Advocacy for criminal court proceedings

I was in Leeds Crown Court recently, on very short notice unfortunately. Luckily I managed to get some last minute legal advice that made me completely change the hurried approach I'd prepared and which I think is worth passing on to other advocates.

Background: I've written about this man before, in the post a different way of thinking, and although he doesn't fit into the usual categories for advocacy I think there is a clear need for supporting him. Also it seems that if he doesn't get the right support he's very likely to end up needlessly back in prison which will ruin all the positive progress he's made over the last nine months and cost the taxpayers a fortune. The other update for those who remember the original post is that I finally managed to help him into signing a tenancy agreement for a bedsit on the last Friday before Christmas, which was a huge relief for me as well as him.

Advocacy: I'll call the man T for the sake of argument. My work with T has centred around the fact that whenever he talks to professionals, mainly housing related with me until now, he never seems to be able to keep his facts straight, he is very sugestible, and he often seems to try to say what he thinks they want to hear (which quite often isn't what they actually want to hear).

When I first saw him the night before he was due in court it seemed that he had never had a chance to put his point across properly, either to the police or his solicitor. I have plenty of experience of helping him to get his facts straight, and my first approach was to help him to make a proper statement of events. This was wrong.

Not only was it wrong, according to the legal advice I got at 11pm that night, but it was so wrong that it's worth putting in bold type and writing about on this blog. The problems are:

• T had already been interviewed by the police
• although he had no solicitor at the time (a very foolish error) and he felt as if he had not been able to say clearly what happened, those interview notes constitute a legal statment before the court
• any new statement will be compared to the existing statement:
• inconsistencies may lead the court to doubt all of T's statements
  
• new evidence may be found in the statements that could incriminate him further
• statements in any supporting letter may lead to an advocate being called as a witness for the prosecution (my friend told me of a well meaning social worker that this had happened to)
  
• any suggestion that an advocate helped T to make up a believable story could lead to charges of perverting the course of justice against the advocate

I was strongly advised to delete the parts of my letter that consisted of statements of the events and to instead concentrate on explaining from a detached professional perspective why I am working with T and what his needs and vulnerabilities are.

Additionally when I met T's barrister the next day he advised me that with this particular judge my letter would be worth nothing if it didn't start with a statement of my professional qualifications and competencies to be writing the letter. The court probably places greater emphasis on traditional professional qualifications than I do, but I think that statements of the number of years experience working with this sort of client, position of responsibility within your organisation or in your work history, etc. are a good start.

Court: The other piece of advice I was given was to go to court with T and help him speak to his barrister and solicitor. This was very important as it turned out, although with such late notice I had initially been reluctant to rearrange my plans.

When the barrister first arrived and I asked if I could have a word he initially looked as if he could not possibly be interested in talking to me, but we found a small room. He told me that he would only consent to talk to me because he wasn't T's proper barrister, he was only standing in for the pleading hearing. He also seemed amused to hear that I was T's advocate (that was surely his job?) and needed an explanation of the role of an independent advocate despite the fact that he said he was a mental health specialist.

The next thing he asked me was if I had discussed the material facts of the case with T or if I had given him any advice about how to plead. I foolishly told him the truth, that I was working with T because he had communication difficulties and I had initially been asked to listen to his version of events. Luckily of course as an advocate I certainly hadn't been giving any advice, and especially not on the tricky area of pleas. He immediately told me in no uncertain terms that he felt I was compromising myself in the eyes of the court by even admitting to listening to T's story (as I was supposed to be an independent professional working on other aspects of his life). Actually I think I probably could have argued this point in court, at least I hope so, depending on the attitude of the presiding judge. It is worth knowing in advance that this is tricky ground that must be carefully negotiated however.

Finally, amongst various stories of how experienced he was as a barrister and how things had changed over the years and what he knew about breaking arms with sticks from other work that he did, he did listen to some of the things T had to say. I was able to prompt T at various times to tell the barrister what his story was about a couple of the charges, and there was a productive discussion. Not your ideal discussion, but compared to the liklihood that without my presence there probably would have been little or no discussion, well worth the time and travel. T came out of this meeting without much hope, sure in fact that the barrister was going to stitch him up, and it's hard to say really, and from an advocacy perspective this was disappointing (although probably understandable because the barrister went of on so many long tangents talking to me between my attempts to divert him to listen to T, and T couldn't really understand, or wouldn't listen, to these tangents, that the whole thing seemed much more negative to him).

The outcome: When we got into the court finally our barrister had been having a conference with the prosecution who had agreed to drop one of the charges. The barrister had been motivated enough by our communication to try a bit harder on the other counts as well and he picked out some discrepancies in the police and witness statements which the judge took a dim view of, although he gave the prosecution some leeway in gathering additional evidence. T pleaded guilty to the most minor charge and not guilty to the other. I can't help feeling that the police and/or the prosecution combined these three charges for alleged incidents that occurred on separate dates six months apart so that it was more likely to get a guilty plea for one of them, but maybe I'm not supposed to speculate in that way. My job will be to provide mitigating evidence and stress the work we are doing to get him back into society when the final sentencing is made.

The dropped charge: I think it is worth telling the story of the dropped charge, and I think that I may legitimately do so now it has been dropped. T was drinking in a park when two men walked past smoking cigarettes. He asked for a cigarette and they said they had none, but he thought they were lying and he threatened them. He says now this was drunken bravado (not in those words) and didn't mean anything, but he said he was later questioned about threatening them with a knife. This was an hour or so later when he was in a Chinese take away, and says he felt so aggrieved about being questioned about a knife that he spotted a wheel brace in the take away and made up a story about having that just so the police would investigate more properly. They promptly charged him with possession of an offensive weapon, namely the wheel brace, and as far as he can tell did no further investigation, at least not in the direction he wanted them to go in.

This is bizarre to me, firstly that someone would invent an incriminating story so that a more serious charge would be investigated and dropped, and secondly that the police would charge someone with possesion of an offensive weapon that belonged to a take away a mile and an hour from an alleged incident. Anyway there were enough holes in the evidence for the charge to be dropped. And in fact this is more evidence of T's different way of thinking and is just why he needs an advocate.