“Addendum Defence Statement 1. Having seen the defence statement served on my behalf yesterday for the first time, I would like to add the following: 2. On the night in question, I was with a married Irish Woman in Edgware; the following day I went to Stanmore to do some work with my uncle. 3. Paragraph 9 of my defence statement refers to the complainant’s new boyfriend. It should say that he was not a member of the travelling community.”
“ Endorsement 1. I remember that on the night of the incident I was with an Irish lady in Edgeware. 2. I do not want to name this woman or call her as a witness, because that would bring shame on her. 3. I am aware that this may damage my case and that I am likely to be cross examined about it.”
“1. Because the complainant was so devious, he was convinced the jury would believe her. 2. He wanted to go up and ‘put his hands up’ in front of the judge. 3. He wanted to be sentenced today.”
“1. John Berry went to Mary-Anne Connors’ flat in the evening. They talked and drank together. 2. They eventually got into an argument. She was screaming. She came at him with a knife. He grabbed the knife and pushed her. His finger went into her mouth. She bit down. He slapped her. She bit down harder. 3. He punched her three or four times. The incident was very quick. She was knocked out on the floor and she he walked off. That was the last time he saw her that night. 4. There was no weapon. There was no kicking.”
“… although the Applicant was by now clearly anxious (as many defendants are in similar circumstances), he was perfectly lucid: he gave a full and coherent account of what he said had happened; he was clear that he wanted to ‘put his hands up’ and plead guilty; he knew a long sentence would follow (I’ll get 10 years won’t I?); he asked to be sentenced today; and he was perfectly capable of raising whether I felt an extended sentence was likely (pointing out that probation had raised IPP sentence in the past when those sentences were still available: he knew, without any explanation from me, that IPP sentences were now a thing of the past.”
“Endorsement Re Basis 1. I am at trial for a s18 offence. The prosecution say that I assaulted my ex-partner Mary Anne Connors in July 2017. 2. The complainant and her Mother are now at court. I have decided to plead guilty. I have set out in my basis of plea what I remember happening. I accept that I am guilty of the offence. 3. No pressure has been put on me to change my plea. My barrister has explained we are ready for a trial. 4. I would like my basis of plea to be given to the prosecution and considered with the complainant.”
“The prosecution do not accept the basis drafted. What is written in my basis is true. I understand that we will need a Newton hearing. If the Judge finds against me I know I may lose what little credit may be left.”
“One, I did not put any pressure on Mr Berry to plead guilty. The suggestion that he might change his plea came from him. He told me that he wanted to put his hands up in front of the judge and asked if he could be sentenced on the same day. He signed an endorsement confirming, among other things, that pleading guilty was his choice. I had read it to him in full. I was ready for trial, having done a great deal of work on the case over the weekend and on the first day. We had been given all the disclosure we had requested. And the prosecution had conceded all the non-defendant bad character applications. Two, I did not say that ‘the charge would be reduced’ and am not entirely sure what that refers to. I had made it clear that the prosecution would not accept a section 20 in relation to sentence. I think we discussed that some limited credit might still be available, particularly if the complainant did not want to have to be put through the experience of having to give evidence. In any event, this was after he had told me that he wanted to plead guilty. It was not offered as an incentive. Three, because the prosecution had raised the possibility of accepting a basis, I reminded Mr Berry about this when he said he wanted to change his plea to guilty and asked him to tell me exactly what he remembered happening. I summarised what he had told me in the written basis and read it to him before he signed it. From memory, when we were going through it, Mr Berry told me to change ‘she’ to ‘he’ in the third paragraph. The correction is visible in the document. I asked him in terms, whether what he was saying to me was what had really happened, given the importance of the decision he was making at such a late stage. He told me it was ‘God’s honest truth.’ As set out in the attendance note, Mr Berry seemed to be to be anxious but lucid when he decided to plead guilty and when he went through his basis of plea. It was only when I saw him later on, after lunch, that he told me he was hearing voices. Finally, the submissions states that the basis of plea is equivocal and raises self-defence. I had considered this point. If a jury accepted that Mary-Anne Connors came at Mr Berry with a knife after an argument and then bit down on his finger when he pushed her away, my view was that the force he said he ended up using in response, punching her three or four times hard enough to knock her out and to break multiple bones in her face, would even in the heat of the moment, have been considered excessive.”
