The final salvo of the reported remarks sent out a clear warning for the future: “This court is putting down a marker – that has to stop. If people are relying on matters in mitigation, there has to be evidence of it.”
These remarks were apparently directed at barristers, yet, for two reasons, they should be taken very seriously also by solicitors. Firstly, solicitor advocates in the District Court conduct pleas in mitigation themselves. Secondly, in the superior courts, evidence-gathering is done by solicitors, and this includes harvesting the facts necessary for pleas in mitigation.
Defining a ‘plea in mitigation’ is helpful. An antique definition can be found in Chitty’s 1826 Practical Treatise on the Criminal Law: after a plea or conviction, “the defendant or his counsel is allowed to address the court in order to lessen the apparent extent of his criminality”.
The plea in mitigation is, in many ways, an address for mercy, although its content is not prescribed by canon or statute. In its 1993 Consultation Paper on Sentencing, the Law Reform Commission noted that an “infinite variety of mitigating factors is thought to exist”.
Advancing a plea in mitigation – one that respects client and court – can potentially throw two professional obligations into conflict. On one hand, the Guide to Good Professional Conduct for Solicitors calls solicitors to “promote and protect fearlessly” their client’s best interests.
It recalls that they are “entitled to state every fact freely and to use every argument, whether technical or otherwise”. This duty is clearly engaged when a client is facing sentence, and a solicitor must advance mitigation to reduce punishment.
On the other, solicitors must only do this “in accordance with the law and within the rules of professional conduct”, and must never “deceive, or knowingly or recklessly mislead the court”.
Reconciling these two duties can be tricky because evidentiary standards at sentencing are not clear-cut. Recent Irish authorities, such as DPP v Timmons, only offer general teachings, such as “mitigation can only apply if there is some evidence or material before a court to allow for such circumstances to be taken into account”. This includes some types of hearsay evidence.
A case that crops up frequently in this regard is R v Marquis (1951). Although Marquis is from the English Court of Appeal, it was specifically embraced by the Law Reform Commission’s 1993 paper and its 2010 Consultation Paper on Hearsay.
This is important, because the Marquis court reasoned that it would be “a very unfortunate thing if evidence of that kind [that is, hearsay evidence of character] could not be given [after conviction], because it would prevent evidence from being given in favour of the prisoner”.
Some will argue that Marquis – now 70 years old – has waning vitality. Much fresher is the case law from the Court of Appeal that demonstrates increasing vigilance of evidence undergirding pleas in mitigation. Alongside the remarks in Dunne,the 2021 cases of DPP v Crowley and DPP v Fehily stand out.
In Crowley, the court forensically examined the plea in mitigation given in the lower court and each supporting strand for claims made by counsel. Memorably, the court called out the “evidential deficit” of certain claims and criticised the solicitors’ failure to seek certain reports.
In Fehily, the court underscored “assertions” by counsel, although there was “no evidence whatever adduced to support” them.
But it is important to contextualise this trio of appeals. They all lay from the Circuit Court, a noteworthy detail because requirements for pleas in mitigation in some courts may not be practical in others.
It is, therefore, worth considering whether there is a reasonable basis to confine the Court of Appeal’s recent teaching to higher courts. Should any new ‘marker’ apply in all courts and, if so, what burdens will that place on solicitors?
The general rule that evidentiary standards are relaxed at sentencing hearings still obtains in Irish courts, including the District Court. Most criminal practitioners will have a copy of Hughes’ Criminal Procedure in the District Court.
Besides advising the practitioner to make a “detailed note of the accused person’s personal and financial circumstances” before a plea, this large tome provides no ruling standard.
Looking at a hypothetical scenario may illustrate why: Solicitor A has a homeless Client B whom she has not seen since the start of the COVID-19 pandemic. Client B has been brought to the District Court on a public order charge.
In a case like this, Client B may decide to plead guilty and seek to finalise the matter on the day. The prosecuting garda will give evidence of facts; Solicitor A will have an opportunity to cross-examine, and then will typically have only a few minutes for mitigation.
Old notes on the file may help, although these are unlikely to be in court if the solicitor is not on notice of the charge. Mitigation will more likely come from on-the-spot client instructions. Solicitor A might, for example, visit Client B in the cells and learn that she has a depressive history and recently fell back into alcoholism after the death of her mother.
Regular practitioners will be all too familiar with instructions like these. Yet, the truth is that the plea in mitigation for Client B will not routinely be accompanied by any documentary exhibits. Should that change?
Stricter evidentiary requirements for District Court pleas may not be proportionate or practical. For a start, this court is a court of summary jurisdiction. Consequently, extensive mitigation-gathering would entail labours hardly tailored to the offences.
To return to Client B: if a search of online obituaries yields no results, Client B can be called to give sworn evidence of her mother’s death. However, if a medical report or other expert report were required to evidence her history of depression and alcoholism, further remands and significant delays could result.
Cost would then become a real concern. For a legally aided client, not only would the professional costs of reports be chargeable to the taxpayer, but a serious imbalance would likely arise between these costs and the legal-aid fees paid to her advocate in the District Court.
To put it in stark terms, some experts can charge hundreds (if not thousands) of euro for reports – however, solicitors receive €50.39 for a stand-alone sentencing in the District Court. Of course, in cases where reports are absolutely necessary, this disparity already exists, but expanding it would be unfortunate.
Living on a prayer
Naturally, considerations for solicitors change markedly in higher courts. For a start, beyond the District Court, clients face more serious sentences. As a result, gathering strong mitigation should be at the forefront of the solicitor’s mind once a client pleads guilty or is convicted.
