High Court: Criminal sentence quashed after trial judge refused counsel the opportunity to take instructions from their client

High Court: Criminal sentence quashed after trial judge refused counsel the opportunity to take instructions from their client

The High Court has quashed a sentence for burglary on the basis that the trial judge erred by refusing to allow counsel an opportunity to take instructions from their client. The defendant had pleaded guilty to stealing €5,000 from a house in at a hearing in 2021.

Delivering judgment in the case, Mr Justice Garrett Simons held that refusal of a short adjournment was procedurally unfair. The defendant was not at fault for the lack of instructions in the case as the defendant was delayed in being transmitted to court from prison and counsel recently coming into the case.

Additionally, it was clear that the lack of instructions caused actual prejudice to the defendant in the sentencing hearing, the court held.


The defendant had entered a guilty plea in Carlow Circuit Court in May 2021 to one count of burglary. The man had stolen €5,000 from a property. The sentencing hearing took place in July 2021. The defendant was already in custody for unrelated offences and had to be transmitted from prison to the courthouse.

Unfortunately, there was a delay in conveying the defendant to court and, as a result, counsel and solicitor could not consult with the defendant prior to the judge sitting. Further, counsel had only recently come into the case and had not previously met with the defendant.

At the callover of the list, counsel applied for a short adjournment to have a consultation with the client, but this was refused by the judge. The judge insisted that the matter would go ahead, stating that counsel had “plenty of time to be talking to him, since last May or whatever”.

Later, counsel for the DPP requested that the defendant have a five-minute consultation with their counsel, but the court stated: “No. I’m giving nobody any time. Get on with it now. I’m fed up with waiting for ye.”

As such, the parties proceeded with the sentencing hearing. The hearing included evidence from a garda who made unsubstantiated comments that the defendant was a key member of an organised crime gang and that the defendant had several previous convictions in England.

The defendant had also brought €5,000 to court (which was explained to have been pooled together by family members) in order to compensate the victims. However, the trial judge was sceptical of the provenance of these monies based on the testimony of the garda witness and refused to accept it.

The trial judge imposed a three-year sentence for the offence. Subsequently, the defendant issued judicial review proceedings seeking to quash the sentence. It was said that the denial of an adjournment to take instructions was a breach of fair procedures and rendered the sentence hearing unfair.

High Court

Mr Justice Simons began by noting that judicial review was not normally the appropriate remedy where an applicant had an adequate alternative remedy by way of appeal. The court emphasised that a judicial review was concerned with the legality of the decision-making process and therefore the function of the High Court was “far more limited” than that of an appellate court (E.R. v. Director of Public Prosecutions [2019] IESC 86).

The court also outlined that judicial review was appropriate where an applicant was deprived of “any real first instance hearing at all or at least one which broadly complies with the constitutional requirements of fairness” (see Sweeney v. District Judge Fahy [2014] IESC 50).

The court held that a person who was at risk of a custodial sentence was entitled to a constitutionally fair hearing at first instance, which included the right to effective legal representation. However, the High Court would ordinarily show “considerable deference” to a trial court on the granting of adjournments since it was important for hearings to proceed on the scheduled date.

In O’Callaghan v. District Judge Clifford [1993] 3 I.R. 603, the Supreme Court had considered the issue of refusing an adjournment of a criminal trial. The case had similar features to the present case, including that a criminal penalty was potentially imposed, the defence counsel did not have an opportunity to take instructions and the adjournment sought was very short (measured in minutes).

Applying the principles of O’Callaghan to the present case, the court held that the trial judge had breached the defendant’s right to a constitutionally fair hearing by refusing the adjournment. First, the right to liberty was engaged, so it was essential to have counsel with proper instructions.

Second, the adjournment would not have interfered with the running of the list as the matter could simply be dealt with later in the day. Further, the defendant was blameless for the situation in which he found himself.

The court also attached weight to the fact that counsel for the DPP supported the application for an adjournment, which was indicative that the application was not an abuse of process. Finally, the court held that the trial judge failed to provide any reasoned justification for the refusal of the adjournment. While a deference would usually be shown to a reasoned refusal of an adjournment, the absence of an explanation meant that the court could not rubber-stamp the decision.

Mr Justice Simons considered the DPP’s argument that no actual prejudice had been caused to the defendant since his counsel was able to address issues which arose during the hearing. However, the court held that the DPP could not rely on the competence of defence counsel to minimise the judge’s error which led to an unfair trial.

A person who established a breach of fair procedures was not required to prove actual prejudice, the court said. The excess of jurisdiction could not be retrospectively cured by analysing the subsequent hearing.

Additionally, actual prejudice to the defence was evident in the case. The defendant had no opportunity to provide instructions on previous convictions in England or the source of the €5,000 which was an issue for the trial judge. The refusal of the adjournment also meant that the defence counsel was not in a position to use certain letters which explained the defendant’s difficult situation.


The court held that this was one of the rare cases in which judicial review was the appropriate remedy for a defect in a criminal trial. The court’s provisional view was that the conviction and sentence should be set aside and the matter should be remitted to the Circuit Court on the basis of a guilty plea.

Connors v. Director of Public Prosecutions [2023] IEHC 8

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