High Court dismisses judicial review as constitutional challenge regarding plea mitigation is premature before sentencing.

THE HIGH COURT JUDICIAL REVIEW Record No. 2024/1122/JR [2025] IEHC 731 BETWEEN:

CONOR GREANEY Applicant -and-

THE DIRECTOR OF PUBLIC PROSECUTIONS THE MINISTER FOR JUSTICE IRELAND and THE ATTORNEY GENERAL Respondents

Judgment of Mr Justice Cian Ferriter delivered on 18 December 2025

Introduction

1. In these judicial review proceedings, the applicant seeks an order quashing a decision of the DPP refusing to consent to the applicant being sent forward from the District Court to the Circuit Criminal Court in respect of a charge under s.3 Non-Fatal Offences Against the Person Act 1997 on a signed plea of guilty.

Background

2. The material background to the matter is as follows. On 8 March 2024, the applicant was arrested and charged with assault contrary to s.3 Non-Fatal Offences Against the Person Act 1997 ("the s.3 charge") in respect of an assault alleged to have occurred in Cork City Centre on the previous day. The statements gathered by the prosecutor suggested that the assault had been an unprovoked and serious one resulting in the victim sustaining a fractured ankle. On 9 March 2024, the applicant appeared before a special sitting of Cork District Court and was refused bail. He was remanded in custody from time to time over the course of the next number of months. He indicated to his solicitor on 13 March 2024 that he wished to enter a guilty plea in respect of the s.3 charge. The matter was listed in the Cork District Court on 27 March 2024 and was adjourned on that date, and a number of subsequent dates, pending the DPP's directions.

3. On 2 July 2024, the DPP directed that the matter proceed on indictment. The applicant's solicitor indicated to the District Court on that date that the applicant wished to proceed by way of a signed plea of guilty. The DPP refused to give consent to the applicant going forward to the Circuit Criminal Court on a signed plea. The applicant's solicitor submitted that the applicant was being refused access to the benefit of mitigation usually available to a party going forward on a signed plea. It appears that a book of evidence was subsequently served and the applicant was sent forward for trial from the District Court to Cork Circuit Criminal Court on

7 August 2024 with a return date in October 2024.

4. In early September 2024, the applicant obtained leave from the High Court to apply for judicial review of the DPP’s decision to refuse to consent to sending him forward for trial in the Circuit Criminal Court on a signed guilty plea. The applicant's case before the Circuit Criminal Court has been adjourned from time to time pending the outcome of these judicial review proceedings.

Relevant statutory provisions

5. Iti is necessary to set out some statutory provisions of relevance to this case.

6. Section 4A Criminal Procedure At 1967 provides that:

(1) Where an accused person is before the District Court charged with an indictable offence, the Court shall send the accused forward for trial to the court before which he is to stand trial (the trial court) unless—

(a) the case is being tried summarily,

(b) the case is being dealt with under section 13, or

(2) The accused shall not be sent forward for trial under subsection (1)

without the consent of the prosecutor.

(3) Where the prosecutor refuses to give a consent required under subsection

(2) in relation to an indictable offence, the District Court shall strike out the proceedings against the accused in relation to that offence.[…]

7. Section 13(2) and (2A) of the Criminal Procedure Act 1967, as amended, provide that an accused shall not be sent forward for sentence on a signed guilty plea without the consent of the prosecutor. The material provisions of s.13 are as follows:

13. (2) If at any time the District Court ascertains that a person charged with an offence to which this section applies wishes to plead guilty and the court is satisfied that he understands the nature of the offence and the facts alleged, the Court—

(a) may, with the consent of the prosecutor, deal with the offence summarily, in which case the accused shall be liable to the penalties provided for in subsection (3), or

(b) if the accused signs a plea of guilty, may, subject to subsection (2A), send him forward for sentence with that plea to that court to which, but for that plea, he would have been sent forward for trial.

(2A) The accused shall not be sent forward for sentence under this section without the consent of the prosecutor. […]

8. Section 29 of the Criminal Justice Act, 1999 provides as follows:

“In determining what sentence to pass on a person who has pleaded guilty to an offence, other than an offence for which the sentence is fixed by law, a court, if it considers it appropriate to do so, shall take into account: (a) the stage in the proceedings for the offence at which the person indicated an intention to plead guilty, and (b) the circumstances in which this indication was given.”

