E.R. v Director of Public Prosecutions [2019] IESC 86 (06 December 2019)

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Re. s 3 Non-Fatal Offences Against the Person Act 1997, assault causing harm

Judgment of Mr Justice Peter Charleton delivered on Friday, December 6th 2019

1. At issue on this appeal is the effect of a trial judge intervening during a criminal trial to

give an indication of a suspended, or other lenient, sentence should an accused person

plead guilty to counts on the indictment. Any such intervention is claimed by ER, the

appellant, to profoundly undermine the due course of a trial as guaranteed by Article 38.1

of the Constitution. Where a plea of guilty is entered in the aftermath of such an

indication, this is contended by ER to be void and that such a plea ought to be vacated at

the option of the accused. It is claimed that to fail to vacate that plea is a further serious

breach of fair trial rights. Whether that intervention and subsequent decisions by the trial

judge are, or are not, wrong in law, the Director of Public Prosecutions contends that the

appropriate remedy for errors during a trial is exclusively an appeal and not a judicial

review. That point, however, was not pleaded in the notice of opposition filed as against

the accused’s statement grounding the judicial review application, but was only first

argued, successfully, on appeal from the judgment of the High Court to the Court of

Appeal. Thus, there is an issue as to whether this Court should consider that point.

2. On 26 July 2010, a young boy of four was admitted to the paediatric section of a Munster

hospital. He was already known to the treating physicians and nurses, since he had been

admitted to the paediatric ward for burn injuries previously. On this occasion, he

presented with severe bruising and, because of internal injuries, had to be resuscitated.

Surgery followed by intensive care was required to stem and treat internal bleeding.

Social workers were called because of the history of previous injuries and the gardaí were

notified. Ultimately, the child’s mother and her domestic partner were charged with two

offences: assaulting the boy “causing him harm”, contrary to s 3 of the Non-Fatal

Offences Against the Person Act 1997; and “being a person having custody of a child” that

they “did wilfully assault, ill-treat, cause or allow the said child to be assaulted/ill-treated

in a manner likely to cause unnecessary injury to the child’s health or seriously to affect

his well being”, contrary to section 246 of the Childrens Act 2001.

3. A trial took place before Judge Teehan and a jury but the verdict was one of

disagreement. The accused were retried in October 2016 and the course of the hearing

was one of objection to evidence, trials within the trial, and the judge ruling that evidence

objected to should be admitted in evidence. What then occurred was that the interview

taken with the child victim was played to the jury by way of a video recording of what he

had told the investigating authorities. He then had to be available for cross-examination

by counsel for the two accused. At that point, and in the absence of the jury, Judge

I think it’s probably only fair to say at this stage – it may well be of only academic

interest – but I think it is only proper to point out that before any cross-

examination of the complainant begins and there may have to be two sets of cross-

examination – one before a jury and one before me - that if the accused persons

were to take a certain course in relation to at least one of the counts against them

on the indictment and if that were acceptable to the prosecution, assuming there

are no previous convictions for a similar type of offence and assuming no significant

convictions of any sort had been accumulated since 2010, I could probably see my

way to deal with the matter in a non-custodial way. However, without the

advantage of a plea of guilty – without the benefit, I should say, of a plea of guilty,

if either or both were to be convicted by a jury in relation to these matters, it is

difficult to see at this stage- and I stress as regards everything I say I am subject

… to anything anybody might say in either event; I am certainly not pre-judging

anything – but that it would be difficult for either to avoid a custodial sentence. I

think it is only fair to point that out at this stage. It may well be of academic

interest only to point – to say that now, but if the parties would like a few minutes

4. This happened sometime in the morning of 11 October 2016. Counsel for both accused

asked for time. Returning the next day in the afternoon, both individually pleaded guilty

to assault causing harm. Before that happened, counsel for the Director of Public

Prosecutions told the court that the intervention did not mean that an appeal on sentence

would not be open to the prosecution. Counsel for ER told the court that he had so

advised his client. The male accused was sentenced later, in 2017, to 10 years with 7

years suspended. This was not, it should be noted, a sentence which accords with the

precedents set out in The People (DPP) v FitzGibbon [2014] 2 ILRM 116. Mention of that

sentence in this judgment is not any form of approval. The accused mother was similarly

sentenced in 2017, this time to 8 years suspended imprisonment and the mention of that

is not approval. Neither sentence was appealed by the Director of Public Prosecutions

under s 2 of the Criminal Justice Act 1993 as unduly lenient, notwithstanding the

sentences being outside any prior identified range. What matters in this context is that a

criminal trial begins when the accused is indicted and ends when the accused is

sentenced. This judicial review was commenced by seeking and obtaining leave to initiate

judicial review proceedings prior to the conclusion of the criminal trial.

