How can a barrister defend someone he knows to be guilty?
This is the the old chestnut that all criminal barristers soon get used to answering. It is not a stupid question.
There is little problem defending someone you know is guilty if he admits it and has pleaded guilty, or been found guilty by a court.
Just because someone is guilty it does not mean that he forfeits his right to a defence. His barrister’s job then is to try, by honest means, to get as short a sentence as possible. Normally a great deal can be said for someone who has pleaded guilty. He may be full of remorse. He may have repaid the money he has stolen. He may, though it can be rather a hackneyed line, have suffered a terrible childhood. Or perhaps he has, since he committed the crime, given up drink or drugs, or managed to get a job after five years of unemployment.
Don’t try to evade the question. You know what I mean: how can you try to get somebody off if you know they are guilty?
I’m not trying to evade the question, but what do you mean by “know they are guilty”?
Do you mean they have told me they are guilty but I should try to get them off?
Or do you mean, “come on mate, anybody but a Class A dunderhead would realise they are guilty. You are not a dunderhead, at least not a Class A one, therefore you too must know they are guilty?”
I mean, say they said to you “I did it, but I want you to get me off.” How could you defend such a person?
This is how. First, I would say:
“The evidence is strong and because we can’t contradict it, you haven’t got a chance. I can’t accuse witnesses X, Y & Z of lying because they’re obviously telling the truth. I can’t call you into the witness box to tell a pack of lies. The virtually inevitable consequence of pleading not guilty is that you will be convicted by the jury (or magistrates) and your sentence will be much tougher. You really ought to plead guilty.”
Faced with that sort of advice 999 of these defendants out of 1000 will realise that the game is up and plead guilty.
You’re still evading the question, just like every other slippery lawyer I’ve ever met. What of the one in a thousand who won’t plead guilty. Would you still represent him?
Yes I would, but without doing any of the dishonest things like accusing the witnesses of lying, or calling a defendant to tell an admitted pack of lies. All I could really do would be what is known as “put the prosecution to proof.” I could argue that certain evidence was inadmissible, or that the prosecution case was not conclusive, but that would be as far as I could go.
But I have to say that this situation is so rare that I have never come across it, or even come close to it.
So what it boils down to is this, you would use your skills, if you have any, to get a guilty man off?
Yes. There is an important principle here; that we have trial by judge and jury, not trial by advocate. That system can only work if a client has complete trust in his advocate. It’s no good him worrying that his barrister will walk out on him if tells the truth.
Moreover, if the rule was that lawyers could not defend a guilty man, it would be assumed that anyone without a lawyer must be guilty.
How on earth can you bring yourself to defend child abusers and rapists?
Very easily indeed. It’s not my job to judge either the law or my clients’ morals.
The alternative to a criminal justice system is a lynch mob, and it is remarkable how readily righteous indignation, often by those who are far from righteous in their own lives, can spill over into orgies of violence. .
People accused of such things are not always guilty. Arguments rage about how many false accusations there are of such crimes; we simply don’t know, but undeniably there are some. The consequences of being falsely accused do not need spelling out.
But even if they are rightly accused we do not want mobs baying their guilt outside as they lob petrol bombs through the windows, and what is more very often the wrong windows as with the Portsmouth mobthat mistook a respectable paediatrician for a paedophile. We want proper, fair courts where guilt can be conclusively demonstrated.
Courts are only fair, certainly in an adversarial system, if both sides can argue their cases as firmly and as persuasively as possible. That means good lawyers, including defence lawyers, arguing in front of good judges. Little is more revolting than the spectacle, as in Soviet Russia, of lick-spittle “defence” lawyers parading their own disgust at the criminal instead of trying to defend him.