The applicant’s case

9. The applicant seeks an order of certiorari quashing the DPP's decision of 2 July 2024 refusing consent to the applicant being sent forward to the Circuit Criminal Court with the benefit of a signed plea of guilty and a related declaration that the DPP acted in breach of the applicant's constitutional right to a fair hearing and trial in due course of law. He also pleads in the alternative that he is entitled to a declaration that the DPP was obliged to provide reasons for the refusal to give consent to the signed plea going forward. He seeks an order remitting the matter to the District Court with a direction, in substance, to accept the applicant’s signed plea or an order directing the Circuit Court to give effect to the applicant's signed plea.

10. The nub of the applicant's case, as set out in his statement of grounds, is that he is being arbitrarily deprived of the opportunity of benefiting from a one-third reduction of sentence by the DPP's refusal to consent to him going forward to the Circuit Criminal Court on a signed plea. The foundation for that case is the contention in his statement of grounds that the Court of Appeal in DPP v Cambridge [2019] IECA 133 (“Cambridge”) “confirmed that an accused upon entering a signed plea is entitled to the benefit of mitigation of a third reduction in sentence.” He pleads that he has been denied access to the benefit of this mitigation by refusal of the DPP to consent to a proffered signed plea which he maintains will lead him to being confined to lesser mitigation on entering a guilty plea in the Circuit Court.

11. In Cambridge, McCarthy J for the Court of Appeal noted (in the context of a sentencing appeal for a conviction under the Misuse of Drugs Act 1977 as amended), that “we again take this opportunity of emphasising the special weight which should be attached to signed pleas whatever the state of the evidence. We think in the circumstances that the appropriate reduction from the headline sentence, because of the signed plea, should be in or about one third…”

12. In his statement of grounds, the applicant goes on to contend that the DPP's refusal to accept the applicant’s offer of a signed plea was an interference in the administration of justice and the function of the judiciary. The applicant complains that the DPP had given no indication that additional charges may be preferred against him. The statement of grounds contends that the DPP could have no grounds for believing that the applicant may be further charged and consequently could have no reasonable grounds for withholding consent to the proffered signed plea. The applicant contends that the DPP should have given a reasoned decision for refusing to consent to a signed plea in the circumstances of the case.

13. The applicant contended, in the alternative, that s.13(2A) Criminal Procedure Act 1967 as amended was unconstitutional insofar as it in essence operated to deprive him of the opportunity of benefiting from mitigation of up to one-third reduction in sentence, in violation of his right to have a fair trial in due course of law.

14. In admirably succinct oral submissions, counsel for the applicant contended that the applicant had been deprived of the opportunity to push his case in mitigation of sentence on the basis that he was sent forward from the District Court on a signed plea of guilty, given that the authorities suggest that the highest level of mitigation for sentence would attach to a signed plea of guilty. He also submitted that this creates a substantive unfairness in the trial process (which does not conclude until sentencing concludes) as it deprives him of the opportunity of a maximum reduction in sentence for a signed plea. While he fairly accepted that the sentencing court could not be shut out from attaching such weight as it sees fit to his early indication of an intention to plead guilty, he says that he nonetheless is deprived of the opportunity to make his plea in mitigation of sentence on the basis of having signed a plea of guilty in the District Court.

On this basis, he submits that the application is not premature and the DPP has acted unfairly in refusing to consent to a signed plea.

The DPP’s case

15. The DPP met the applicant's case on the basis that the District Judge was obliged to send the applicant forward in circumstances where the DPP had not consented to the applicant being sent forward for sentence on a signed plea of guilty, in light of the terms of s.13(2) and (2A)

Criminal Procedure Act 1967 as amended. The DPP pleaded that the applicant's challenge to her decision was unsustainable and that her decision to refuse consent to a signed plea was not amenable to judicial review. The DPP further pleaded that the full range of sentencing options and powers would be available to the Circuit Court at sentencing stage and that Cambridge did not constitute a binding rule that all signed guilty pleas warranted a one-third reduction in sentence, with lesser reductions for other forms of guilty plea.

