Supreme Court affirms that counsel must advise clients on guilty plea consequences and may withdraw if client ignores advice.

THE SUPREME COURT [Supreme Court Appeal No: 04/2019] Clarke C.J. McKechnie J. Dunne J. Charleton J. O’Malley J.

BETWEEN:

E.R.

APPELLANT AND DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT Judgment of Ms. Justice Iseult O’Malley delivered the 6th day of December 2019

1. I agree with the judgment delivered by Charleton J. The purpose of this concurring judgment is to add some observations on the role of counsel.

2. I agree with the view that it would have been preferable if counsel in this case had withdrawn at the point where the lay client indicated a wish to change plea. As Charleton

J. says, that would have given her the opportunity to waive legal privilege, if she wished, and to adduce evidence as to the advice she had received after the trial judge’s remarks.

3. Our Constitution recognises a right to legal representation in the criminal trial. The right is of such high value that it carries with it the right to be provided with such representation free of charge if the accused person cannot afford it. Legal practitioners who accept instructions in a criminal trial thereby take on the vitally important role of not only putting forward the client’s case as best they can, but of advising the client fully as to their position and options. They also take on the duty of attempting to protect the interests of the client against any proposed actions by the prosecution or rulings of the trial judge that are legally infirm, should such occur.

4. The importance of appropriate legal advice in the context of an admission of guilt is stressed by the Code of Conduct for the Bar of Ireland. Paragraph 10.11 of the Code used to contain the following passage:

“So long as an accused maintains his or her innocence a barrister’s duty lies in advising the accused on the law appropriate to his or her case and the conduct thereof. Barristers shall not put pressure on the accused to tender a plea of guilty whether to a restricted charge or not, so long as the accused maintains their innocence. Barristers should always consider very carefully whether it is proper, in the interests of justice, to accept instructions to enter a plea of guilty. They should ensure that the accused is fully aware of all of the consequences of such a plea and they should insist that the instructions to plead guilty are recorded by their instructing solicitor in writing and in their presence. Where the accused is pleading guilty barristers should not accept instructions to tender a plea in mitigation on a basis inconsistent with the plea of guilty.”

5. This rule was expanded in July 2016. What is now Rule 10.12 reads:

“The accused should be explicitly advised that the decision on whether to enter a plea of guilty is exclusively a matter for him. So long as an accused maintains his or her innocence a Barrister's duty lies in advising the accused on the law appropriate to his or her case and the conduct thereof. Barristers shall not put pressure on the accused to tender a plea of guilty whether to a restricted charge or not. However, it is not improper clearly to advise an accused as to the strength of a prosecution case and likely outcome where appropriate. Where an accused wishes to enter a plea of guilty a Barrister should ensure that the accused is fully aware of all of the consequences of such a plea and they should advise that the instructions to plead guilty are recorded by their instructing solicitor in writing and in the presence of the accused. Where an accused tells a Barrister that he did not commit the offence with which he is charged but nonetheless wishes to plead guilty it is not improper to continue to act. The consequences of such a course should be explained and it should be further explained that what can be submitted in mitigation can only be on the basis that he is guilty if such a plea is entered. In those circumstances a Barrister shall advise his instructing solicitor to record those instructions in writing and the accused should be invited to endorse those instructions with his signature.

Where the accused is pleading guilty Barristers should not accept instructions to tender a plea in mitigation on a basis inconsistent with the plea of guilty.”

6. The Code does not deal expressly with the problems that can arise in relation to a change of plea. However, it is perfectly clear that counsel must in all cases advise carefully on the consequences of a plea of guilty, whether the client is privately admitting guilt of the offence charged or not. If counsel is aware that a client who denies committing the offence nonetheless wants to plead guilty because of something the trial judge has said, it is all the more important that the advice be clear as to the fact that perceived pressure from the bench is not a sufficient reason to plead, and that any indication of sentence by the judge may not be an accurate prediction of the final result. In this case, there is no doubt but that the latter aspect was communicated to the client, in circumstances where it was explained that the Director of Public Prosecutions was expressly reserving her right to appeal any unduly lenient sentence.

7. The course of events in the case resulted in a situation where counsel, having advised the client, then continued to act in relation to the application to change plea. The client did not waive her privilege, and therefore the only evidence as to why the accused had entered the plea came from her and did not cover the advice she had received. In my view this put both the client and counsel in a most undesirable situation. The legal representatives must have known what the truth of the situation was. If they knew that the plea was entered despite their advice and only because of a perception on the part of the client as to the judge’s attitude, evidence to that effect from one or more of them would certainly have been relevant to the judge’s decision.

8. It may on occasion happen that a client seeks to blame the lawyers for the situation, and claims not to have been properly advised before pleading guilty. Counsel clearly cannot remain in the case if that arises. While it did not happen here, it is a possibility that practitioners must be acutely aware of – hence the emphasis in the Code in relation to taking and recording instructions.

9. If, on the other hand, the client had made an admission of guilt to her representatives, counsel would not be in a position to conduct either the application to change plea, or any subsequent trial, other than in accordance with the rules of the Code referred to above.

10. In the circumstances it would in my view have been far better for counsel to withdraw.