Skeleton Argument: Sample Plea and Mitigation Hearing at Magistrate Court in a criminal matter

Ladies And Gentlemen Of The Jury: Greatest Closing Arguments In Modern Law

Jennifer Ann Slater

Opening

Good Morning Madam, I appear before you on behalf of my client Jennifer Ann Slater who has been charged with taking of a vehicle contrary to S.12A of the Theft Act 1968 to make a plea in mitigation.

I put to you that there are some mitigating factors that ought to be considered prior to sentencing.

May I proceed madam (ask permission)

Incident

I put to you that my client stole a vehicle in order to get to her kids and consequently crashed in to the front garden wall of her neighbour causing damage to the car and the garden wall. The car was not seriously damaged and was covered by insurance.

Aggravating Factors and Greater Degree of Harm

Madam my I submit to you that:

·         The offence was not premeditated (she stumbled upon an unlocked car whilst seeking shelter from the rain);

·         My client was under the influence of alcohol; however

·         But there was no deliberate damage to the car or garden wall as the accident occurred whilst breaking.

I submit to you that my client does not possess any factors for the greater degree of harm. The factors are:

·         No passengers present;

·         No damage caused to moving traffic accident.

Mitigating factors:

Madam the mitigating factors are that:

·         My client is of young age and that has affected her responsibility. (she is 20 years and has been in the foster care system since the age of 11 and does not have a stable family background);

·         Genuinely remorseful of her actions (is concerned about the future of her family); and

·         the client pleaded guilty

Personal Mitigating:

·         Mother of two young children (aged 6 months and 2 years);

·         On welfare benefits and has no saving;

·         She does not have a home and at the time of offence/currently staying with friends and sleeping on their floor ; and

·         Recently received a letter from the council offering her a council flat (so that she can provide a stable home to her family).

Previous convictions:

The client has three previous convictions. These were Theft and S47 ABH in 2006 and 2008 (the offence of theft was a considerable time ago). There is another offence of TWOC (taking without consent) in 2009.  However, the conviction of TWOC was based around different circumstances. This was when she had to take her son to a hospital as he was suffering from an asthma attack. The car was returned undamaged.

Sentencing

I would urge you Madam not to consider a custodial sentence as this will mean that her children will be taken by the social services and put in foster care.

I submit to you:

·         This offence carries an obligatory disqualification of minimum of 12 months. (Madam I urge to consider keeping this at 12 months as my client has had no previous disqualifications);

Madam I urge to consider a:

·         High level community order with an order of unpaid work and an attendance centre programme (this will act as a deterrent as well as rehabilitate and rebuild her life);

·         Compensation order for the damages to Mrs. Finch’s garden wall for £150. This can be sourced through the deductions from my clients benefit entitlement.

Closing

I wish to persuade you Madam that you will not see my client before this court again.

I am happy to address any question that you may have and so is my client.

Possible Questions asked by the DJ

·         Where were her children at the time of the arrest?

·         What was the damage caused to the car and the Garden wall?

·         More information about the 2 counts of Theft in 2006?

·         More information about the section 47 offence in 2008?

·         More information of the couple (whose car was stolen) and the Neighbours (Victims)

·         More information on the friend (Christine Walker)

Note: if a question comes up and you do not know the answer, just refer to the notes and than answer that you have no instructions from your client on this matter.

Contributed by Ali Ashraf Raza, LLB (Hons), Legal Practice Course- (Pro.Dip)  (Nottingham), Associate at Bhandari Naqvi and Riaz.

A Sample Client Attendance Note For A Senior Partner For the Firm's Records

attendance note

Client: The Joint Board of the United Kingdom School of Music (“the Board”)

Ref: 36215996   

Date: 21 October 2009

Matter: Peter Jones (“PJ”)

George Rowland (“GWR”) attending John Cartwright (“JC”) [in person]

The company is a charitable organisation with a turnover of £17 million and profit of £3 million. The company structure is of a chairman at the top, with a Board and 8 senior managers under the Board.

The 8^th manager is Peter Jones (“PJ”). PJ is the director of finance and Personnel. He has been in employed by the Board since 1980. His remuneration package includes a salary of £51,000 per annum, membership of company’s pensions scheme, and private health insurance. ( PJ’s employment file or contract of employment has to be seen. This information is provided by JC).

PJ made a huge contribution to the success of the Board in the 1980’s. He turned around the financial position of the company around.

JC was appointed as the Chief Executive of the Board in 1993. JC had doubts about PJ and took some responsibilities away IT and Administration responsibilities away from PJ. PJ never complained about the loss of his responsibilities. Now the company has separate managers for IT and Administration, who liaise with PJ. These arrangements have been place till now.

