Duty solicitor representation and the wider picture

[didds]

If person A is due for prosecution in a magistrate's court and has too little money to even contemplate having a solicitor, thus relying on the duty solicitor... how does the defence call suitable witnesses such as medical staff/professionals that may be pertinent to the case? Arrange a list of likely case law etc ? Im sure the duty solicitor will do their very very best but with such limited time in many cases to prepare (I've been told potentially the half an hour prior to the case with no prior discussions etc with the accused is not unusual)?

I'm presuming this is the level of British justice today ? (Apologies for my ignorance and naivety)

[Lootman]

If person A is due for prosecution in a magistrate's court and has too little money to even contemplate having a solicitor, thus relying on the duty solicitor... how does the defence call suitable witnesses such as medical staff/professionals that may be pertinent to the case? Arrange a list of likely case law etc ? Im sure the duty solicitor will do their very very best but with such limited time in many cases to prepare (I've been told potentially the half an hour prior to the case with no prior discussions etc with the accused is not unusual)?

I'm presuming this is the level of British justice today ? (Apologies for my ignorance and naivety)

The one time I had to show up at a criminal court for a pleading, I was appointed a duty solicitor. He was a nice and earnest chap, but he was completely overwhelmed by the demand for his services and seemed distracted.

I left the courtroom and found myself a private criminal defence lawyer who got me off with one phone call. Case dismissed. Sometimes "free" is expensive.

[Clitheroekid]

If person A is due for prosecution in a magistrate's court and has too little money to even contemplate having a solicitor, thus relying on the duty solicitor... how does the defence call suitable witnesses such as medical staff/professionals that may be pertinent to the case? Arrange a list of likely case law etc ? Im sure the duty solicitor will do their very very best but with such limited time in many cases to prepare (I've been told potentially the half an hour prior to the case with no prior discussions etc with the accused is not unusual)?

If a defendant wants to plead not guilty then the magistrates would simply adjourn the case, so as to give him time to instruct a solicitor and have a defence prepared. Legal aid is still available for some criminal defence.

I haven’t practised in criminal defence work for decades, but I'll never forget one of my very earliest jobs. I was newly qualified, and we'd received a call for the solicitor in our firm who was duty solicitor for the day. However, for some reason he was unavailable, so I was deputed to stand in his place.

I don’t think I’d appeared in the magistrates' court before, so I was extremely nervous.

I, of course, knew nothing about the case at all when I arrived at the court, and only had a few minutes to take instructions. The client was an elderly chap who had been charged with nicking a bottle of whisky from a local supermarket - not exactly the crime of the century.

As he'd been caught red-handed there was no defence, and he was more than happy to plead guilty, so my job was limited to mitigation.

In the crash course I’d been given before leaving the office I was told to look at his `previous', as it would be very material to sentencing. However, I’d forgotten to ask him, so I had to ask the CPS solicitor for details just before we kicked off.

He rummaged in his file and gave me a sheet of paper with a long list of previous convictions, at which my heart sank. Even for such a minor offence a long history of convictions might mean a custodial sentence, so I was beginning to sweat a little ...

... until I noticed with huge relief that the last conviction was over 10 years earlier at Ipswich Assize Court.

Happy day! I therefore played this as my trump card, aiming to dissolve the stony hearts of the magistrates with my tale of an elderly man who had indeed led a life of crime, but had evidently seen the light many years ago and reformed, only to be tempted by a bottle of whisky in the twilight of his days.

All seemed to be going well, until the chairman of the bench lowered his spectacles, peered at me and said, "When did you say your client's last conviction was?"

"5 August 1970 in Ipswich Assize Court" I replied.

"Well according to our records your client was convicted of shoplifting in Wigan Magistrates' Court on 23 September last year."

Somewhat flustered, I turned to my CPS colleague for clarification. He had another rummage, and with a whispered apology handed me page 2 of my client's list of previous ...

Fortunately, the magistrates either saw the funny side of it or felt so sorry for my client at having such an inept advocate that they fined him £25, which earned me his eternal gratitude and a promise to recommend me to all of his friends!

[didds]

If a defendant wants to plead not guilty then the magistrates would simply adjourn the case, so as to give him time to instruct a solicitor and have a defence prepared.

I'm showing my ignorance here CK so be gentle

But that rather presupposes that the accused has to please NG in order to gain that opportunity.

rather than "well, I'm guilty as charged BUT there are mitigating circumstances eg some sort of diminished responsibility through a psychotic episode or whatever ... can a guilty-but-can-I-have-time plea be made ?

