THE SUPREME COURT

Keane C.J.
Denham J.
Murphy J.
Murray J.
Hardiman J.
132/2000

BETWEEN:

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent  
.v.

FRANK HEENEY

 Appellant  

JUDGMENT delivered the 5th day of April 2001 by Keane C.J. (nem diss)

	This appeal comes before the court by way of an appeal from a decision of the Court of Criminal Appeal, that court having certified that its decision involved points of law of exceptional public importance.  

	The circumstances of the case are as follows.  The appellant (hereafter “the defendant”) pleaded guilty in the Dublin Circuit Criminal Court (Judge Kieran O’Connor) to three charges of unlawful carnal knowledge, and one of attempted unlawful carnal knowledge, of a female under the age of 15 years and fourteen charges of sexual assault.  The complainants were six young girls who at the time of the offences were aged 12 or 13 and the defendant was in his early forties.  The offences took place, principally but not exclusively, in the house of the defendant, who is a single man, in a Dublin suburb.  It is not in dispute that the defendant effectively introduced these young girls to forms of sexual activity, in some cases amounting to complete sexual intercourse.  He also brought some of the complainants to a Dublin hotel to engage in what was effectively a form of prostitution with another man.  

	The learned Circuit Court judge, in addition to hearing evidence as to the circumstances of the offences and having before him six victim impact reports, also heard evidence from two of the complainants.  He also heard a plea in mitigation from Mr. Birmingham S.C. on behalf of the defendant.  He then sentenced the defendant to sentences of six years on each of the charges of  unlawful carnal knowledge, to run concurrently, six years imprisonment on the charge of attempted unlawful carnal knowledge, also to run concurrently and three years’ imprisonment in respect of the each of the fourteen counts of sexual assault, also to run concurrently.

	The respondent (hereafter “the DPP”) then applied pursuant to s. 2 of the Criminal Justice Act 1993 (hereafter “the 1993 Act”) to the Court of Criminal Appeal for a review of each of the sentences, on the ground that they were unduly lenient.  That court was informed that, prior to the imposition by the learned Circuit Court judge of the sentences in question, the learned trial judge had a meeting with counsel in his chambers.  The court was satisfied that the sentences in respect of the offences of unlawful carnal knowledge and attempted unlawful carnal knowledge were unduly lenient and substituted in each case a sentence of 10 years, also to run concurrently.  

	Giving the judgment of the Court extempore, McGuinness J. said
“In this case apparently there was a meeting held between counsel and the learned trial judge in advance of the sentencing herein and counsel, no doubt properly, have not informed us of the content of that meeting, other than to say that there was no surprise after it.  This court would again stress as the English court of appeal stressed in the case opened to us of Attorney General’s reference No. 40 of 1996 (Mark Lesley Robinson) the extreme undesirability of this type of meeting.  I understand that it no longer takes place and I think that that is the proper situation.  This court feels that it gives rise to extreme difficulties in situations both where the learned trial judge subsequent to the meeting receives further evidence in open court which would alter his attitude or her attitude and again gives difficulty as in this case when the matter comes on appeal before this court.  However, it seems to us that the holding of any such meeting and any such indication given by the learned trial judge in advance of sentence cannot fetter the discretion of this court in any way.”

	The points of law of exceptional public importance certified by the court as being involved in the decision were as follows:-
		“1.	Whether on an application by the DPP to the Court of Criminal Appeal pursuant to s. 2 of the Criminal Justice Act, 1993 the court should have regard to the concept of ‘double jeopardy’ and for that reason impose a sentence lesser than would have been regarded as the appropriate sentence at first instance?
		2.	Should the Court of Criminal Appeal have regard to the fact that in a particular case discussions had taken place in chambers prior to the trial between the trial judge and counsel for the prosecution and defence, following which the accused changed his plea to a plea of guilty?”

	As to the first question, the concept of “double jeopardy”, which has arisen in cases where accused persons have raised pleas of autrefois acquit and autrefois convict, is not relevant to an adjudication by the Court of Criminal Appeal on an application by the DPP pursuant to s. 2 of the 1993 Act.  In such a case, there is no question of the defendant being tried again in respect of a charge of which he has already been acquitted, which in general is the ground on which the courts have invoked the concept of “double jeopardy”.  It must also be pointed out that, while the power conferred on the DPP by the 1993 Act to apply to the Court of Criminal Appeal for the review of a sentence on the ground that it was unduly lenient, was undoubtedly novel, that court had always power, of its own motion, to impose a more severe sentence in the case of an appeal to it by the defendant.  The answer to the first question, accordingly, should, in my view, be “no”.  However, that is not to say that the Court of Criminal Appeal cannot take into account in a particular case any additional degree of stress or trauma which it considers may have been caused to the defendant by his or her being subjected to an additional sentencing process, the degree to which that factor, if it arises at all, should have any impact on its decision being entirely a matter for that court.

	In considering the second question, it is necessary to return at the outset to what happened in the court of trial.  Since there is no reference in the transcript to the meeting in the learned Circuit Court judge’s chambers, the court is naturally dependent, as was the Court of Criminal Appeal, on the information furnished to the court by counsel who were present at the meeting.