16. An affidavit of a prosecutor in the DPP's office, sworn in support of the DPP’s statement of opposition, stated:

"that if the applicant had been sent forward on a signed guilty plea to the section 3 assault charge, the addition of a charge of ‘causing serious harm’ contrary to section

4 of the Non-Fatal Offences Against the Person Act 1997 would not have been permissible. The Director wanted to keep that option open, having regard to the injuries sustained by the victim."

Discussion

17. It is common case that it is only in exceptional circumstances that a decision of the DPP would be amenable to judicial review. In Murphy v Ireland [2014] 1 IR 198, O’Donnell J (as he then was) held that "A decision of the Director is reviewable if it can be demonstrated that it was reached mala fides or influenced by improper motive or improper policy, or other exceptional circumstances" (at 218). No mala fides is alleged here. However, the applicant does submit that the authorities establish that the powers of the DPP cannot be exercised in a manner that would serve to confer an "oppressive, unfair, or signal advantage upon the prosecution as compared with the defence" (see discussion at para. 11-35 of Dunne, Judicial Review of Criminal Proceedings (2nd Ed., 2021) (“Dunne”) and the authorities cited therein). The applicant maintains that the effect of the DPP's decision to refuse to provide consent to the applicant going forward on a signed guilty plea was oppressive or unfair in depriving him of the benefit of being able to advance a signed guilty plea which, in accordance with Cambridge, would likely attract up to one-third mitigation in sentence.

18. It can be seen that the thread underpinning the various aspects of the applicant's case is a contention that the absence of an opportunity to rely on a signed plea of guilty at the sentencing stage is necessarily going to put him at a disadvantage when it comes to sentencing.

19. In my view, this apprehension is not well founded as a matter of law. The applicant’s case proceeds on the flawed premise that more weight in mitigation must necessarily attach at sentencing stage to a signed plea of guilty at District Court stage as opposed to a firm indication at District Court stage that an accused intends to plead guilty. It seems to me that this premise is not sustainable as a matter of law. As we have seen, Section 29 Criminal Justice Act 1999 allows a sentencing court to take into account “the stage in the proceedings for the offence at which the person indicated an intention to plead guilty” (emphasis suppled). The appellate courts have repeatedly emphasised the wide discretion of the sentencing courts. As Charleton J made clear in DPP v Faulkner [2024] IESC 16 (“Faulkner”) at para 44, having quoted from Section 29 Criminal Justice Act 1999:

“it is good sense that both timing and circumstance inform the degree of discount to a sentence which a plea of guilty, or firm indication, deserves. Hence, there are authorities that signing a plea of guilty while an indictable offence is being processed in the District Court may deserve up to a one-third reduction in the headline sentence;

The People (DPP) v Cambridge [2019] IECA 133, The People (DPP) v O’Callaghan [2020] IECA 172. Nonetheless, every sentence should meet the gravity of the offending and the principle of proportionality prevails; The People (DPP) v Stubbins [2021] IECA 229.” (emphasis supplied)

20. Charleton J goes on to say in Faulkner at para 45:

“Experience demonstrates that perhaps one-third discount may apply where there is an early indication and the circumstances are such as to enable a real choice on the part of the offender. Later pleas of guilty, perhaps when the foreign witness is demonstrated to have travelled from abroad to take part in the trial, or perhaps after a victim has given evidence, will be deserving of a lesser mitigation; The People (DPP) v McDonnell [2022] IECA 200. No clear or hard rules are either discernible or necessary. The pattern seems to indicate a variable, based on timing and circumstance, from a potential 33% to perhaps as low as 10%; The People (DPP) v Molloy [2016] IECA 239, The People (DPP) v Whelan [2018] IECA 142, The People (DPP) v Cambridge [2019] IECA 133, The People (DPP) v TD [2021] IECA 289.” (emphasis supplied)

21. As can be seen from these dicta, there is no distinction in principle for sentencing purposes to be made between a signed plea and an early indication of an intention to plead guilty.

22. In DPP v Olionu [2024] IECA 97 (“Olionu”), Edwards J held (at para 57):

57. It is also the case that in our system of criminal justice, and sentencing in the context of that system, that offenders are sentenced on an individualised basis according to their particular circumstances. It would be inimical to any system of individualised sentencing that a sentencing court would be unable to take into account the circumstances in which a plea (including a signed plea) was offered. In many cases the plea may be an indication of remorse, the taking of responsibility, and the facing up by an accused person to the consequences of his or her misconduct. In other cases, particularly where the accused has been caught red-handed and has really no choice but to plead if he/she wants to obtain the discount that goes with pleading guilty, the plea may be self-serving. The circumstances in which the plea is offered require to be taken into account at sentencing. While we accept that an extra discount is, in general, afforded for having signed a plea in the District Court, we do not accept that there is any hard and fast rule as to the level of extra discount that must be afforded.

