Inaccurate information in mitigation

[ErikaPNP]

Defendant denies involvement in offence for 18 months, fails to appear for numerous court appearances relating to this and another offence, and fails to appear for sentencing.

 

Finally, they enter a plea of guilty. The mitigation delivered by the offender's solicitor (pesumably based upon information the offender has given the solicitor) is a joke. No I'll explain why it's a joke.

 

The mitigation is made up of some exageration, some misleading, and some outright falsities which results in a more favourable outcome to the offender, but places the victims (2) at risk.

 

The offender has to behave for a period of time then appear before court again. If they've been good they'll likely get off with it, if they've not been good, there will be a sentence; in the meantime protective bail conditions have been revoked (probably due to this mitigation) which has left the victims without protection. There are previous convictions relating to this (two) and several other convictions besides.

 

One of the victims knows that the information is false, misleading and exagerated because the information relates to matters in which the victim was involved - though not connected to the offence, is connected to the offender. Is there anything that this victim can do to put the court straight and get protected again?

[mightymouse_69]

I'm a little confused - You state that the accused has denied involvement in the offence and has failed to appear for certain matters including sentencing. This suggests that they have been found guilty after a trial and we are now in the sentencing stage.

 

However where you state that the accused has now plead guilty has lost me... Would I be correct in assuming that the accused plead not guilty but was found guilty at trial and is now holding his/her hands up to the offence?

[ErikaPNP]

Hi MM - I'll try to break it down a bit, I apologise for the confusion.

 

1st case - failed to appear for trial. Warrant issued, trial rescheduled, plead not guilty, was convicted, sentenced to prison for a short period.

 

2nd case - plead not guilty, released on conditional bail (ordered not to approach or communicate with victims). It went to court for trial 5 times and was deferred 5 times for varying reasons. Each time he plead not guilty. Finally after 18 months, and yet another date for trial he changed plea to guilty, and sentence was deferred for backgrounds reports.

 

When the date of sentencing arrived, he failed to appear and a warrant was issued for arrest. Once arrested, a new date was set for sentencing. When this came around, the solicitor offered the mitigation to try and lessen the sentence for this offence. The court have deferred sentence for six months for him to prove he can be of good behaviour, and revoked the bail.

 

So the bail which was conditional and offered some form of protection to the victims, is no more. I believe the court were so light because of the mitigation, but the mitigation is, to put not too fine a point on it, largely false.

 

Am I making any sense now?

[Conniff]

To my eye, a lot of defence solicitors are as guilty of the crime as the perpetrator by getting sentences either reduced or quashed when they know that the defendent is guilty. Sometimes I wonder how they sleep at night, but then again, I suppose a bank statement can make a very comfy pillow.

[mightymouse_69]

Deferred sentence, nothing too unusual.

 

It usually occurs where the defence has made some rather extravagant claims as to their client's good character. The Judge or magistrates, considering the facts of the case and the mitigation pleas may be unwilling to accept these claims straight away and pass a too lenient sentence. On the other hand, they may not want to dismiss the claims and pass a too severe sentence.

 

In basic terms, the convicted person is released on 'parole'. While on this period of parole, the person is expected to live up to the claims they made in mitigation - usually more is expected: gaining employment, staying of alcohol etc.

 

A date would have been set (in this case in 6 months) and on that date the person will be sentenced, taking into account the time on 'parole.' Just because the person behaved well will not necessarily prevent a sentence being passed. In some cases, despite good behaviour the person was still sent to prison after the deferment period.

 

The person will no longer be on bail. Any offence committed in the next 6 months will mean that the court may pass sentence for the deferred offence as well as the new offence before the 6 months are up.

 

As for the dodgy mitigation; this is not something that can really be rebutted as such. If the mitigation was false, this will probably be revealed at sentencing in 6 months time (or sooner if the guy goes and offends again.)

 

Sometimes I wonder how they sleep at night, but then again, I suppose a bank statement can make a very comfy pillow.

 

I wish!

[ErikaPNP]

I'm sending you a pm MM. It'll all make much more sense!

[buzby]

It is up to the prosecutor to debunk the mitigation, so any information to discount the mitigation claim needs to be sent to them as a provable claim (as this is only a side show to the original action).

[ErikaPNP]

Ok, how would one go about giving the information to the prosecution - there is evidence to some of the claims and a whole host of crime ref numbers which will link to statements made.

[buzby]

A letter to the CPS, citing the case number and/or the Defendant's name along with supporting references should be enough to point them in the right direction. This will need to be from a named individual, not an anonymous claim.

[ErikaPNP]

I'm happy to name myself. (COPFS rather than CPS here) Solicitors letters and crime ref numbers might help. Thanks, buzby.

 

MM, if you have had a chance to read my pm, what do you think.

[mightymouse_69]

I have read the PM.

 

Usually, the prosecution will remain impartial throughout mitigation. They are supposedly there to represent public interest and not just the victim....

 

However, they should object to anything that is a blatant lie (and if there are enough of these lies then a hearing can take place to determine what parts of mitigation are truthful and which pieces are rubbish.) I can only assume that the prosecution was not aware of some of the information in the PM.

 

I agree that the course of conduct recommended by Buzby should be followed. It would be up to the COPFS as to what it does with this information however. Further - it would be up to the relevant court to decide if it should vary the sentence or order.

 

Act fast. I know that in the Crown Court there are time limits as to when a sentence can be varied.

[ErikaPNP]

Thanks MM and busby, much appreciated.

 

MM - you are absolutely right. The information used in mitigation was most likely not available to the prosecution. Some of it (like history and background) would have been contained in one of the victim's statements however, it was evident that the actual statements were never viewed, (by either prosecution or the defence). It was revealed during court appearances for both cases that the information came from the police reports only, which contained only parts of the victims statements. Several pieces of important information was missing from the police reports on both cases, one of which came to light in the midst of cross examination of one of the victims in the first trial, and the other of which was evident from pre-trial discussion with the prosecution for the other case. In both cases, the statements made reference to other witnesses. Guess what? Neither the prosecution nor the defence were even aware that there were other witnesses until one of the victims mentioned it in court when referring to the statement that they made in that they named the witness within that statement. The victim was that taken aback by accusations from the defence that they were not being truthful, the victim challenged the defence to ask for adjournment and get the police to fax the full statement in! (They didn't ajourn but did then accept this as part of the evidence).

 

So yes, much of the information which was essential to the crown was missing from the Police reports, thus the prosecution most likely will not be aware of it.

[mightymouse_69]

Does not surprise me at all.

 

A while back a whole court day was wasted because proceedings had to come to a halt. The reason? The Chief Prosecutor for the area had not managed to review all the evidence and was not able pass instruction to counsel who wanted to alter the indictment in return for a guilty plea. The evidence had been available to the fool for ages, he just "had not gotten around to it."

 

Judge was not best pleased.

 

I fear that this sort of thing will only get worse with the future cuts.