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Top tips in mitigation

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Ian Kelcey outlines his ten top tips on avoiding procedural and etiquette pitfalls in the Crown Court when conducting mitigation

It is often thought that mitigation is somewhat easy. I would like to dispel that myth at the outset. As much work can go into a good mitigation plea as can into a trial. Advocates should be thinking about the following issues:

Always try to speak to the prosecutor before you get into court and narrow down the issues between yo

What are you trying to achieve?

  • Are you trying to avoid prison? If so, what are the alternatives?
  • Are you trying to avoid a custodial sentence?
  • Are you trying to distinguish between your client and the co-defendant?
  • If a custodial sentence is inevitable, how best are you going to mitigate that sentence?

My top tops for mitigation

1. The judge will have a busy list, so try not to be repetitive – think how to catch his or her attention. If you have written testimonials or other written material to put before the judge, copy it, put it into a file, and give it to the judge before sentence to consider.

2. Arrive at court on time – it will alienate the judge if you are late. Promptness will also allow you to compose yourself before trial.

3. Know the sentencing guidelines: do they apply and what are the court’s powers? Be prepared to argue which box and which level of severity the case should fall into. Make sure you are acquainted with ancillary orders, such as the Sexual Offenders Prevention Order.

4. Make sure you are properly dressed. For men, this should be in a suit with your jacket done up or with a waistcoat; for women, a smart dark suit.

5. Spend time with your client before you go into court. Try to involve them in the plea of mitigation, but more importantly, manage their expectations and make sure they are aware of what the sentencing guidelines are.

6. If you are going to cite legal authorities, have copies available for the court and the prosecutor. Preferably, make sure that the judge has been made aware of these authorities before he or she comes into court.

7. Assess your judge. Look out for his or her particular foibles and idiosyncrasies. If you are co-defending, try to sense where the judge has been taken to. If, for example, you have a defendant who is second on the indictment and less involved, if the advocate representing the first defendant has got the judge to the stage of accepting a community sentence, it may be a case of the least said the better.

8. Be concise: repetition improves no argument. Very often, the best piece of mitigation you can put before the court about your client is that he or she entered an early guilty plea. Don’t try to bolster good arguments with bad ones - it will only serve to detract from the good.

9. Speak clearly and precisely. Do not mumble; do not gabble; make sure the judge can hear you. A properly presented plea, although delivered orally, is much more likely to captivate the judge than a bumbling plea to which little or no thought has been applied.

10. Always try to speak to the prosecutor before you get into court and narrow down the issues between you. It is much better to agree the box in which the case falls within the sentencing guidelines and the level of severity than trying to argue it before the judge. If there is more than one defendant, try to ascertain from the prosecutor where he or she places your client in the level of culpability. Even if you cannot agree, you will at least be aware of how the prosecution is going to present the case, so you can marshal your arguments against it.

Those are my golden rules. I hope you will find them helpful, and all I can say is good luck!

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