23. It is of note that in Oliuno, as the appellant had indicated an intention to plead guilty at an early stage, he was entitled to be treated as though he had signed a plea in the District Court (para 58) which underscores the fact that it is the substance of the timing of a guilty plea or indication of an intention to plead guilty which is the relevant consideration for mitigation purposes, not the precise form of that indication or plea.

24. As a matter of principle, as reflected in the terms of s. 29 and the dicta in Faulkner and Olionu, there is no reason in principle why the earliest possible indication of an intention to plead guilty (where the option of a signed plea of guilty is not available due to absence of DPP consent)

would attach any less weight than a signed plea of guilty. There is no hard and fast rule applies which elevates a signed plea of guilty above an early indication of an intention to plead guilty as a matter of principle in such circumstances.

25. The applicant seeks in effect to elevate a dictum in Cambridge to the status of a statutory rule displacing the discretion which sentencing judges otherwise have. However, this approach flies in the face of the terms of s. 29 Criminal Justice Act 1999 Act and the dicta in cases such as Faulkner and Olionu.

26. It is clear that the District Court properly applied the relevant statutory provisions. The applicant was charged before the District Court with an indictable offence that was not to be dealt with summarily and the DPP consented to his return for trial to the Circuit Court. By virtue of s.4A(2) of the Criminal Procedure Act 1967, as amended, the applicant could not be sent forward to trial to the Circuit Court without the consent of the DPP. There was such consent. By virtue of s.13(2A), the District Judge could not send the applicant forward on a signed plea of guilty as the DPP had not provided her consent to that course of action.

27. While a reason for the DPP’s refusal to give consent to a signed plea was in fact set out in these proceedings, I would also observe that it is well established that, absent exceptional circumstances, the DPP is not obliged to give reasons for her decisions (see e.g. Marques v DPP [2014] IEHC 443 and the other authorities discussed by Dunne at paras 11-49 to 11-62)

and I do not see that any exceptional circumstances have been raised in this case which would have required that position to be departed from in the context of the DPP's exercise of her statutory discretion under s.13(2A) to refuse to consent to a case been sent forward from the District Court on a signed plea of guilty. The DPP might see fit to invoke her entitlement to refuse to consent to a signed plea of guilty in a variety of circumstances including where the DPP wants to leave open the possibility of further charges being brought – such as where further medical evidence is awaited before deciding on further charges or where a pending time limit for proceeding on indictment precludes a full consideration at District Court stage of the range of charges that might be appropriate on indictment. However, the DPP is not as a matter of principle required to give reasons for the exercise of that statutory power nor is she absent exceptional circumstances amenable to judicial review of such a decision. I should add for completeness that the reason offered in the context of these judicial review proceedings for the DPP exercising her discretion to refuse to consent to the applicant being sent forward on a signed plea of guilty in this particular case was a perfectly legitimate one.

28. In my view, the applicant's case also suffers from a prematurity deficit. It is well established that, absent exceptional circumstances, this court should not intervene in the currency of a criminal proceedings. As O’Donnell J. (as he then was) stated in Byrne v. DPP [2011] 1 I.R.

346 at p. 356: -

The constitutional right the infringement of which is alleged to ground an applicant's entitlement to prohibit a trial, is the right to fair trial on a criminal charge guaranteed by Articles 38 and 34 of the Constitution. The manner in which the Constitution contemplates that a fair trial is normally guaranteed, is through the trial and, if necessary, appeal processes of the Courts established under the Constitution. The primary onus of ensuring that that right is vindicated lies on the court of trial which will itself be a court established under the Constitution and obliged to administer justice pursuant to Article 34. It is in my view therefore, entirely consistent with the constitutional order to observe that it will only be in exceptional cases, that superior courts should intervene and prohibit a trial…

29. In my view, the applicant has not demonstrated any sustainable basis for apprehending that he will not be tried in accordance with law, including at sentencing stage. There is no basis in law to presume that the absence of a signed plea of guilty at District Court stage is going to disadvantage him at sentencing stage when he has indicated at the earliest stage in the District Court proceedings a firm intention to plead guilty to the s.3 charge. Assuming he proceeds to enter a guilty plea to the s.3 charge when his matter comes back before the Circuit Criminal Court and assuming no s.4 charge is added to the indictment, he will be entitled to have his early indication of an intention to plead guilty weighed in all the circumstances by the sentencing court when it comes to the question of sentence.

