[1955] EACA 336

## COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and BRIGGS, Justice of Appeal

#### DEREK LAWRENCE SEARLE, Appellant (Original Accused)

### REGINAM, Respondent Criminal Appeal No. 59 of 1955

(Appeal from the decision of H. M. Supreme Court of Kenya, Paget Bourke and and de Lestang, J. J.)

European—Right to be tried as European—Plea—Appeal against magistrate's refusal to allow retraction of plea of guilty—Jurisdiction of magistrate to try European-Criminal Procedure Code, Part VII, sections 218, 219, 221, 224, 348 $(1)$ and 363.

The appellant, a European, was convicted by a magistrate of an offence under section 104(1) Penal Code on his plea of guilty. Before sentence was passed he unsuccessfully sought to retract his plea.

On first appeal to the Supreme Court, it was submitted that the magistrate had, in refusing the change of plea, exercised his discretion wrongly, but the Supreme Court held that as there had been a plea of guilty, it had no jurisdiction, by virtue of Criminal Procedure Code, section 348 (1), to hear the appeal except against the extent or legality of sentence. It did not, therefore, examine the question of the alleged wrongful exercise of the magistrate's discretion.

It was argued that the appeal was, in essence, an appeal against the magistrate's order refusing to allow the appellant to change his plea and the Supreme Court had, thus, misdirected itself in holding that the appeal to it was against conviction which it had no jurisdiction to entertain.

It was also argued that because the appellant was obviously a European and the offence with which he had been charged carried with it the liability to imprisonment for a term exceeding six months, notwithstanding that even before he was charged the appellant had stated that he wished to waive his rights as a European, the magistrate had no option, once the appellant had been brought before him, but to conduct a preliminary inquiry under Part VII of the said Code. It was conceded that Part VII must be looked at as a whole, but it was contended that section 218 therein is mandatory and is not altered or modified by the provisions of section 221 and that the words "save as hereinafter provided" with which section 218 opens refer only to section 219 of the Code.

Section 218 aforesaid reads: "Save as hereinafter provided, every case in which a European shall appear before a subordinate court accused of an offence punishable with imprisonment which may exceed six months shall be inquired into under Part VIII as if the offence were one triable exclusively by the Supreme Court. $\ldots$ "

Section 219 commences: "Notwithstanding anything contained in the preceding section, a subordinate court of the first or second class may try and pass sentence according to law upon a European in any of the following cases...."

Section 221 of the Code reads: "If an accused person does not claim to be a

European when before the subordinate court before which he is tried or by which he is committed for trial, or if when such claim has been made and disallowed by the committing court it is not again made before the Supreme Court, he shall be held to have relinquished his right to be dealt with as a European and shall not assert it at any subsequent stage of the same case."

Section 224 of the said Code provides: "(1) When any person claims to be dealt with under this Part, he shall state the grounds of such claim to the subordinate court before which he is brought for the purpose of inquiry or trial, and such court shall, if necessary, inquire into the truth of such statement and allow the person making it reasonable time within which to prove that it is true and shall then decide whether he is or is not a European. (2) If any such person is convicted by such subordinate court and appeals from such conviction, the burden of proving that the decision of the subordinate court on such claim was wrong shall lie upon such person. (3) The question of any person claiming to be dealt with as a European is a question of fact for the court."

By section 348 (1) of the Code: "No appeal shall be allowed in the case of any accused person who has pleaded guilty and has been convicted on such plea by a subordinate court, except as to the extent or legality of the sentence.'

Section 363 of the Code deals with the powers of the Supreme Court on revision.

Held (5-4-55).—(1) The appellant having pleaded guilty before the magistrate, the appeal<br>before the Supreme Court was governed by section 348 (1) aforesaid. It might be that<br>the appellant could have asked the Supreme Court trate's ruling relating to the retraction of the plea in the exercise of its revisional jurisdiction or the Supreme Court might have considered the matter in revision on its own motion, but there was no application in the matter before the said court.

(2) Approving $R$ . $v$ . *Pope and Sciarra*, sections 221 and 224 aforesaid require that a claim shall be made before the special provisions relating to the trial of Europeans afforded by Part VII aforesaid become applicab

Appeal dismissed.

Cases referred to: R. v. Pope and Sciarra. 18 E. A. C. A. 134; R. v. Durham Quarter Sessions, (1952) 1 A. E. 466; R. v. West Kent Quarter Sessions, (1951) 2 A. E. 728;<br>Morelle Ltd. v. Wakeling, 1 A. E. 708.

