Sunday, July 23, 2006

Failing To Appear

There are many defendants that I deal with who like to gamble on who sentences them when they appear in Court. There is a District Judge who used to work in South London who has now moved to Essex who earned a particular nickname because he was so likely to send people to prison.

One of my colleagues recently represented a Client who was somewhat nervous about being sentenced. He was due to be sentenced for a minor offence but because of his previous convictions any sentence was likely.

The Client arrived early at Court and had a conference with my colleague. My colleague then told the Client which District Judge he was going to appear in front of. The Client then said he was going to have a quick cigarette, and that was the last time he was seen. The Client obviously decided that he did not want to be sentenced by that particular District Judge fearing that the risk of being sent to prison was too much.

The foolish thing is that when the Client is arrested on a warrant for failing to appear he will receive a harsh sentence for his decision to leave Court, and the sentence he then receives for the matter he was originally to be sentenced for will probably be prison.

20 comments:

Caracus said...

Mr Cooper by any chance??

Anna said...

What is the rationale for forcing defendants to appear? ( As opposed to trying them in absentia, if they so wish)

CriminalClerk said...

Hey there Gavin,

Recently came across your blog (well,today actually)... Just starting out with my own blog as a criminal clerk working from a firm in the North of England... Anyway, hopefully we can exchange some ideas a long the way.

Anna, trying in absentia, eh? There's an increasing body of Court of Appeal authority that takes your view - at least in Crown Court matters - e.g where a Defendant does a runner on the day of their trial and there's a Co-accused whose had the good sense to "tip up" the old prevailing view was to, well, adjourn it... at least in the first instance... And some might say that's not really fair on the Defendant whose surrendered, let alone the various witnesses, who've given up time, too. I know of Crown Court Judges who're increasingly inclined to "bat on regardless", particularly now that there's authority to say that they can.

One Judge recently stated that he'd like to direct a jury that they could draw an "adverse inference" against the co-accused from his non-attendance, though his tongue was firmly in his cheek. I think.

I suppose the real prob with trying people when they're not there... Apart from it leaving a bitter taste in most modest libertarian's mouths... is that it's virtually impossible for Counsel or Solicitors to act without clear instructions as they can do little to contradict or rebut prosecution evidence.

Anna said...

Criminalclerk, thanks. It's not "my view" however, it is the system here (Italy).
Defendants have a right, not an obligation, to appear at their own trial, and iften they stay away with our blessing.They're not allowed to give witness, but only unsworn statements, which of course get no more belief than they should, and many of them for some reason or other are more of an embarassment that anything else, in court. So unless they want to attend we're generally glad to leave them at home. We get instructions of the basis of pre-trail discovery, anyway, because our system is very stingy of chances to change your defence line once the trial's started: no new witnees, no new documents, no guilty pleas, unless in very exceptional instances.

CriminalClerk said...

Mmmmm... I think you'd call the English system a bit more "fluid" if you wanted to be generous about it... pleas right up to the day of trial aren't that uncommon... and I've seen the prosecution try to drop a 100 pages of "additional evidence" on a defence Barrister on the morning of trial, too ... so there are no restrictions to changing pleas or getting material in even at a very late stage.

I do generally think the English system works quite well... After all, why should directly relevant material be left out, even if it is served at incredibly short notice? Of course, advance disclosure is better... but I think the Courts have to be adaptive and acknowledge that isn't always possible... and besides, it's quite pleasurable to see Counsel getting a sweat on because whatever they've "prepped" has had to go out the window and they have to think on the hoof.

And there's always adjournments.

But come now... the Italian system... No guilty pleas at a late stage? Surely you mean no credit for a guilty plea after a certain stage? If someone changed a plea as they were being frog marched into the dock they wouldn't have to go through the rigmarole of a trial?

beethoven writes said...

I can only understand them doing that if they then decide to head to South America! Or would they have had to surrender their passport well in advance of the matter?

