- 21/03/2017 - 21/04/2017
18:00 - 20:00
DATE: TUESDAY 21ST MARCH 2017
TIME: 6PM - 8PM
VENUE: AT THE OFFICES OF HODGE JONES & ALLEN, 180 N GOWER STREET, LONDON, NW1 2NB
FREE FOR LCCSA MEMBERS/ £10 FOR NON LCCSA MEMBERS
MITIGATION OR THE ART OF SAYING ‘SORRY’ EVEN IF YOUR CLIENT ISN’T
This lecture follows on from the previous one on Bail Applications and will emphasise the same points of analysis of the Crown’s case, placing the case in the Guidelines and manipulating them legitimately to your client’s advantage and the gathering and utilisation of materials to present your client’s case.
The format will also be the same as last time. You will receive papers in four case studies with a view to preparing mitigation. None of the studies have the client’s personal circumstances on them – deliberately- this is to emphasise that for the main part mitigation can be conducted with the Crown’s materials and that although personal mitigation can be useful and sometimes vital to prevent a custody sentence, it is the prosecution case that is more important. Do your job properly on that and you may not need to use that pregnant girlfriend or dying grandmother or job starting on Monday with his Uncle doing painting and decorating.
You should prepare each study as if you were going to mitigate on it. You should have read any relevant Guidelines on sentencing and have them with you at the lecture. There is no need to search for authorities – this is the Magistrates Court after all.
No-one will be asked to stand up and perform but each delegate should be prepared say how they would approach a particular point and then justify that argument.
If you get it wrong you will not lose CPD points. If you laugh at a fellow delegate who fouls up then you will…….
The following para are cut and pasted from the last lecture, with good reason, the same considerations apply
Important not to view bail apps and mitigation as separate issues from the trial, they are best viewed as interlocutory applications prior to disposal of the case. Think of the case as one continuing unit. You should view every case as a trial.
CPS have to prove the case and if you approach the application as a mini trial there is a greater chance of success.
1/ Arrive early, getting flustered for want of time ruins a good application. The more cases you have in a morning, the more the points below apply.
2/ Be physically fit.
4/ Temper control
5/Be firm with your client – it saves time.
6/ Be properly equipped. Preferences vary between a well thumbed Keogh handbook or a laptop full of accumulated bumf but you need one or the other.
7/ Remand advocacy is different from a trial in the sense that it is, or should be, an interrogative process. It should be viewed, as I remarked above as part of a trial but the technique of delivery is different.
8/ The concept of a fulcrum. Where is the turning point of a case?
To identify that fulcrum you need to have all the necessary information to analyse.
GATHERING SOURCES OF INFORMATION
1/ The CPS bundle.
2/ The PNC as a life chronology
3/ Current or old PSRs
4/ The COZART test
5/ Use the Mental Health Practitioner and their assessments
THE IMPORTANCE OF STRUCTURE
Newer advocates will find it helpful to approach the case in the following way even if after longer practice you skip a stage. Most of the following will be sub-conscious after a while.
1/ Analyse the CPS case. remember this is just part of a trial
If mitigating consider how far you can get away with adverse comment or explaining away the CPS facts without getting a Newton hearing
2/ Is this a custody entry point. Are there 'local guidelines' ?- a court that deals with Romanian gamblers daily will have a de facto policy on sentence.
3/ 'Guidelines" for individual DJ or Benches
.Consider the tribunal you are appearing in front of. Hard or soft? Is there a general disposition to deal harshly with say, domestic violence cases? Adjust any speech accordingly. If unsure watch their approach in a few cases beforehand. If inexperienced find a local hack and ask them, most will be flattered not irritated. When speaking to a Court, try to gauge reactions and adjust your arguments accordingly.
4/Now and only now do you consider your client's case.
Most of the material you need can be gathered not from the Defendant but from the CPS bundle and the PNC.
(So don’t bother with instructions………..)
However, do not let this approach blind you to signs that give a clue to why your client should offend.
Sexual abuse or orientation
The above considerations don't necessarily excuse criminal behaviour but then can be vital in explaining it.
ASSEMBLING THE ARGUMENT.
1/ Having gathered that information you can give an accurate assessment of your client's position, both to him and to yourself to argue his case.
2/ At this point ask yourself about that fulcrum. Where does the pressure need to be applied?
3/ Having done all that you can take the Court through the argument. Starting with the guidelines, how they apply or not, to your client, then going on to the credit for plea, his record and then personal mitigation.
Know your argument backwards so you can start it at any point and not be put off. Bail applications are best seen as a trial in miniature
4/ The concept of minimal advocacy.
Please register your attendance with the Saraboxer@aol.com if you would like to attend this course.