5. Before being sentenced, the accused mother ER had returned to court on 22 November

2016 and had asked Judge Teehan for leave to vacate her plea of guilty. It should be

clearly noted that since the advice given by an accused’s lawyers is central to any

decision as to whether a plea of guilty was voluntarily made, those representing an

accused should discharge themselves, thereby giving him or her the opportunity to waive

legal professional privilege. In that way, the context in which the plea was made can be

properly explored. Regrettably, that did not happen in this case. Bare evidence was given

by ER that she was influenced by the statement of Judge Teehan in pleading guilty. She

said: “I did that because I didn’t want to go to prison and that was the option I was given

as I’d been stuck between a rock and a hard place and that was the decision I made on

that day.” Having heard submissions, the judge did not permit ER to vacate her plea of

6. On behalf of ER, judicial review was sought in the High Court seeking an order quashing

the decision of Judge Teehan of 22 November 2016 that she should not be permitted to

change her plea. Having tried that matter, Faherty J granted certiorari, in a judgment

dated 27 October 2017, as against that decision, stating at paragraph 39:

While I would not characterise the trial judge’s intervention as akin to a plea

bargain, I am persuaded by the argument that what was understood by the

applicant is conveyed by the trial judge, albeit couched with the proviso that what

was being said might be only of “academic interest”, was, in effect, that if the

applicant were to plead guilty, she would probably receive a non-custodial

sentence, whereas her maintaining her not guilty plea would, if she was convicted,

probably result in a custodial sentence. To my mind, the scenario which then

presented to the applicant was more than a mere indication of a sentence (in the

sense permitted by Heeney), rather it was a stark choice, as counsel for the

7. In consequence of her view that Judge Teehan overstepped the bounds of what was

possible in terms of giving any indication as to potential sentence, Faherty J quashed the

order of the Circuit Court upholding the plea of guilty; [2017] IEHC 802. At paragraph 69

To my mind, given the unsolicited intervention which he made on 11th October,

2016, the frailty which arises in this case is that, in ruling as he did on the

application to retract the guilty plea, the trial judge did not pay due regard to the

undoubted certainty that his words, however well intentioned, were understood by

the applicant as giving her the choice either to plead guilty and receive an almost

certain non-custodial sentence or plead not guilty and receive an almost certain

8. It is clear from the written submissions lodged before the High Court that Faherty J was

never given the opportunity to consider whether judicial review was appropriate where

what was sought to be quashed was a ruling made during the currency of a criminal trial.

On the matter being appealed to the Court of Appeal, however, that point was raised for

the first time. It was determinative in the judgement of Hedigan J, Edwards and McCarthy

JJ concurring, [2018] IECA 302. Citing Freeman v DPP [2014] IEHC 68, the Court of

Appeal ruled out judicial review in the circumstances of cases such as this, stating at

paragraph 39, that even if error had been established in a ruling in a court of trial, this

did not suffice for any intervention into the conduct of the trial by way of judicial review in

Regrettably, this is not the correct test in judicial review of this type of case. In the

first place, as the Freeman judicial review case, cited above, demonstrates, the

court of judicial review should almost never intervene in a criminal case that is not

concluded. The bar is set at the highest level. Save only where the interests of

justice and the right to a fair trial demand it, for clear and compelling reasons, the

criminal trial should never be interrupted but should proceed to its proper

conclusion. After that conclusion, which means after sentence is passed, then the

convicted person may consider whether to appeal to this Court. The second part of

the test applied by the learned High Court judge is regrettably also incorrect. In

judicial review, it is not the correctness of the decision that is considered. The court

of judicial review does not sit as a court of appeal. It is well established that the

true test is not whether the decision impugned is an error, but whether it is lawful.

See Bailey v Flood (unreported, 6 March 2000, Morris P.) and Kenny v Judge

Coughlan [2008] IEHC 28 (O’ Neill J.). No fault was found by the High Court in the

procedure that was followed nor could there have been. It was a manifestly fair

process that afforded the respondent [ER] every opportunity to make her case.

