Mitigation/Aggravation? YOU decide
As a defence solicitor/barrister, one of the most important skills is that of presenting aggravating factors of an offence as mitigation. Here are some of the arguments I have heard offered by defendants or their representatives either to get bail granted or to reduce their sentence:
- I'm already on bail for several other matters.
- My client now has a girlfriend to keep him on the straight and narrow. (Girlfriend aged 15 and arrested for shoplifting with him.)
- I hit him because my brother was hitting him.
- It is clearly unreasonable to expect my client to keep this aspect of his ASBO as he has proven himself unable to do so.
OK, technically the last isn't one of Yorkshire Ripper Peter Sutcliffe's reasons why he should be granted parole. But it appears to figure in his treating physicians' analysis of him.
Sutcliffe isn't out yet, and quite possibly he will not actually be released until he comes down with cancer and is permitted to die in the comfort of his own murder scene. But it disturbs me that the courts seem to operate in a world apart from the rest of us, with no accountability whatsoever when flagrantly ludicrous decisions are made and a nonsense made of facts. I have sat in court and heard a defence solicitor telling a magistrate that his client had not been in trouble with the police since the incident in question, with no recourse whatsoever for me to leap to my feet clutching the defendant's police print screaming "Damned lies!" If a police officer falsely presented facts in court, regardless of whether through ignorance or malice, they would be rightly investigated and potentially prosecuted.
Likewise, if a police officer attended a report of child rape and decided to leave the offender wandering free to attack his next victim, he would probably be jailed for neglect. This judge remains free to continue unchecked. It appears that in the interests of a fair trial, anything goes.
So should the Yorkshire Ripper achieve his parole and go onto offend days, weeks or months later, the judge who frees him would at the worst face removal from office via an internal process. More likely, they would merely be villified in the press but no actual sanctions brought, largely because there are no serious disciplinary or criminal measures that can be brought. I am not suggesting we can or should realistically prosecute masses of judges for manslaughter or neglect for every offender who reoffends under their grammercy. But why should those options be ruled out when they weigh on the minds of every other member of the criminal justice process? Why should accountability fall at the last hurdle?
I'm not a fan of extra public bodies, public inquiries or public hangings. But if the rest of us are subject to them, why should judges be any different?
Of course, the natural progression of this idea is to prosecute and publicly shame jurors who acquit those who go onto be proven guilty, or who reoffend...
Well no one said reform was easy.
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'Diary of an On-Call Girl' is available in some bookstores and online.
posted by PC Bloggs at 21:01
27 Comments:
Sutcliffe should no more be released than Jon Venables should have been.
Anyone with that level of depravity will never cease to be a danger, nor will they have eveer paid a high enough price for their crimes.
Minty
08 March, 2010 22:50
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08 March, 2010 22:50
Why not just go for the catch all of misconduct in a public office?.
The reason is that they all hold too much "old boys network" power. They are all Old Etonian type bumbuddies of Lords and MP's alike. None of the law makers have any interest in reforming the Criminal Justice system on a serious scale as its their bread and butter and power base.
Viva Revalution... Its the only way.
PC A Hunn
09 March, 2010 00:56
Hunn,
You're right - whenever the 'Criminal Justice System' is reformed, it means, almost without exception, that Police and sometimes CPS procedures will be changed. Again.
There is no change beyond that, because there is no desire to reform the jolly old system that a great many MPs studied at Oxford and Cambridge before taking office. It's been around for hundreds of years, so it must be right as it is...
For all that Streamline Process cut back on pre-trial bureaucracy, as soon as it's in Court we're back to the old ways.
Crown is even worse, especially for committal hearings. They have already been found guilty, you don't need a full file. Except, apparently, you do, because you always have done and therefore that's correct.
During my service I have noticed a shift in public attitudes towards the lack of 'justice' in the system. When I started, the perception was that it was the fault of the Police that trials broke down, sentencing didn't reflect the offence etc. Of course, sometimes it was our fault but not that often. These days, the public have cottoned on to the fact that the real issues are elsewhere. "You do your bit, but then the Courts let them out" is something I hear more and more. Many clamour for a Royal Commission on the Police. Maybe there should be one for the Court system first
09 March, 2010 02:32
Good post Bloggsy. There are only three comments so far, but I agree 100% with every word that has been written.
