Mitigation: what not to say and other court problems


A typical Magistrates' Court - no defence brief in sight due to legal aid cuts



Not long ago, I wrote about mitigation given in the case of a celebrity who had been convicted of drink driving.  I return to the topic today after seeing what should have been a car crash of a plea in mitigation, but was saved by the “inexperience of the bench” – those were the words of another advocate who witnessed the hearing.

I want to say at this point that I don’t write these posts in the hope of shaming another advocate or because I want to show off. I write them because I think it is important for all of us who appear before the courts to be reminded once in a while that everything we say (and the things we choose not to say) are important and proper consideration should be given to everything. That often does not happen when people view offences as “not serious” or “unimportant”, but while a drink driving or TWOC may be minor in the grand scheme of things it will be important to the client, which means that it should be important to the advocate as well.

The case: an aggravated TWOC (taking a vehicle without the owner’s consent – basically pinching a vehicle – and causing damage to it) in which the defendant pleaded guilty to driving a motorbike without the consent of the owner and causing several thousand pounds’ worth of damage when he crashed it.  The Crown’s case was that the defendant had been with friends, including a passenger on the motorbike, all of whom ran off when the police arrived.  No key was found either on the defendant or with the motorbike and the ignition was found to have been hotwired.

The mitigation: the defence took the court through the injuries that the defendant caused himself during the crash from the stolen motorbike.  To my mind this is never the strongest mitigation because he brought the injuries upon himself, but that said it is good stuff in that it shows a defendant has already suffered as a result of his actions and may have learnt from the error of his ways.

Next the court was treated to some confusing points that really should have caused judicial eye brows to be raised, but were allowed to pass without comment.  First, the defence advocate (I believe him (or her) to be a local solicitor) told the court that the defendant denied taking the motorbike and had purchased it the day before.  This is a difficult point for two reasons:
1.       He has pleaded guilty to the Crown’s case on the full facts, i.e. that he had no key with him, there was no key with the motorbike and it had been hotwired – that is not consistent with being a legitimate purchaser.
2.       If the defendant is claiming to be the owner of the motorbike then it is difficult to understand how he can be accepting that he took it without the owner’s consent and so he cannot be accepting his guilt.  Thus, it is an equivocal plea and the court should refuse to accept it.

The fact that neither the defence advocate, nor the prosecutor, nor the court’s legal advisor nor the magistrates picked up on this equivocal plea tells us that far too many people in the court room either aren’t paying attention, don’t know the rules or simply don’t care whether they are administering justice rather than simply going through the motions.

The advocate had asked the court to give full credit for the guilty plea, which is fair enough.  But, he went on to tell the court (needlessly and potentially in breach of his duty of confidentiality to the defendant and in breach of the defendant’s legal privilege in the information) that he had advised a guilty plea because the evidence was overwhelming and the defendant had no prospect of successfully defending himself at trial.  This is definitely not something you should be saying in mitigation because the court is entitled to reduce the amount of credit given to an offender.  The Definitive Guideline has this to say:

Where the prosecution case is overwhelming, it may not be appropriate to give the full reduction that would otherwise be given. Whilst there is a presumption in favour of the full reduction being given where a plea has been indicated at the first reasonable opportunity, the fact that the prosecution case is overwhelming without relying on admissions from the defendant may be a reason justifying departure from the guideline.

“Where a court is satisfied that a lower reduction should be given for this reason, a recommended reduction of 20 per cent is likely to be appropriate where the guilty plea was indicated at the first reasonable opportunity.”
(emphasis added)

So, when the defence is submitting that they had no choice but to plead guilty because of the overwhelming nature of the prosecution case what they are really asking is for the court to reduce the sentence discount from 33% to 20%.  This could be the difference between a few pounds in a fine or a few months’ imprisonment – either way it is not something that a defence advocate should be saying.

Had this advocate found himself before a more confident, more experienced, or even a more thoughtful bench then he may well have found himself in a lot of difficulties. As it was, he got lucky. But that luck won’t hold in every hearing.

In my view, this is part and parcel of a decline in standards that has taken place over the past few years since the introduction of Criminal Justice: Simple, Speedy, Summary (CJSSS). The CJSSS system has shifted the emphasis of the Criminal Justice System away from the “Justice” element and firmly onto the “Speedy” element. Up and down the country, you’ll hear the cry from magistrates reminding advocates that “justice should be speedy”. If you every fancy a laugh, trying responding with, “justice should also be fair and just” then sit back watch the judicial confusion at this new and never before considered concept.

Another problem that is causing the erosion of our justice system is the cut in funding on all sides. Neither prosecutors nor defence advocates have the time to conduct proper research and, if my experience is anything to go by, hardly any legal aid defence firms have access to proper legal research tools because they are too expensive (I pay about £2,000 per year for various subscriptions, imagine the cost if you employed 10 advocates and are only just breaking even). This lack of time and resources leads to the scenes I saw at a recent appeal to the Crown Court. A defendant was appealing his sentence; the facts aren’t important. He won his appeal. The prosecution then sought costs of £340 from him, the defence barrister asked for a lower sum to reflect his clients limited means and the court considered how much to award. I was confused for a moment and then it dawned on me – I was the only person in the room who had bothered to read the criminal costs Practice Direction, which clearly states, “The Crown Court may make an order against an unsuccessful appellant… ” Note the word “unsuccessful” in there – it’s a pretty basic tenet of costs law in England that “costs follow the event” and criminal law pretty much follows this rule so the losing party pays the costs in most cases. 

I also won my appeal and my application for costs was met by a very surprised “did you win? We only reduced it a bit.” The disqualification had gone from 20 months to 14 months, which strikes me as a fairly decisive win when that’s precisely what we asked for! Fortunately, apathy saved me having to quote rules and the judge sighed and said that he supposed he could allow costs, as long as they come from central funds and not the Crown Prosecution Service.

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