Thus the only ground remaining upon which the court in judicial review could

intervene would be on irrationality grounds. In the circumstances of the case. I do

not believe any argument of this kind could be sustained nor indeed was

9. It was against this judgment, [2018] IECA 53. that ER appealed. The Court granted leave

on issues of general public importance which were stated in the determination of

(1) Whether the Court of Appeal was correct to permit the DPP to argue that the case

(2) In any event, whether the Court of Appeal was correct to dismiss the case on the

(3) Further and in any event, whether the trial judge’s intervention on 11 October 2016

10. No general analysis is necessary as to the circumstances in which an appellate court will

hear an argument which was not proposed to the court of trial. The fundamental principle

as stated by Henchy J in Movie News Ltd v Galway County Council (Unreported, Supreme

Court, 25 July 1977) has since been developed. In that authority, the Supreme Court set

its face, apart from in exceptional cases, against the introduction of points which were not

canvassed and decided at first instance. To permit the raising of fresh grounds not argued

in the High Court would be for the court to which an appeal was taken to “enter on the

trial of a matter as of first instance and thereby deprive the party aggrieved with its

decision of the constitutional right of appeal which he would have if that matter had been

decided in the High Court.” See also D (Otherwise C) v MC [1985] IR 697 and DK v

Crowley [2011] 1 ILRM. That authority remains the point of departure for the admission

of fresh issues, and a caution against upsetting the ordinary and reliable constitutional

structure of hearing followed by appeal. Because of the responsibility to strive for justice,

and in the interests of finality, however, points closely related to, or a development of,

issues argued at first instance may be permitted at the discretion of the appellate court,

but only provided no injustice thereby results. In the decision of Lough Swilly Shellfish

Growers v Bradley [2013] 1 IR 227, O’Donnell J mentioned, at paragraph 8, a spectrum

cases such as those where argument of the point would necessarily involve new

evidence, and with a consequent effect on the evidence already given (as in K.D.

(Otherwise C.) v. M.C. [19 85] I.R. 697 for example); or where a party seeks to

make an argument which was actually abandoned in the High Court (as in Movie

News Ltd. v. Galway County Council (Unreported, Supreme Court, 25th July,

1977)); or, for example where a party sought to make an argument which was

diametrically opposed to that which had been advanced in the High Court and on

the basis of which the High Court case had been argued, and perhaps evidence

11. These would not be cases where leave would be granted to raise new issues. But at the

lie cases where a new formulation of argument was made in relation to a point

advanced in the High Court, or where new materials were submitted, or perhaps

where a new legal argument was sought to be advanced which was closely related

to arguments already made in the High Court, or a refinement of them, and which

was not in any way dependent upon the evidence adduced. In such cases, while a

court might impose terms as to costs, the court nevertheless retains the power in

12. Thus in Koger Inc. & Anor v James O’Donnell & Ors [2013] IESC 28, this Court held that

the discretion to enable a new issue would not be exercised in favour of a party where the

new point sought to be raised was completely opposed to the points raised during the trial

in the High Court. Another example was Ambrose v Shevlin. [2015] IESC 10 where new

evidence and a new issue relating to a flooding incident was not allowed. On the other

side of the balance was Cussens & Ors v Brosnan (Inspector of Taxes) [2015] IESC 48

where the proposed new point was so closely related to the arguments advanced in the

High Court as to be properly regarded as arising from the questions posed in the case

13. The issue of when new points ought to be entertained on appeal was addressed by the

Supreme Court in ACC Bank plc v Lynn [2015] IESC 100 in the context of the interests of

justice. This concerned a new argument about sale in lieu of partition. In considering

whether to allow the new point, the Supreme Court noted that any discretion to allow a

new point to be argued on appeal “is to be exercised in order to pursue the aim of

fundamental fairness within the limitations of the constitutional structure.” In that regard,

“there is a continuum between lack of merit in bringing in fresh points on appeal simply

because they have occurred to the parties and their lawyers late in the day and cases

where the discretion should favour the appellant. In exercising that discretion, the

fundamental question is whether the balance of fairness lies.” See the judgment of

14. In the present case, it is to be noted that in the first paragraph of the notice seeking

judicial review, of 27 January 2017, it is pleaded on behalf of ER that the Director of

Public Prosecutions had “failed to vindicate the applicant’s constitutional rights to a fair

trial in exercising improper pressure on [ER] during the course of the trial prior to the

entry of the plea of guilty” and, furthermore, had “contravened the applicant’s fair trial

rights under Article 6 of the European Convention on Human Rights” and, had “acted in

breach of fair procedures and constitutional justice in refusing” her “request to vacate her

plea of guilty”. It was asserted, “justice and fair procedures require the orders sought” to

be vacated; thus referring to the claim of certiorari against Judge Teehan’s refusal to

allow the plea of guilty to be changed. The trial judge, in turn, was claimed to have “acted

unreasonably and breached the rules of natural and constitutional justice and

fundamental fairness of procedure and breached the European Convention on Human

Rights.” The statement of opposition, of 30 March 2017, denies that there has been any

failure to vindicate constitutional rights and also claims no breach of the Constitution or of

fair procedures. By way of a factual assertion, the document asserts that since ER “had

over 24 hours to consider whether she wished to enter that plea”, her formal admission of

15. It would have been easy for the notice of opposition to simply state: judicial review does

not lie against the impugned decision or, barring exceptional circumstances, any ruling

made in the course of the trial, an appeal is the only available remedy in this instance.

