Plea Bargain
^ TOPPay Attention
When you get an indication from the judge as to what he is thinking, it is best to pay attention to it. You might disagree with him, you might think his view is entirely wrong, but you ignore it at your peril.
There was one part-time judge who used to sit many years ago who conducted sentencing a bit like a car boot sale. Counsel (i.e. the barrister) for the defence would be making his plea in mitigation (the bit where the defendant's barrister sets out those matters which he considers would count in the defendant's favour or go to reduce his sentence -for more about the plea in mitigation please see the previous article on this amongst the Friday articles). The judge would listen then might suddenly interrupt with "18 months". Counsel would carry on. "12 months" the judge might shout. On went Counsel. "Nine months is my last offer," the judge might conclude with. The irony is that the part-time judge was surprised when he could not get a full-time appointment and his part-time role was not continued.
^ TOPMaking the decision
Although not normally in such a crystal clear form, it shows the problem of deciding when you can improve things, when you have done enough and the difficult balance as to when and in what circumstances you push for more, risking making the situation worse.
Some years ago there was a judge who had a reputation for being occasionally bad tempered. He did not like being kept waiting. It was the last case of the day, and late in the afternoon. When Counsel rose to make the plea in mitigation, the judge said " Mr X (as we shall call the barrister for the defence) I have read the social inquiry report" (before sentencing the probation prepare a pre-sentence report about the sentencing options and the position of the defendant: in those days the pre-sentence report was called a social inquiry report). "I do not propose to send your client immediately to prison today unless you persuade me to the contrary. In the light of that, is there anything you wish to say?"
^ TOPMr X
"Well actually, your Honour, there are quite a few things I wish to say.". So Mr X proceeded to say them. When he had finished, he sat down to allow the judge to pass sentence.
"Well Mr X, you've persuaded me." said the judge. " Your client will go to prison for six months.". The judge rose from his bench and left the room. Counsel was left with the defendant’s weeping family as the defendant was taken down to the cells.
Whether it had always been his intention is to give a fright to the barrister who had ignored him, or whether the judge had started to wonder what the Court of Appeal would make of it, we will never know. Suffice to say that two minutes later the judge walked back into court and announced "that last sentence will be suspended for two years", so that the defendant walked free that day.
^ TOPKeen assessment
Of course the reason Counsel continued was because he thought he had something important to say. He might have persuaded the judge that instead of a suspended sentence (which would almost certainly be activated if the defendant committed another offence) some other penalty would be more appropriate. In the event for some time he heard of little else from other barristers - since the story spread very quickly. The truth is, he could have said nothing and missed out on a chance to reduce his client's penalty. Anyone can be wise after the event. What it does show though is that you have to keenly assess what is being said and hope you make the right call as to what to do.