This column has occasionally taken pleasure in reflecting on the pleadings in court cases where defending solicitors seek to find some mitigating factor for a client who has usually been caught out red handed. Indeed, the resourcefulness employed and the sincerity of the pleadings are of entertainment value in themselves, as defence counsel, use every ploy to make silk purses out of sows’ ears.
Thus the most hardened offender is presented as having such redeeming qualities as even the most doting mother would find hard to recognise. Invariably, and despite an arm’s length of previous convictions, the miscreant is presented to the court as having turned his life around, as having finally seen the error of his ways, of reaching a new determination that the past will be put behind him.
For good measure, such has been his conversion to the straight and narrow, the transgressor will have enrolled on a training course, will have a credible offer of employment, or intends to emigrate soon, but whose chances of success in foreign lands would be severely hampered by the imposition of a court sentence. At worst, the offence was totally out of character, the shame of which has left him with unrequited remorse.
All of these are part and parcel of the advocate’s craft, generally taken with a pinch of salt and usually let go unchallenged. They are part of the warp and weft of court proceedings, not least a proof that the engaged professional is providing the client with value for money and that no stone is being left unturned in the pursuit of the most favourable verdict possible.
But all of this will be coming to an end shortly, if soundings from the higher courts are to be believed. Their Lordships have let it be known that they are growing frustrated by the evidence given by barristers on behalf of convicted criminals as they make pleadings for clemency at sentencing hearings. The superior courts have put down a marker that, in future, advocates must provide evidence of the mitigating factors they rely on in seeking leniency.
Justice Edwards of the Court of Appeal has criticised uncorroborated claims about tragic family backgrounds, terminally ill children, clients being treated for depression, offenders who are proceeding well in rehab, or about willing employers ready to re-engage a miscreant if only the court would allow him one more chance.
As one leading legal light put it, somewhat inelegantly, judges are ‘increasingly pissed off’ with unsupported claims of medical treatment or serious health issues. Hard luck stories, it seems, and hearsay evidence will no longer be acceptable.
When the new strictures trickle down to the lower courts, as they will, it will somehow detract from the amusement value of what has become a time honoured ritual. No longer will it be enough to claim that an offender is now in a stable relationship, with a babbie on the way, without an authenticated medical document to back it up. And no longer will an illegible signature on a printed email, affirming that a job awaits the offender, be enough.
For defending barristers and solicitors, of course, all of this may be a blessing in disguise, since they will no longer be pressed by clients into making spurious claims, against their better judgment.
On the other hand, they have always had the get-out clause of prefacing their entreaties with a ‘my instructions are, Judge’ – somewhat akin to a favourite expression of an acquaintance when recounting a story of doubtful veracity, who adds, “If it’s lies I am telling you, it’s lies I was told.”