Derogatory or Defamatory Mitigation
Updated 23/01/08
Principle
The following documents provide guidance in similar terms on the correct approach to be adopted by advocates in handling any aspect of mitigation which might be considered to be derogatory or defamatory to a witness.
- The Code for Crown Prosecutors outlines the Prosecutor's Role in Sentencing (Paragraph 11.2).
See <The Code for Crown Prosecutors> elsewhere in this guidance.
- The Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise [2005] sets out the duties of prosecution advocates.
See <Sentencing and Ancillary Orders Applications>Annex A> elsewhere in this guidance.
Guidance
The Code for Crown Prosecutors (paragraph 11.2) states:
"11.2. The Crown Prosecutor should challenge any assertion made by the defence in mitigation that is inaccurate, misleading or derogatory. If the defence persist in the assertion, and it appears relevant to the sentence, the court should be invited to hear evidence to determine the facts and sentence accordingly."
Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise [2005]
The Role of the Prosecution Advocate is set out in the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise [2005] and the duties and responsibilities of advocates relating to derogatory or defamatory mitigation is 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.
The Code of Conduct for the Bar of England and Wales 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.
Written Standards for the Conduct of Professional Work, published by the Bar Council together with the Code of Conduct, are intended to act as a guide to the way in which a barrister should carry out his or her work. They do not form part of the Code. However, Paragraph 701(d) of the Code obliges a barrister to "have regard to any relevant Written Standards".
The Solicitors' Code of Conduct, issued by the Solicitors Regulation Authority (SRA) provides the rules and standards of conduct applicable to solicitors. Rule 11 relates to Litigation and Advocacy.
Procedure
Paragraph 11(k) (The Written Standards for the Conduct of Professional Work - Standards Applicable to Criminal Work) requires defence counsel to notify prosecution counsel, in advance, of his intention to use derogatory or defamatory mitigation.
11.2 "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)"
No similar express requirement is contained in the Solicitors' Code of Conduct, and so prosecuting advocates should be alert to ensure as far as possible to challenge inappropriate assertions made in mitigation and that the court is reminded of its power to resolve issues by hearing evidence, in accordance with the Attorney General' Guidelines. (See Newton Hearings - below).
In such cases, an adjournment may be necessary for evidence to be called, and the court should be reminded of the power to order reporting restrictions pending the resolution of the case (see Relationship with Section 58 of the Criminal Procedure and Investigations Act (CPIA) 1996 - below), and Paragraph E3 Attorney General's Guidelines.
Prosecutor's responsibility
Prosecuting advocates should be proactive in ensuring that derogatory or defamatory statements in mitigation are handled robustly and in accordance with the Attorney General's Guidelines, the Written Standards for the Conduct of Professional Work, and the Solicitors' Code of Conduct.
Paragraph 10.8 (e) (The Written Standards for the Conduct of Professional Work - Standards Applicable to Criminal Work) requires that the prosecuting advocate draw the attention of the defence to any assertion of material fact made in mitigation, which the prosecution believes to be untrue.
Paragraph E of the Attorney General's Guidelines (see above) sets out in detail the duties of prosecuting advocates and the actions to be taken when assertions are made that are derogatory to a person's character, which are either false or irrelevant to sentencing.
Determination of issue by way of a "Newton" hearing
Where defence counsel persists in the derogatory or defamatory assertion, paragraph 10.8 (e) requires the prosecuting advocate to invite the court to determine the issue by calling evidence in the form of a "Newton" hearing.
Paragraph E of The Attorney General's Guidelines (above) places a similar requirement on prosecuting advocates to invite the court to resolve such issues by conducting a "Newton" hearing.
Further guidance is provided about holding "Newton" hearings in circumstances where the prosecuting advocate believes that the assertion made may be relevant to sentence, or the court has indicated that it is so relevant - Attorney General's Guidelines - E4 refer to Sentencing Issues>Sentencing and Ancillary Orders Applications>Newton Hearings elsewhere in this guidance>
Relationship with Section 58 of the Criminal Procedure and Investigations Act (CPIA) 1996
Section 58 of the CPIA 1996 introduces an additional safeguard by providing for orders to be made by the Court preventing the media from reporting derogatory or defamatory mitigation. <Archbold 4.30(b) - (e)>
Paragraph E3 - Attorney General's Guidelines (see above) requires the prosecuting advocate to take positive steps by inviting the court to consider making an order under s. 58 if there are substantial grounds for believing that any derogatory assertion made is false or irrelevant to sentence.