That was not done until the Director of Public Prosecutions appealed the High Court

decision in favour of ER. In paragraph 19 of submissions lodged on 31 May 2018, it is

explicitly stated that judicial review does not lie for rulings made during a criminal trial.

16. In terms of the balance of the discretion to allow this point to be argued on appeal, that

clearly weighs in favour of the Director of Public Prosecutions. It may be that an obvious

point was overlooked in the context of the emphasis placed by the applicant ER on the

factual circumstances and it may be, too, that the paucity of evidence due to the non-

withdrawal of the lawyers acting for her on the application to revoke her plea of guilty

17. As will emerge from the section which follows, an accused in a criminal trial who is

advised to forego an appeal and instead pursue a judicial review, faces a burden different

to an argument as to right and wrong. Judicial review is not about the correctness of

decision-making, nor is it the substitution by one court of a legal analysis or factual

decision for that of the court under scrutiny. On judicial review, where successful, the

High Court returns the administrative or judicial decision to the original source and,

implicitly in the judgment overturning the impugned decision, requires that it be redone in

accordance with jurisdiction or that fundamentally fair procedures be followed. If the

decision-maker has no jurisdiction, that may be the end of the matter but the High Court

never acts as if a Circuit Court case were being reconsidered through a rehearing, which

is a circumstance where a court will be entitled to substitute its own decision. Judicial

review is about process, jurisdiction and adherence to a basic level of sound procedures.

18. Thus, as the pleadings in this case make clear, and as discussed in the next section of this

judgment, incumbent on the applicant ER is the substantial burden of showing not an

error of fact or a decision of law made in the course of the hearing that might be

incorrect, but the deprivation of a right. For the Director of Public Prosecutions to

introduce into that existing equation required to be met by an applicant for this relief in

the High Court, that judicial review does not lie in the context of decisions validly made

by the trial judge in the course of a criminal trial is essentially a development of the

burden which ER already undertook in pursuing judicial review as a remedy.

19. As mentioned earlier, a trial in the Circuit Criminal Court commences with the accused

pleading to the indictment and ends when the accused is either acquitted or is sentenced

on foot of a finding of guilty. This judicial review was commenced before Judge Teehan

sentenced ER. Hence, it is an attempt to seek that the High Court quash a ruling made in

the course of a criminal trial. It may be argued that what is sought to be invoked on

behalf of ER only involves the ample power of the High Court, invested as that court is by

virtue of Article 34.3.1º “with full original jurisdiction in and power to determine all

matters and questions whether of law or fact, civil or criminal.” That the High Court has

such power is beyond question. Equally certain is that the High Court does not exercise

that many functions, such as analysing a tax return or granting planning permission.

These are not within the scope of questions of law or fact tried in court but the jurisdiction

and basic fairness of the way such decisions are arrived at are within the scope of judicial

review. As regards any devolution of that wide jurisdiction, to the Circuit Court in this

instance, the High Court exists within the context of the structure of the Constitution to

ensure the proper application of law and the respect for the dignity of the individual

imported into criminal procedure by Article 38.1. The apparent contradiction between the

amplitude of the High Court’s jurisdiction and its ceding to other courts is resolved by the

supervisory authority of the High Court over all other judicial tribunals. As Henchy J

If there has not been a statutory devolution of jurisdiction on a local and limited basis to a

court such as the District Court or the Circuit Court, the High Court will hear and

determine the matter question, without any qualitative or quantitative limitation of

jurisdiction. On the other hand, if there has been such a devolution on an exclusive basis,

the High Court will not hear and determine the matter or question, but it’s full jurisdiction

is there to be invoked – in proceedings such as habeas corpus, certiorari, prohibition,

mandamus, quo warranto, injunction or declaratory action – so as to ensure that the

hearing and determination will be in accordance with law. Save to the extent required by

the terms of the Constitution itself, no justiciable matter or question may be excluded

20. Articles 34-38 of The Constitution provide for both the institution of courts, the manner of

their administration, the appointment of judges, the standards to which they must abide

by way of solemn oath and the structure of appeals. While Article 40.4 guarantees that no

citizen would be deprived of “personal liberty save in accordance with law” and sets up a

remedy whereby the High Court may supervise and make orders over any form of

imprisonment to ensure that it is lawful, nonetheless that remedy is not available to

bypass the avenue of appeal. The appropriate remedy is the structure of statutory and

constitutional appeals where it is sought to be argued that an error of law has led to a

court order; Roche (Dumbrell) v Governor of Cloverhill Prison [2014] IESC 53. Thus in FX

v The Clinical Director of the Central Mental Hospital [2014] IESC 1, at issue was a two

part hearing on a finding of unfitness to plead being made by the Central Criminal Court.

