Tuesday, 13 March 2012

Yeah, But How Can You Represent Them When You KNOW They're Guilty?

Ah, the question everyone asks when they find out what I do for a living.

It used to irk me. I wondered why ostensibly smart people couldn't work out the answer for themselves - but then I have always been a defence lawyer so it makes sense to me, but I have come to learn it really isn't apparent to a lot of people and nor should it be.

There are some myths and some truths in the beliefs people hold about us caniving tricksters who get the bad guys off (often "on a technicality") but most people who ask me and listen to my answer seem fairly satisfied that what I do is justified and necessary.

So - first to dispel a couple of myths:

I cannot put forward a defendant as "not guilty" if they admit the offence to me. Although what they tell me is absolutely confidential and I can advise them to make "no comment" so as not to further incriminate themselves beyond the evidence the police already have, I cannot help them fabricate a story - nor would I want to - in order to "get them off".

Secondly - most people plead guilty.

Most defendants are faced with a decent weight of evidence and offer a guilty plea - and, quite rightly, get sentenced for it. Others come to me and say "I ain't done it" and for the majority of these people the evidence is stacked against them and I advise them as such.

The CPS are not daft - they don't charge cases (ie send them to court) unless they have a decent amount of evidence. So often it is a case of me being an objective assesser of the evidence and advising the client if I think they are likely to be convicted that they should plead guilty.

They often want to take the risk and fight it, but where there is overwhelming evidence I advise them firmly of this. My advice is usually taken because my clients trust me to look after their interests. Police, court clerks or prosecutors telling them they're stuffed falls on deaf ears. They're 'the man' - the voice of authority. I am their legal counsel - I am paid exclusively to look after their best interests. If I think it is in their best interests to plead guilty because they're stuffed (and thus get a reduction in sentence for a guilty plea) I will tell them - and they tend to listen.

So, my advice spares hundreds (yes hundreds) of victims each year from having to give evidence about the crime itself and be cross-examined and saves thousands of hours of court time and tens of thousands of pounds of taxpayers' money in avoided trials. Many people who tell me they want to plead not guilty will accept my advice and plead guilty when I have finished explaining my reasoning to them.

But what of the ones that say they haven't done it and either (a) they have a good case or (b) they're stuffed but won't listen to my advice?

Well, obviously in case (a) we have a potentially/possibly/probably (depending on the circs) innocent person. I am going to fight tooth and nail to get them acquitted - as I'm sure you would want and expect me to. That seems fair, right?

So....that leaves the tiny minority of people I deal with, but the ones that form the topic of the question I quoted at the beginning - those defendants who face apparently overwhelming evidence but maintain their denial despite my advice that they are likely to be convicted.

[Note: I never tell them I don't believe them or I think they have done it if they say they haven't - it is NOT my job to call them a liar and they woulds lose all trust in me if I did so. It is my job to tell them objectively if I think the court will believe them or not].

In these cases I.....fight tooth and nail to get them acquitted. Of course I do. Why/how could I do anything else?

"Yeah, but if you KNOW they did it?"

I don't.

I wasn't there so I don't know they did it.

They have not admitted it to me so I don't know they did it. I can strongly suspect they did it, I could even believe they did it, but I don't know and more importantly what I believe doesn't matter one bit.

Am I the Judge or the jury? No. So it is absolutely not my job to decide the fate of my client. If they insist they are innocent (and let's not forget the hundreds of widely reported miscarriages of justice where all circumstantial evidence pointed firmly at the defendant and DNA or other evidence later categorically exonerated them) then who am I to decide they aren't and so shouldn't get a proper case put forward?

Would it not be usurping the role of the courts altogether and supremely arrogant of me to say "Weeeell - I reckon he's done it, so fuck 'im - I'm not going to put up much of a fight"?

If you were in the wrong place at the wrong time, if some ex-friend went psycho and fabricated an allegation of assault or harassment or rape (it does happen) against you - if you ended up in court charged with a crime you hadn't committed and were pleading your innocence and put all your faith in someone with years of training and even more years of experience in the criminal courts to help prove your innocence - someone paid purely to do that - wouldn't you be disgusted if they did a half-arsed job because they didn't believe you?

And it is precisely because I don't know and can never know for sure whether someone did or did not commit an offence that I cannot make myself the Judge and decide a defendant doesn't deserve defending.

