Why take the time to prepare a Defence Sentencing Note? Robert Bryan and Helen Easterbrook explain…

At a time when the Media reports cases unable to be pursued due to lack of Counsel, when morale is low, when the fly on the wall in the Robing Room hears practitioners moaning about the amount of unpaid work they have to do and the Judge in Court 3 is wanting submissions in writing after lunch it might seem counterintuitive to plead the merits of a Defence Sentencing Note.

Our recent experience, set out below in two examples, shows the significant advantages and benefits of spending the time to provide the Judge with the Defence Submissions in writing particularly where there are, or may be, contentious issues regarding the application of a particular Guideline.

Portsmouth Night Club Rape

The Case

The first example was the case of Kava Lilu in Portsmouth.  News reports fairly accurately described how the Defendant met, and picked up, a young woman in a night club before the pair left together.  Within yards he had ushered her into some bushes where he raped her.  Kava Lilu benefited from very early clear advice being given regarding his likelihood of success at trial and credit for plea, but that is a separate issue.  In this case it was the Defence which got in first with written submissions on the proper application of the Rape Guidelines from the Sentencing Council’s Sexual Offences Definitive Guideline. 

Submissions

Submissions were particularly aimed at: (i) “Particular [vulnerability] due to personal circumstance” (a Category 2 Harm factor) set against “Specific targeting of a particularly vulnerable victim” an overall Aggravating Factor at Step 2; (ii) “Significant degree of planning”, and (iii) “Use of alcohol on victim to facilitate the offence” (both Culpability A factors).  Although the Judge ultimately concluded that she was particularly vulnerable (he also dismissed the Prosecution’s contention that there was severe psychological/physical harm) he did accept the Defence arguments on the Culpability factors.

Four Good Reasons Why

So why the need for written submissions?  Well, it might be said an advocate can do this orally.  That is true, but in response there are good reasons to put it in writing. Firstly, as eloquent and persuasive as a criminal advocate may be ‘on the fly’ putting an argument in writing certainly allows it to be honed.  Secondly, is it not slightly one-sided if just the Prosecution file a Sentencing Note?  If that happens the Crown get two bites of the cherry: when they put their submissions in writing, and then they get to advance it all again orally.  Thirdly, as Iain Morley KC highlights in “The Devil’s Advocate” it is all about being persuasive; in part making it easier for the Judge to understand your argument makes it that much easier to persuade him to follow it. And fourthly, not to be overlooked and is perhaps the most important, Judges are busy; the chances are they will have written out their sentencing remarks before the case is even called on.  Lodging that Defence Sentencing Note forces the Judge to consider the Defence submissions at the time he or she is preparing his List.

Putting this into practice:

So this brings us to the second example, R. v. Head (Joseph) [2024] EWCA Crim 836 where the Attorney-General sought to have the Court of Appeal reconsider the sentence alleging it was unduly lenient.  After the Crown Court Trial, in advance of the sentencing hearing, the Prosecution had filed a Sentencing Note with their representation.  The Defence responded specifically rebuffing the Prosecution’s contentions and suggesting some were misconceived.  The Crown renewed their submissions before the Court of Appeal.  The Defence found themselves in a far stronger position being able to demonstrate to their Lordships that not only had the experienced Judge presided over a long trial, and had been able to form his own opinion, but significantly the competing arguments had been fully argued before him.  So the argument went it could hardly be said that he was led into last minute error and had then somewhat erroneously taken an unduly course.  He had been able to carefully consider the arguments in formulating his sentencing remarks (so a concrete example of all four points from above).  The Court of Appeal refused the Attorney leave (a somewhat rare example of successfully fending off a Reference).

Conclusion

We are not suggesting this needs to be done in every case.  Preparing a Defence Sentencing Note can be time consuming when we are already under pressure with other cases; it is something for which no additional financial claim can be made.  It is however often worthwhile and, we think, has the advantage of improving our advocacy and securing a better sentence for our clients.

About the Barristers

Robert Bryan was called to the bar in 1992. He is ranked in Band 2 Crime, Chambers UK Bar 2024, and as ‘Leading Junior’ in The Legal 500 2024.  Robert’s practice covers a wide spectrum of serious crime including homicide, sex-offending, serious fraud and drug conspiracies.

Helen Easterbrook was called to the bar in 2011. She is ranked as ‘Leading Junior’ in The Legal 500 2024. Helen is routinely instructed in cases involving serious violence, substantial frauds and sensitive sexual assaults including rape.

To instruct Robert or Helen, contact their clerks, Steve McCarthy, Ryan Bartlett or David Cox on 020 7404 1881.