I was sorry and indeed depressed to hear that lay magistrates are now being advised not to retire to consider their verdicts. This is another move to save time.
We are creeping ever nearer to tick-box justice and it is a negation of the lawyer’s true role.
In the early days, a colleague gave me good advice. Always avoid cliche – a client is never ‘at the crossroads’, ‘turning over a new leaf’ or ‘acting out of character’. When you think about it, it is impossible to act out of character, since character is immutable.
I always tried – and quite often failed – to find the single key to a plea, the one special element that may appeal to a tribunal and gain their attention and, hopefully, sympathy.
Mind you, there are many kinds of mitigator and magistrate. The style used by a colleague in mitigation was to turn to the client and berate him with: ‘You’re a bloody idiot aren’t you?’ The client quietly demurred and thus gained the sympathy of the bench.
Having seen a youth off to prison for four months, I was startled next morning to receive a call from the chair of magistrates. ‘Your client was such a lovely boy,’ she gushed, ‘that after you left court I called him back and reduced his sentence to three months.’ You couldn’t make it up.
There is nothing more daunting than to face a bench with no prior knowledge of the case; to feel a yawning chasm opening up. Your plea means the difference between custody and freedom. It certainly got the juices running, and there was nothing quite like it.
Certainly not in the Crown court, where sitting as a recorder I had all the knowledge at my fingertips and knew that the advocate could only argue within a narrow compass. It was all too easy to have half made up one’s mind in advance.
Now that criminal advocates appear to be a dying breed, it is essential to relish that element of uncertainty, the moment of surprise when a lost cause is saved. That, my dear brethren, is what mitigation is all about.
John Greenwood, retired criminal lawyer and recorder, Chippenham, Wilts
