Strategy and Planning

As we have discussed earlier, it is important to understand the client's goals. However, this must be done in the context of their needs and this may be in terms of their personal, economic or commercial circumstances.

2.6.1 Using a Focused Strategy

Advocacy is a craft that uses knowledge, skills and judgment to achieve a focused strategy with the aim of successfully resolving a case. Success is not necessarily measured by winning the case. Sometimes, the course of action that best serves the client's interests will be reaching a compromise or bringing the dispute to an early resolution.

2.6.2 Identify the Elements of the Charge/Claim

In order to advise the client effectively and conduct a successful case, it is first neces­sary to consider all the possible causes of action and the legal consequence of pur­suing each. This will also involve a consideration of costs as well as a risk-benefit analysis.

In a civil case the claim will usually be a contractual or tortious one. In a criminal case the offence will be set out either in statute or the common law. If we take a criminal case as our example, it will first be necessary to identify from the charge sheet what the elements of the offence are in terms of identifying the actus reus (the guilty act) and the mens rea (the required mental element) and any defences that might apply.

Let's take the following example: a defendant is charged under s. 16 of the Offences Against the Person Act 1861 with the offence of making threats to kill. The elements of the charge will first have to be established from the statute.

Section 16

A person who without lawful excuse makes to another a threat, intending that that other would fear that it would be carried out, to kill that other or a third per­son shall be guilty of an offence and liable to conviction on indictment to impris­onment for a term not exceeding ten years.

The actus reus (the guilty act) can be identified as follows:

Makes a threat to another...to kill that other or a third person.

The mens rea (the mental element) can be identified as follows:

Intending that the other person would fear that it (the threat) would be carried out.

The defence can be found in the words:

Without lawful excuse.

A defendant who has a lawful excuse to make a threat to kill (for example a police officer involved in a hostage situation) might have an arguable defence.

The strategy here would be to convince a jury that the defendant is not guilty of the offence by producing evidence showing the actus reus and/or the mens rea ele­ments of the offence were not present. Another strategy would be to accept that the actus reus and mens rea elements were present but that the defendant had a defence that can act as a complete defence leading to an acquittal. We will consider different types of criminal offences in Part B.

In a civil claim, it will be necessary to identify the type of claim that might arise. This might, for example, be a contractual or tortious claim. The available remedies that should be sought and any defences that might apply will also have to be identified.

Let's take another example:

You act for a claimant in a civil claim who has purchased a painting, which has been described as having been painted by a particular artist. The claimant intends to give the painting as a gift to her husband who collects works of art from the art­ist in question. She later discovers that the painting was in fact the work of another (less well known) artist.

The Consumer Rights Act 2015 provides statutory rights to consumers in certain specified situations. Such rights include the right to expect that goods will be of sat­isfactory quality, fit for a particular purpose and match their description. The Act makes provisions for remedies such as the right to reject goods or request a replace­ment or repair of goods.

In addition to any remedies found in statute, it is possible to make an application for general interim remedies (temporary orders until the case reaches final trial).

The strategy here might be to produce evidence to suggest the goods in question have not met the quality, purpose or description expected. However, instead of requesting a replacement good, the client may be asking to exercise their right to reject the goods. Alternatively, you may decide to pursue a strategy that involves applying for an interim remedy under Part 25 of the Civil Procedure Rules. For exam­ple, if the seller asked the claimant to return the painting but then refused to issue a refund, it might be necessary to apply for an injunction seeking the return of the painting if that becomes the client's stated goal. We will consider different types of civil claims in Part B.

2.6.3 Identifying Risks

Deciding on a particular strategy might depend on whether there is an element of risk involved in that strategy. For example, are the prospects of success dependent purely on whether the jury believes the version of events of your witnesses? Are there excessive costs involved in the case and what are the prospects of recovering those costs from the opposing party?

Conducting a risk-benefit analysis at an early stage will help to identify the risk and decide whether it is one worth taking. A risk-benefit analysis involves considering the risks of taking a particular course of action as against the potential benefits that tak­ing that action might bring. For example, a decision as to whether to pursue a case to trial might involve a risk-benefit analysis where an increase in costs is the known risk but obtaining a particular remedy for your client would be the potential benefit. However, if, for example, the remedy in question is compensation but the costs of pursuing the matter to trial are likely to outstrip any compensation that the court might award, then the risk of going to trial is not a risk worth taking.