This country IS in a mess, which does need to be sorted out, from the top down. Vince Cable hit the nail on the head in an article he wrote in the Mail on Sunday. Pity that the LibDems do not have more support at present, as I'm sure they could do a lot better than the other two 'old nags' who like to hold all the power over us all.
The Judiciary have always been rather 'untouchable' when it comes to their wrong doing and mistakes.
It was like that in the 1950's and probably well before that, when the 'ruling' classes regarded the lower classes as peasants.
Child sexual abuse [and worse]was covered up in the 1950's, by the Home Office, BECAUSE Judges, and other members of the judiciary [et al] were involved. It's still going on today, in this so called age of equality. Such hypocrisy.
One rule for them, and different rules for everyone else. The status quo remains unchanged, despite the best efforts of many 'survivors' of that sort of abuse. Who is to blame for this scandal? Vested interests in government, past and present.
'Time for a Change'? Tory mantra..... 'A Fairer Future For All? NuLabour Mantra...Total spin and utter rubbish, from BOTH paries, who seek to maintain their cosy [for them] system, whilst the people suffer for their mistakes.
09 March, 2010 03:19
And that should have read BOTH PARTIES.....
09 March, 2010 03:21
I have sat in court and heard a defence solicitor telling a magistrate that his client had not been in trouble with the police since the incident in question, with no recourse whatsoever for me to leap to my feet clutching the defendant's police print screaming "Damned lies!"
But the prosecution ought to have been more on the ball, so that wouldn't have been allowed to slip through.
09 March, 2010 07:51
Just because a defence advocate offers it in mitigation doesn't mean the magistrates/judge places any weight upon it, and for that matter it's possible for him/her/them to consider so called mitigation as an aggravating factor......
09 March, 2010 08:32
Carneades, that would rely on two things 1) the CPS prosecutor having a clue about the suspect or their history beyond that of the court PNC print, which they don't and 2) the CPS prosecutor listening to the Police officers, which again they don't. It's a game between the defence and the prosecution, nothing more.
09 March, 2010 08:57
Here's an idea. In these days of shadow charging, a CPS lawyer reviews the case at an early stage, identifies the strengths and weaknesses of the evidence, sends back the wish list to get the gaps filled and signs the file through with an informed opinion of the case, the level of public interest in pursuing it, the appropriate charges (and sometimes some other options), the pre-cons of the suspect etc.
Up to this point, there is dialogue between the OIC and the reviewing lawyer. Would it not therefore make sense for the same lawyer to prosecute the case?
Instead, you're likely to get someone who has maybe read the MG5 on the morning of the trial, has no idea of the ins and outs and whose best chance of resolving the job is to suggest it's complicated and requires an immediate adjournment for them to get their head round it.
Officer in the Case, Lawyer in the Case. Simples? Might need to adjourn myself to consider the compelling arguments why such a thing would never work, no Constable ('It's Sgt actually'), no, far too busy, you don't realise...
09 March, 2010 12:28
I paraphrase an entry on IG -
Police - "You're taking the piss"
Public - "That seems wrong"
Beaks, etc - "That seems entirely reasonable".
T'was ever thus (at least after PACE when we stopped prosecuting our own cases).
09 March, 2010 14:15
I don't work in criminal justice but I am an expert witness in civil cases and after 26 years or so of doing that I think Notts Sarge has a very good point.
It is my observation that successful cases are usually the ones where the same "team" have dealt with the case all along - having one lawyer stick to the case from start to finish helps hugely. At least as a witness in the case you get an understanding of where the lawyer is coming from and they get to understand you. You needn't like one another but continuity of involvement helps to establish a professional working relationship, I can see that the same would be true in criminal cases too.
Purpresture
PS. Isn't it very old-fashioned to call a Police Officer a woodentop - not to mention gratuitously insulting?
09 March, 2010 17:25
Pete, none of us profess to be in possession of an english degree. Im not well educated but I dont need to be as I can speak to people and thats the main part of my job. Theres always a spell checker!! Anway back to the topic -
I think the magistrates and judges should be looked at for their decisions. The public always have a go at Police for rapists attacking again or burglars moving onto even more serious offences. Its the Bench and parole board that let these people out early or with no conditions not the Police. We dont convict people the courts do.
