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Preparation, preparation, preparation

by Mike O'Brien
21 October 2015

As part of our series of articles in the autumn written by nominees for the Solicitor Advocate of the Year Award 2015, Mike O’Brien muses on why it’s always the less obvious facts in a case that require the most care and attention.

We all know, I hope, that preparation is the key to good quality advocacy. I’m sure we can all recall moments in court where preparation made the difference - or it would have done, if we had prepared well enough!

I can recall one such occasion, when I appeared in the court of appeal in a renewed application for leave to appeal against sentence. The defendant, a 16-year old-boy, pleaded guilty at the first opportunity to his third domestic burglary and was sentenced to three years’ imprisonment. This was before the Sentencing Guidelines for Burglary Offences were published, and so the leading authority was R v Saw [2009] EWCA Crim 1.

This was only my second appearance before the court of appeal, and I spent a considerable amount of time preparing my submissions. In my grounds of appeal, I had referred to Saw, though not in any great depth. I did, of course, have a copy within my file of papers.

Having spent the morning sitting in court nine watching Lord Justice Laws majestically overseeing proceedings, my trepidation increased as I realised that the time on my feet would likely amount to seconds, rather than minutes.

My case was called. I rose to my feet, accepting the invitation to do so from a stare from Lord Justice Laws. ‘Permission for leave to appeal’ felt particularly apt, as I certainly didn’t feel as though I had permission to be there!

‘Mr O’Brien, your written submission refers us to the case of R v Saw?’

‘Yes, My Lord.’

‘Can you direct us to the paragraph in the case that deals with youths?’

I’m sure my heart missed a beat. There was literally no hiding place. Why didn’t he ask about the aggravating features? Or even the mitigating features? What about the principles of sentencing youths? There were guidelines for this!

But, no. ‘Can you direct us to the paragraph in the case that deals with youths?’

The two seconds it took to compute the question and consider whether I knew the answer felt like a lifetime. Fortunately, I realised that I did know the answer. I knew that at one time when reading the Saw judgment, I had highlighted a part that was loosely relevant to youths. I began flicking through my papers.

‘My Lord, paragraph 27…’

My application was politely and courteously refused, and I was thanked for my ‘persuasive oral and written submissions’. This meant a lot to me, even if the words are common parlance in such quarters. They do not have to be used if they are not meant.

Of course, Lord Justice Laws knew he was against me before I stood up. But I had got through this ordeal relatively unscathed, even if somewhat scarred mentally.

My point is, of course, that I had read and re-read the Saw case numerous times leading up to the application. Whilst it took two seconds to realise I had an answer, at least I had an answer.

As I’ve said, preparation is the key to good quality advocacy. Had I not been in a position to identify the correct paragraph in Saw, I would have looked rather foolish and ill prepared. It is so important not to overlook seemingly less obvious points: they will invariably be the ones that require the attention to detail ...

About the author - Mike O'Brien

Mike is a solicitor at Broudie Jackson Canter in Liverpool. He specialises in crime and is a senior crown court advocate regularly representing clients in all forms of crown court proceedings. He has been involved in many high profile cases including murders, drugs conspiracies and serious organised crime.

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