Wednesday, September 14, 2005

Ironic Sentence

I went off to deal with a particular case at the Magistrates Court today. My Client was remanded in custody three weeks ago to be sentenced today for a matter of driving whilst disqualified. This Client had seven previous convictions for driving whilst disqualified, and the Court appearance was for the Client to be sentenced for his eighth offence.

I prepared for this case yesterday afternoon, and noticed that we had previously represented the Client. I pulled out the previous file on the Client. His list of previous convictions on the new file suggested that he recently got a four month prison sentence for driving whilst disqualified. The old file stated that he in fact received a four month prison sentence suspended for twelve months! The Client's list of previous convictions was clearly wrong and there was no information on the new file to alert the CPS or Court to the suspended prison sentence.

Solicitors have a duty of confidentiality and therefore it was not for me to put the Court right. Provided that I did not mislead the Court it was perfectly acceptable for me to not correct the Court and just acknowledge that I had seen the list of previous convictions.

The hearing went rather smoothly and thankfully no questions were asked about the suspended sentence that was incorrectly recorded on the Client's list of previous convictions. Rather ironically I was able to keep the Client out of prison and he was given another suspended prison sentence!

23 comments:

Anonymous said...

You see, this is why lawyers get a bad name.

Gavin said...

Why do you say that?

Eion said...

Just because a lawyer represents someone who may or may not have done bad things, why should zealously representation of that client - the lawyer's duty - give the lawyer a bad name? If I hired a lawyer, I'd be pretty annoyed if they provided information from my file to the CPS.

Gavin said...

That's the point isn't it - I have a duty of confidentiality towards my Clients so I cannot go and spill the beans when the CPS or Court get things wrong. Although as an Officer of the Court I must aoso ensure that I do not mislead the Court.

Anonymous said...

I know, I know.

I just can't see the achievement in 'wining' a case for a client who is guilty, though I realise you have to do your best for the client.

I had a landlord who was a solicitor, and could never get used to him being glad when he won his case, even when he knew the client was guilty, and sometimes of pretty serious crimes.

Winning first, justice second.

Anonymous said...

Your duty as an officer of the court should be paramount. You need only have had a quiet word with the clerk before the case began. Your client is a menace and a serious danger to other road users

Gavin said...

Wrong, I have a dual duty towards both my Clients and the Courts. If I were to have a 'quiet' word with the Clerk before the case then I would be in breach of my duty of confidentiality towards my Client, I would be breaching the professional ethics that Solicitors work under and I would be removed from my job. My duty to the Court is not to mislead it which I did not as I made no assertions about his antecedants neither did I suggest that he had not been made subject to a suspended sentence - I simply did not raise the issue.

Maybe my Client is a menace and a serious danger to other road users? If he is no doubt someone who works for the Court or another agency of the Crimial Justice System will realise that a sentence has been passed that should not really have been passed and an application can be made for the Client to be returned to the Court to be resentenced under the slip rule by that person.

anonymous your opinion appears to be strong on this subject, what is your background?

Joseph said...

"anonymous your opinion appears to be strong on this subject, what is your background?"

I am a different "anonymous" from the first. Sorry -- unfamiliar with Blogger. Will put a tag on this.

I am an English magistrate.

I believe your duty as a court officer is above that of confidentiality to a client, if the court has made a crucial error you can correct. There are ways and means of imparting this kind of information, as you very well know.

The point about a suspended sentence is that the offender has crossed the "so serious" threshold, and should be in custody. 4 months is the max, after a G plea. The suspend reflects only exceptional circumstances, not the seriousness of the offence.

A suspend is a useful and important disposal, one widely misinterpreted by defendants and the public at large as a let-off. However, it gains credibility by being used properly, and your wretched client, who regularly and routinely puts the public at risk, should have had the suspend removed, and a further penalty imposed.

I think you should examine your conscience on this!

Gavin said...

Joseph,

My conscience is fine because I have discharged my duties towards the Client and Court without having the offend one or the other. I am not allowed to mislead the Court. I was not asked to confirm that the antecedents were correct, I was not questioned on what his last sentence was. The error that the Court made was based on information given to them by other people, all I did was not correct the false impression that the Court had come to conclude - I simply acquiesced.

My role in the Court is to defend the Defendant not assist with his prosecution.

