The plea in mitigation
No matter how good an advocate you may be, in the majority of cases your client will be convicted of, or will plead guilty to something and will have to sentenced. How do you get him the lowest possible sentence?
A bad plea in mitigation can be painful to watch unless you are connoisseur of cliché.
“Pleaded guilty at earliest opportunity … deep remorse … can’t excuse but can explain … moment of madness … reached cross-roads of his life … suspended sentence will be a salutary reminder hanging over him … “
No-one will be persuaded by that sort of nonsense, any more than by the weird language of the pre-sentence report with its “dynamic risk indicators” and “criminogenic causality matrices.”
There is, as we shall see, a legitimate use for the dull and cliché ridden mitigation, but on the whole you should try to avoid it.
The point to remember is that there is more to the gentle art of mitigating than pulling out a metaphorical half onion and a viola. In fact the actual speech to the judge is often the least important part of the process.
So here is a guide to the various stages with some hints to help you get the lowest possible sentence for your guilty client.
The Early Guilty Plea
The good mitigation begins with the client’s very first appearance in court. Obtaining maximum credit for a guilty plea can only be guaranteed if he pleads on the earliest reasonable occasion, and with the near ubiquity these days of early guilty plea schemes this has become even more important.
If your client’s guilt is cut and dried there is no difficulty. He should enter his plea immediately. But one needs to be careful. Sometimes the evidence may be ambiguous. The defendant may feel he has no defence to inflicting grievous bodily harm, but is the evidence actually clear cut? It is surprisingly common , for example, that the initial papers suggest a victim has a broken facial bone, but a more cautious doctor may decide that it is actually only a “suspected” fracture. Zygomatic and nasal fractures seem to have a tendency to be diagnosed by the A & E doctors only to become merely “suspected” a few weeks later. You will feel rather silly if you have admitted GBH and it turns out that only ABH has occurred.
But once the decision to plead guilty is made, then comes one of the most critical parts of the process: the basis of plea.
The Basis of Plea
Sometimes this is unnecessary, but in very many cases a well-drafted basis of plea can make all the difference between prison and freedom. It is not an opportunity that should be missed.
What is needed in a good basis of plea?
First of all, of course, it has to be acceptable to the Crown. However much your client might like a basis of plea that rubbishes all the prosecution witnesses and simply accepts the bare minimum of guilt, such a document will be like a red rag to most prosecuting bulls. It won’t be accepted and then you will be faced with a Newton trial. Newton trials are generally best avoided from the defence point of view. Do you really want to let the judge decide whether he believes your client?
So be polite, and accept as much as you can, particularly if it makes no difference to sentence.
But if there are crucial points that really are important, then you must be clear about them. Let’s say your mitigation is that your client lost his temper after the victim called him a “f—ing black c—.” Your basis of plea should not just say the victim “used abusive language” in the hope that the prosecution will not think the `nature of the language an important issue. The use of racist language is clearly something that provides more powerful mitigation than ordinary vulgar abuse, and the basis of plea should make it clear that the language was racist. If it doesn’t, and you then mitigate on the basis that the defendant was racially abused, both prosecution and judge will, quite rightly, go bañanas and the whole plea bargain may fall apart.
Don’t forget that whatever the prosecution may agree, it is the judge who has the ultimate say in whether a Newton hearing is called for. So it helps to know ones judge. There are some, perhaps more often those cut from a more old-fashioned cloth, who are usually quite happy to accept a basis of plea that has been agreed between counsel. On the other hand, some of the more activist types like to throw their weight around and demand a Newton trial for every trifling difference.
There is, of course, considerable satisfaction in agreeing a basis with one prosecutor and judge, only to find that the next ones disagree with it. As long as your basis of plea is clear and unambiguous, and of course signed, there is not much that either can do about it. Nothing is more delightful to the ears of a defendant than the sound of an earlier prosecutor being lambasted for accepting too lenient a basis of plea.
