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Derogatory or Defamatory Mitigation

Prosecutor's responsibility

Prosecuting advocates should be proactive in ensuring that derogatory or defamatory statements in mitigation are handled robustly.

Attorney General's Guidelines

Attorney General's Guidelines on Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise [revised 2009] states:

"E1. The prosecution advocate must challenge any assertion by the defence in mitigation which is derogatory to a person's character, (for instance, because it suggests that his or her conduct is or has been criminal, immoral or improper) and which is either false or irrelevant to proper sentencing considerations. If the defence advocate persists in that assertion, the prosecution advocate should invite the court to consider holding a Newton hearing to determine the issue."

Written Standards for the Conduct of Professional work

The Bar Council's Code of Conduct provides the requirements for practice as a barrister and the rules and standards of conduct applicable to barristers that are appropriate in the interests of justice. The Code requires prosecution counsel to "have regard to any relevant Written Standards".

The Council's "Written Standards for the Conduct of Professional Work - Standards Applicable to Criminal work" at paragraph 10.8 (e) requires that the prosecuting advocate "should draw the attention of the defence to any assertion of material fact made in mitigation which the prosecution believes to be untrue: if the defence persist in that assertion, prosecuting counsel should invite the Court to consider requiring the issue to be determined by the calling of evidence in accordance with the decision of the Court of Appeal in R v Newton (1983) 77 Crim App R 13."

The Solicitors' Code of Conduct

The Solicitors Regulation Authority (SRA) provides the rules and standards of conduct applicable to solicitors. Rule 11 relates to Litigation and Advocacy but does not provide for a similar express requirement on solicitor prosecutors as that stated at paragraph 10.8 (e) above.

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Defence obligations

Written Standards for the Conduct of Professional work

Defence counsel are required by the Bar Council's code of conduct to have regard to the relevant Written Standards. These standards require defence counsel to notify the prosecution, in advance, of their intention to use derogatory or defamatory mitigation.

Paragraph 11.2 states:

 "a barrister acting for the defence: (k) should as to anything which he is instructed to submit in mitigation which casts aspersions on the conduct or character of a victim or witness in the case, notify the prosecution in advance so as to give prosecuting counsel sufficient opportunity to consider his position under paragraph 10.8(e)."

The Solicitors' Code of Conduct

Although there are no similar express requirements contained in the Solicitors' Code of Conduct, prosecutors should challenge inappropriate assertions made in mitigation by defence solicitors by following the procedure laid down in the extract from the Attorney General's Guidelines below.

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Procedure

Attorney General's Guidelines on Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise [revised 2009]

The duties and responsibilities of advocates relating to derogatory or defamatory mitigation are contained in Paragraph E, which is extracted below:

E: Pleas In Mitigation

E1. The prosecution advocate must challenge any assertion by the defence in mitigation which is derogatory to a person's character, (for instance, because it suggests that his or her conduct is or has been criminal, immoral or improper) and which is either false or irrelevant to proper sentencing considerations. If the defence advocate persists in that assertion, the prosecution advocate should invite the court to consider holding a Newton hearing to determine the issue.

E2. The defence advocate must not submit in mitigation anything that is derogatory to a person's character without giving advance notice in writing so as to afford the prosecution advocate the opportunity to consider their position under paragraph E1. When the prosecution advocate is so notified they must take all reasonable steps to establish whether the assertions are true. Reasonable steps will include seeking the views of the victim. This will involve seeking the views of the victim's family if the victim is deceased, and the victim's parents or legal guardian where the victim is a child. Reasonable steps may also include seeking the views of the police or other law enforcement authority, as appropriate. An assertion which is derogatory to a person's character will rarely amount to mitigation unless it has a causal connection to the circumstances of the offence or is otherwise relevant to proper sentencing considerations.

E3. Where notice has not been given in accordance with paragraph E2, the prosecution advocate must not acquiesce in permitting mitigation which is derogatory to a person's character. In such circumstances, the prosecution advocate should draw the attention of the court to the failure to give advance notice and seek time, and if necessary, an adjournment to investigate the assertion in the same way as if proper notice had been given. Where, in the opinion of the prosecution advocate, there are substantial grounds for believing that such an assertion is false or irrelevant to sentence, he or she should inform the court of their opinion and invite the court to consider making an order under section 58(8) of the Criminal Procedure and Investigations Act 1996, preventing publication of the assertion.

E4. Where the prosecution advocate considers that the assertion is, if true, relevant to sentence, or the court has so indicated, he or she should seek time, and if necessary an adjournment, to establish whether the assertion is true. If the matter cannot be resolved to the satisfaction of the parties, the prosecution advocate should invite the court to consider holding a Newton hearing to determine the issue.

Section 58 of the Criminal Procedure and Investigation Act 1996 (CPIA)

Section 58 of the CPIA introduces an additional safeguard by providing for orders to be made by the court preventing the media from reporting derogatory or defamatory mitigation.

Paragraph E3 of the Attorney General's Guidelines (see above) requires the prosecuting advocate to take positive steps by inviting the court to consider making an order under section 58 if there are substantial grounds for believing that any derogatory assertion made is false or irrelevant to sentence.

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