At paragraphs 66 Denham CJ stated, that any “order of the High Court which is good on

its face should not be subject to an inquiry under Article 40.4.2 unless there has been

the appropriate remedy is an appeal to an appellate court, with, if necessary, an

application for priority. Thus, the remedy under Article 40.4.2 may arise where

there is a fundamental denial of justice, or a fundamental flaw, such as arose in

The State (O.) v. O’Brien [1973] 1 I.R. 50, where a juvenile was sentenced to a

term of imprisonment which was not open to the Central Criminal Court.

21. The architecture of criminal trials and appeals in this jurisdiction is such that, under the

current statutory system, convictions in the District Court are subject to rehearing in the

Circuit Court by way of the fresh presentation of the evidence. Hence, the accused may

enter into recognisance pending the outcome of the appeal should he or she be convicted

in the District Court. In the Circuit Court on appeal, the full evidence is heard again and

the conviction is either affirmed or is overturned. Cases commenced on indictment before

the Central Criminal Court or Circuit Criminal Court become subject to a final order of

such courts on the accused being sentenced followed by an appeal to the Court of Appeal.

Here, the rehearing is based on the transcripts and original exhibits of the trial. If

convicted in either of these courts, the accused will be remanded in custody or on bail

pending an appeal but subject to an application for bail to the appellate court. Of its

nature, a criminal trial is complex with, as this case demonstrates, evidence heard in the

absence of the jury and rulings by the trial judge as to: the applicability of legislation

designed to assist child witnesses and witnesses with special needs; legal argument;

argument and speeches by counsel; a direction by the trial judge to the jury; and

ultimately, the verdict. This is not to be diverted into the supervisory jurisdiction of the

High Court to ensure adherence to the Constitution and to law being properly invoked. It

22. The only case which upheld resort to judicial review during the currency of any criminal

trial is that of Director of Public Prosecutions v Special Criminal Court [1999] 1 IR 60. The

circumstances of that case demonstrably required a resort to the jurisdiction of the High

Court in order to ensure adherence to established law. The Director of Public Prosecutions

successfully asked the High Court to overturn a radical departure by the Special Criminal

Court. This was of such a nature that a ruling of that court in the course of trial was

quashed on judicial review. The underlying criminal prosecution for murder concerned the

death of a journalist who was shot several times in June 1996 while driving her car on the

public highway from Naas to Dublin. Police forces in the democratic world are open to

confidential communications when seeking to solve crime. Some such communications

were received by the investigating team into this murder. This was, in the ordinary way,

disclosed by the prosecution to the defence. Argument took place before the Special

Criminal Court as to the proper approach to that confidential material. The prosecution

stated that it was subject to informer privilege, which was not that of the State, but that

of the individual or individuals involved. Were these confidences to be breached, the

prosecution would be obliged to offer no evidence since the State had no entitlement to

waive privilege, but was instead obliged to uphold it and to vindicate the right to life. The

threat to life from the criminal gang was apparent from their actions in the murder and

knowledge of any disclosure of their activities put the confidential communicants in

danger. The defence argument was that they should see the material, but that the

accused, Paul Ward, should not. This unprecedented submission was accepted by the

Special Criminal Court, ordering that the material should be handed over for scrutiny by

the accused’s barristers and solicitor and then be the subject of further argument. Despite

this being a ruling in the course of a criminal trial, the Director of Public Prosecutions

immediately applied to the High Court. Carney J, giving judgement at first instance,

specifically noted how rare it was that any such application should be made and touched

on the circumstances whereby, nonetheless, it might be justified. At page 69-70 of the

It is unique in my experience that relief of this nature is being sought during the

currency of a trial which remains at hearing. It cannot be emphasised strongly

enough that an expedition to the judicial review court is not to be regarded as an

option where an adverse ruling is encountered in the course of a criminal trial. I am

undertaking this application for judicial review during the currency of the trial

because a need has presented itself to urgently balance the hierarchy of

constitutional rights including, in particular, the right to life. In the overwhelming

majority of cases it would be appropriate that any question of judicial review be left

over until after the conclusion of the trial. In the instant case, such an approach

would have led the Director of Public Prosecutions to abort the trial and the people

of Ireland would have been deprived of their right to have a particularly heinous

23. Giving the unanimous judgement of the Supreme Court, on the unsuccessful appeal by

the accused, O’Flaherty J endorsed “everything that Carney J said about the undesirability

of people repairing to the High Court for judicial review in relation to criminal trials at any

stage (and certainly not during the currency)” but accepted the utterly exceptional nature

of the circumstances leading to that particular application. The State had a duty to

vindicate the right to life of any confidential informant and, further, the privilege invoked

was not that of the State but was instead that of any person communicating on a

confidential basis in an attempt to assist the solving of a crime. The extraordinary ruling

of the Special Criminal Court to share documents with an accused’s advisors but not the

accused undermined the confidence that was required to exist between an accused

person and his or her legal representatives, leaving a situation where the accused was no

longer instructing them since they were in possession of information which they could not

Counsel for the notice party submitted that judicial review did not lie in this case.