Meanwhile many thanks for your as usual well considered full reply complete with amusing anecdote

[GoSeigen]

If person A is due for prosecution in a magistrate's court and has too little money to even contemplate having a solicitor, thus relying on the duty solicitor... how does the defence call suitable witnesses such as medical staff/professionals that may be pertinent to the case?

If a defendant wants to plead not guilty then the magistrates would simply adjourn the case, so as to give him time to instruct a solicitor and have a defence prepared.

I'm showing my ignorance here CK so be gentle

But that rather presupposes that the accused has to please NG in order to gain that opportunity.

rather than "well, I'm guilty as charged BUT there are mitigating circumstances eg some sort of diminished responsibility through a psychotic episode or whatever ... can a guilty-but-can-I-have-time plea be made ?

Meanwhile many thanks for your as usual well considered full reply complete with amusing anecdote

Time for what? If accused pleads guilty and there is no trial then there is also no defence and no witnesses needed?

GS

[didds]

Time for what? If accused pleads guilty and there is no trial then there is also no defence and no witnesses needed?

GS

thats the whole point. no time to collate witnesses/corroboration to extenuating circumstances etc etc . so its either "guilty" and take the rap for something that eg a psychotic episode meant was outside of the accused control, or plead NG, to have more time to collate it all in the knowledge that if still found guilty its now a higher fine/longer sentence etc .

there appears no middle ground.

[Lootman]

Time for what? If accused pleads guilty and there is no trial then there is also no defence and no witnesses needed?

thats the whole point. no time to collate witnesses/corroboration to extenuating circumstances etc etc . so its either "guilty" and take the rap for something that eg a psychotic episode meant was outside of the accused control, or plead NG, to have more time to collate it all in the knowledge that if still found guilty its now a higher fine/longer sentence etc .

That is part of why I thought that an accused should always plead not guilty at the initial hearing. It does not matter if the accused actually is guilty. Nor does it matter if he later intends to plead guilty. The important point is that you buy yourself some time to plan a defence strategy.

If instead you plead guilty you are at the mercy of the court and the judge/magistrate, and he/she might be having a bad day.

Also, and more cynically, prosecutors cannot take every case to trial. They rely on a significant percentage of cases being settled beforehand, either by people pleading guilty or by some type of deal being worked out. If you signal that you are going to fight the charges and are willing to go to trial, you are putting pressure on the prosecutors by increasing their workload.

A good number of cases are dropped or dismissed by prosecutors because with limited resources they have to prioritise which cases to focus on.

there appears no middle ground.

Actually in US courts there is a third option to guilty and non-guilty pleadings. And that is "nolo contendere", meaning that you do not contest the charges. For criminal purposes this is taken as a guilty plea. However it can reduce your liability to civil claims arising from your wrongdoing as you do not have to allocute to your crimes.

But not allowed in UK courts as far as I know. A refusal to plead counts as a not guilty plea.

[didds]

maybe asking a different question ...

If the accused pleads NG to go away and "buy time" (and if the secret barrister is to be believed that might be a VERY long time) i can see that at a later stage they could change their plea to Guilty...

do courts "punish" such an approach such as (I perceive!) they do for a NG plea that then gets found guilty?

[swill453]

maybe asking a different question ...

If the accused pleads NG to go away and "buy time" (and if the secret barrister is to be believed that might be a VERY long time) i can see that at a later stage they could change their plea to Guilty...

do courts "punish" such an approach such as (I perceive!) they do for a NG plea that then gets found guilty?

So I've definitely heard judges give lighter sentences because the accused "pled guilty at the first opportunity".

So if you plead NG then change it later the sentence could be greater.

And likely greater still if they maintain the NG plea but are found guilty in court.

Scott.

[swill453]

Just checked that. From https://www.sentencingacademy.org.uk/se ... ilty-plea/

Offenders who plead guilty to an offence will receive a discount to their sentence. If a guilty plea is entered at the first available opportunity (which will usually be considered to be at their first court appearance) then a reduction of one-third will be applied to the sentence.

Scott.

[Lootman]

Just checked that. From https://www.sentencingacademy.org.uk/se ... ilty-plea/

Offenders who plead guilty to an offence will receive a discount to their sentence. If a guilty plea is entered at the first available opportunity (which will usually be considered to be at their first court appearance) then a reduction of one-third will be applied to the sentence.

Scott.

A "reduction of one-third will be applied to the sentence" surely presupposes that sentences are fixed and knowable in advance.