Yes, that can make this job gut-wrenchingly unpleasant at times. I have had to view photographic and video evidence that has turned my stomach and even brought tears to my eyes involving harm done to children, adults and animals - and then stood up and defended the alleged perpetrator of those horrific acts.

It is not an easy job and it is much maligned, but when someone who has never been in trouble before (and particularly if they are well educated, articulate and "middle class") gets charged and has to go to court they are always horrified at how they are "treated like a criminal" and everyone "assumes I'm guilty before I've even had my say".

We live in a "no smoke without fire" society. Why do we have all those vile headlines about the landlord alleged to have killed Jo Yeates before any charge was laid (never mind a conviction)?

Why do people throw rocks at prison vans with SUSPECTS inside who are on their way to TRIAL (ie they are denying the crime)? We assume if someone is charged they are guilty. We see it more than ever in the reporting of "terror" arrests. My firm has dealt with numeorus arrests under the Terrorism Act. Not one had sufficient evidence to get to trial.

Rumour, suspicion, innuendo, anonymous tip-offs based on misheard snippets of conversation and the fact that he's a Muslim with one of those big long beards etc etc.

We live in a civilised society but we still lock people up for months whilst awaiting trial and then drop the case due to lack of evidence. They then have to face the world with that stain on their character.

I know a man who was charged with rape. The lady who accused him later admitted to fabricating it and it transpired she had made false allegations before. He lost his job, his wife and his friends shunned him. He spent 9 months in jail awaiting trial.

He hanged himself about three months after he got out.

Many others have had their lives ruined even though they have been acquitted because the whole neighbourhood saw them carted off by police and saw their photo on the front page of the local evening news "Man Charged With Murder" and if they get found not guilty? Well, let's just avoid him just in case. I mean I'VE never been arrested for murder. YOU'VE never been arrested for murder. He must've done something to attract suspicion!

Those may be extreme examples but they hold the key to the reason I do this job. What if it was me? What if it was you? What if the entire weight of the CPS and the police was coming down on you trying to get you jailed for something you know you didn't do?

You'd want a lawyer who would do their job properly wouldn't you?

Defence lawyers have seen a freeze in legal aid rates for 11 years, followed by substantial cuts. I work 10-12 hours a day most days and evenings and weekends on top. If I am out all night at a police station I am in court the next morning. I get no time off in lieu.

When I am not working (or listening to heavy metal) I am reading the reams of cases published each week and new legislation coming along every month as I need to be up to date on all of it. Criminal law changes faster than any other area of law and requires constant training and I also have to train many of the staff at my firm and others as new legislation is so badly worded these days that it takes 12 months of case law to establish how the higher courts will interpret some of it.

It's no good you saying to me "I did x and y, but not z" in a police station before the police interivew you and me saying "Hmmmmm, well I'm not sure that technically is an offence, but it might be".

So - if you think I do it for the money then think again - I could get paid double what I do now in almost any other area of law. I don't get respect from most people for doing this job like I would in some circles if I were a doctor or a fireman - and on the whole I don't get much in the way of thanks from many of the people I represent - but what I do get is a tiny bit of satisfaction in knowing that I help the wheels of justice keep turning.

The guilty are more likely to put their hands up to it if a good lawyer that they trust gives them sound advice. The avoided trials save us millions of pounds a a year. The innocent few who end up in court by a combination of bad luck or bad judgment or over-zealous policing, get given a slightly better chance against the weight of prosecution against them and a chance of acquittal (slim chance: of those that actually plead not guilty, over 80 percent are convicted at trial according to the most recent figures from 2010).

I don't set any of this out to make myself sound noble or deserving of praise - far from it - I get paid a reasonable wage to do a job that is occasionally enjoyable, often interesting and always challenging. I simply hope that a few more people who wonder how us defence lawyers can bring ourselves to "represent scumbags", or however they see it, appreciate that there is a value to society in having defence lawyers around.

As for "getting off on a technicality" that happens so very rarely, but is a topic for another blog post another day.

I am now getting down off my high horse and if you have bothered to read this, thank you for taking the time.


  1. I really enjoyed this. I'm considering law as a career, criminal or human rights in particular, and it's really good to see such an honest and informative post on the subject. Thanks!

    1. Glad you enjoyed it - thanks for the comment