Regina v Smith: CACD 1990

In the course of a trial, both counsel had seen the judge in chambers, as a result of which defence counsel told his client that the judge had indicated that a suspended sentence would be the outcome if there was a change of plea to guilty. The defendant then changed his plea, but was subsequently sentenced to immediate custody. On the appeal, counsel’s memory of the conversation differed from that of the judge.
Held: It was not possible for the appeal court to resolve such differences. It had been said before that such conversations whilst a necessary incident of a trial, must be held in the presence of a shorthand note taker, and: ‘If nothing else, this appeal demonstrates yet again the problem inherent in out-of-court discussions between counsel and the trial judge in criminal cases. Of course, on the authority of the well known case of Reg. v. Turner (1970) 54 Cr.App.R. 352, in some circumstances it is permissible for counsel to see the judge in his room to ascertain his reaction to possible sentencing options open to him. But that should never occur, as has been said on almost innumerable occasions in this court, in the absence of a shorthand notetaker or, alternatively, in the absence of some recording device. In this case there was neither a shorthand writer present nor a recording device. What has happened here is something that from time to time does happen, namely there has arisen a dispute (not to put too fine a point on it) between the judge’s account of what was said and the account that has been produced for perusal by this court in the form of affidavit evidence from both defending and prosecuting counsel. The dispute comes before this court when it is ill-equipped to resolve conflicts of recollection between counsel and the judge, and where in seeking to do justice, this court runs the real risk of not achieving it. Instead, a thoroughly unsatisfactory state of affairs is created where either the defendant has a genuine sense of grievance or the prosecution has not properly ventilated its case, or both disquieting consequences ensue.
We find it disturbing that despite frequent observations made in this court discouraging unnecessary visits to the judge’s room, they appear to continue up and down the country.’
The Court accepted that the defendant had been misled by his own counsel into believing that the judge had given some sort of undertaking that he would pass a suspended sentence when, according to the judge, no such undertaking had been given. The court quashed the sentences and substituted suspended ones.


[1990] 1 WLR 1311


England and Wales


CitedRegina v Turner CACD 1970
The court considered an appeal where the defendant had entered a plea of guilty but had felt himself under undue pressure from the judge.
Held: The court urged caution in the practice of counsel seeing the judge in his chambers, though . .

Cited by:

CitedLobban, Regina v CACD 7-May-2004
The defendant appealed his conviction. A witness statement had been read, but he had wanted to cross examine her. The court was satisfied that her refusal to give evidence in person was through fear.
Held: In making the decision, the judge had . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 06 May 2022; Ref: scu.199779