“He also conceded that there had been no specific reference to intent and the words ‘intent’ and ‘reckless’ had not been used. But he went on to say that he had canvassed section 20 with the prosecution and had made clear to the defendant that that was not going to be acceptable. He, for his part, had taken the view that this line was simply ‘not a runner’. He made clear, and I entirely accept, that he had thought about self-defence and had discounted it. He had also, I entirely accept – not least in the context of his reflection on section 20, thought about recklessness and had considered that. He said in evidence and again, I accept, that it was his view that there was not the slightest room for doubt that the defendant, on the account he was giving, was guilty of section 18 on the basis reduced to writing. That was something that he said he was completely confident of. He said that he and Mr Berry had discussed a section 20 and he had made it clear that that was not possible. At that stage, the only count on the indictment was the section 18. And he said Mr Berry was in no doubt that he was pleading to the count on the indictment. Mr Williams said that he was completely confident that he knew that he was pleading to the count on the indictment. Had Mr Berry given any instructions to the effect that he had ‘not meant to cause the injuries’, or something of that sort, he – Mr Williams – said that he would have gone on to discuss recklessness and intent, more fully. But Mr Berry was very clear, he said, that he had caused the injuries as a result of the force he had used. In those circumstances, Mr Williams explained, his view was that if he had punched her repeatedly, deliberately and sufficiently forcefully to cause the constellation of injuries recorded, it would be simply completely unrealistic to have suggested that recklessness might have got anywhere. He said that for his part, he was content that Mr Berry had had ample time to discuss and make the necessary decisions concerned. It was put very fairly and carefully to Mr Williams, that in a fairly high-pressured situation, the defendant was perhaps rushed or that he had perhaps, not fully taken on board the issues of intent and the like, which are so central to section 18. That was not something which Mr Williams could or would accept. He did not agree with the suggestion made by Mr Bird that the defendant had somehow made a mistake or there had been a plea to create some sort of damage limitation exercise in response to a high-pressured situation. Mr Williams stressed that the defendant had taken care to say to him that this was ‘God’s honest truth’ and that had been in the context of the discussions about the basis of plea, which was carefully prepared in writing, in the defendant’s presence, read back to him and then, at least in the context of another document, specifically corrected. The defendant knew that a Newton hearing would inevitably follow. He knew that the ABE interview would inevitably be played. Whether there was some confusion in his mind between the ABE interview and the content of the YouTube recording, seems an entirely secondary matter. What matters is that Mr Williams says he was clear that the defendant had been fully, carefully and properly advised.”
“I am bound to say he was agitated during his evidence in court, here but he, nevertheless, was adamant that he was not guilty. He did not dispute the basic narrative. On the second day there was an issue about whether some tramadol tablets had been taken without food and he said he had something of a big head rush, but in fact, that aspect of any difficulty on the 18th, was not pursued further. He said that he was agitated and anxious that day and was adamant that he wanted to prove his innocence. His frustration about lawyers generally and indeed, even Mr Bird, clearly striving to help him today, was apparent.”
