The Supreme Court has dismissed ER’s appeal over the refusal to let her withdraw a guilty plea, holding that judicial review was not an appropriate route to challenge a ruling made during her criminal trial. The Court said the trial judge’s unsolicited sentencing indication should not have been made, but did not invalidate the plea or establish a fundamental denial of justice.
ER and her domestic partner had faced charges arising from injuries to a four-year-old boy. At a retrial in October 2016, after the child’s recorded interview was played to the jury and before cross-examination, Circuit Court Judge Teehan said that if the accused pleaded guilty to at least one count, he could probably deal with the matter without custody, subject to conditions. He also said a jury conviction could make a custodial sentence difficult to avoid.
The next day, both accused pleaded guilty to assault causing harm. The prosecution told the court that its right to appeal an unduly lenient sentence remained open, and ER’s counsel said she had been advised of that. About a month later, ER asked to change her plea. She said the judge’s words had influenced her because she did not want to go to prison. Judge Teehan refused the request.
The High Court quashed that refusal, finding the intervention had presented ER with what she understood as a stark choice between a likely non-custodial sentence after a guilty plea and a likely custodial sentence after conviction. The Court of Appeal reversed that decision, ruling that judicial review should almost never interrupt an unfinished criminal trial and that an appeal was the proper route.
The Supreme Court allowed the Director of Public Prosecutions to raise the judicial-review issue on appeal, although it had not been pleaded in the DPP’s High Court opposition. It held that ER’s application, brought before sentence, sought to quash a ruling made during a criminal trial. Judicial review during a trial is reserved for exceptional circumstances involving a fundamental denial of justice; the Court said this case did not meet that threshold.
The Court described Judge Teehan’s intervention as undesirable and said sentencing discussions have no place in the constitutional order of a trial. But it distinguished the remark from an inducement or bargain: it was information, made within the judge’s jurisdiction, and ER had legal advice and was told the sentence could be appealed. The Court also said the evidence supporting her request to withdraw the plea was incomplete. Her lawyers had not withdrawn, which would have allowed their advice to be explored if she chose to waive legal professional privilege.
The appeal was dismissed. The refusal to permit ER to change her plea stood; the Supreme Court did not set aside the guilty plea or determine a new sentence.