If we look at a client facing sentence in the Circuit Court, numerous mitigating factors already reach a court in an entirely objective way. Take these four – youth, an early plea, a clean criminal record, and cooperation on arrest.
The first can often be clear from physical observation, but, for confirmation, a court can read any case-related document, such as the Return for Trial, recording the accused’s date of birth. Similarly, the fact of an early plea is rarely in dispute, and is often conceded by the prosecution counsel or gardaí.
Lastly, the accused’s lack of previous convictions and cooperation are all facts that customarily reach a court in sworn evidence by gardaí at the sentencing hearing.
The real target of the recent warning in Dunne must be what we might call ‘offender characteristics’. Take this hypothetical situation: the Circuit Court is about to sentence a first-time offender who has stolen a large sum of money from his employer. He has cooperated with detectives and pleaded guilty at the first mention date of the case.
His family life has since fallen apart, and publication of the case has caused a loss of reputation. Furthermore, it emerges in consultation that the thefts occurred in the context of a disintegrating marriage and bouts of anxiety.
The crime, however, is a ‘blip’ in an otherwise respected individual’s life. Given our discussion above, it is not hard to spot mitigating factors that will be easier to evidence. But the accused’s difficulties both before and since the crime – his personal ‘story’ – may raise issues.
Get it on
Gathering the information needed to tell this story, most often, involves two methods: taking instructions and commissioning reports. Therefore, in the early stages of a case in the superior courts, solicitors and barristers will typically meet a client for consultation.
At these meetings, lawyers will ask questions and gain an understanding of a client’s childhood, medical history, and mental health. Much of this information later becomes the raw ingredients of a plea in mitigation: factors such as poverty, familial drug or alcohol abuse, and emotional or sexual abuse. Further, it is often during these meetings that the need for expert reports may be discussed.
The burgeoning business of expert reports is an issue well deserving of its own article. Yet, in the context of pleas in mitigation, a few points are worth raising. Dunne, Crowley and Fehily all spotlight the role of reports as important tools in mitigation. But they are not a perfect panacea for the practitioner.
Firstly, although solicitors commission reports, they have no control over their content. Indeed, finished reports routinely yield elements unfavourable to clients: what starts as promising backup for the defence often ends up on a shelf.
Second, while reports often contain detailed evidence of an accused’s background, most of this is uncorroborated. In fact, the Fehily case is a warning that mitigation material of all types can be the proverbial ‘wolf in sheep’s clothing’. There, the court confronted reports and letters forged by the client – a stark reminder that independently verifying the content of reports may become another burden on solicitors.
Finally, there is no guarantee that reports will be read. Again in Fehily, the Court of Appeal drew attention to the fact that the sentencing judge declined to read the probation report on offer. Despite all of these issues, however, cautious solicitors may feel that the increasing pressure to generate backup will require reports in all cases, where once they were optional.
Should poorly supported instructions be left unsaid during a plea in mitigation? Given that a senior judge of the Court of Appeal has laid down a new marker in this area, legal advisers of all stripes need to do better to ensure that client instructions are backed up.
Mr Justice Edwards’ remarks in Dunne, and the court’s judgments in Crowley and Fehily, establish a stricter line in Irish appellate jurisprudence and should make all advocates more conscientious about what they advance to a sentencing court.
There was a time when restraint was the preferred approach. Luigi Rea BL offers this observation: “When I was a young barrister practising, the District Court was like the High Court. You wouldn’t dare say your client had a broken arm without providing evidence of it.”
Yet what can practitioners do to address concerns? Firstly, while this practice has become rare in some places, calling the client to give sworn evidence is a useful tool at sentencing, and should be more common where undocumented assertions about the client’s life history are made.
The downside of this is that it may interfere with the efficient running of busy court lists. Avoiding quick pleas and seeking remands to gather appropriate evidence are two further options.
It may also be timely for evidentiary rules at sentencing to be debated afresh. After all, the Law Reform Commission approvingly cited snippets from this conclusion of its Australian counterpart not too long ago: “To introduce into the sentencing hearing a requirement that relevant facts be proved by admissible evidence only would transform the sentencing hearing into an adversarial proceeding. Apart from the increased costs and delays, not all facts may be sufficiently important to sentence to warrant such a requirement.” This may now be a stale endorsement.
A jot of nuance is also recommended. While stricter lines may be emanating from the Court of Appeal, judicial discretion has not evaporated entirely. As the Marquis court explained, “after conviction, any information which can be put before the court can be put before it in any manner which the court will accept”.
Of course, this does not mean advocates should push their luck. But it is arguable that judicial discretion may be correctly deployed in circumstances where solicitors make bona fide efforts to substantiate the core claims of a plea, even if every strand is not backed up.
When it comes to this core of mitigation, a section of Fehily is worth quoting: “The court stated that if, on a re-sentencing, the court was to consider matters such as alleged mental-health difficulties, previous attempts at suicides, claims of tragedy in the respondent’s life, efforts undertaken to address a gambling addiction, and employment history, it would need to have evidence of these matters.”
And what if backup is not available in these key categories? Holding one’s tongue as an advocate at sentencing can be a tough call. Luigi Rea comments: “Follow the client’s instructions.”
This seems obvious, yet it is a reminder that, while judges at sentencing are entirely free to accept or reject any submission placed before them, à la Marquis, advocates may not feel similarly free to ignore a bona fide instruction. Indeed, they may feel duty-bound to advance it to a court when so much is at stake.
Look it up
- Criminal Justice (Legal Aid) (Amendment) Regulations 2011 (SI 362/2011)
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