Yesterday I saw a friend, a defence barrister, face a lot of abuse over his advocacy in a very upsetting case. For many outside the criminal justice system it is hard to understand how we can represent people accused of often heinous offences. So here is a thread with my views.
First, lawyers, particularly barristers are only able to refuse cases for a narrow number of reasons. Otherwise there is a cab rank rule. If a case comes in, it is expected that you do and do it properly. This can be for the prosecution or for the defence.
Our view of the offence or the client is irrelevant. Much as a doctor should not decline to operate on someone whose views they disagree with. Our role is a part of an adversarial system where ultimately, through presenting and testing of evidence, the truth should emerge.
Not everyone can do our job. Lawyers say it does not affect us - rubbish - we are all just case hardened but have had to deal with sickening cases and clients but we just get on with it.
Often we are asked how can we defend someone we know to be guilty. Well this is a myth. We can test a case to see if the prosecution can prove it but we CANNOT put forward a positive defence where our client has made an admission to us.
Often we tell clients to plead guilty as this is in their best interests. This is not easy. But the fact is defence lawyers are able to persuade clients to admit an offence where the police cannot. This saves victims the trauma of giving evidence and saves huge costs to taxpayers
But if your client maintains that they are not guilty, then the job is to act in their best interests and prepare their case and present it as best as can be done. The prosecution will be doing the same. It is only through rigorous testing of evidence that justice can be done in
an adversarial system. For those who ask how can we put witnesses through this - if we did not, then those who are prepared to lie will get away with it and justice will not be done.
If, at the end of a process where a prosecution case has been fully tested and challenged, the Defendant is convicted, then that is likely to be the correct result. But if a defence is not properly put we face a situation which is the antithesis of a liberal democracy--
which is that a innocent person could go to jail. We take the view that better 100 guilty people go free than one innocent person. Disagree? not if you are that person.
Couldn't happen to you? Really? A drunken one night stand and an allegation of rape is made when you believe it was consensual. You take your eyes off the road because you spill a coffee just as someone is crossing. Someone insults your wife and you hit them.
And believe me - if you find yourself in that situation, you will want your solicitor and barrister to zealously defend you. Not everyone can do our job, but without us justice fails.
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