Salter, Q. C. (Parry with him) for appellant.

Templeton and O'Beirne for respondent.

JUDGMENT (prepared by Nihill (President)).—This is a second appeal from a judgment of the Supreme Court of Kenya dismissing an appeal from a conviction entered against the appellant in a Resident Magistrate's Court at Nairobi of an offence under section 104(1) of the Kenya Penal Code. The appellant was convicted on his own plea of guilty which subsequently, before sentence was passed upon him, he sought to retract. The learned magistrate refused to allow him to do this, and on 10th December, 1954, sentenced him to undergo four years' imprisonment with hard labour. The appellant had been convicted on his own plea on 19th November, 1954. It is not necessary here to review the circumstances accountable for the long interval between conviction and sentence.

On appeal to the Supreme Court it was submitted that the magistrate had exercised his discretion wrongly in refusing to allow the appellant to withdraw his plea, and that the sentence passed on him was excessive. On his appeal against the sentence the appellant succeeded in obtaining a substantial reduction, but the remainder of his appeal was dismissed. The Supreme Court held that since his appeal was in terms an appeal against his conviction and that since he had pleaded guilty on 19th November, 1954, the court by reason of the provisions of section 348 (1) of the Kenya Criminal Code had no jurisdiction to hear his appeal except as to the extent or legality of the sentence. It should be observed here that in

consequence of this finding the appellate court below did not examine the question whether the learned magistrate had exercised his discretion wrongly in refusing to allow the appellant's plea to be retracted.

In the memorandum of appeal to this Court it has been submitted in ground two that the court below misdirected itself in holding that the appeal was an appeal against conviction, which it had no jurisdiction to entertain. The first ground of appeal, which was not before the court below for a reason which will become clear hereafter, alleged that the learned magistrate had no jurisdiction to accept a plea of guilty, or any plea from the appellant, or to deal with the case before him in any way except by holding a preliminary inquiry. After hearing Mr. Salter on both these grounds, we found it unnecessary to call upon the Crown for a reply, and we now give our reasons for dismissing this appeal.

It will be convenient, we consider, to take the second ground of appeal first. We are fully persuaded that the learned Judges in the court below, on the appeal as presented to them, came to a perfectly correct conclusion. Mr. Salter has submitted that the appeal, in essence, was an appeal against the magistrate's order refusing to allow the appellant to retract his plea, but his difficulty here is that no right of appeal against an order or ruling of this kind is given under the provisions of Part II of the Criminal Procedure Code. No doubt it was for this reason that the appeal had to be framed as an appeal against the judgment. which convicted the appellant. There are cases, of course, where an appellant may attack a conviction entered after a plea of guilty has been recorded on the ground that his plea did not in fact amount to an unequivocal plea of guilty and the court had wrongly accepted it as such. The instant case is not one of these, because it cannot be questioned, and has not been questioned, that on 19th November the appellant did in fact plead guilty in an unequivocal manner. Accordingly the court below had before it a position precisely covered by section 348 (1) of the Criminal Procedure Code. It may be that the appellant could have asked the Supreme Court to consider the merits of the magistrate's ruling refusing a retraction of the plea in the exercise of its revisional jurisdiction under section 363 of the Criminal Procedure Code. Under the terms of the same section the Supreme Court might have considered the matter in revision on its own motion, but no application to do so was before it, and we cannot say that the court should have done so. This disposes of this ground of appeal.

We now come to the first ground of appeal which we have summarized above. This ground depends upon the construction to be placed on those sections of the Criminal Procedure Code grouped under Part VII under the title "Special provisions relating to the trial of Europeans". We have been told, and we accept as a fact that this appellant is undoubtedly a European. It has been argued by Mr. Salter that because the appellant is obviously a European and the offence with which he was charged carried with it the liability to imprisonment for a term exceeding six months, the magistrate had no option, once the appellant was brought before him, but to conduct a preliminary inquiry under Part VIII of the Criminal Procedure Code. It matters not, according to Mr. Salter that this appellant, even before he was charged, is recorded as having stated that he wished to waive his rights as a European. This point was not taken on appeal in the court below for the good reason that it must have been rejected, for the court would have been bound by the decision of this Court in the case of $R$ . $v$ . Pope and Sciarra (18 E. A. C. A., page 134). In that case the provisions of Part VII of the Kenya Criminal Procedure Code were considered in detail and the court decided that unless a person brought before a subordinate court claimed to be a European the special privileges afforded to Europeans by Part VII did not apply. If, therefore, an accused person stated to the court that he relinquished his rights to be tried as a European, that was the same thing as not claiming to be a