Anna said...

criminalclerk:
a defendant may change his version whenever he pleases of course ( who's to prevent him anyway),but it has no effect on the way the trial goes on, unless a request for plea bargaining or an other "special" trial is made at the preliminary hearing when there's one, or at the opening of the trial, when there isn't a preliminary hearing. On the other hand,both prosecution and defence counsel have to name their witnesses seven days before trial day at the latest, and documents are to be exhibited immediately at the opening of the hearing. Then all evidence is heard, from both sides, but then neither defense nor prosecution have really any manoeuvring margin in their disposal to adapt their case to what they hear then and ask for other witnesses or exhibits. The law does leave the possibility, but condoitioned to the judge thinking it absolutely necessary, and in actual practice, judges hardly ever allow new evidence from the defence unless it is proven that it was impossible to the defendant to produce it earlier, as in the the case of a document formed by a third party and demonstrably come into the hands of the defense later than the opening phase of trial. The prosecution get more scope when they ask for it, but it seldom happens in the average trial. They usually put together their case months before trial day and then don't often bother to look it up againg.So, a late "guilty plea" will perhaps determine the judge to do without a couple of witnesses previously scheduled, but it doesn't really alter the proceeding. The decision, well...what d'you think.

Anna said...

Injuredcyclist:
No, not as a general rule. As a matter of fact defendants seldom knowingly change their versions entirely once their defense line is determined upon. But our criminal law is a very technical (one might ill naturedly say byzantine)one, and it often may happen that defendants want to say things which they think will exonerate them, while in fact they amount to a confession or to admitting an aggravating circumstance.

Anonymous said...

hmmmm..trying to get a client bail by distracting the prosecution with your shining wit.

may i suggest next time you take a hand buzzer and a water pistol?

Bystander said...

Is that DJ SS?

Gavin said...

Anon said:

hmmmm..trying to get a client bail by distracting the prosecution with your shining wit.

may i suggest next time you take a hand buzzer and a water pistol?

After saying the standard things that was all that was left do to? The bail application had no redeeming features about it.

Katie said...

Thank you for sharing so much information with your readers, Gavin.

I stumbled upon your website whilst clicking around with no real purpose this evening and am very glad I did :)

Makes for much more interesting reading than the general ''today I went shopping and bought 4 apples a tin of spaghetti shaped like spiderman and some Lambrini because I am wholeheartedly depressed'' that you usually see!

:)

kay said...

Being sat at the other side of the room, I have to find other ways to distract the barrister/solicitor/legal rep opposite me.

Smiling, shaking head, making shocked expressions or just simply putting my hand in my head works well. Interupting their submissions whenever they make a mistake works well also(when they complain that they didn't interupt me "but thats because I didn't make any mistakes" causes a wonderful reaction)

Results vary from one solicitor who is now terrified of me (he actually refused to come into court one day), others who loose their temper just when they see who they are in court with (making winding them up so easy), and some who are so nervous of what I might do they gibber the way through their representations.(possibly unprofessional but I would get bored otherwise)

Other lawyers think I am the best thing since sliced bread, but thats only because they are nice/competent so i let them get on with their job.

anna said...

An old fox whom I just saw in court once ( he was over 80 at the time) used to bring to court a few heavy legal volumes, and pile them up at the corner of his table. Then , when the opposition was going on well and making an impression, he would "clumsily" turn on his seat (he was a big fella) and bump his arm into the pile sweping it off the table...quite unvoluntarily, you understand. The thud and the fuss and bustle of picking the books up and apologizing severally to each official in the courtroom would take a good three minutes, not to mention the humorous comments from the bench.When he was done, the opposition could only just remember what they'd been talking about, and all the edge was gone. He stopped only when a judge who'd seen him use this trick before threatened to have him put under custody for contempt, but until then he'd been the terror of all other criminal lawyers in town, with this and other tricks.

CriminalClerk said...

ahem, Kay... are you a mag by any chance? You don't sound like a DJ or a Judge.

Anonymous said...

Apart from it leaving a bitter taste in most modest libertarian's mouths

I'm not so sure. The accused should certainly be offered every opportunity to defend himself, but I'd say that absconding fom the trial itself was a prima facie admission of guilt...

Caracus said...

I will take from your above post (DJ Cooper) that I was right with my first most then... Greenwich's loss is someone else gain....

Gavin said...

caracus,

The initial part of my post referred to Mr. Cooper, the remainder to my local DJ.

reflectingdippy said...

in my opinion if a client absconds the trial should proceed without them a judge can order a warrant and if the solicitor has done there job properly they should have taken more than enough direction from the defendant and therefor should be able to direct the advocate solicitor or qc in the correct direction for the defendant

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