These days with formal sentencing guidelines playing an ever more important role there is no reason why an agreed basis of plea cannot simply assert that a defendant played a role at a particular level. For example, in a drugs case your client may be rather vague about exactly what he did, but quite happy to admit that whatever it was, it was a “significant” rather than a “leading” role. If so, rather than falling out over the details you can agree that with the prosecution.
One unpleasant rabbit is sometimes pulled out of the prosecutor’s hat and you need to be ready for it. Instead of a Newton trial the prosecution demands a “Guppy” trial (named after the disreputable old Etonian Darius Guppy, the former Eton friend of Boris Johnson). The nasty part of it is that when such a trial is held the burden of proof shifts to the defence. It can properly take place when a basis of plea is submitted that contains assertions about subsidiary issues that are by their nature not within the knowledge of the prosecution. A year or two ago this was quite a common prosecution submission, but thankfully its popularity seems to have waned, probably because most judges would rather not waste valuable court time on resolving disputes that are not, by definition, germane to the crime itself.
The Goodyear Indication
In the old days judges could, officially, only give the vaguest indications of the likely sentence. The rule was circumvented in any number of ways, most of which involved a cup of stewed coffee in the judge’s room, during which the judge could drop heavy hints or utter veiled threats in a deniable way. Generally speaking such conversations took place with a view to inducing a guilty plea from a nervous defendant.
The era of delphic utterances and stewed coffee was swept away by the case of Goodyear1 which sanctioned formal indications of sentence being given in open court. There is now a great deal to be said for asking for such an indication even when soothing words from the judge are not necessary as midwife to a plea of guilty. The reason is that, once given, the Goodyear indication is a ceiling to the maximum sentence, but not a floor to the minimum. Moreover, it will bind a future judge, so if the judge at the plea hearing is a gentle pussy-cat you may be able, by asking for an indication, to bind the jaws of the sentencing judge who may turn out to be a hyena. On the other hand, of course, a hyena at the plea hearing may indicate a swingeing sentence which will then be seen as the bench mark even if the sentencing judge is a pussy-cat. So know your judge and be wary of asking for Goodyear indications from hyenas.
The pre-sentence report
Once the plea has been entered at the earliest stage and the basis of plea accepted, in ninety nine cases out of a hundred the Judge will want to adjourn for a pre-sentence report. In the ordinary run of things you should acquiesce as a PSR will probably do you more good than harm.
It is often particularly important to ask for a PSR after you have been found guilty at a trial. There is something about the immediate aftermath of a trial that seems to excite judges into passing severe sentences. Everyone’s adrenalin has been pumping in anticipation of the jury’s verdict, the jury have taken a dislike to the defendant and may still be sitting at the side of the court. In such an atmosphere a condign sentence seems like a fitting denouement to the proceedings, like the matador’s estocada to the bull’s heart. I am sure no-one consciously thinks it, but somehow a non-custodial sentence can seem anticlimactic in the immediate aftermath of a trial. Even if a PSR is not essential it is a good idea to invite the judge to order one, if only to allow time for passions to subside. On the return three weeks later judgements will in all probability be far cooler and more rational and, all things being equal, this should result in a lighter sentence.
There are however some situations in which a PSR is best avoided. If either a very heavy or a very light sentence is inevitable a report is probably not a good idea.
If a lengthy prison sentence is unavoidable you should bite the bullet rather than put off the day of reckoning. A suitability for unpaid work will be of purely academic interest to your client, and there is always the chance that the probation officer might take against him in a big way. Your pre-sentence report will be a covered with black bar charts of criminogenic predictions, all of which will confirm in graphic, if incomprehensible, form that your client is a thoroughly nasty piece of work.
Conversely if the sentence is clearly going to be very light, a pre-sentence report can only widen the range of possible sentences from a discharge or a fine to something more unpleasant.
The Day of Reckoning
The dies irae has arrived. Your client has arrived in his best suit clutching a sheaf of glowing references. The job interview is on Tuesday and his baby is due next month. All is looking good for a suspended sentence.
