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Mitigation: the art of not putting your foot in it

Judge hearing a plea in mitigation
"What the actual feck did you just say, Mr Diable?"

One thing all advocates need to learn is how to put mitigation in the best possible light.  A very common mistake, one I see happening all the time, is advocates who blame a client’s misfortunes on their conviction, e.g. any sentence that begins “As a result of this conviction Mr X cannot…” is usually going to go wrong.

Before I move on I am going to make clear that I am not criticising any individual mentioned in this post and that I was not in court for the events described so I am relying wholly on press reports.  There are many reasons why an advocate may approach a case in a given way and people on the outside will not be aware of those reasons.  The facts reported by the press are probably not a perfect reflection of how mitigation was handled and it may well be that they completely distort the undoubtedly wise words of Counsel; however, the reports do reflect advocacy that I see on a daily basis so I am going to treat them as if they are accurate.

In the recent Tulisa drink driving case, the advocate (a very experienced QC who probably doesn’t appear in the magistrates’ drink driving cases very often) is reported to have told the court that her client had already been punished after news of the incident leaked to the press.  The press also reported the advocate saying that Tulisa’s acting career is on hold because of the court case:

“She is a talent. She has been signed up by an agent in Hollywood and is due to start an acting career there.

“Everything has been put on hold because of this. She has been unable to work until this is resolved.

“The conviction will cause her difficulties not only entering the US but also working.”

Evoking a sense of sympathy in the magistrates’ minds for the defendant is a good plan that does work, so why is the reported approach wrong?  For me it comes across as an attempt to say “I shouldn’t get such a harsh punishment because I’ve suffered as a result of this”.  Well if you lost a leg then maybe, but in most cases it is just asking for a furious judge to point out that the reason Tulisa (or whoever the defendant may be) has suffered is because she committed a crime and she should have thought about the consequences before she did it – in a flash any sympathy for the defendant is gone.  I have seen this happen.

The statement also appears to contain elements that are difficult to believe – if I were a judge and didn’t believe the mitigation I’d not be very lenient.  A pending court case does not prevent you leaving the country unless there is a specific bail condition, so I have no idea why should could not have travelled to the US and returned to the UK for the hearing.  I have had clients accused of drink driving who have nonetheless gone on to begin careers in the USA both during and after the life of the court case.  Yes, it causes some problems but nothing that requires a career to be put on hold.  In any event, we come back to the reaction of any sane judge who should be demanding to know “so what?”  A reasonable judge should be asking, “well if Tulisa knew this would cause her so many problems then why is she crying to me about it?  Why didn’t she think about that before she drove?”  A very angry or cheeky judge might even add, “Why didn’t she simply take a cab – she can obviously afford it if she can afford to hire a QC to come along to court today?”

The advocate went on to say that the court should take into account Tulisa’s “celebrity status” and the “humiliation” that came with the publicity.  Asking a court for special treatment because you are famous makes me want to weep – I can’t imagine how that could possibly sound good.  Again, any reasonable court should be saying that these are things she brought on herself.  In any event the humiliation is no different to that suffered by anybody who’s conviction is reported in the local papers – true it may not be reported worldwide but everybody that person knows could well read about it, I think that will seem just as humiliating to anybody else.

When you are mitigating you often want to express your client’s remorse and the big problem with all of these approaches is that they paint a picture of somebody who is upset about their arrest and conviction because of the effect it is having on them; i.e. it is not genuine remorse.

I don’t know what Tulisa paid for her QC, but £2,000+ wouldn’t surprise me.  I’ve certainly had clients insist on instructing senior juniors who have charged £1,500 for a similar short hearing at the same court.  I expect she instructed solicitors, who will have charged her a similar fee to the QC, if not more (there are certainly firms who ask for £8,000 up front when you contact them).

The press reports a reading of 54mg in 100ml breath so what sentence would Tulisa expect for that?  The sentencing guidelines indicate a starting point of 12 to 16 months disqualification and a fine.  Tulisa was banned for 15 months and fined.  This is at the higher end of the sentencing range and suggests the bench were not impressed by the mitigation put forward.  On the facts reported, I would have expected this sentence to be imposed on an unrepresented defendant.

What would be a better approach for an advocate to take?  I also ways pick one or two themes to talk about in mitigation and then craft my words around those.  Based on the reports, I’d be looking at themes of remorse and change.

First, I would get rid of anything that suggests this person deserves special treatment because of who they are – they don’t and it undermines both of my themes. 

I’d begin with remorse – not just say it but show it by taking the court through how their actions have affected them and others around them.  I would want to include character references at this point to show the client’s normal personality and tactfully seek to cut out their offending behaviour from their normal everyday persona.  

The we move on to change, I would want to show the court that something has changed since the offence – not just oh I can’t go to America and make millions quite so easily but rather go through how the impact of their arrest, the fact of their offending and the humiliation that the conviction brings has brought about a change in the way the client approaches decisions and thus why they are unlikely to make a similar decision again.

I would definitely mention the difficulties that the conviction will cause to the defendant but I wouldn’t linger on them and I would emphasise that these are nobody’s fault but the defendants – there some sympathy is evoked and no judicial wrath has befallen us.

There are circumstances where I would linger on the impact to the defendant because there are circumstances where there is authority that such things should reduce the disqualification, but this is not one of them.

The offence is aggravated by the crash, but it is not a serious one and no injuries were suffered – it’s important to address the aggravating factors and mitigate them.  I would probably stick this in at the beginning as it will flow well from the prosecutors opening of the facts plus if you put it at the beginning you don’t finish by talking about crashes.  First impressions are nothing; last impressions are everything (well nearly).

I’d also be looking to bring in a discussion of the law.  I would want to convince the court that the disqualification period should be reduced to the minimum ban possibleto reflect the defendant’s early guilty plea.

Does this work?  Yes it does!  Recently, I had a lady client of similar age to Tulisa who blew 75mg in 100ml breath.  The Sentencing Guidelines say a 17 to 22 month ban.  She got a 12 month ban plus a three month reduction for completing the drink drivers rehabilitation course!  In another case, my client, Mrs B, blew 50 and received a 12 month ban, again reduced to 9 months following completion of the course – in that case the district judge said that, “I have a great deal of sympathy for Mrs B… I do not enjoy [imposing the driving ban] because Mrs B is ordinarily a totally law abiding person.”

On a side note, I do wonder if Tulisa was treated a little more harshly because of her celebrity.  It is very rare for somebody accused of drink driving to be interviewed and kept in custody for 22 hours.  Also, I think the court was unreasonable in requiring her to state her address in open court.  I have had situations in the past where courts have accepted a written answer to the question – I don’t see any reason why they couldn’t have done so in this case.

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