I am constantly dealing with the same persons week in week out and nothing happens to them. I understand the maximum for theft is years not months but most of the shoplifters get no custodial whatsoever. And these are prolific not just a one off.
09 March, 2010 19:51
Some good may come from the Venables 'rehabilitation' saga, if an enquiry looks hard enough and there is no whitewash.
09 March, 2010 20:45
Calling someone a woodentop within the organisation is an insult.
From outside I think it's just envy for the uniform I wear with pride.
But yes, very old-fashioned. An episode of Life on Mars too many I suspect.
Purpresture - seems obvious doesn't it, the best way to win a case is to have worked on it throughout, spotted the holes and pitfalls, so come the day you are prepared. That's exactly what the defence will be doing. I don't think I've ever been to a trial where the defence lawyer has only seen the file that morning...
I still think that such an idea would be met with much tutting, shaking of heads and sharp inhalations of breath.
The wheels of justice don't always grind exceeding small, sometimes they just grind to a halt.
10 March, 2010 00:40
What about moving to a system similar to the US, where Magistrates are voted in, and can be voted out. This would at least create some accountibility, if they don't do the job in a manner which reflects the wishes of the public, they get voted out, and they will be replaced with someone who will. Simple.
10 March, 2010 03:40
I'm not sure that voting for Judges and Magistrates is the way forward. It may appear to fit nicely in the whole 'justice for the people, by the people' thing but I'm not sure it would lead to better decisions, just expedient ones based on the mood of the people at the time. We already have trial by media, whether the system likes (or acknowledges) it or not.
Whatever Venables has or hasn't done, an elected judiciary with one eye on re-election would be forced to hang him from the nearest lamppost.
I'm not sure what the answer is when is comes to judicial accountability. An independent review body to examine 'rogue' cases? CPS can already appeal against lenient sentences...
Unless there is a wholesale shake-up (which might not be a bad thing) the only people in a position to review the Judiciary are... Senior members of the Judiciary. We're back where we started...
10 March, 2010 10:59
I'm a reporter and I've heard a lot of mitigation speeches in my time.
On occasions I've been tempted to break into spontaneous applause at the inventiveness of some of the lawyers.
Ciaran
Oh look, I do a blog too.
www.leicestermercurypolice.blogspot.com
10 March, 2010 18:49
My favourite quote by a defence brief was 'the reason my client keeps on appearing at this court is because the police keep arresting him'. True. OK Pete, marks out of 10?.
10 March, 2010 20:12
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10 March, 2010 20:46
Ciaran Fagan - Are inventive mitigation speeches good copy? I know the Police have an uneasy relationship with the media at the best of times but it would be nice to shift the spotlight to some of the other parties in the system sometimes, especially the defence.
For example, being a drug addict isn't mitigation, it's an aggravating factor, surely.
There's probably a book in it for you, see Bloggsy for a potential publisher.
Let's all sit and listen to 'The Trial' from Pink Floyd's 'The Wall'. Art imitating life?
11 March, 2010 00:20
The idiot trolls are spoiling this post Bloggsy, which is a shame. Anyway.... Back on track.....
There is NO way that Peter Sutcliffe should be let out of jail. A life sentence for murder, should mean a whole LIFE spent locked up, to protect the public.
It is quite clear to most people, that so called monitoring of those who have committed violent and sexual crimes, is not good enough. There is no excuse for this sort of negligence by the government, who are ultimately responsible for keeping the public safe from dangerous criminals, murderers and rapists.
They have FAILED to ensure enough prison spaces and appropriate punishments and sentences for violent and sexual crimes. They have FAILED to provide adequate funding for the agencies who are tasked with 'monitoring' these people when they are let loose on the public, after a too short a period in prison.
But God help the struggling single parent, or anyone else on the breadline, who fails to pay for a TV licence, because they will be sent to prison, for that 'awful' crime against society of watching TV without an expensive licence! The same applies to OAP's who cannot afford to pay their inflated Council Tax bills. Justice?
The recent case of Jon Venables has prompted a lot of discussion in the media, which is no surprise.
