kind, and has a well-established process for securing waivers of privilege and comments from previous legal advisers and representatives, see R v. McCook [2014] EWCA Crim 734.

1. 1. If legal professional privilege were waived evidence could be adduced about the circumstances in which the plea was entered in an endeavour to show that the admissions then made were not true. This would be subject to the power of the court to strike out a case which amounted to an abusive collateral attack on a subsisting conviction. The circumstances in which that power might be exercised where the challenge was mounted in defence of a claim, as opposed to by a claimant advancing a case which was inconsistent with a subsisting conviction, have not been authoritatively established, and I do not think that it is necessary for the disposal of this case to deal with that question now. HMRC has not alleged that the appellant should be prevented from adducing his evidence for this reason. They have suggested that he has never produced any indication of what evidence he might be able to supply, and that what little he has said about the conviction is inconsistent and incomplete.