Judges are becoming increasingly frustrated with the quality of evidence provided by barristers on behalf of convicted criminals during pre-sentencing hearings.
Several judges have raised concerns publicly and privately about evidence offered during mitigation pleas, the stage of a case where lawyers attempt to ensure their clients receive as light a sentence as possible.
Judges, particularly those in the Circuit Court which deals with the majority of serious offending, have criticised lawyers making claims about clients, such as assertions that they suffer from mental illness or addiction, without backing them up with corroborating evidence.
They have also raised concerns about the quality of evidence handed into the court, particularly the practice of handing up unsigned documents as proof to support a claim.
Any claims made by lawyers during a criminal trial must be backed up by evidence. However, the rule tends to be less strictly enforced during the pre-sentencing stage of a case.
‘Put down a marker’
The most significant criticism came in June from the Court of Appeal, where Mr Justice John Edwards "put down a marker" that barristers must provide evidence of anything they want to rely on during sentence hearings.
He said the practice of barristers giving evidence on a hearsay basis without providing corroboration is “happening all the time” and “has to stop”.
In several recent cases before the Court of Appeal, Mr Justice Edwards criticised barristers for claiming, without evidence, that offenders suffered from depression, addiction issues or other trauma.
Uncorroborated claims were being made about tragic family backgrounds, of siblings with serious medical conditions and clients who are in drug treatment or are drug free, he said. Mr Justice Edwards gave barristers “a warning” that such practices must cease.
“This court is putting down a maker, that has to stop. If people are relying on matters in mitigation there has to be evidence of it.”
According to one barrister, judges are also increasingly “p***ed off with people handing up printed out emails which are unsigned”.
Judge Martina Baxter, who was appointed to the Circuit Court in 2017, is one who has repeatedly expressed her frustration with the quality of evidence handed up during mitigation pleas. She has been known to reject evidence of drug treatment or medical conditions unless it takes the form of a signed document.
Barristers who spoke to The Irish Times said Mr Justice Edwards’ ruling was the culmination of a growing sense of frustration expressed by judges about the quality of mitigation pleas.
“You are less likely to get away with just saying ‘my client has depression’ or ‘my client’s mother is very sick’ unless you have a document or witness to back that up. It still happens but it is slowly changing,” said one barrister who specialises in criminal defence.
Strong similarities
Another defence specialist said such uncorroborated claims are usually made at the insistence of clients. They described a recent case involving the sentencing of a defendant for fraud in which the client asked that four references be given to the judge. Their lawyer advised against this after noticing strong similarities between all four references.
“A lot of us will actually welcome [Mr Justice Edwards’ judgment] because we can point to it and tell the client ‘look we can’t make that claim without evidence’.”
Submitting uncorroborated claims during mitigation rarely has much impact on the eventual sentence, lawyers said.
“It’s usually a case of grasping at straws,” said one. “You kind of say these things with a view to keeping the client happy while knowing it’s probably not going to have much bearing on the sentence one way or the other.”