How the case will be funded and whether the opponent is worth suing are all rel­evant considerations for a risk-analysis in civil proceedings. In a civil case, there may be time-limits imposed on bringing a claim and the strategy may then depend on whether these time limits have been missed and what this will mean to the client's case. In a criminal case there may be risks in a defendant exercising their right to silence at trial rather than giving evidence or failing to plead guilty at an early stage. Risks must always be noted and prepared for.

In criminal cases decisions may have to be made about whether particular evidence is admissible or might risk prejudicing a trial (for example if the evidence has been obtained illegally through covert surveillance). As we will see in Part B, a court has a discretion to admit evidence regardless of the means in which it was obtained.

A defence advocate in criminal proceedings may also need to assess whether to advise a client to give a ‘no comment' interview at a police station, although the jury may be able to draw an adverse inference from the defendant's decision to remain silent at the police station. We will discuss this in more detail in Part B when consid­ering confession evidence.

Another important assessment that has to be made in criminal proceedings is whether a defendant should enter an early plea of guilty in order to obtain a ‘dis­count' in relation to the final sentence that they will receive. Section 73 of the Sentencing Act 2020 requires a court to consider:

(a) The stage in the proceedings for the offence at which the offender indicated the intention to plead guilty, and

(b) The circumstances in which the indication was given.

The focus is on when an unequivocal intention to plead guilty is indicated rather than when the plea itself is actually entered at court - see Plaku and Others v The Queen, The Queen v Benjamin Smith [2021] EWCA Crim 568 and the Sentencing Act 2020, s. 73.

In addition, the Sentencing Council have produced guidelines on the factors that the court should take into consideration when deciding whether to reduce a sentence due to an early plea of guilty being entered by a defendant.

The principle behind allowing discounted sentences in this way is that it saves public time and money that would otherwise be spent on a full trial and saves victims and witnesses from going through what could be distressing testimony. It is also thought to reduce the impact of the crime on victims if they do not have to face the offender in court but can be certain the offender will still be sentenced.

A defendant can receive as much as a one-third discount on their sentence depend­ing on when they plead guilty. The Sentencing Act 2020, s. 73 and the Sentencing Code ‘Reduction in Sentence for a Guilty Plea' (section D) provides that a discount of one-third is the maximum level of reduction and applies if a defendant indi­cates he/she intends to plead guilty at the first stage of the proceedings. This will normally be at the first hearing where a plea is requested and can be entered by the court. In the case of ‘summary only' offences this would usually be at the first hearing in the Magistrates' Court (see CrimPR 3.16(3)) or at the plea before venue procedure for either-way offences (see s. 17A(5) Magistrates' Courts Act 1980) or fol­lowing allocation to the crown court in the case of indictable offences (see Criminal Procedure Rule Part 9.7(5)). An indication of plea can also be recorded in the ‘Better Case Management (‘BCM') form in the Magistrates' Court.

Thereafter the reduction is on a sliding scale with a reduction of one quarter if the indication of a guilty plea is given after the first stage of the proceedings and one tenth reduction if the indication of a plea of guilty is made at the first day of the trial. This can be reduced to zero if the guilty plea is indicated or made later during the trial.

If a defendant needs further advice or assistance before entering a plea the court has a discretion to disapply the start points of the reduction and can still grant a one- third reduction (see section F1 of the Sentencing Code).

The defence advocate should therefore assess, based on the weight of the prosecu­tion evidence, whether a defendant is likely to be found guilty by a jury and therefore whether a defendant should consider pleading guilty at an early stage. For example, the defendant may want to initially plead ‘not guilty' to test the weight of the pros­ecution evidence, knowing that they will change their plea if the evidence proves to be strong. It will be necessary to advice the defendant client of the risks in taking this course of action if the defendant is expecting a discount in sentence.

Discounts in sentencing are different to mitigating factors that might be put forward on behalf of a defendant to reduce the severity of possible sentences. For example, where the defendant cooperated with police investigations or has shown remorse for their actions - see the decision in R vPrice [2018] EWCA Crim 1784 and s. 74 of the Sentencing Act 2020. We will consider sentencing in greater detail in Part B.