When should a judge afford a little time to counsel to take instructions from a defendant?
This question was recently subject to an application for judicial review before the High Court in Dublin.
Background
The defendant pleaded guilty to burglary before Carlow Circuit Criminal Court in May 2021. The particulars of the offence related to the theft of €5000 in 2014. By the time of the sentencing hearing in July 2021, the defendant was in custody on other matters. There was some delay in his being brought to the court by the prison service.
Defence counsel, having only recently been briefed, had not met with the defendant and asked for a little time to speak with him. The judge refused.
Prosecuting counsel suggested: “Would the Court… give her [Defence counsel] five minutes, Judge?” The judge refused.
I’m fed up with waiting for ye!
Circuit Judge at Carlow Circuit Criminal Court, 21 July 2021
A sentence of three years imprisonment was imposed. The defendant applied for judicial review.
Judgment
The High Court noted that judicial review was not normally the appropriate remedy where an appeal was an adequate alternative. The scope was limited to the legality of the decision making process.
That said, an individual at risk of a custodial sentence was entitled to a fair hearing, to include access to effective legal representation.
A person, who is at risk of having a term of imprisonment imposed upon them, is entitled to a constitutionally fair hearing at first instance. This entitlement includes, inter alia, the right to effective legal representation. The refusal to afford an accused person a reasonable opportunity to consult with their legal representatives prior to a hearing, whether a full trial or a sentencing hearing, has the potential to undermine this right.
per Simons J at [38]
Conclusion
The defendant’s conviction and sentence were set aside.
…the clock would be turned back to the point in the process at which the applicant/defendant had come before the Circuit Court for sentencing. The judge dealing with the matter can then enter a fresh conviction.
per Simons J at [42]