The Board has decided that they need a business review and want to increase profitability of the company. A panel has been set, which includes JC, Chairman of the Board ad the finance director. JC has drafted the terms of reference of the panel and it has been approved by the Board. Compass partnership (“Compass”) has been selected as the consultants to undertake the business review.

Compass has provided an interim report to the panel. And a recommendation has been made to remove PJ from his position as the director of finance. Compass has advised that the Board is over controlled and that a commercial director should be appointed. Compass has further suggested that the company increase its surplus by expanding.

JC stated that he fears PJ to a constraint. JC said that Compass has recommending what everyone has been feeling for sometime now. JC wrote a note to the chairman of the Board recommending that the Board should accept Compass’s recommendations. JC is not sure how PJ will react to the change. JC said that the Board wants to treat PJ fairly and generously. The Board is charity organisation but that doesn’t preclude it from paying compensation to PJ. GWR advised JC to act cautiously and not be overly generous.

GWR informed about two different types of remedies available for dismissal. One is Wrongful Dismal (“WD”) and second is Unfair Dismal (“UD”).

JC doesn’t know that PJ’s entitlement to notice is. ( we have to see his contract to advise the exact figure of entitlement).

JC was informed that PJ’s situation can be a possible redundancy situation on the basis of recommendation of Compass.

GWR inform JC that PJ will be entitled to the minimum statutory notice of 12 weeks. If the contract is silent on this matter, than PJ will be entitled to a reasonable notice. Reasonable notice at common law is usually 6 months. But PJ might try to argue 12 months. JC thought that PJ is likely to on a 6 months notice, as most of the executives are on it or less. GWR asked JC whether there are any internal precedents on this situation. JC said that recently a manager was dismissed after 18 months of service. The company settled for £35,000 against a salary of £35,000. It was amicable and the company continued to use her service.

GWR informed JC about wrongful dismissal. It was informed that a wrongful dismissal claim occurs when there is a breach of a contract and the principal remedy is damages. The object of damages is to put the parties in a position they would have been, had the contract been properly adhered to subject to the duty to mitigate. This usually means that the amount equal to the value of net wages together with any other benefits the they would have received.

JC said that the Board would want PJ to leave immediately. JC said that they are prepared to the deal with a variety of contractual schemes for redundancy. JC said that the contract of employment of PJ needs to be seen in order to further advise on this matter. JC was also informed that most redundancy schemes are statutory capped at around 12 months. A carefully worded compromise agreement should to drafted to deal with this matter.

JC said that the Board could contribute towards the legal costs.

GWR asks again for a copy of PJ’s contract of employment. JC said that he will pass the advise provided to the Chairman of the Board.

Contributed by Ali Ashraf Raza, LLB (Hons), Legal Practice Course- (Pro.Dip)  (Nottingham), Associate at Bhandari Naqvi and Riaz.

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Blasphemy Law Amendment Bill 2010

Proposed amendments to punishments under Pakistan Penal Code (PPC)

Section	Offence	Existing punishment	Proposed punishment
295-A	Use of derogatory remarks, etc. in respect of holy personage— punishable with	Imprisonment of either description up to ten years or with fine or with both	Imprisonment of either description up to two years or with fine or with both
295-B	Difiling of copy of Holy Quran	Imprisonment for life	Imprisonment of either description for 5years or fine or both
295-C	Use of derogatory remarks, etc. in respect of the Holy Prophet	Death or life imprisonment[1] and fine	Imprisonment of either description for10 years, or with fine, or both

Proposed addition of words to blasphemy provisions in PPC.
The additional words (maliciously, deliberately and intentionally) are meant to introduce element of intention and malice to the offences under 295-C, 298-B & 298-C.

Section	Existing provision	Proposed
295-C	Use of derogatory remark etc.’ in respect of the Holy Prophet: Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.”	Use of derogatory remark etc.’ in respect of the Holy Prophet: Whoever maliciously, deliberately and intentionally, by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with imprisonment of either description for 10 years, or with fine, or with both.”
298-A	298-A Use of derogatory remarks, etc. in respect of holy personages.Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo or insinuation, directly or indirectly, defiles the sacred name of any wife(Ummul Mumineen), or members of the family (Ahle-bait), of the Holy Prophet (Peace Be Upon Him), or any of the righteous Caliphs (Khulafa-e­Raashideen) or companions(Sahaaba) of the Holy Prophet (Peace Be Upon Him) shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.	298-A Use of derogatory remarks, etc. in respect of holy personages. Whoever by words, either spoken or written, or by visible representation,maliciously, deliberately and intentionally or by any imputation, innuendo or insinuation, directly or indirectly, defiles the sacred name of any wife (Ummul Mumineen), or members of the family (Ahle-bait), of the Holy Prophet (Peace Be Upon Him), or any of the righteous Caliphs(Khulafa-e-­Raashideen) or companions (Sahaaba) of the Holy Prophet (Peace Be Upon Him) shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
298-B	298-B. Misuse of epithets, descriptions and titles, etc. reserved for certain holy personages or places. (1) Any person of the Qadiani group or the Lahori group (who call themselves Ahmadis or by any other name) who by words, either spoken or written, or by visible representation—	298-B. Misuse of epithets, descriptions and titles, etc.reserved for certain holy personages or places. (1) Any person of the Qadiani group or the Lahori group (who call themselves ‘Ahmadis’ or by any other name) who by words, either spoken or written, or by visible representation maliciously, deliberately and intentionally—[2]