	It is unfortunately the case that Mr. Birmingham and Ms. Ring, who appeared respectively for the defendant and the DPP in the Circuit Court, are not entirely in agreement as to what transpired at this meeting.  It is not in dispute between them, however, that the meeting did take place and that, during the course of it, the trial judge indicated the level of sentence which he would be minded to impose in the event of a plea of guilty.  It is also not in dispute that Ms. Ring indicated that she was not happy with the first such proposal by the trial judge.  He then indicated the level of sentence (i.e. six years and three years respectively) which he ultimately imposed and Mr. Birmingham says that he has no recollection of Ms. Ring indicating any dissent at that point.  
Ms. Ring’s recollection is different:  she says that she did indicate dissent with that level of sentence.

	Mr. Feichín McDonagh, S.C., who led Ms. Ring in the hearing of the appeal before us, and Mr. Birmingham were in agreement that meetings of this nature did at one stage take place from time to time prior to the beginning of criminal trials.  Mr. McDonagh informed us that his client in 1998 had issued a general direction that the practice should be discontinued.   Somewhat mystifyingly, however, that direction seems to have been conveyed to the circuits outside Dublin only and that may explain why the meeting took place in the present case.  Finally, while neither this court nor the Court of Criminal Appeal could expect to be told what passed between counsel and his client, it is obvious that counsel would have been under a duty to convey to his client what he considered the probable sentence would be in the event of a plea of guilty and that this is what must have happened in the present case. 

	While the form of procedure adopted in this and other cases has been described as “plea bargaining”, that appears to me to be a misnomer.  Thus, any indication that a trial judge might give as to what sentence he might impose in the event of a plea of guilty would have to be subject to the proviso, express or implied, that he or she might reach a different view depending on the evidence which he or she subsequently heard in open court.  As for counsel for the prosecution, while his or her presence is obviously essential if any discussions are going to take place with the judge before the trial, it would not be part of his or her function to enter into any form of “bargain” with counsel for the defence as to the appropriate sentence.  It must also be emphasised that, while discussions in chambers between judge and counsel are occasionally desirable in the interests of justice, in general, under Article 34.1 of the Constitution, justice must be administered in public.  There can thus be no question, in my view, of any form of bargain being entered into in private which would determine in advance the sentence to be imposed by the court.   Accordingly, I would agree with the view of the Court of Criminal Appeal that the procedure adopted in this case and in other cases, although it obviously did not amount to any form of “plea bargain” and was doubtless, as in other cases, prompted by the best motives, is undesirable and has properly been discontinued by the DPP.

	The law in England was stated as follows by Lord Scarman, giving the judgment of the Court of Appeal in Lesley Atkinson (1978) 1 Cr. App. R. 200:-
“... The learned judge was not striking any bargain with the defence.  He was indicating the difference in sentence that a man can on occasions secure in his favour by a plea of guilty.  But in this sensitive area, the appearance of justice is part of the substance of justice and it will not do if a prisoner or the general public derive the impression that it is possible, either openly in a pre-trial review, as in this case, or by private discussion between counsel and judge, to achieve a bargain with the court.  
“Plea bargaining has no place in the English criminal law.  It is found in some systems of law in which the prosecution are entitled to make submissions as to the character or length of the sentence.  In such systems of law it is possible for a bargain to be driven between the defence and the prosecution, but never, so far as my researches have gone, with the court itself.  In our law the prosecution is not heard upon sentence.  This is a matter for the court, after considering whatever has to be said on behalf of an accused man.  Our law having no room for any bargain about sentence between court and defendant, if events arise which give the appearance of such a bargain, then we must be very careful to see that the appearance is correct.”

	In my view, that is also the law in this jurisdiction, reinforced as it is by the constitutional considerations to which I have referred.

	This court is obviously not in a position to resolve the unfortunate difference in recollection between counsel as to what transpired in the pre-trial discussions in this case.  However, since counsel for the DPP was present, it is immaterial whether or not she indicated dissent from the level of sentence which the learned trial judge ultimately indicated he was minded to impose, in the event of a plea of guilty.  The undisputed fact is that the defendant pleaded guilty to these charges having been led to believe that, in the event of his doing so, the overwhelming likelihood was that he would receive the sentences which were actually imposed.  While no question of estoppel as such arises, since the DPP was exercising a statutory right in seeking to have the sentences reviewed, I am satisfied that the Court of Criminal Appeal were not correct as a  matter of law in declining to have regard to the discussions which had taken place prior to the trial between the trial judge and counsel for the prosecution and defence.  Even if the DPP were in a position to satisfy the Court of Criminal Appeal that the sentences were unduly lenient and should be reviewed, in determining the extent to which they should be reviewed that court, in my view, was required to have regard to the chain of circumstances, in which the DPP participated, which led to the defendant’s pleading guilty and to the imposition of the particular sentence as a result.

	That might suggest that the appropriate course to take in the present case, the second question having been answered “yes”, would be to remit the case to the Court of Criminal Appeal to determine the extent to which the sentences should be reviewed, if at all.  However, since this court is in as good a position as the Court of Criminal Appeal to decide that issue, I am satisfied that no useful purpose would be served by so doing.  The requirements of justice in the present case indicate that, having regard to the particular circumstances, the sentences in the present case should not have been reviewed.  It is, accordingly, unnecessary to consider the other submissions advanced on behalf of the applicant to the effect that, in any event, the sentences were not unduly lenient.

	I would, accordingly, allow the appeal, discharge the order of the Court of Criminal Appeal and substitute therefor an order affirming the sentences imposed by the learned Circuit Court judge.  The certified questions should be answered as already indicated.