Chapter 21 Bail &Mitigation

In crime, if defending, despite your best efforts, the jury may have convicted.

Perhaps the defendant has pleaded guilty.

The judge must now pass sentence, and will want to consider the mitigation.

Mitigation can be tricky.

The most important thing to remember above all else is EYE CONTACT.

You must look at the judge.

Here is raw power.

Your judge may imprison your defendant, separating him from family and friends, and leading to his employer sacking him, never more to have a good job. A life can be turned upside down.

In some cases, the hidden agenda in the mind of the defendant is not guilt, but sentence - he will not admit an offence for fear of jail.

You are what stands between that raw power and the defendant. Your responsibility is considerable.

So look at the judge. Not at the floor.

Often, mitigation is about putting an offence in a certain category.

We seek ways of DISTINGUISHING OUR CASE from other cases, or our defendant from co-defendants.

We might say a burglary is of commercial not domestic premises, and therefore less serious; in daylight and not at night, and therefore less serious; when premises were unoccupied, not occupied by the sleeping owners, and therefore less serious; the offence was spontaneous not premeditated; the window was open, not broken; and so on.

By STATING WHAT THE OFFENCE IS NOT, we often help the judge to place the offence within an appropriate bracket of seriousness.

CALL CHARACTER WITNESSES if possible, even sometimes where the defendant has previous convictions.

It is always helpful for a judge to have the measure of a defendant from what others apart from the advocate say about him.

In the absence of live witnesses, hand up references, particularly from work.

In fact, try to have references in addition to live witnesses.

LOOK UP THE LIKELY SENTENCE in the guidelines - and also on in at least one practitioner guide, like in England, either Banks on Sentence, or Current Sentencing Practice by D A Thomas QC,

It is always, always sensible.

Many people fail to do this.

Even with experience, new cases present new challenges. Don't always assume your experience will carry you. It is so needlessly embarrassing to have suggested to a defendant he will receive less than is ordered.

While many fail to look up sentences, you can be sure the judge will - and it is obviously better to know what he will find.

KNOW WHEN TO STOP.

Often counsel begins with an excellent mitigation. The judge listens, swayed by the excellent delivery. However the advocate overdoes it, repeating some points, padding out others.

The judge's mind now wanders on to whether a good point really is such a good point, and in mild irritation at the length of the address, begins finding reasons to disagree.

Instead, RUN EACH POINT THROUGH like a swordsman, deliberately, not hurriedly, but solidly, withdraw your rapier, watching the judge for acknowledgement the point is fully taken, and now run the next point through.

List your points clearly.

Don't slash about, poking and prodding the same point, but never really killing it, or killing it too often -

One solid thrust, twist, and withdraw.

Finally, with deference, TELL THE JUDGE WHAT SORT OF SENTENCE YOU SEEK AND WHY.

Often mitigation is a tale of woe, but what sentence is sought is never expressed.

Review the sentencing options, explaining why each one is attractive.

Don't just leave it to the judge to decide. Help him. Offer a fair solution, tipped in favour of your defendant, rather than trying a cheeky punt.

Which means, be REALISTIC in your suggestion.

You will damage your credibility if you seek a particular sentence which is wholly inappropriate, like community punishment for wounding with intent.

Without credibility, your whole mitigation will suffer.

Where appropriate, refer to a sentencing authority. It is surprisingly rarely done.

But why?

It seems obvious there should be more of it.

While sentence is the end of a case, bail is the beginning.

Readers of earlier editions have asked for some pointers on applying for bail. This seems to be because bail applications are a regular feature of a young advocate’s practice, when many readers are young advocates.

For most defendants, their bail application is the most important hearing, even though it is often regarded among lawyers, in the grand scheme of a case, as a minor procedural event. Yet, if unsuccessful, a defendant may remain in custody for many months, awaiting trial, and then be acquitted.

So, TAKE BAIL VERY SERIOUSLY.

Obvious, isn’t it - though you will often hear advocates say ‘I’m not doing much, just a bail app’, like it is no big deal - it is, remember this.

BE REALISTIC.

It is the same point as for sentence.

But in addition, it means that if you do not have everything ready to make the best bail application possible, then adjourn, being realistic as to failing to get bail without everything being ready. In many jurisdictions, there is a limit to how many applications can be made, without having the burden of showing a ‘change of circumstance', which is often difficult if in custody where a defendant's circumstance does not readily ‘change'.

So, be realistic both, as to what you will ask for, and as to whether you are ready.

And being ready means having witnesses, the surety, and family at court, with written references, everyone settled as to what to do, where to be, when, what will happen in court, how long it will take, and how to behave. A good bail application is often an exercise in handling many people, not just the judge.

Bail also means handling the defendant’s expectations. It is best to err on the side of pessimism than optimism. Do not get a defendant’s hopes up too high. Be frank about bail prospects, but with an eye always on how disappointing it will be if you are unsuccessful.

This is so because bail is at the beginning of proceedings where a defendant is starting out in the criminal process. He wants to return to his normal life.

Finally, KNOW THE LAW.

Most young advocates have not actually read the Bail Act - you must know what it says, be familiar with its language, identify the test the judge must apply if refusing bail, and fit your submissions to the test. The trouble with bail applications is there are so many, advocates become too relaxed, and think they have an intimate knowledge of how an application should proceed, when there may be a helpful answer staring them in the face if they would simply open a book.

I well recall my first day in London pupillage - there were two of us, all excited, and our pupil master showed us papers defending in a bank robbery, said he would make a bail application that afternoon, which would be hopeless, and asked us each to role play what we might say. I huffed and puffed noisily about how everyone has a right to bail, how the defendant’s family would suffer if he was remanded, and perorated on how unfair it would all be. My colleague simply pushed back his glasses, opened Archbold, found the Act, and if memory serves, pointed out that an obscure section created a special presumption in favour of bail in light of the age of the defendant, who was under 21 - my pupil master asked to see, made a note, and successfully used that argument in the afternoon.

My colleague has gone on to great things, great things indeed, and you could see it from that very first day. Be like him.