Proposed new offences to be added to Pakistan Penal Code

Section	Offence	Proposed Punishment
203-A	False accusations under sections 295-A, 295-B, 295-C PPC	Similar/[3] Same/identical as provided under the said sections.
298-E[4]	Advocacy of religious hatred etc constituting discrimination	Imprisonment of either description up to seven years, or with fine, or with both.

Procedural amendments proposed in the Code of Criminal Procedure (CrPC)

Section	Existing Provision	Proposed addition/change
30.Offences not punishable with death:	Notwithstanding anything contained in Sections 28 and 29, the Provincial Government may invest any Magistrate of the First Class with power to try as a Magistrate all offences not punishable with death.	Add at the end after word ‘death’: “as well as offences falling under sections 295A, 295B and 295C of the Pakistan Penal Code.’’
193 (2)	193. Cognizance of offences by Courts of Session: (1) Except as otherwise expressly provided by this Code or by any other law for the time being in force no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the [case has been sent to it under Section 190, sub-section [(2)].	Add after sub-section 2: “and as expressly provided for under section 190 of the Code’’
201	201. Procedure by Magistrate not competent to take cognizance of the case. (1) If the complaint has been made in writing to a Magistrate who is not competent to take cognizance of the case, he shall return the complaint for presentation to the proper Court with an endorsement to that effect. (2)       If the complaint has not been made in writing such Magistrate shall direct the complainant to the proper Court.	Add proviso: “Provided that if a complaint is made in writing to a Magistrate under sections 295A, 295B and 295C of the Pakistan Penal Code, he shall not take cognizance of it and forward it to the proper Sessions Court with an endorsement to that effect and in case the complaint has not made in writing, such Magistrate shall direct the complainant to the proper Sessions Court.”
202	202. Postponement of issue of process. (1) Any Court, on receipt of a complaint of an offence of which ‘it is’ authorized to take cognizance, or which has been sent to it under Section 190, sub-section (3), or transferred to it under Section 191 or Section 192, may, if it thinks fit, for reasons to be recorded postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct an inquiry or investigation to be made by any justice of Peace or by a police-officer or by such other person as it thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint. Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of Section 200. (2) A Court of Session may, instead of directing an investigation under the provisions of sub-section (1), direct the investigation to be made by any Magistrate subordinate to it for the purpose of ascertaining the truth or falsehood- of the complaint. (3) If any inquiry or investigation under this section is made by a person not being a Magistrate, or justice of Peace or a police-officer, such person shall exercise all the powers conferred by this Code on an officer-in-charge of a police-station, except that he shall not have power to arrest without warrant. (4)        Any Court inquiring into a case under this section may, if it thinks fit, take evidence of witnesses on oath.	add subsection (5) to say, ‘’Notwithstanding anything contained in the preceding subsections any complaint made under sections section 295A, 295B and 295C of the Pakistan Penal Code shall be filed at and taken cognizance of by a Court of Sessions and tried by the High Court, whereas the procedure laid down in the preceding subsections shall be followed.’’
190(3) New provision	none	“All offences falling within sections 295A, 295B and 295C of the Pakistan Penal Code shall exclusively be taken cognizance of by the Court of Sessions and tried by the High Court.”

Ilamdin fiasco

In the recent debate over the blasphemy law, a group of Jamaat-e-Islami-backed right-wing authors have come up with an extraordinary lie. It is extraordinary because it calls into question the professional integrity of the one man in South Asian history who has been described as incorruptible and honest to the bone by even his most vociferous critics and fiercest rivals, i.e. Mohammad Ali Jinnah. The lie goes something like this: ‘Ghazi’ Ilam Din ‘Shaheed’ killed blasphemer Hindu Raj Pal and was represented by Quaid-e-Azam at the trial who advised him to deny his involvement in the murder. ‘Ghazi’ and ‘Shaheed’ Ilam Din refused and said that he would never lie about the fact that he killed Raja Pal. Quaid-e-Azam lost the case and Ilam Din was hanged.