$\ddot{\phantom{0}}$

European "for the purpose and effect of Part VII". Mr. Salter, faced with the difficulty of this decision, has asked us to say that it was an erroneous one, or one at least which should now be reviewed by a full bench. It is true that in the the Pope case, the appellants being unrepresented, the court did not have the advantage of a contrary argument since the Attorney-General supported a construction of the provisions of Part VII which this Court subsequently approved in its judgment. We, however, have had the advantage of Mr. Salter's argument, but, having heard it, we feel bound to say that he has not succeeded in raising any doubt in our minds as to the correctness of the judgment in *Pope's case*. Although Mr. Salter had to concede that this Court was right in looking at the provisions of Part VII as a whole, he has insisted that section 218 is mandatory and is not altered or modified by the provisions of section 221. He also argued that the words "save as is hereinafter provided", which are the opening words of section 218 refer only to section 219 and not to the later sections. In our view section 219 only comes into play after the court is seized of the fact that the accused person before it has claimed to be a European and that claim has been accepted. The section then sets out a variety of circumstances in which if they obtain, the subordinate court may instead of committing the "European" for trial, deal with the case itself. Mr. Salter has told us that in his experience the practice in Kenya has almost invariably been that when an obvious European is brought before a magistrate charged with a serious offence, the magistrate immediately starts a preliminary inquiry, and that if a prima facie case is made out the accused is then informed of the magistrate's powers to deal with the case himself, and the accused's consent obtained where that is necessary. It is apparent from the judgment in *Pope's case* that the court was also informed of this practice, for it dealt with the point in the following passage.

"The question we have to decide in this appeal, however, is not whether the local practice is or has been, but, what in law it must be. That question depends upon a correct construction of Part VII of the Criminal Procedure Code."

We can understand the reason behind the practice, which quite possibly is due to the fact that a magistrate might feel some embarrassment in asking an accused person, who seemed to him obviously a European whether, in fact, he was one. The question, however, need not be put quite in that way; if subordinate courts will read and digest the judgment of this Court in *Pope's case*, magistrates will see that what they have to discover where an obvious European is before them, is whether he wishes to be considered as a European for the purposes of claiming special privileges afforded to Europeans by Part VII of the Code. There will of course still be cases where the claim may be made, and rejected by the court. As we have said, we have now had the advantage of a full argument contrary to the construction placed by this Court on the provisions of Part VII in Pope's case, and we are satisfied that the decision was a correct one and is binding on us.

We are supported in this view by a review of what we might call the historical background surrounding the special privileges afforded to Europeans by the law of Kenya (by European we of course mean a person of European origin, or descent, or an American who is not of an origin or descent other than European, vide the definition in section 2 of the Criminal Procedure Code). In British India, similar privileges attached to Europeans under the then provisions of the Criminal Procedure Code, and it was consistently held that to obtain these privileges they had to be claimed. In the early days of British settlement in East Africa the only Code of criminal procedure in operation was the Indian Criminal Procedure Code. In 1913 there was enacted by the Governor of the East Africa Protectorate an Ordinance cited as the Criminal Procedure Ordinance. In this Ordinance, Part VIII, headed "Special Proceedings", there is a chapter intituled "Trial of Europeans". Section 350 (1) in this chapter reads as follows: -

"Unless the magistrate has reasons to believe that any person brought before him is not a European, the magistrate shall ask such person if he is a European."

It will be observed that this section laid down in the clearest terms that when a magistrate had a person before him who looked like a European it was incumbent upon him to ask him if he was a European. Further, by sub-section (2) of the same section (which corresponded to section 221 of the present Code) if the person did not claim to be a European when before the magistrate, the subordinate court had jurisdiction to proceed as if the person was not a European, and the person accused could not raise the point again at any subsequent stage or in any other court, unless his claim to be a European had been made and disallowed by the magistrate. Mr. Salter agreed that under the 1913 Code the claim had to be made, but he has submitted that the dropping out of the section requiring the magistrate specifically to put the question has brought about an alteration in the law. We cannot accept this submission, because, following *Pope's case*, we. hold that the wording used in sections 221 and 224 clearly require that a claim shall be made before the special provisions relating to the trial of Europeans become applicable.

For these reasons, as we have already indicated, this appeal fails and must be dismissed.