Monday, April 16, 2012

Not Everyone Can Take A Hint

When I chair a court, I try to nudge things along, within the constraints of the law and its procedures. One of my favourite lines is, having read a pre-sentence report that includes an obviously sensible recommendation as to sentence; "Ms Smith; unless you seek to persuade us otherwise we are minded to accept the recommendation in the report". Nine times out of ten the advocate will smile and thank me. Sadly, a few cannot see a helping hand when it is extended to them, Today, during a not-too-serious bit of business, the prosecutor launched into what promised to be an exhaustive, if not exhausting, history of the case. I interrupted her in my best kindly-old-beak manner, and said "Do feel free to summarise, as this turns on a simple issue that we can easily decide upon". She acknowledged me, but ploughed on regardless and I had to stop her again to say that none of the facts that we were hearing could possibly affect our decision on the key point. She sat down and the defence brief, after thanking me for my intervention, started into another entirely superfluous recitation of facts.

One of my colleagues whispered "Are these people paid by the yard?"

No they are not, but they do it anyway.

20 comments:

  1. It is a sensible and time-saving practice to indicate that the bench is prepared to accept a sentencing recommendation.

    So long as defence also thinks the indication is sensible then why get into lengthy discourse about it?

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  2. Maybe you're case hardened and missed the pertinence of the submissions being made?

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    1. SouthLondonJP17 April 2012 08:46

      Unlikely. All parties will have seen the report. It will include a summary of the facts but in any event the Pros will have outlined these hopefully succinctly. It is also possible that at least one of the bench will have been present at a previous hearing especially if it was a trial.

      Clearly if the defence wish the bench to depart from the recommendation (or indeed if the bench after careful consideration do not intend to follow it) then they can submit all they wish and the bench will listen. But such submissions are pretty rare.

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    2. @ SouthLondonJP
      Possible that one of the bench was present at a prior hearing, but increasingly unlikely....

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    3. Well,I don't think a PSR would necessarily set out the full extent of someone's mitigation. Also (a pet bugbear of mine this, actually) there are obligations on the Prosecution to open the case properly and fully... Okay, t an opening is not necessary if it's a sentence after trial... But if it's a guilty plea then I would expect the Prosecutor to open the case fully and properly. I would also expect the bench to have the courtesy to listen. I stand by my "case hardened" point.

      N.B. Any prosecutor who stands up and reads out an MG5 should be bawled out of the Courtroom. I see this in the Crown Court all the time and it drives me potty. Cat 3 and Cat 4 prosecutors are the worst offenders, too.

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    4. I should think so to!! Most of the MG5s I see written are not exactly easy to follow - and the last one I did ran to 12 pages!!

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    5. Anonymous has a serious point re "case hardening", which is probably more common amongst DJs than JPs, but far from unknown nevertheless in the ranks of the magistracy.

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    6. I deliberately gave no details of the case, and assumptions are being made that are in error. This was not a simple reports case and sentencing. The information that I attempted to avoid hearing had absolutely no bearing on the simple matter before us.

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    7. AnonymousApr 17, 2012 06:22 AM, it's all well and good saying any prosecutor "who stands up and reads out an MG5 should be bawled out of the Courtroom" but the fact is quite often they barely have time to read the MG5 themselves let alone consider any of the statements behind it.

      Last week I was in court and an admin assistant was rushing papers into court in white envelopes to hand to the prosecutor just moments before the case was called on. Certainly a lot of the London courts I go to have been merged so one court deals with all the overnight/nary hearings while the others do trials and youths. So, as happened last week, a single call in sick from a member of court staff closes a court room causing chaos throughout the building as there are no staff to take the sick one's place!

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  3. One of the most chilling interventions that I heard (and rather enjoyed, I must admit) was an appeal in the crown court.
    Judge: I hope, Mr Smith, that you are not going to base your appeal on the grounds that....................
    Counsel: Well, actually, yes your Honour, that was my intention.
    Judge: That will not succeed. Do you have any other grounds to advance?
    The ground referred to was not valid in law, so there was no question of HH not involving his magistrate colleagues

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  4. There are two phrases that really wind me up:

    " And as you can see from your Guidelines..." (yes - so don't tell us what we can see!!!)