The notice party had been arraigned and it was submitted that the trial had started

and reliance is placed on the dictum of Ó Dálaigh C.J. in The People (Attorney

“The nature of a criminal trial by jury is such that, once it starts, it continues

right through until discharge or verdict. It has the unity and continuity of a

play. It is something unknown to the criminal law for a jury to be recessed in

the middle of a trial for months on end, and it would require clear words to

authorise such an unusual alteration in the course of a criminal trial by jury.”

While this statement applies to criminal trials with a jury, it should be regarded as a

precept that should, as far as practicable, be followed in respect of all criminal trials

subject to the jurisdiction of courts to grant cases stated on occasion … but, in the

exceptional circumstances of this case, and having regard to the importance that there

should be a definitive ruling on this matter of informer privilege, it was right that Carney

J. should have entertained the application at first instance and for us to hear at on

24. Those principles have not been modified in any subsequent case. For ER it is argued on

this appeal that the circumstances here fit within the category of cases where judicial

review should be available. Invoked is the statement by Henchy J in State (Holland) v

Kennedy [1977] IR 193 at 201 that for “any one of the number of reasons” a court may

exceed jurisdiction “and thereby make its decision liable to be quashed” including that the

court might “fall into unconstitutionality, or it may breach the requirements of natural

justice, or it may fail to stay within the bounds of the jurisdiction conferred on it by

statute.” That is not, however, as this case demonstrates, to be taken in isolation from

the constitutional architecture which is its backdrop. That principle is exemplified by the

decision of Kearns P in Freeman v Director of Public Prosecutions [2014] IEHC 68 which

emphasised the continuity of a criminal trial. That case is authority also to the idea that

what is involved in a decision to accept or to reject a change of plea by an accused is a

matter for the discretion of the trial judge. In reality, nothing in this case comes close to

the exceptional circumstances exempted from the general prohibition on taking judicial

review in the course of a criminal trial exemplified by the Special Criminal Court case.

Therefore, judicial review is not appropriate. That remedy having been chosen, and in

deference to the judgments of the High Court and the arguments presented on appeal, it

is, nonetheless, necessary to comment on the other points put forward.

25. On behalf of ER it is asserted that both the intervention by the trial judge and his

subsequent refusal to allow her to revert her plea to one of not guilty were legally wrong.

26. In the neighbouring jurisdiction, it is made clear that judges in the course of a trial should

not intervene to spontaneously give an indication of sentence. Any such indication,

however, may be made where a request for such an indication is made by counsel for the

accused. In the earliest of the significant cases on plea bargaining, R v Turner [1970] 2

All ER 281, the Court of Appeal approved of the practice whereby counsel for the defence

privately spoke to the trial judge in chambers in order to get an indication as to sentence.

According to Lord Parker CJ: “There must be freedom of access between counsel and

judge.” As to any safeguard to that, he simply indicated: “Any discussion, however, which

takes place must be between the judge and both counsel for the defence and counsel for

the prosecution.” He instanced a circumstance where such secret communication might

justifiably take place as including one where the accused has cancer and has little time

left, thus revealing a strong mitigating factor in sentencing. Another instance would be,

he said, discussions on the propriety of accepting a plea to a lesser count or lesser

included offence of a count in the indictment. Even still, “justice must be administered in

open court.” An article not cited in submissions for ER was that by Charleton and

McDermott, Constitutional Implications of Plea Bargaining [2000] The Bar Review 476,

and the cases cited therein, where the Turner guidelines are dismissed as inconsistent

with the requirement in Article 34.1 that justice should be “save in such special and

limited cases as may be prescribed by law … administered in public.” Among the

objections listed of counsel repairing to a judge’s chambers, away from the public scrutiny

of open court, with the media acting as the watchdog for the general public, were the

danger of inadequate information being given the judge, inhibition on the judge imposing

a more severe sentence, the “incorrect atmosphere” of chambers in contrast to that in

open court, misunderstanding among the parties, and possible pressure on the accused.