To start with, the story is entirely wrong. First of all, Jinnah was not the trial lawyer. Second, Ilam Din had entered the not guilty plea through his trial lawyer who was a lawyer from Lahore named Farrukh Hussain. The trial court ruled against Ilam Din. The trial lawyer appealed in the Lahore High Court and got Jinnah to appear as the lawyer in appeal. So there is no way Jinnah could have influenced Ilam Din to change his plea when the plea was already entered at the trial court level. Nor was Ilam Din exactly the ‘matchless warrior’ that Iqbal declared him to be — while simultaneously refusing to lead his funeral prayers. Indeed Ilam Din later filed a mercy petition to the King Emperor asking for a pardon.

The relevant case — in which Jinnah appeared — cited as Ilam Din vs. Emperor AIR 1930 Lahore 157 — makes interesting reading. It was a division bench judgement with Justice Broadway and Justice Johnstone presiding. Jinnah’s contention was that the evidence produced before the trial court was insufficient and the prosecution story was dubious. To quote the judgement, “He urged that Kidar Nath was not a reliable witness because (1) he was an employee of the deceased and, therefore, interested. (2) He had not stated in the First Information Report (a) that Bhagat Ram (the other witness) was with him, and (b) that the appellant had stated that he had avenged the Prophet. As to Bhagat Ram it was contended he, as an employee, was interested, and as to the rest that there were variations in some of the details.”

The court rejected this contention. The judgement continues that “Mr Jinnah finally contended that the sentence of death was not called for and urged as extenuating circumstances, that the appellant is only 19 or 20 years of age and that his act was prompted by feelings of veneration for the founder of his religion and anger at one who had scurrilously attacked him.” The court rejected this contention as well referring to Amir vs. Emperor, which was the same court’s decision a few years earlier. Interestingly, the curious reference to 19 or 20 years deserves some attention. Why did Jinnah as one of the leading lawyers refer specifically to an argument that had been exploded by the same court only two years earlier? That only Mr Jinnah can answer and I do not wish to speculate. Perhaps he was trying to argue what Clarence Darrow had argued successfully a few years ago in the famous Leopold and Loeb case involving two 19-year old college students who had committed the ‘perfect crime’. Clarence Darrow’s defence converted a death sentence to a life sentence.

Another corollary of the argument forwarded by our right-wing commentators is that since Jinnah defended Ilam Din in this murder trial, he favoured the ‘death sentence for blasphemy’. It is an odd derivative even for average intellects that most Pakistani ultra-rightwingers and Islamists possess. First of all, it is quite clear that Jinnah did not defend the actions of Ilam Din. He had attacked the evidence on legal grounds. Second, it is clear that there was no confession and Jinnah did not ask Ilam Din to change his plea. Third, when the court rejected Jinnah’s contentions, Jinnah’s argument was simply that a death sentence was too harsh for a man of 19 or 20, with the obvious implication that sentence should be changed to life imprisonment.

We can only conjecture as to what Jinnah’s reasons as a lawyer and politician to agree to be the lawyer for the appellant before the high court were. In any event, a lawyer’s duty is to accord an accused the best possible defence. Just because a lawyer agrees to defend an accused does not mean that the lawyer concurs with the crime. One is reminded of the famous Boston Massacre in 1770 when British soldiers opened fire and killed five civilians who were protesting against them. The British soldiers hired John Adams as a lawyer, who got five of the accused acquitted, arguing that a sentry’s post is his castle. Does that mean that John Adams was in favour of British rule in the US? If so, it is rather ironic that he was the prime mover and the guiding spirit behind the American declaration of independence. Similarly, when Clarence Darrow defended Leopold and Loeb, was he in any way suggesting that the crime that those two young men had committed was justified?

Jinnah’s record as a legislator tells us a different story altogether. He was an indefatigable defender of civil liberties. He stood for Bhagat Singh’s freedom and condemned the British government in the harshest language when no one else would. In the debate on 295-A of the Indian Penal Code, a much more sane and reasonable law than our 295-B and 295-C, Jinnah had sounded a warning against the misuse of such laws in curbing academic freedoms and bona fide criticisms. I have quoted that statement in my previous two articles.

There cannot be any question that Jinnah the legislator would have balked at the idea that his defence of a murder convict is now being used by some people to justify a law that is ten times more oppressive and draconian than the one he had cautioned against. To this day, I have only found him alone to have had the courage to state in the Assembly on September 11, 1929: “If my constituency is so backward as to disapprove of a measure like this then I say, the clearest duty on my part would be to say to my constituency, ‘you had better ask somebody else to represent you’.”

The writer is a lawyer. He also blogs at http://pakteahouse.wordpress.com and can be reached at
yasser.hamdani@gmail.com