    "My client was in drink and therefore..." Being drunk is never (as far as I'm aware) mitigation and is (often) an aggravating factor. So if you hear your defence solicitor bring it up, fire them!!!!

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    1. I agree on the guidelines point, it's patronising.

      However, I don't mind " the guidelines state x-y, and here is why my client should get x rather than y"

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    2. I might mention being drunk only to show that this behaviour was out of character and only if I am also saying that being drunk is out of character as well. To be blunt, if your client is nicked shouting drunkenly at the police then there's not much getting away from the fact he was drunk so you're better off dealing with that fact than leaving the court to treat it as aggravating without hearing anything said about it.

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  5. We have one particular defence solicitor who tries to mitigate on behalf of his client after we have already said we are going to ask for reports, an entirely pointless waste of time. And to be even-handed, it is very annoying when the CPS read out "the facts" at a sentencing hearing while failing to acknowledge that there has been a trial at which some of these "facts" were not found to be proved.

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    1. I would have thought you would be able to work that one out

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    2. How, if neither the bench and nor the clerk were at the trial? It depends on either a full note in the court record or usually in practice on the defence solicitor, often the only person apart from the defendant present at the trial, pointing it out.

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  6. If the report is sensible then I always ask the bench if they are minded to go along with the recommendation. If the report is barking (and they sometimes are) then I do mitigate and go through what is wrong with the report as my client has the right to have the points made if he wants them making.

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  7. When I was new on my feet I worried whether I would miss something and thus unless I was certain what the hint meant I would probably carry on regardless. I suspect that might be what happens with some of the advocates you have seen.

    There is also the point that sometimes what we see as important the bench miss entirely and vice versa. I recently had a case where D had been fabricating bar codes to stick on products in a shop and get a lower price. If you think about the effort that takes to make it work you realise its actually a very sophisticated operation and should really be treated as a fraud with aggravating features. But, the bench chose to treat it as a minor shop lifting and gave the chap a small fine.

    Even more experienced lawyers are not always wise to the ways of the court room. One of my old law teachers used to love telling how out of judges were with his example that a judge "didn't know who The Beatles were". A more likely explanation is that the judge was hinting at the lawyer that no evidence had been called as to who they were and would the lawyer like the judge to take Judicial Notice of their identities.

    I always say to clients with a favourable report that they don't want me to say much... if I keep talking then things are going wrong! First question is always, "have you read the report and will you follow the very sensible recommendation?" If the answer to yes then game over. It does take time for new advocates to learn even the simple tricks of the trade though.

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    1. I think the "I always say to clients..." is critical.
      I suspect that some lawyers go on because they know their clients expect to heaar them go over dtails which are important to the client

      I don't deal with criminal cases but when I am in court with a client I will explain to them ahead of time whether it will be be or the other lawyer doing most of the talking, and reassuring them that often, less is more. (I once did a contested hearing in which I said nothing expect to confirm that I did not wish to address the Judge. Admittedly the Applicant's representative was an incompetent idiot)

      It takes a while to learn to pick up on the hints, though. I once say through an excruciating 5 minutes as the Judge repeatedly said "I cannot hear you" to a representative (Who did not have the appropriate rights of audience, was not corrrectly dressed, and had not asked for either issue ot be excused) She kept raising her voice.. (she was old enough and experienced enough to know better, and I had actually raised the issue with her before we went into court and she told me that I was wrong, so I was less sympathetic than I might otherwise have been)

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  8. We're minded to follow the recommendation in the report gladdens the heart: "Thank you Sir, I'm not going to argue with that; in terms of financial orders, you have the means form. Is there anything else I can help you with?" "No thank you, stand up Mr Smith. That was a digraceful piece of behaviour but we are going to follow the sensible recommendation..." Job done. Why make it more difficult?

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