27. In R v Goodyear [2005] 2 Cr App R 20 the diffuse indication in Turner was solidified into a

set of precepts which is now the subject of guidance by the Judicial College of England

and Wales. Briefly: counsel should not repair to chambers for an indication of sentence;

judges should only give an indication of sentence as of that stage of the trial when it is

requested and on the basis of the judge’s then knowledge of the evidence, and in open

court; judges should not take the initiative but should only respond to an invitation by

counsel; this should not happen where facts are uncertain; and an uninvited indication by

the judge must be assessed as whether it created inappropriate additional pressure which

improperly narrowed the freedom of choice of the accused; R v Nightingale [2013] 2 Cr

App R 7 and see Archbold, Criminal Pleading, Evidence and Practice (2020 edition) 5A

111-128. Other jurisdictions take the view that asking the trial judge in open court for

any indication of sentence is wrong; R v Marshall [1981] VR 725, R v Dubien (1982) 32

28. Commenting on any supposed agreement on sentence through the prosecution having the

power to limit sentence or by resort to the judge in chambers, Charleton and McDermott

It would be wrong … to move from a system where the judge after an open hearing

has that responsibility, and from a system where it is the job of lawyers to estimate

what the sentence will be, to a situation where the prosecution and defence can sit

down together and knock out a bargain whereby the maximum sentence will be

limited to a particular number of years, or to a particular tariff on a basis which is

again private and which lacks the fundamental safeguard of transparency. … Plea

bargaining has no constitutionally permissible place in our system of law.

29. In The People (DPP) v Heeney [2001] 1 IR 736 the dangers of private discussions in

chambers with a judge with a view to an indication of sentence were exemplified. Counsel

for the defence had asked for, and had regrettably been granted, a private interview with

a judge of the Circuit Criminal Court with a view to discerning the sentence that would

later be imposed in open court. The case involved sexual violence against six victims who

were then young girls. Keane CJ, having referred to the Constitution at 741, quoted with

approval the statement of Lord Scarman, which pre-dated Turner, in Attorney General’s

Reference No. 40 of 1997, Leslie Atkinson (1978) 67 Cr App R 200 at 202, that “in this

sensitive area, the appearance of justice is part of the substance of justice and it will not

do if a prisoner or the general public derive the impression that it is possible, either

openly in a pre-trial review … or by private discussion between counsel and judge, to

30. At issue in that appeal from the Court of Criminal Appeal was whether counsel for the

prosecution ought to intervene while the judge and defence counsel were having a private

discussion as to the likely sentence and state that any such agreement was subject to the

Director of Public Prosecutions appealing any unduly lenient sentence under s 2 of the

Criminal Justice Act 1993. Statutory power of appeal could not be fettered by the

intrusion of any such procedural requirement. What Keane CJ made clear in that

unanimous decision of the Supreme Court was that there could be “no question … of any

form of bargain being entered into in private which would determine in advance the

sentence to be imposed by the court.” Discussions in private as to sentence were

“undesirable” and the practice had “properly been discontinued by the Director of Public

31. What occurred during the trial of ER was, on all of the submissions before this Court,

unprompted by any advance discussion with Judge Teehan. Instead, what seems likely is

that considerations of humanity as to the strain on the very young victim of extreme

violence led him to make a spontaneous intervention. That intervention was undesirable.

It was instead for the trial judge to exercise control over the tone and length of cross-

examination to ensure that while the accused exercised their entitlement to test the

child’s evidence, this would be done with dignity and within an appropriate, and if

32. This was not a case, however, where Judge Teehan was the decider of fact. Hence, his

intervention would not have set up any feeling in the mind of the accused that the judge

had already formed a view that he or she was guilty. Rather, it was an error for him to

have mentioned the matter at all. Whether in open court, or worse still, in the secrecy of

chambers, discussions with the court as to sentence have no place in the constitutional

order of a trial in due course of law under Article 38.1 of the Constitution.

33. This does not mean that the plea of guilty entered by the accused was wrong. An

inducement from the trial judge was not what was involved here. Rather, it was the

provision of information. That indication of sentence, furthermore, clashed markedly with

the clearly available precedents as to the appropriate sentence in such serious assault

cases The People (DPP) v FitzGibbon [2014] 2 ILRM 116. Even if the intervention by

Judge Teehan is to be considered in any way as an influence on the accused, the

prosecution, perhaps influenced by the decision in DPP v Heeney, was very quick to

disavow any impression that no right of appeal against an unduly lenient sentence would

not be exercised. ER was clearly aware that no matter what the trial judge said, he did

not have the last say but rather that the Court of Appeal had the power to review and to

increase any sentence. Thus, despite any intervention by the trial judge, ER, as the

accused would have been well aware that the trial judge did not any ultimate authority on

what the sentence would be. Further, as is well known to those with legal advice, as ER

had, indications which are incorrect are subject to being corrected. Here the transcript

discloses that the defence clearly stated that the accused, ER, had been advised of the

entitlement of the prosecution to appeal the sentence. The effect of a statement is subject

to the advice following from it. In The People (DPP) v Buckley [1990] 1 IR 14 Finlay CJ

stated the rule as to inducements leading to confessions in custody in terms of a warning

to the trial judge that he or she should have regard to the possibility that a past illegal

inducement might still be operating on the mind of the accused at a later stage.

