Friday, October 07, 2005

Newton Fun

In the afternoon today I attended at a Magistrates Court to deal with a Newton hearing. My Client had pleaded guilty to an assault but disputed some of the facts that the prosecution say happened. When the hearing date had been set back in September I had drafted a basis of plea document that set out what my Client accepted happening and what he disputed about the prosecution case.

When I turned up to Court today my Client (despite having bail conditions not to) had spoken to the victim of the assault. The victim did not want to come to Court to give evidence in the Newton hearing and was quite happy to accept the basis of plea entered by the Client.

I walked in to Court and spoke with the prosecutor dealing with the case. After trying to make a deal she went off to speak to the victim who stated that they did not want to give evidence or take part in the Newton hearing. The prosecutor then spoke to me and suggested that she would call the victim as a hostile witness and apply to have their statement read to the Court.

I had been given clear instructions by my Defendant to avoid a Newton hearing and arrange for the prosecution to agree a basis of plea that was favourable to him. I set about my task engaging with the prosecutor discussing the finer details of the case:

Me: My Client accepts punching them in the face a few times.
Prosecutor: That's not enough I want the fact that he hit them with the remote control and iron, then dragged them around the floor by their hair to be in.
Me: No. He will certainly go to prison for that. I'll offer you the punching in the face and hitting them with the remote.
Prosecutor: He needs to accept he has caused an injury. He caused bruising and swelling.
Me: Okay he punched them in the face causing bruising and hit them with the remote.
Prosecutor: ...and hit them with the iron.
Me: No.
Prosecutor: He either accepts the iron or the hair dragging as well otherwise we do not have a basis.
Me: How about punching, the remote, and that he grabbed the hair and shook them? No iron and no dragging.
Prosecutor: Okay.

So there I was bartering over punches, being hit with an iron, remote control, and being dragged around on the floor by their hair. Once the deal was struck the victim left Court apparently happy that they did not have to give evidence. My Client was happy because many of the aggravating factors in their case had been swept away with the agreement of the prosecutor.

The Prosecutor had a hard time giving the facts of the case to the Magistrates because her case summary no longer made any sense as it referred to facts she had agreed that could be dispensed with. Eventually the case was adjourned for pre-sentence reports, I am predicting that my Client will now receive a community sentence rather than the inevitable prison sentence that he had been looking at if convicted on the basis of the prosecution's facts.

10 comments:

Anonymous said...

Gavin, great job there. You managed to present something to a court that didnt actually happen, and got everyone to agree to said fantasy. Well done. Just as well the broken bail wasnt mentioned too. Hoho, that would have been a hoot explaining that away too. I supposed the victims reluctance had nothing to do with that visit?

Its one thing presenting the circumstances in the best possible light, quite another I would say, to dispense with facts altogether....

Shame on you - and dont give me the "just doing the best job for my client" line, its just a re-phrasing of "I was only following orders". It didnt wash then, and it doesnt wash now.

Gavin said...

Hold on, hold on. How do you know that everything that was written in the witness statement making the complaint against my Client was in fact all true and was not fabricated or exagerated at all?

I have seen on many occasions witnesses complaining of assaults where they complain they have sustained serious injuries but the Police doctor and hospital reports do not support the assertions made. Do you really beleive that every complaint made to the Police is in fact a true complaint, or that none of the complaints contain any exagerrated facts? Why do the Police warn people of mkaing false allegations of theft/robbery of mobile phones? Why do some people complain that large amounts of cash are stolen in burglaries when they do not appear to have the means to have the cash? Why do people get prosecuted for perverting the course of justice or wasting Police time?

You suggest that I have got everyone to agree to a fantasy. If that is really the case then the Prosecutor is also at fault for not standing up for the complainant. The victim will have their own reasons for not wanting to give evidence, or being satisfied that my Client's basis of plea was acceptable to them. I did not dispense with the facts, I put forward my Client's version of events and agreed with the Prosecution a series of facts that amounted to admissions to an assault causing an injury, and then to certain aggravating feautres to that assault.

Anonymous you say: "Shame on you - and dont give me the "just doing the best job for my client" line, its just a re-phrasing of "I was only following orders". It didnt wash then, and it doesnt wash now." You seem to take the view that every defence solicitor must be corrupt and that there is no place in this world for people accused of crimes being able to defend themselves against the allegation.

Joe said...

Gavin, I think people generally accept that as a defence solicitor you are here to do the best for your client. I know if I got myself into some bother then clearly I'd expect my solicitor to do the same for me, whether I was guilty or not.

