In the latest instalment of a continuing series, the Solicitors Association of Higher Court Advocates offers advice on the issues that face solicitor-advocates


Q The case is almost finished and I just have to close. What should I concentrate on?



A A strong closing speech is the high point of the defence case. A good speech can make the jury forget those cross-examination nightmares, while a bad presentation can scupper even a good case.



It helps if you write your closing speech before the trial starts. As the trial proceeds, you should add relevant points to your speech that support the defence and highlight errors and gaps in the Crown's case. Whatever forum you are in, do not be pressured into making your closing speech immediately after the defence case has finished. Your client is entitled to sufficient time for you to prepare properly. Ask for time to finalise it, but do not take all day.



Start by setting out the points the prosecution has to prove, and remind the jury of the burden of proof. Do not just repeat the evidence, but comment on it, as well as explaining why it assists your case and not the Crown's. Never assume the jury missed the bad points of your case, and deal with them. Explain why they are not fatal. Only refer to what was given in evidence and do not be tempted to embellish what was said. There is nothing more damaging than having a prosecutor or a judge interrupt you to correct a mistake.



Finally, be expressive and look at the jury - jury members are more likely to be swayed if you believe in what you are saying and are passionate about it than if you just stand there, head down, reading your speech out to them in a monotone voice. Juries expect a bit of theatre, and the closing speech can get them on your side by giving it to them.





Q I agreed a basis of plea in the magistrates' court, but when the matter was committed for sentence, the Crown Court judge refused to accept it. Can he do this?



A Yes. Whenever an agreement between the defence and the prosecution is made on a basis of plea, both parties must sign it. This must then be forwarded to the judge, who has the sole discretion as to whether he accepts it or disregards it and uses it as a basis for sentencing. If the judge rejects the agreement, a Newton hearing should be held to determine the proper basis on which sentence is passed (see R v Underwood (2005) 1 Cr App R 178). If the judge forces a Newton hearing that is found in your client's favour, full credit should still be awarded.





Q My client is scheduled to be sentenced and now I have to mitigate on his behalf. Surely everything the judge needs to hear is in the pre-sentence report. Do I really need to do much more than draw his attention to the important bits?



A Yes, definitely - mitigation is vitally important. First, look up the most likely sentence. You can do this in Current SentencingPractice, by DA Thomas QC. There is bound to be a similar case to yours, which will give you a sound basis on which to address the judge, who will certainly have looked too.



Secondly, call character witnesses, preferably in person, but if not then provide the court with original, signed documents. Thirdly, differentiate your client's case from other types if it puts it in a better light. For example, the dangerous driving was not in a residential area or past a school, or the burglary was of unoccupied commercial premises rather than a night-time burglary of occupied residential premises.



Fourthly, go through all the sentencing options and explain why each one is either attractive or not, linking the most appropriate one to the case you looked up. Fifthly, suggest a realistic sentence option, and do not forget to remind the judge politely of the credit that may be afforded to a client under section 144 of the Criminal Justice Act 2003 if he pleaded guilty. It also helps to stress if he was co-operative with the police.



Finally, do not over-egg the pudding. Know when to stop before the judge becomes more concerned with how long your address is going on than the appropriate sentence to give to your client.





Q I have been asked by a defendant to take him and his witness through a mock trial to ensure they give the best possible evidence at trial. Can I do this?



A Advocates have a duty to ensure that evidence in support of their client's case is presented to the best possible effect and that witnesses, especially vulnerable ones, are put at ease and understand what is expected of them. It can be difficult dealing with witnesses without crossing the line from the legitimate assistance in helping a witness to prepare to the improper coaching of a witness in what to say.



In R v Momodou (2005) EWCA Crim 177 (paragraphs 61-65 of the judgment), the Court of Appeal made it clear that 'witness training for criminal trials is prohibited'. It was made clear that improper witness training may lead to an honest witness feeling influenced to alter their evidence in support of a particular set of facts and a dishonest witness 'rapidly calculating how his evidence may be improved'.



The guidelines set out stated, in part, that familiarisation could and should include explaining court procedure, advising witnesses to keep their evidence slow and address the jury, and letting the witness know that it is vital to make it clear if they do not know the answer to a question or do not understand it. It was also possible to provide expert guidance to expert witnesses who were to give evidence of a technical nature to resist the pressure to go further in evidence than their specific expertise.



You should only take part in a mock trial if its purpose is simply to give your witnesses greater familiarity with and confidence in the process of giving evidence. If there is any risk that your involvement might lead to a witness 'doctoring' evidence, you should refuse to take part in or approve it.



If you use an outside agency to prepare your witnesses, be aware that the court said it was 'a matter of professional duty on counsel and solicitors to ensure that the trial judge is informed of any familiarisation process organised using outside agencies'.





This column was prepared by the Solicitors Association of Higher Court Advocates (SAHCA). For details of SAHCA, membership enquiries or advocacy questions please contact Hilary Riddle, SAHCA Administrator, tel: 01233 820676, e-mail: hilary@hradmin.co.uk