34. Both legally and ethically, counsel for an accused are not entitled to indicate a plea of

guilty unless that plea is, as Hardiman J stated in The People (DPP) v Hughes

[2012] IECCA 69, a statement that the accused committed the offence; see para 27. Pleading

guilty means just that: the accused admits the offence. In our system that occurs both in

the context of legal advice and within a matrix of facts as alleged by the prosecution in

the book of evidence served well prior to trial. By pleading guilty the accused accepts

responsibility for the facts and mental element relevant to the count on the indictment

35. Where an accused wishes to withdraw from a plea of guilty, the trial judge has a

discretion as to whether to accept that the plea should revert to not guilty. While Kearns J

in The People (DPP) v Redmond [2006] 3 IR 188 at 217 stated that a judge “should not

intervene to set aside a guilty plea unless there are quite exceptional circumstances

arising in the particular case”, once a plea of guilty is entered, before it may be changed

the accused bears the burden of demonstrating undue pressure. Given the discretionary

nature of the trial judge’s jurisdiction in allowing an accused to resile from a plea of

guilty, overturning such a decision requires clear evidence that an impermissible degree

of pressure was exerted over the accused; Dunne v McMahon [2007] 4 IR 471 at 479-80.

36. Furthermore, what is required on an application to change a plea is complete evidence as

to the circumstances allegedly bearing on an accused. The entry of a plea of guilty is not

to be taken lightly. To enter a plea and then, as in this case, seek to change it a month

later, completely disrupts the course of a criminal trial and undermines its unitary nature.

Witnesses will be sent away, the victim may have some sense of closure, and the scarce

time of the court which could have been used on completing the trial will be otherwise

used up. A plea of guilty is a very serious matter. Changing a plea is at the discretion of

the court and should involve hearing all the relevant evidence. Therefore, any solicitor or

barrister representing and advising the accused should immediately withdraw once the

accused seeks to go back on his or her formal admission of guilt. That leaves their

evidence available to the accused who is not obliged to waive legal professional privilege

but who thereby is given that option. The trial court will then have a proper view of the

circumstances. That did not happen in this case and it should have.

37. Hence, it is clear that an application of such moment, necessarily involving the accused

claiming pressure or wrong advice, as opposed to pleading guilty in pursuit of a strategy

of disruption which is itself contrary to good order and Article 38.1 of the Constitution,

should involve at least the entitlement of an accused to waive legal professional privilege

in favour of the presentation of the advice which the accused received. Counsel and

solicitors faced with a request by their client to go back on their guilty plea should thus

immediately withdraw and make their evidence available to the accused and the

accused’s fresh advisors. In that regard the separate concurring judgment of O’Malley J

38. Furthermore, the evidence on the application made the subject of this judicial review, as

the trial judge assessed it, was unconvincing in these circumstances. Even were Judge

Teehan not entitled to come to the view which he took that the plea of guilty had been

voluntarily entered, which he was, what was presented to him in the context of such a

serious application was an incomplete aspect of a decision that a judge has every

39. While the intervention by the trial judge should not have been made, the plea of guilty

was made on reflection, with the benefit of legal advice, and in the context of a

prosecution warning that any sentence was subject to appeal by the Director of Public

40. Plea bargaining has no place in our constitutional architecture, but this indication did not

amount to any seeking of a bargain from a court as to sentence. The indication was made

incorrectly but within jurisdiction. The decision to disallow the accused ER to change her

plea was one open to the trial judge, and cannot be disturbed. Since only circumstances

of fundamental denial of the entitlement of the accused and the prosecution to have a

criminal trial in due course of law justify resort to judicial review, the prosecution were

entitled to argue the availability of that remedy on this appeal, despite that not having

been raised in the High Court. Whether then argued or not, as applicant for judicial

review, ER took on the burden of showing a deprivation of the constitutional structure of

41. In disallowing a change of plea, the trial judge was faced with limited evidence, her

lawyers not having withdrawn. There is nothing to suggest that Judge Teehan approached

that application incorrectly, much less that his approach was a fundamental denial of

justice as guaranteed by the Constitution.

Result: Appeal dismissed

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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> E.R. v Director of Public Prosecutions [2019] IESC 86 (06 December 2019) URL: http://www.bailii.org/ie/cases/IESC/2019/2019IESC86.html Cite as: [2019] IESC 86

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