Yes there are ways and means of imparting the fact that he was already subject to a suspended prison sentence but it is not my duty to tell the Court information that has not already been put before them unless I believe that it is in the best interests of my Client.

I seem to be taking a lot of stick for this particular posting, but Eion hit the nail on the head when he made his comment above. I have a duty to perform, I am part of the criminal justice system, and I do that job to the best of my ability. I have not done anything to mislead the Court I have simply remained silent when they came to the wrong conclusion.

Anonymous said...

A fairly typical story. Never mind, you needn't worry about having a clean conscience if you haven't got one. (And the tax payer will always cough up anyway)

James E. Petts said...

No doubt Gavin's client is a menace, but it's not for his own solicitor to point that out to the court: that's for the prosecution and court to do. If justice wasn't done in this case, it was because of faulty records (a responsibility of the police), not because Gavin didn't breach his duty of confidentiality. Far greater injustice would be caused by the conflict of interests that would result if defence advocates were required to assist the prosecution than results in the absence of any such duty.

Gavin said...

Thank you James for your words of wisdom - it is nice to see that us criminal defence practitioners do feel the same on this issue.

Anonymous said...

you can justify it by adhering to 'the rules', however when he kills someone because of his recklessness and obvious flaunting of the law and safety you will have to bury your head further than 'i stuck to the rules'....where does it stop?

Gavin said...

You seem to misunderstand the criminal justice system. If the other components had been working properly then the situation could not have arisen.

Who ever was responsible for putting the result of his last case on to the Police National Computer is the person who has made the error that the Court has then taken on board and sentenced on the basis of. I did not mislead the Court in any way because I did not suggest that he had not in fact already received a suspended sentence. The Court formed their own opinion on the facts of the facts and their own opinion on his previous convictions because of what the CPS provided to the Court.

If this Client ends up killing someone then the fault lies with the person who did not do their job correctly to record the result against him. My role in the criminal justice system is to defend people not convict them. If you don't like that then I suggest you get yourself a job either in the Court system to make sure that convictions are recorded correctly, or you work for the CPS in Court and check all of the previous convictions that you come across to make sure they are correct.

When you get arrested for a crime that you may or may not have committed I would like to be a fly on your wall when your solicitor says, "Well, there seems to me an oversight here, there is not sufficient evidence to prove the case against you. I am going to advise you to plead not guilty". If you have actually commiyyed the crime I doubt that facing a prison sentence you would turn round and say, "Oh no, I have committed that crime I must be punished appropriately and I know that I will be sent to prison. Don't worry about my wife and children they will survive without me. I am an honest citizen and I must pay the price so even if the evidence isn't there I will plead guilty and face the consequences."

Anonymous said...

Gavin, your actions are typical of defence in this day and age.
James E. Petts, don't you think that it's the courts responsibility, to know what sentence they gave to this idiot on the last occasion. The police records (P.N.C. pre-cons) are updated after the courts inform us of the outcome of a particular case. If they give us mis-information then how can we be held responsible for inaccuracies?

I hope you and your family don't become involved in a collision with your client, when he's supposed to be in prison. How clear would your conscience be then?

The only reason you've posted this on your blog is to try and get some reassurance that you've done the right thing. You wont be getting any off me.

Gavin said...

I am guessing by your statement above of, "...inform us..." that you are a Police Officer. If I am correct in my guess then we are opposite ends of the criminal justice system with different roles. Yours is to arrest and investigate complaints, mine is to represent and defend people. The system exists to convict those who are guilty and acquit those who are innocent. If you do not like the point of view that I express then that is fine, and in a world that embraces freedom of expression you are welcome to express your opinion.

I assure you that I did not post about this particular topic to seek reassurance from others. I am not looking to get reassurance from yourself or any other individual. My blog exists simply to give others an insight in to the world of a criminal defence solicitor. Do you see other posts on this blog, such as talking about the boredom of waiting around at Court, as an attempt to seek reassurance on a particular point? No.

I too hope that others are not involved in an accident where the person responsible should be in prison. If the system operates correctly then they would not be on the outside would they? As I have said my job is not to convict it is to defend. If the Court does not report the convictions to the Police correctly then perhaps you can see that the system is properly administered?


A lot of people seem to have missed the point that the person who I represented pleaded guilty to the offence, he did not get away with it. He has received a punishment, and that the punishment was a term of imprisonment that was suspended for a period of time. The Client did not did not go to prison but provided that the Court reports the conviction properly to the Police on this occasion he will probably go to prison if he is arrested for the same offence again.

