Sunday, May 14, 2006

How To Mitigate

Being an advocate requires some skill, you have to know what to say and when to say it. As the years go on you develop certain speeches to cover different situations. One of the skills you need to be a good advocate is to be able to think on your feet, when you are suddenly presented with a situation you need to know how to react, and how to put your case to the Court. I do not profess to be a good advocate, although I would like to think that I am.

Friday was interesting. I received a telephone call from one of my colleagues who was busy at my local Magistrates Court dealing with a trial. My colleague phoned me and asked if I could come down to Court to deal with two Clients to be sentenced as their case had slipped through our diary system and there was nobody at Court to represent them. I picked up the file for the two Clients and got down to Court. As I walked in to the Court room I was asked by the District Judge who was sitting if I was ready to deal with the case. I explained that there had been a mix up with the Court diary, that I was sorry for the mistake, and that I would be as quick as I could with the Clients so that I did not unduly delay the Court. The Clients that I was representing were due to be sentenced for a fight in a bar, and their case was sufficiently serious to warrant prison sentences. The District Judge asked me how long I would need. Bearing in mind I had to locate the pre-sentence reports for each Client, find the Clients, read through each pre-sentence report, go through each pre-sentence report with the Clients, take each Client's instructions on the pre-sentence report, and generally familiarise myself with the case prior to being ready I asked for thirty minutes. The District Judge commented that I would only need five minutes with each Client, and then he graciously gave me twenty minutes to prepare the case.

I got to work straight away, and by this time I was flying by the seat of my pants as everything had to be done properly and done very quickly. I managed to locate my Clients and go through their reports. Thankfully my Clients did not have any objections to the contents of their reports. I explained that sentencing would be difficult and that custody could not be ruled out, but advised that in my opinion community penalties would be imposed.

I then walked in to Court and minutes later my case was called on. By this time I just about had a good enough grasp of the case to put forward my Clients mitigation. My case was then called on and as the Crown Prosecution Service prosecutor gave the facts of the case he pulled out a copy of a DVD of CCTV footage of the incident. He then requested that this footage be played to the District Judge. There were no possible grounds for me to object to the CCTV being played so I graciously said to the District Judge, "No Sir, of course I do not object to you viewing the CCTV".I then saw my two Clients behaving like animals in a bar - at this stage my planned mitigation changed in my head.

I got to my feet to mitigate and went through the standard speech for mitigation. I complemented my Clients on their glowing pre-sentence reports, I discussed their current family relationships, and current employment positions. I then had to explain why one Client should not be recalled to prison because this offence had been committed during a period of time when he was still completing an unexpired sentence. I then had to explain for the other Client that throwing a chair at someone in the bar should not be considered to be an aggravating feature of the offence because the chair did not actually hit the person! At this point I was really scraping the bottom of the barrel! I then had a moment of clarity, I thought that I would mention the Lord Chief Justice's speech "Alternatives to Custody - The Case For Community Sentencing". The mere mention of this speech seemed to enrage the District Judge as he embraced the idea of short, sharp sentencing practices being highly relevant to my particular case.

My job was made easier at one point by the district Judge as he told me that he was going to follow the recommended sentence in the pre-sentence report for one Client, and that sentence was a community penalty. He then said that he was going to deal with the other Client in a wholly different way, I assumed this to mean custody. I banged on for a bit and then noticed that the District Judge was listening to every word that I said about the second Client's young children. I pulled out the good father speech and sat down. I had done my job, if I continued to mitigate I would bore the District Judge. I had in the short time I had been at Court got to grips with the case and delivered the mitigation that my Client's both should have had and wanted. They looked at me from the dock and both nodded their heads to show that they were happy with my work.

My first Client received a community penalty. The District Judge then pronounced his sentence for the second Client and told him that the offence was so serious that only prison was a suitable sentence. The Usher in Court picked up the telephone to call the cells to send up custody staff to take away my second Client, but as the Usher picked up the phone the District Judge said that he would suspend the prison sentence due to the second Client having young children.

My job was done, my Clients had both avoided prison. As my Client's shook my hands complimenting me on my advocacy and walked away I could not help thinking how lucky I had been as this case could have gone horribly wrong as I had had no time to prepare the mitigation on behalf of my Clients.


Anonymous said...

Well done Gavin, another guilty party walking the streets. I'm proud of you.

Gavin said...

I sense sarcasm in your posting.

You are correct to point out that another guilty person is walking the street because they had in fact pleaded guitly, and therefore the guilty clients were sentenced. Do you object to the fact that a guilty person was not given a prison sentence?

Before we get on to the debate of whether it is morally rephrensible to represent criminals please bear in mind that my job as a criminal defence solicitor is to represent my clients to the best of my ability. There will be ocassions when I represent clients who have committed crimes and who escape conviction for those crimes. There are also times when I represent Clients who are accused of crimes that they have not committed who escape conviction.

Anon, I am more than happy to continue this debate but you are talking to a person who takes pride in their job and will not judge clients on the matters for which they are accused because I take my clients instructions and act on those instructions. If I judged each client before I decided whether or not to take their case on then I might as well join the judiciary.

I am sure that if you were accused of a crime, and perhaps a crime that you had not committed you would want the best possible defence put forward on your behalf, and you would want a solicitor that could do their best in trying to avoid a conviction and possibly a prison sentence.

Anonymous said...


You are correct and I applaud you for doing a difficult job. I shall try and save my sarcasm for the judges in future...

Gavin said...


If you do not like Judges then have a look at the Sun campaign.

Gavin said...

The above comment should have included the Sun Campaign's link

motoring solicitors said...

I is not enough to be a good solicitor in order to be a good mitigator, as mitigator need strong interpersonal skills.