Life at the Bar – Defending the Guilty
One of the most frequently asked questions of any lawyer is ‘How do you defend someone you know is guilty?’ The answer is it’s nothing to do with me. I’m just an advocate, only a judge and jury can decide someone is guilty. Of course, it’s not as simple as that. If a client tells me they are guilty, except in very particular circumstances, I could not defend them. If however they insist they are innocent, then no matter how strong the evidence is against them, the advocate’s duty is to put their case to the best of their ability.
Usually, if on the basis of the evidence you have, the case looks overwhelming, I would advise the client to plead guilty to the offence as doing so will probably result in him getting a less severe sentence. Sometimes that can result in the barrister or solicitor getting the sack. Very early on in my career, I learnt to be careful about the amount of pressure I put on a defendant who insisted he was innocent in the face of very convincing evidence.
The client was a juvenile and because of his age, the trial was to take place in the Juvenile Court. At that time, the prosecution, in this case, the Metropolitan Police Solicitors, were under no obligation to serve any of the witness statements. Usually, the police officer would provide a brief summary of the evidence to the lawyers involved. The charge against my client was one of arson. I was told that the fire had been very destructive but there had been no loss of life. The seat of the fire was in a community hall attached to a school and entry had been gained to the premises through the school kitchens, which joined the two buildings and were used by both. Whoever had gone into the hall had used a serving hatch and on the top edge of the glass window was a perfect set of fingerprints. Those fingerprints were my clients. He denied he had ever been in the kitchen. He was lying and the magistrates would have deduced the reason for the lie was to cover his guilt.
He was fifteen years of age and of good character. His parents were clearly caring and supportive. Not always the case with juvenile offenders. Because of the seriousness of the fire, I believed a custodial sentence was inevitable, but if he pleaded guilty he might get and detention centre order rather than be sent to the Crown Court for sentence and the real possibility of being sent for Borstal training. I tried to persuade him that he should admit the offence. He refused. His parents had also tried as had my instructing solicitor. All to no avail.
I started the trial with a heavy heart, convinced I was just going through the motions until the prosecuting lawyer called the forensic expert. Usually in cases of arson the expert gives evidence as to the seat of the fire and the method by which it was started. Typically some sort of accelerant is used petrol, paraffin or alcohol. The expert told the court the fire had started in a plastic ashtray on the bar but did not give evidence of any accelerant being used.
There is a rule of thumb that one never asks a question to which you don’t know the answer. I decided to take the risk.
‘Is it possible the fire started as a result of somebody leaving a lighted cigarette stub in the ashtray?’
‘Certainly. If someone had not stubbed out their cigarette properly, the plastic of the ashtray would melt and then ignite.’
The offence of arson require the prosecution to establish the fire was started deliberately and this they could no longer do. My client was acquitted and I was relieved my persuasion had failed.