How can you represent someone when you know that they’re guilty?

Created on October 28, 2019

Last Updated on

Hi, I’m Rod and I’m a criminal defence solicitor

Oh wow, that must be really interesting.  I bet you meet some shady characters!  Tell me this (voice drops to conspiratorial whisper), how can you represent someone when you know that they’re guilty? 

So starts almost all of my encounters with people I’m introduced to at social occasions or networking events.  Even if it’s not the first question, you can be sure we’ll get round to it within the first five minutes.  It’s the equivalent of discovering that you’re talking to a GP at a party and casually mentioning an existing ailment in the hope of an informal, on the spot diagnosis. 

I don’t blame people for asking this question.  It’s the instinctive response for anyone who has no experience of the criminal justice system save for the partial truths learnt watching Kavanagh QC, Rumpole, Silk or, heaven help us, Better Call Saul.  My concern is not with the question itself, which is actually quite simple to answer, but with the premise of the question – Criminal defence lawyers represent criminals.  It’s their job to get people off.  If you’ve been called out to the police station at 2am it must be to deal with some ne’er-do-well who deserved to be arrested and who we don’t want walking our streets, putting us all at risk, thank you very much.

The title of Alex McBride’s memoir, recently turned into a BBC comedy, “Defending The Guilty”, neatly sums up most people’s view of what I do.

Why is the emphasis so swiftly and casually placed on the obvious guilt of anyone requiring my services?  Why is it assumed that I spend most of my time plotting fiendish legal arguments to bamboozle the Magistrates or conjuring barely credible storylines to hoodwink the jury?  It is because of this natural tendency to accept guilt that defence lawyers often advise clients that the jury will be ready to convict the moment they hear the indictment. 

 “They’ll walk to the jury box, take their seats and then they’ll turn to look at you in the dock and wonder what it is that you’ve done.  The Court Clerk will read the Indictment and, without hearing a shred of evidence, they’ll be ready to find you guilty – its our job to turn that around.” 

The media love to sensationalise a criminal story.  The Defendant is easily cast as the wrongdoer, as selfish, in it for his own ends, as intrinsically evil.  Consider how often you read about an ongoing court case which drives you to assume that a conviction will be the inevitable conclusion.  You read the last line “…the trial continuesas an invitation to tune back in tomorrow to learn more horrific detail of the offence or to pour scorn on the futile defence argument.  Whilst doing their journalistic duty to keep to the facts (lest they commit a contempt of court) from headline onwards, the inference is generally clear – look what this guilty person has done this time. 

In law, you’re innocent until proven guilty.  But in the court of gut instinct, there’s never any smoke without fire. 

 

So, back to the question, how do I defend someone I know to be guilty?

In truth, such a thing rarely happens.  If my client is actually guilty of the offence they’ve been arrested for or charged with, they usually don’t tell me.  They give me their version of the story, perhaps missing out certain damaging facts or claiming that they felt in fear of imminent attack or that the figures in the accounts have been mis-understood or that they had no reason to know that the drugs were in the bag.  The evidence may suggest, sometimes strongly, that my client’s version of events doesn’t make sense or cannot possibly be right.  Common sense may compel me to question the veracity of my client’s protestations of innocence.  Often, experience of similar cases and their usual outcomes will drive me to advise the client that their credibility is on shaky ground.  However, experience has also taught me that you cannot ever treat one case like another and that, quite often, all is not as it first appears.

 

In short, who am I to judge?

If the client informs me that they are guilty of the offence, this will generally be the precursor to a discussion about credit for a guilty plea and thoughts will immediately turn to damage limitation, to getting the best result.  

 

Is the best result necessarily the just result? Again, that’s really not my call.

Justice does not always mean throwing the book at the guilty party.  There will almost always be reasons why an offence has been committed, from the deeply personal (including mental health, a recent bereavement, relationship crisis) to the wider, societal causes (such as financial hardship, social exclusion and drug or alcohol addiction).  The objective of sentencing is to punish and to deter but also to rehabilitate. 

Basic ethics and a professional duty not to mislead the court prevents any defence lawyer from running a defence which they know to be untrue.  That does not prohibit the defence putting the prosecution to proof, asking the court to determine whether the client has been properly, persuasively and safely identified as the perpetrator or reasoning that what has taken place does not actually amount to the offence in question.  Such cases are incredibly rare and they aren’t really providing a satisfactory answer to the main question.

What I encounter more often, with concerning regularity in fact, is a client who has made a mistake or who didn’t realise how a situation might develop.  I see clients who took a short cut but who didn’t intend to harm or to cause loss.  I deal with people who are busily getting on with their lives, generally in testing circumstances, who haven’t had a chance to consider how their actions might be viewed in retrospect and who react to their arrest or prosecution with genuine surprise or outrage.  Quite often, the criminal justice system isn’t the place for these people at all and it says much about our society that assigning blame and demanding retribution is now the default starting point for any perceived wrong. 

 

Instead of asking me how I can represent someone I know to be guilty…

…perhaps pause and ask me how stressful it can be to defend someone I genuinely believe to be innocent.  Or, how often I see people sent to prison who I really don’t believe should be there.  Because these questions are so rarely asked and they’re actually why people like me do what we do. 

 

Rod Hayler

Rod Hayler

Rod has specialised in criminal defence work since 1998. He is a trial advocate of 17 years’ experience and, as a Higher Courts Advocate, he represents clients in Crown Courts and in the Court of Appeal.

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