“Mr Berry told me that he had ‘never been listened to’ in his whole life. He was strident today in his oral evidence to me, ‘I never did this. Nobody’s listening to me. I’ve got beyond caring. I don’t care what you do’. What he did say about the section 18 matter was that he was simply, never near his former partner’s place at the time. He persists with his alibi. He said that Mr Williams didn’t explain section 18 to him. That Mr Williams didn’t discuss self-defence. That Mr Williams didn’t explain the differences between section 20 and section 18. And he, Mr Berry, was simply admitting to it all so that he could be sentenced today to get it over and done with. He said that he told Mr Williams, he had never done it. And he persisted in that account before me. He was adamant that the complainant was lying in her ABE. He said she was ‘drugged out of her head’. She was ‘contradicting herself’. And he added, ‘You can see she’s a liar’. He went on to say that he was determined not to plead guilty to something he hadn’t done. He said that Mr Williams had told him that he would get ‘12 years IPP’. And he, in response had said that he would then plead guilty. He added, ‘God as my witness, I’ve never done it’. He was very, very distressed when Mr Bird touched very gently and delicately on the question of whether he’d heard voices. Voices had been raised in the previous psychiatric reports, the aetiology or even the genuineness of the voices is in question. But it was plain that Mr Berry was not remotely willing to discuss the voices. ‘That’s no one’s business but mine’, he said angrily, to Mr Bird, who touched on the matter. ‘You shouldn’t have mentioned it’, he rebuked, Mr Bird. Ms Gardiner, on behalf of the prosecution asked Mr Berry in terms, why if this was true, he had put in a written basis of plea which he had signed. And he said that he had done so only because Mr Williams had asked him what he was saying and he ‘had to say something’. He said that the narrative which emerged in the basis of plea, was something that he had simply made up. He said it was ‘a load of lies’. He said, ‘I gave a load of lies to Mr Williams. I was frightened. I had been beaten up in jail. I wanted it over with. I’d had enough. I came up and thought I’m not going to plead guilty to something that I’d not done. A lot of bad things have happened to me. All through my life, I have been blamed for things I can’t recall. I couldn’t take anymore.’ He didn’t dispute that he’d signed the various documents and he said that Mr Williams was ‘telling me to go guilty’. He ‘said the judge wouldn’t take account of anything I said’. He said that the judge, 90 per cent of the time, would listen to the other side and would take her word for it, that he was ‘fighting a losing battle’. He said Mr Williams had told him that ‘her DNA is in my nails and on a can of Coke’. And he, the defendant had replied, ‘What’s the point?’. He said Mr Williams told him different things and he said to him, ‘Are you sure you want to go through with this?’. And he said that he thought he would be better off telling the truth. Now, Mr Berry insisted, he was telling the truth.”
“I’ve not, I confess, found this an altogether easy decision and I have pressed Ms Gardiner on whether, on its face, the basis of plea does have a flavour of equivocality or ambiguity which may need further unpacking. But I regret to say that, having looked at the matter overall, I am very far from persuaded that this is a case where anything of significance has gone wrong in the process. To that extent, I have reached a clear conclusion that this is not one of those very exceptional cases which falls within the Shakeprinciples, where I should allow a represented defendant to change his plea. I am satisfied that across the 17th and 18th of December, there was ample time fully to discuss the key issues. Someone of Mr Williams’ experience, I am satisfied, gave the defendant adequate advice in relation to the centralities of what was implied in his guilty plea. I am satisfied that guilty plea was voluntary, that it was understood and that it was properly entered. I am satisfied that the essential law was shared between counsel and client. I do not discern any deficiencies in the advice Mr Williams gave or the approach he took. I am satisfied that he, at each stage, spelt out sufficient to undergird what was being said by Mr Berry in terms of the causation of injuries. There was no dispute about the injuries themselves and the shift from alibi and blaming someone else, to acceptance himself, was so significant that it cannot but have been something about which, Mr Berry thought carefully. Where his evidence conflicts with that of Mr Williams, I overwhelmingly prefer the evidence of Mr Williams. He struck me as an experienced, careful and wise barrister. I found his attendance note, drawn within 48 hours of this episode, a carefully prepared, rounded and balanced document. I am satisfied that there has been no injustice whatever to Mr Berry in this case and I therefore, refuse his application to vacate his guilty plea.”
“This decision must not be taken as a licence to appeal by anyone who discovers that following conviction (still less where there has been a plea of guilty) some possible line of defence has been overlooked. Only most exceptionally will this Court be prepared to intervene in such a situation. Only, in short, where it believes the defence would quite probably have succeeded and concludes, therefore, that a clear injustice has been done. That is this case. It will not happen very often.”
“The principle does not mean and cannot mean, that the defendant making his decision must be free from the pressure of the circumstances in which he is forced to make his choice. He has, after all, been charged with a criminal offence.”