30. This court should proceed on the basis that the remainder of the applicant’s criminal proceedings will be conducted in accordance with law; no exceptional circumstances for intervening in those proceedings has been made out by the applicant.

The Constitutional case

31. The applicant sought a a declaration that Section 13(2A) of the Criminal Procedure Act, 1967 as amended is repugnant to the Constitution on various bases including that it gave rise to an unlawful interference in judicial discretion and interfered with the applicant’s right to a trial in due course of law under article 38.1 of the Constitution. Again, the applicant’s case was premised on a differentiation in treatment that, he contended, would inevitably and unfairly apply to him because of the deprivation of an opportunity to go forward for trial on a signed plea of guilty.

32. Counsel for the Attorney General in written submissions contended (amongst other grounds)

that the applicant’s constitutional challenge was manifestly premature, in light of the principles set out in the recent Supreme Court decision in Galvin v DPP [2025] IESC 35 (“Galvin”) on the basis that the court was being asked to adjudicate on a dispute which has not yet arisen being a complaint about a sentence that has not yet been imposed.

33. In Galvin, the applicant there sought to challenge the constitutionality of a provision in the Finance Act 2001 (section 126(6)) which prevented a sentencing judge in the event of a conviction on specified offences from making an order under Section 1 Probation of Offenders Act 1907. After being charged with an offence covered by this provision, but prior to his trial, Mr Galvin launched judicial review proceedings challenging inter alia the constitutionality of the relevant Finance Act provision. The Supreme Court held that the constitutional challenge was premature in the absence of any fact finding exercise having been carried out by the criminal trial court. In the course of the principal judgement given in the Supreme Court in that case, Donnelly J set out the factors which needed to be considered when assessing the question of prematurity in a constitutional challenge including (at para 58) the following:

“A) Whether the court has sufficient evidence before it to enable it to properly address the constitutional arguments in a reasonably concrete evidential context or whether the court would benefit from further factual development of the issues presented?...

(Donnelly J noted in this regard that “It is not appropriate for a court to seek to determine issues of constitutional and statutory interpretation in the absence of an adequately developed set of facts.”)

B) Whether there would be interference with further administrative or judicial processes e.g. is the court involved in an abstract and potentially unnecessary process?...

(One of the factors cited by Donnelly J here was “Whether the pre-emptive challenge to a process ought to be taken where the court would decline to hear the challenge if the applicant were to succeed during that process on non-constitutional grounds”).

C) Whether there is a specific impact caused to the party seeking review by delaying the decision….

D) Can it be said that the challenge is “imperatively required”?”

34. Donnelly J held that the applicant’s arguments as to the potential unavailability of the Probation Act at sentencing stage was premature in circumstances where the trial court had not yet investigated the gravity of the offence, the circumstances in which it was committed or the relevant personal circumstances of the accused; as such, the applicant was not able to demonstrate that his interests were in fact affected or in imminent danger of being affected (at para 72).

35. Counsel for the applicant very responsibly accepted that he could not press his constitutional case in light of the decision in Galvin (which in fairness to the applicant was decided subsequent to leave being granted in this case). I think that was an entirely appropriate stance given that the applicant would inevitably fall foul of the prematurity concerns which led the Supreme Court to dismissing the applicant's case in Galvin. The applicant here has not yet been sentenced. The concern that he will be disadvantaged as a result of the unavailability of an opportunity to go forward for trial on a signed plea of guilty may never in fact crystallise and, indeed, should not crystallise if the sentencing judge properly applies the applicable legal principles. His constitutional challenge is classically premature in the circumstances and cannot be maintained by the applicant in these proceedings.

Conclusion

36. For the reasons outlined in this judgment, I refuse the applicant the relief he seeks.