Unfortunately most of these mainstays of the traditional mitigation are now overshadowed by the rigid grids of the sentencing guidelines. Ever more crimes, and almost all the common ones, have been classified into their various levels and categories. Instead of tugging at the judge’s heart-strings (which was in reality often a thankless task) your job must be to label the crime, and your client’s involvement in it, in as low a category as possible. There is no substitute, I am afraid, for a careful study of the relevant guideline. Fortunately all of them have grey areas and fuzzy boundaries that can be open to argument, and your job is to exploit that fuzziness as best you can. It can make a huge difference. To take just one example: when is an assault a “sustained” assault? Sometimes it is obvious: but what about six kicks? Or three kicks? Or two? In a S.18 case whether it is classed as a “sustained” assault can make the difference between a starting point of 12 years (category 1) or 6 years (category 2). So it pays to have your arguments well-rehearsed. You will, of course, have had the sentencing guidelines very much in mind when drafting any basis of plea, and if you had agreed just 2 kicks you are in a very much stronger position than if you had not condescended to such particulars.
Despite the sentencing guidelines, judges do still retain a fair amount of discretion, at any rate within the boundaries of individual categories, and at the lower end of the scale they still have the freedom to order a suspended or an immediate gaol sentence. So, at last, here is your opportunity to put your traditional advocacy skills to good use.
If you have character witnesses you must decide whether they are better on paper or whether you should call them. The sort you should never call are the ones who see this as their opportunity to make their own plea for justice for their son / boyfriend or whatever. Invariably such witnesses will try to play down the criminality of what he has done, and very often try blame the prosecution witnesses: “My Darren would never have kicked him seven times in the head if he hadn’t been trying to defend himself.”
The sort you should call are the ones who are disgusted by what Darren has done, and determined that he should not do it again. Long-suffering mothers and girl-friends can be very effective in persuading judges that he will henceforth be kept on the straight and narrow without the need for too much judicial intervention.
Occasionally a character witness can make matters far worse. I once called a charming young girl-friend, only for her to reveal in the witness box that she was the mother of the defendant’s one year old baby. All good solid mitigation material, except that she then went on to reveal that she was only sixteen years old. You could almost hear the whole court-room doing the mental arithmetic, and the answer did not assist the defendant’s submission that he was a man of good character.
At last it is time for your last plea for mercy: the peroration of the mitigation. All too often advocates seem to think they have to talk up the seriousness of the offence, the culpability of the defendant and the general pointlessness of anything other than a long custodial sentence. The idea, I suppose, is that by appearing to be a harsh judge of character the advocate will seem more persuasive when he eventually says “but…” It is a dangerous approach because some judges will happily adopt your description of your client in their sentencing remarks: “Your own counsel described you as a greedy, worthless, parasite. I agree.”
So do not overdo the seriousness of the offence, although do not trivialise it either. If your object is simply to get the shortest possible prison sentence then say so. There is no reason why you should not suggest a number of years or months. Indeed, the sentencing guidelines effectively invite you to do so. You can use the psychological principle of “anchoring” to your advantage. Just as the first price suggested by a salesman is then treated as the basis for negotiation, so if you mention a reasonably short sentence that figure will tend to set the agenda for the sentencing decision.
Finally, although you should avoid cliché wherever possible, the fact remains that judges, like other people, do tend to think in stereotypes. Some of these lead directly to gaol:
Old lag who will do his bird without complaint.
Young tearaway who needs a short sharp shock
Dangerous man who must be locked up for as long as possible
Other stereotypes lead just as inexorably to a non-custodial sentence:
Man with new family, trying to put his youthful indiscretions behind him.
Young man who has made one bad mistake and will not make another.
Recovering drug addict finally succeeding in conquering his addiction.
If your client will fit into one of the non-custodial stereotypes, then use it and don’t worry about how tired and dull your mitigation sounds. Put yourself in the defendant’s shoes. Which would you rather do: listen to twenty minutes of turgid cliché, followed by 200 hours if digging ditches in the rain, or listen to a modern Cicero followed by 12 months counting the white bricks in your prison cell?
1  2 Cr.App.R. 20