I’m often asked, “How can you defend someone you know is guilty?” Of course I never know someone is guilty even if I suspect they are. The truth is, it’s not defending the likely guilty which causes me problems but defending those who I’m convinced are innocent which causes me sleepless nights. What follows below is one such case and it shows why as a barrister one must always take ones client instructions as the final word as to what happened and why one should never pressure a client into pleading guilty.
The case is one which might make the stereotypical Daily Mail reader froth at the mouth and one in which I was instructed a few years ago. An allegation of rape, against a minor, by an illegal immigrant. When I got the papers and read the case summary my heart sank. Mr A was an illegal immigrant and on the night in question was baby-sitting his partners’ 11 year old daughter whilst his partner was out with friends. During the evening the daughter complained that whilst she was watching TV on the couch, Mr A entered the room dressed only in his boxer shorts, sat next to her and then later, attempted to rape her. She ran upstairs to her bedroom, locked the door, hid in her closet and phoned the police. The case summary explained how that during the phone call to the police, Mr A could be heard hammering on the bedroom door asking to be let in. In due course the police turned up, banged on the door demanding to be let in. Mr A, rather than let the police in, made his way to the loft, escaped through a skylight window in the roof and dressed only in his boxer shorts made good his escape along the rooftops of North London. If ever there an overwhelming case, this was it.
The first conference I had with Mr A was fairly typical. It took place at HMP Wormwood Scrubbs and although booked for 2 hours didn’t start on time due to a ‘lockdown’ in the prison on the day of the visit. By the time I got through to see him, I had barely 45 minutes to gain his trust, advise him on the evidence and go through his instructions. The second conference was somewhat better. Mr A explained how he had only ran from the police because he knew he was here illegally and believed the girl had made up the allegation because she was annoyed at him for telling her to go to bed as it was her bedtime. My problem for the forthcoming trial was that I had nothing of substance to put to the girl and at least to my mind, the idea that someone might make all of this up, call the police and put her mothers partner through all of this simply because she was told to ‘go to bed’ was just fanciful. The final conference I had with Mr A turned out to be the most important one. By now, he trusted me and was prepared to open up to me in a way that he hadn’t previously. During the course of this conference he happened to mention that he had previously suffered an heart problem which had resulted in surgery. I asked how matters were now and he replied that he was fine save for the scarring.. I asked to see his scars and he refused explaining that he was embarrassed by them. I insisted and eventually he was persuaded to show me. His scars were horrific and extended from his upper chest all the way down the centre to his groin area. Almost as soon as he showed me, he began covering up again and explained that he doesn’t show anyone his scars. Even his partner hasn’t seen them properly as he insists on wearing a T-shirt when he goes to bed. For the first time since I received the papers, I began to see a glimmer of hope.
The trial was listed at the Old Bailey and in the weeks running up to it, I had sleepless nights for fear as to how my cross examination of the young girl would go. If it went well Mr A, as to whose innocence I was now convinced, would be acquitted. If it went badly he would be convicted. Lawyers and non lawyers alike know that a golden rule of cross-examination is to never ask a question which you do not already know the answer and I was intending to break it. The trial duly started, evidence was called and my questioning of the girl reached the stage where I asked her to describe how Mr A appeared when he entered the lounge, dressed only in his boxer shorts and still panicking that she might reply stating that he had a huge scar running down his body. She did not, however, and when later in the case during the defendants evidence he removed his shirt to show the jury his scar, I knew the case was won.
There are a couple of morals to this story. The first is you must always believe your client and defend him fearlessly. It doesn’t matter how overwhelming the case may seem to you, you are all he has standing between him and a long period in jail. If you don’t stand up for him, who will? If you don’t present his case, who else can?
The second moral is equally important and is that you must always engender trust between you and your client and go the extra mile in defending him. Many non lawyers, or indeed non criminal lawyers may not appreciate this, but as a criminal legal aid lawyer, you aren’t paid for attending conferences. Each conference at the Scrubbs is a day out of court where one might otherwise be earning. In Mr A’s case, I had 3 such conferences, 3 days out of court, 3 days where I was paid nothing.
The government is proposing to introduce PCT (price-competitive tendering) whereby organisations will bid for the right to provide legal services with the lowest bid winning. Lawyers are to be “incentivised” to get their client to plead guilty with the same rate being paid for a contested trial and for a guilty plea. Client choice is to be abolished and instead, the state which prosecutes you will dictate which of its cheapest bidding lawyers will defend you. Not only will client choice vanish, but so too will client trust. It is inconceivable that in the factory style target driven justice system which will follow, lawyers will have the time or inclination to attend at multiple unpaid conferences or even bother contesting a trial in the face of what might otherwise seem to be overwhelming evidence. I have no doubt, in a post-PCT world, with a Stobbart barrister, Mr A would even now, still be languishing in prison.
It is not simply illegal immigrants who fall foul of the law. Your son could be defending himself on a night out yet be arrested and face charges. You might be driving home from work, a pedestrian step out in front of your car and you be facing a possible prison sentence. In such cases you would want to be able to trust your lawyer and be confident they would go the extra mile in defending you, not just do that which their weekly quota demanded.
If this is the way you do feel, then please take a moment to sign the following petition. http://epetitions.direct.gov.uk/petitions/48628 The government are set to be introducing these changes without any parliamentary scrutiny. 100,000 signatories will see the possibility of a debate in parliament. Help stop our criminal justice system being destroyed. It only takes a minute. Say no to PCT. Sign up now.