Now that may be true for minor offences. But for more serious charges, the sentence is typically a range of outcomes, and the judge/magistrate has discretion about exactly where in that range is going to apply based on the specific case and situation.

And the laws themselves typically say things like "a fine of up to £1,000 or up to a year is prison". That leaves a lot of leeway and so my question then would be: "One third off what exactly?"

Hopefully not off a sentence that has just been artificially raised by 25% for the purpose, like in some supermarket sales!

In the end what matters is the deal you get. And I think the best deal is to plead not guilty, get representation and have some control over the process.

[swill453]

Just checked that. From https://www.sentencingacademy.org.uk/se ... ilty-plea/

A "reduction of one-third will be applied to the sentence" surely presupposes that sentences are fixed and knowable in advance.

Now that may be true for minor offences. But for more serious charges, the sentence is typically a range of outcomes, and the judge/magistrate has discretion about exactly where in that range is going to apply based on the specific case and situation.

And the laws themselves typically say things like "a fine of up to £1,000 or up to a year is prison". That leaves a lot of leeway and so my question then would be: "One third off what exactly?"

Hopefully not off a sentence that has just been artificially raised by 25% for the purpose, like in some supermarket sales!

In the end what matters is the deal you get.

The judge will apply the appropriate sentencing guidelines, including the "one third off" rule I quoted, and come up with a number. Simples.

And I think the best deal is to plead not guilty, get representation and have some control over the process.

Taking the risk of getting a higher sentence, but hey, each to their own.

Scott.

[Lootman]

A "reduction of one-third will be applied to the sentence" surely presupposes that sentences are fixed and knowable in advance.

Now that may be true for minor offences. But for more serious charges, the sentence is typically a range of outcomes, and the judge/magistrate has discretion about exactly where in that range is going to apply based on the specific case and situation.

And the laws themselves typically say things like "a fine of up to £1,000 or up to a year is prison". That leaves a lot of leeway and so my question then would be: "One third off what exactly?"

Hopefully not off a sentence that has just been artificially raised by 25% for the purpose, like in some supermarket sales!

In the end what matters is the deal you get.

The judge will apply the appropriate sentencing guidelines, including the "one third off" rule I quoted, and come up with a number. Simples.

I don't think it is simple, nor helpful unless it is very transparent. For instance if the sentencing guidelines for (say) robbing a post office is "up to 3 years in prison" then offering me 2 years is a one third reduction but from the maximum.

I do not know what I might actually have got if instead I had fought it. Maybe only one year?

Courts do this kind of thing for their own purposes, to clear the court calendar. That makes sense given the backlog of cases to be heard. But that is not necessarily in the perp's interest.

[swill453]

I don't think it is simple, nor helpful unless it is very transparent. For instance if the sentencing guidelines for (say) robbing a post office is "up to 3 years in prison" then offering me 2 years is a one third reduction but from the maximum.

The principles are pretty transparent. Described here https://www.cps.gov.uk/legal-guidance/s ... -sentences

The discount is genuine.

Scott.

[Lootman]

I don't think it is simple, nor helpful unless it is very transparent. For instance if the sentencing guidelines for (say) robbing a post office is "up to 3 years in prison" then offering me 2 years is a one third reduction but from the maximum.

The principles are pretty transparent. Described here https://www.cps.gov.uk/legal-guidance/s ... -sentences

The discount is genuine.

Sorry but when someone goes to the trouble of developing an argument here and all you do is spray out some googled citation without even quoting the part of that lengthy citation that applies, then that comes across as lazy and unconvincing.

And in fact even your own source appears to contradict you:

As a general principle (rather than a matter of law) an offender who pleads guilty may expect some credit in the form of a discount in sentence. Section 73 SA 2020 does not confer a statutory right to a discount which remains a matter for the court's discretion.

Note also that only applies to Magistrate's Court, not for higher courts.

Look, you seem like a law-abiding and conciliatory soul. I suspect that you have never had a brush with the criminal justice system. Good for you but I have, a few times, albeit a very long time ago. And I can tell you that being charged with a crime that can take away your liberty, means that you think about it all the time, like being sick.

And I can also tell you that what you want is a dismissal, and not 2 years rather than 3. You keep your mouth shut, you plead not guilty and find yourself the most badass aggressive defence lawyer you can. I speak from first-hand experience, not googling out of idle curiosity. It is all too easy to discuss this academically, as i assume that didds is doing here. Spending a night in jail and then going into a court the next morning having not slept, not thinking straight and being in an emotional state, you plead not guilty.