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How Can You?

How can you defend such a *****

How can you defend him when you know he's guilty,

When you know that he's been guilty all his life. (Did you sing this?)

It's easy (almost). For anyone to be punished for a crime, it is necessary first to have given him a fair trial. Even if you do not think so, I do. That means that, at the end of the process, and as the chap begins his sentence, we can all rest easy knowing that whatever could have been said for him, has been said. You cannot sit snug and smug at home, knowing that a criminal is slopping out, unless you can find someone who is ready to do precisely that, to stand up before whomever, and to plead the defendant's case loud and clear. That, no less, is what a defence lawyer does, or should do. You cannot both ask him to do his best, and complain that he does his job too well.

The defence lawyer has a necessary, and entirely, moral part to play in the process. Moreover, that very morality requires someone to suspend judgement of a defendant. Someone is needed who neither believes nor disbelieves the version of events being put forward by the defendant, but puts them forward as strongly as he or she can. This mode of 'beliefless' assertion is very strange. Many people see it, or choose to see it, as lying. It isn't.

People think that we lie for clients. We don't. I am sure it happens, but it happens rather less than people think. Indeed, it is not at all unusual for a lawyer to say to a client 'You have just said that 'A' is true, but also that you want me to say that 'A' is not true. I will not, and you must get someone else to represent you.' A client who asks his lawyer to lie for him should, and will usually, lose his lawyer.

Many times things are not so simple.

Sometimes a client will have a very strange story to tell. We live in a world where, quite often, very strange things do happen. The Court must make the decision, whether through magistrate or jury, of innocence or guilt. If the lawyer interposes his judgement, and says 'I will not put that defence forward, because I do not believe you', then why bother with the court? Why not accept the lawyer's own experienced judgment? The lawyer needs to retain his 'non belief' and 'non-disbelief' if he is to be able to judge with any accuracy how the client's case will be heard by third parties.

This is just the same mistake, sadly, which police officers sometimes make. They can decide on the guilt of a suspect, and become blinded to facts which indicate otherwise. This can just as easily become a distortion of the truth as any lawyer's representation.

'All lawyers are lying bastards.'

'No we aren't.'

'Yes you are.'

'Yah boo, sucks.'

(Otherwise known as argumentum ad 'my fixed costs are up' - I'll talk as long as I am being paid).

Please note that as from October 2000, I have ceased to act under legal aid iin criminal law cases. It is a matter of great regret to me, but it is clear the the government has recognised that there are no votes in having criminal suspects defended properly, and, as we all know, money follows the votes.

Important: Please note that our law-bytes are retained for archival purposes only. The law changes, and these notes are often, now, out of date. You must take direct advice on your own personal situation and the law as it currently stands.
All information on this site is in general and summary form only. The content of any page on this site may be out of date and or incomplete, and you should not not rely directly upon it. Take direct professional legal advice which reflects your own particular situation.
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Copyright and Database Rights: David Swarbrick 2012
18 October 2013 239 18 October 2013