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The Conduct and Etiquette of Adversarial Advocacy in Criminal Cases at First Instance Level

  • Category(s): Political / Legal Essays
  • Created on : 05 October 2013
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  • Author: Richard Michael Lamb


The crucial elements of the Court room interactions in the criminal process.

1. Outcome

What is the desired outcome in a criminal case? That the accused be properly and fairly represented to the conclusion of the trial if the central allegations are contested. If they are admitted a proper plea in mitigation must be delivered followed by the due sentence of the Court. Even after a contested trial the mitigation plea must be made by the Defence Advocate qualified though it will be by the refusal of the Convicted Defendant to admit the counts on the indictment.

2. The plea in mitigation of sentence

Mitigation is essentially based on the well tried Victorian counsel’s plea of the demurrer in their Civil Courts. The wrong we admit but we dispute the remedy. Translated to the modern criminal Courts this means the crime is admitted but the imposition of the prison term is challenged or the term should be reduced by virtue of the plea in mitigation. This plea calls for the Defence Advocate’s grace, bravery and understanding of his calling to the profession of Advocacy together with acute perception of his client’s character and traits. If done properly when there is real decision making at stake by the Judge presiding or Magistrates sitting it is a masterpiece of persuasion whether successful or not. The Advocate has to draw upon his knowledge of life, religion and literature in formulating this plea to the Court. The plea in mitigation is not a rude legal ploy but is of the highest value to his client and the Court and Justice herself.

3. Murder Cases

I have argued for the restoration of the death penalty in my Capital Punishment essay Part II (24/09/13 Released). Clearly I propose the singe Judge (17/09/13 Released: Trial by Jury essay) should decide on guilt himself alone. If a murder conviction is brought in after trial by this single Judge or by properly accepted guilty plea to murder this Judge will go on to decide whether or not to pass the sentence of death in my vision of the new era in our criminal jurisdiction. This will be a properly arrived at Judicial discretionary sentence subject to appeal to the Court of Appeal Criminal Division (the full Court invariably). If that Appellate Court decides the sentence of death is wrong in principle or manifestly excessive that Court may and will overturn the death sentence imposed by the first instance Judge. If not the sentence will quickly be carried out. Thus the veritable drama of the murder Hearing Court room centred on the proper plea in mitigation from the Defence Advocate and the courage of the presiding sentencing Judge will return to our Criminal Courts at the highest level. The Judge’s mind and conscience will be trained and concentrated on Justice and Her demands and dictates. The Defence Advocate’s polemic will strain on the leash of Mercy and Her gentle grace. His quality as an Advocate will be tested to the utmost. His client’s very life is at stake. The whole Judicial process revolving around this proper plea in mitigation based on a guilty plea to murder or after conviction will demonstrate the very best qualities in English Criminal Justice and Advocacy once more. On my analysis Crown Counsel will not be invited by the Court to argue for or against the death penalty being imposed. Our legal system will be entering upon Virgin territory and open country in these murder guilty pleas and those sentencing issues appertaining to murder cases if the proposals I have in mind are lawfully enacted without fear of being struck down. The heart of the matter is the power and quality of Justice which under the present regime is at risk of obloquy. The solemnity of the Criminal Justice process must be restored and that can only be done by Her Majesty’s Judges being rearmed with the death sentence for murder itself. Those Advocates who on the grounds of conscience or political standpoint do not wish to participate in what will then be a capital (death penalty) case should stand aside to enable other Advocates to represent such Defendants and the Crown. Clearly no Judge will preside at a murder trial or sentencing Hearing if he is not prepared to impose the ultimate penalty. I also submit no one opposed to the death penalty should be obliged to operate in any capacity within the Criminal Justice system, if there is a return of the death penalty. I would counsel such objectors against going into criminal practise or persisting in it or taking up any position connected to the criminal Courts if death sentence is reintroduced. If this death penalty returns to our Statute book the whole complexion of Criminal Justice will drastically alter. It will not be cosmetic but fundamentally transforming.

4. Counsel for the Crown

Clearly Crown counsel plays a lesser role when the accused pleads be it murder (capital crime) or otherwise. It has been argued Crown Counsel has to slavishly comply with the Crown Prosecution Service’s instructions. Clearly the Attorney-General is not so bound and never has been. Does independent Crown Counsel find they have to do what the CPS says? I doubt it. They can “appeal” to the DPP and Attorney in a serious case for the Crown Prosecution Service officers to be overruled. Why have the CPS instructed this counsel only to direct him or her to accept a not guilty plea or demand a contested trial against his wishes. This Prosecuting Counsel if all else fails should offer to decline to conduct the case any further if he is being expected to pursue it contrary to his advice and considered good judgement. His good name is on the line. He has no lay-client – the complainant informs the police and the CPS. He cannot go behind the back of the CPS and police and approach the victim. It will not work for Crown Counsel to prosecute a trial where his heart is not in the process (it would be unfair to the victim). Crown Counsel is the pinnacle of the pyramid and must obey his conscience. Sometimes in good Judgement he must leave the case for another counsel to conduct if he cannot reconcile himself to the instructions being given to him by the CPS. It would be rarer for the Crown Counsel to disagree with the CPS and say a not guilty plea should not be accepted – the victim would presumably have considered that decision to proceed to trial. Crown Counsel should be respected where instructed and their advice be supported by the CPS, police and victims and indeed the trial Judges also subject to intervention by the Attorney or the DPP in the last resort. It is essential the Attorney is an active and experienced Q.C. familiar with serious criminal cases and their conduct in Court. It is really the grave cases that count. Crown Counsel should on occasion ask for direct access to the victim where he has concerns about accepting a not guilty plea. This decision is vital to the Criminal Justice process. I understand certain Judges are wary of cases being wrongly prosecuted to trial and collapsing. This is the stuff of the Criminal Courts and simply the rough and the smooth. It is vital cases are aired before the Judge and Jury if the accused is arraigned, in my view. We do not prosecute cases for the fun of it but to secure convictions. Any case that reaches arraignment deserves to go to a trial as all the evidence has been closely sifted and prepared. If Counsel for the Crown does not like this approach he should not accept that brief at the outset in his chambers.

5. Advocate for the Defence

Defence Counsel does not have the same flexibility. He has to obey his client’s instructions which will be “buried” forever if he does not carry out his duty of representing his client. The client will be “silenced” without his Advocate speaking up for him. The Court of Appeal recognises Advocate error as a ground for appeal and may Order a retrial if there was no guilty plea. However such a spectacle reflects badly on the Advocate’s repute, prowess and his profession. The Advocate should resolutely defend a case on instructions and that should never be in doubt. Defence Counsel may advise his client on the wisdom of a guilty plea but the final choice belongs to his lay client alone, who will only have one opportunity to contest the case before a Jury. The Appeal Judges will be very reluctant to overturn a considered guilty plea following advice by the Defence Advocate.

6. Conclusion

No one should go into Criminal advocacy for an easy life. It should be a rough and tumble experience and no tidy and exact science. The Advocate must make himself “the sword” for his client or the victim. He must take all the scratches and barbs and injuries and fight on or justice will never be carried out and seen to be done. What a privilege and honour for the dedicated Advocate and a secure shield for his lay client or victim. An Advocate is fundamentally an officer of the Court based on this representation of the Crown or the Defendant. He cannot go beyond the parameters laid down by the trial Judge but he may test those limits and boundaries within reason.