There was an interesting article in the Mail [Weds 10th March] by a Dr Ludwig Lowenstein, one of Britain's leading experts on paedophiles. The article headline states... "The sorry truth is many sex offenders CAN'T be rehabilitated."
Dr Lowenstein states in his article, that..."Apart from lengthy jail sentences, the only other way to deal with these people is through chemical castration." He says that the idea of giving these offenders a pill or an injection to destroy their ability to have intercourse, always provokes fierce objections on the grounds of civil liberties. But such outrage ignores the liberties of their victims.....For him, a child's right to protection is far more morally important, than the freedoms of a paedophile.
Dr Ludwig Lowenstein goes on to say that chemical castration still requires a high degree of supervision of the offender, and is not a permanent solution. Indeed.
As a child victim of rape, and the further abuse of paedophiles lies to cover their own miserable backsides, and to manipulate the system; I do feel fully qualified to offer a solution to this problem of deviants in our midst.
The ONLY way to deal effectively with sex offenders, is to SURGICALLY CASTRATE THEM, not "chemically", but by removal of their means to harm others, due to their twisted evil perversions, and their cruel and callous characters. Rapists and paedophiles really DO NOT give any thought nor consideration to what the impact of their deviant lust has upon their victims. Those who commit violent and sexual crimes against others, especially against children, forfeit ANY protection of their "human rights", because their behaviour is that of a BEAST.
If government is genuine in its concern about this problem, which destroys lives, they will implement this solution as a very robust method of changing the behaviour of perverted abusive men.
Government have ALLOWED this problem of deviant sexual offences to escalate since the 1950's, rather than face cold hard facts and deal with the matter properly.
11 March, 2010 01:36
My tried and trusted alibi is: "I was riding round on my tricycle wearing spangly shorts at the time the aforesaid offence M'lud and, by the way, there were over 200 witnesses"
12 March, 2010 11:18
Re-reading Bloggsy's inital piece on this, it strikes me that the failing in the system comes down to the issue of privilege.
There are some valid reasons why some of our institutions, notably the Courts and Parliament, have rights of privilege - if you had to consider whether your comments were libellous/slanderous every time you asked a question or challenged something in the House of Commons, for example.
It seems that this extends (or is made to extend) to reduce accountability in some public offices. Some MPs are trying to dodge the expenses scandal because they claim Parliamentary Privilege protectes them. Likewise, Legal Privilege protects Judges, jurors, solicitors etc. So while things can be publically reported, they can't be made publically accountable. I don't know enough about constitutional history to know when a lot of these privileges were set, but it's a fair assumption that they offered protection to a social elite who have since never really relinquished their exemption from accountability in office. You only need to look around the Inns of Court in London to see how these people have set themselves apart from the masses.
It comes down to a battle between modern public accountability and vested interest, which will come dressed in a wig, claiming hundreds of years of history, Magna Carta and the like.
What odds will you give me?
12 March, 2010 11:33
Ah, so finally.
The first step to moribund. Comment Moderation.
Now you will go the same way as TUPC and all the rest of your cohorts whom I have broken, Madam Author.
With the time-delay now built in and the short attention/ gratification span of your average contributer Soon the number to sustain this "blog" of yours will fall below sustainable critical mass.
Moribund indeed
I shall bury you.
(BTW: you are a poor writer, too. A real one-trick pony. You half-educated Bimbo)
XX
12 March, 2010 14:46
Last reader, I have turned on moderation on numerous occasions, no doubt when you were on holiday and away from the server from which you like to post. I've decided not to block your IP/IPs as that would mean blocking others using that server, of which there are a few, but it doesn't bother me deleting your posts from time to time. I feel sad that you waste your time writing them.
And I don't need comments to sustain the blog, but I like getting them. I really don't care what you do, but thought I'd give the rest of my readers a break from you for a bit. Still, it will be Easter break soon.
12 March, 2010 18:36
Very important points in this post Bloggsie - pity about the idiot. Too many problems are seen as 'police problems' when the rest of the system is more to blame.
It's too hard to get anything done and the resources are generally being spent well away from the real problems. Many dangerous people are being dumped amongst us, often next to those least able to cope with them, by worthies who will never have to put up with them.
13 March, 2010 02:19
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