There are a couple of things I've always wanted to ask a defence solicitor:

- How would you feel 'getting someone off' on a technicality, that had burgled your or someone you know's house?

- Have you ever successfully had a client found not guilty at trial, and secretly regretted it due to the nature of the charges (I'm thinking kiddie fiddlers)?

Thanks

Gavin said...

I could not act for someone who I knew had committed a crime against someone I know as it would be considered to be a conflict of interest. If someone got away with committing a crime against me then of course I would not be very happy but I know how the system works, I know what the rules of evidence are, so if I really knew that someone had committed a crime against me rather than just suspected then I would be pretty angry.

I remember a few years ago I parked my car a few hundred metres up the road from a Magistrates Court and when I came back to the car one of my windows had been smashed and my car stereo had been stolen. It was quite likely that I had seen the person who committed the theft earlier that morning in the Court.

I should not take cases on where I judge the case on the allegation and prosecution evidence to decide if I think the person has committed the crime or not. If I did that then I can not act objectively for the Client.

The first ever trial that I did was for a person being drunk in charge of a motor vehicle. He was not driving the car but was sat in the drivers seat, the keys were in the ignition and the engine had been on. I was given insructions over a 15 minute period then we were marched in to Court by the usher. Acting on the instructions I had been given I was successful in discrediting the accounts of two Police Officers and the District Judge returned a verdict of not guilty. I walked out of Court pretty happy with the result as I had got a not guilty verdict on a case that was reasonably difficult to win. Just as I was goodbye to the Client he turned to me and said, "Thanks for that. That is the first time that I have been guilty and got away with it". That did shock me at first, but as I have dealt with more and more trials it is just part of the usual procedure. Nothing is ever black or white in criminal proceedings. The idea of guilty or not guilty is not as simple as people beleive it to be.

Anonymous said...

I understand the need to provide a defence to the accused, and am sure that you work hard for your clients. However, the underlying thrust of your argument seems to be that the underlying guilt or innocence of your client is of no matter. It is the adherence to procedure that is important. Victory is the goal, and the game is played well by both sides.

Interfacing with defence and prosecution lawyers over a number of years, I too believe this to be true. I just wish that the general public understood it a bit more so that the system would be under pressure to change.

Be interested in your view of the point of the Crimial Justice System?

Eirik said...

What about this scenario: Your client tells you he's guilty, but you think you have a good chance at getting him off. What kind of defense would you go for? Is it completely up to the client to decide?

I've also heard of "plea bargains" in the U.S. Do you have that in the UK?

This is really fascinating reading.
I think your blog is great, and I'll certainly keep reading it.

Gavin said...

If a Client tell me his guilty I am not allowed to say anything positive in Court to suggest that he is not guilty. For example if I had a Client charged with a burglary and he told me that he did do it I could not say in Court that he had not done the burglary. What I can do in his defence is challenge the Prosecution evidence in terms of making submissions to the Court that the Prosecution evidence is not up to the required standard of proof to convict. For example a Client may admit that he has done a burglary but he does not want to plead guilty. If there is a distinct lack of evidence relating to the entry of the property, identification in terms of witnesses, DNA or other forensics linking him to the scene, and the property taken has not been recovered or has no link to the Client, then I simply suggest to the Court that the Client should not be convicted because the evidence is so weak evidential burdens have not been satisifed to actually convince the Court that the Client was guilty.

There is no plea bargaining in the UK as we can agree the case facts with the Prosecutor but the Judge is always independant of the discussions. So although we can agree the facts of a case we cannot ever agree what the sentence will be because the Judge will decide that based upon the character of the Defendant and the facts of the case.

Thanks for your kind words.

Milton john said...

You said:-

"Hold on, hold on. How do you know that everything that was written in the witness statement making the complaint against my Client was in fact all true and was not fabricated or exagerated at all?"

Well we know because you told us, your client was anxious to avoid the aggravating circumstances - the iron/hair dragging, being included, not because it was untrue but because, according to you, he knew he would get a custodial sentance. Criminal lawyers walk a thin line, that one was very very thin.

Gavin said...

Just because someone wants to avoid a custodial sentence does not mean that they have done everything that they have been accused of. This particular Client always denied the aggravating features of the offence but wanted to avoid giving evidence so he was content to accept more aggravating features in the allegation if it meant that he would avoid giving evidence and ultimately have a better chance of staying out of prison.

You are right criminal lawyers do walk a thin line.

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