Anonymous said...

Yes I am a police Officer and appreciate that we have completely different roles. You have your reasons for posting this on here and I completely accept that it's just part of your blog.

I'll have a look into it and see if you may have committed an offence along the lines of perverting the course of justice and other similar offences. I don't think you have but would be interested to know for sure. Concealing that information from the courts cannot be right, no matter who the blame lies with for them having incorrect information in front of them, which you were fully aware of.

Gavin said...

I have not committed the offence of perverting the course of justice. In order to pervert the course of justice you must do some positive act and in the scenario I have described I have simply kept quiet when I knew that erroneous antecedants were handed in by the CPS.

Concealing that information from the courts cannot be right, no matter who the blame lies with for them having incorrect information in front of them, which you were fully aware of.

Positively misleading the Court is an offence, acquiescing is not.

Anonymous said...

What an interesting blog, and what interesting comments it has evoked.

Slightly disappointed in your ingenuity on this matter though Gavin, 'if I don't tell them and they don't notice; I've done nothing wrong.' True, you got one over on the Court system. Bravo.

But when it's your child, sister, or mother (I assume you have at least one of the aforementioned) killed by a disqualified driver who realistically should have been in prision, but not due to a technicality; or worse miscommunication, maybe you'll take a different stance.

A solicitor without a conscience. Whatever next? :-D

Anonymous said...

Show me a criminal defence solicitor with a conscience and I'll show you a man who has no clients!

A harsh reality is that there is no room for a crime solicitor to harbour a conscience within his professional activities. The entire purpose of the vocation is to advise and represent the best interests of those who seek his services - alleged or actual criminals. That will often involve advising a client not to assist the prosecuting authorities in securing evidence against or making a case stronger against him, or to take actions which render him liable to minimal punishments.

Are the above posts (especially from the police officer) seriously suggesting that a defending solicitor take positive steps to increase the seriousness of the consequences for his client to whom he owes a duty to represent to the best of his abilities? Such a solicitor would no doubt be a very useful ally to the police, but a danger and a liability to his clients.

That police officer's mentality speaks volumes.

reflectingdippy said...

im a standard member of the public and i have to agree with gavin on this issue.

it is the prosecutions job to prove the case against a defendant thats were the law states innocent until proven guilty obviously if the client pleads guilty then s/he should be punished but it then reverts to the prosecution to prove to the court that the crime merits a certain sentence. if the prosecution cannot do there job properly and make sure that all information for sentencing is put to the court then that is a problem.
but the problem should not be blamed upon the legal representation for not mentioning it to the court.

whilst i understand the frustration it courses it is and will always be a problem.

in my opinion the national sentencingor records computer file watever it is called should actually be in the courts themselves and then as the magistrates justices or judges pass sentence the coniviction can be placed onto the criminals file immediately and therefor would solve this problem
it would also save the amount of paper used therefore protecting the environment as it is my opinion the legal services that going from the police cps solictors barristers so on use more paper than ever and probably the biggest area of proffesion to do so and it would also enable the sentencing parties to be able to see there anticedents in full and then allow a fairer sentence to be placed.

this blog is shear example of how the government are failing to do there duties to protect the public as the blame must come to lie with them as they are the people who create the laws that the courts abide by.

Anonymous said...

well if you think about it, this country has a system that there is prosecution and defence. its the job of defence to save their client in any possible way they can. if the client has told his solicitor that he did actually commit the crime but he doesnt want to plead guilty then the solicitor will help him to construct his defence. so, are you saying that even if the solicitor knows that his client is guilty of an offence, he should tell the court?. in other words solicitors know alot of truth about what their client has done but it doesnt mean they should reveal that to the court. DONT FORGET THE MEANING OF DEFENCE!. prosecution can make many mistakes eg. a solicitor cannot say to them that you need to check this and check that for more evidence against his client!!!

Quetelet said...

ANONYMOUS you are a typical example of self-rightous ignorant self-serving plod, it's no wonder that your like are increasingly reviled!

"....PERVERTING THE COURSE OF JUSTICE..."! - Are you a Probationer?, Tsk!

Gavin, Is this an example of the Police/CPS procedural inefficiency, with what frequency does procedural errors by the prosecution account for charges, even cases, being dropped?