Co-parenting during COVID-19 – what if we cannot agree on our child returning to school or nursery?
Finally, a brief respite in this storyline means there is not very much happening in Ambridge. Rob has been discharged from hospital and continues his recuperation at home with the Machiavellian Ursula attending him. Rob has refused to return Henry to his grandparents. The Archers were unsuccessful at challenging his actions at a subsequent family court hearing and Henry is to remain with Rob until a full court hearing in June.
The Archers including Helen are distraught and contact between Henry and his grandparents is limited to one day a week. Meanwhile Helen’s barrister and Anna Tregorran continues to visit her in prison. Helen is still having difficulty in giving her instructions regarding what happened between her and Rob. She cannot recall events fully or accurately and is fixated with Henry and the arrangements for his care. Helen’s plea and trial preparation hearing (PTPH) is due to take place next week.
What is the difference between solicitors and barristers
The story so far has included only those visits between Helen and her barrister. Even allowing latitude for poetic licence our split legal profession which exists in an adversarial system requires a bit more explanation.
Lawyer is a generic term used to describe solicitors and barristers. Solicitors prepare the case. This includes managing the client, taking instructions, making defence inquiries, considering the evidence, managing the administration of the litigation and instructing the barrister. Together with the barrister they set the strategic direction of the case.
The barrister’s primary responsibility is to present the defendant’s case to the court (of course the best ones do a lot more than this!). They have two clients being their lay client, in this case Helen; their professional client is the solicitor, in this case Dominic who, so far as this storyline is concerned has been relatively ineffective. The barrister takes instructions from both their lay and professional client.
The storyline so far depicted can be forgiven in that it ascribes Anna the difficult task of taking Helen’s instructions. This would normally be done by the solicitor. The only circumstances where the barrister would do this without a solicitor is where they are instructed under the Public Access scheme .
The increasingly common hybrid of solicitors and barristers that is the Solicitor Advocate generally still observes this distinction and avoids mixing the role of litigator (solicitor) and advocate on the same case.
Far be it from me to give even a fictional QC advice but I think Anna Tregorran should get or allow her solicitor to do his job.
Fitness to plead
It's clear that Helen is upset and traumatised by what has happened. She has difficulty recalling what happened. She is fixated on matters other than her instructions and the advice she is being given.
In real life the alarm bells concerning “fitness to plead” would be ringing. Is Helen is suffering from some sort of psychiatric condition which affects her fitness to plead? Absent some good reason, Helen will be expected to enter a plea of guilty or not guilty at her PTPH next week.
Commonly referred to as the Pritchard Test (or Criteria) a psychiatrist approved under the section 12 of the Mental Health Act 1983 will assist the court in determining whether the defendant is fit to enter a plea and stand trial. The relevant questions are:
Can the defendant:
a. understand the nature and effect of the charges
b. decide whether to plead guilty or not guilty
c. excise his right to challenge jurors
d. instruct counsel and solicitor so as to prepare and make a proper defence
e. understand and follow the course of proceedings
f. give evidence in his defence
The court will consider the evidence of at least two psychiatrists who have assessed the defendant. If, because of a recognisable psychiatric condition, the defendant is unable to do these things then it is likely they are unfit to enter a plea. In Helen’s case the psychiatric condition might include post-traumatic stress disorder or what is commonly referred to as battered women syndrome. If Helen is unfit to plead the court can delay the plea hearing (if there is a prospect of her health improving within a reasonable time) or decide that the case ought to proceed to a trial of the facts.
In a trial of the facts the jury hear the evidence and decide whether the defendant did the act or made the omission charged against him or her. Following such a finding the court has a limited number of options for disposal (which is not strictly speaking punishment because the defendant has not been convicted) including a Hospital order, Restriction Order, Supervision Order or an Absolute Discharge. I am pretty sure we will revisit this issue as the storyline progresses.
The time to raise any issues regarding Helen’s fitness to plead is now. A good psychiatrist will assess her current mental health and is likely to also provide important defence evidence regarding her state of mind at the time of the alleged offences. These assessments are time-consuming (and expensive!) and those representing Helen are doing her a disservice by failing to address this issue as early as possible.
Early guilty plea
Presuming that there is no issue regarding fitness to plead Helen will be required to enter a plea at the PTPH next week. The current guidelines on credit for guilty pleas indicate that where a guilty plea is entered at the earliest reasonable opportunity, the defendant is entitled to a discount on the sentence of up to one third. So for instance if the sentence after a contested trial would be 24 years then on a guilty plea, with maximum credit, the defendant might expect a sentence of 16 years. The rationale for this is that by entering a guilty plea early in the proceedings the complainant (in this case Rob) has certainty thereby avoiding the anxiety intrinsic in the prospect of giving evidence and the delay to the conclusion of the case. In addition the time and resources that would otherwise be employed by the CPS and the court are avoided.
There is an incredible amount of pressure on lawyers and defendants to plead guilty as early as possible. The impact on sentence can be significant and serves as significant motivator regarding plea. The decision is often made in the absence of all the prosecution evidence and/or the opportunity to take full instructions or provide considered advice. Some judges have adopted the well-worn mantra “well your client knows whether or not he is guilty” as a justification for requiring a plea in these circumstances, as if it is somehow a binary transaction In reality, as with Helen, even when “what happened” is perhaps clear it requires careful advice following the taking of detailed instructions to be able to advise and decide whether to plead guilty or not guilty.
Understatement of the week
Goes to Helen who while clearly distressed screams at Anna Tregorran “I’m ….at risk of being in prison for a long time”. Sorry to break it to you Helen, but attempted murder (where it involves the use of a knife) has a starting point of 25 years in custody.
For more information regarding any of the legal issues featured in this blog please contact Sandra.
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