To ask how defending Lawyers/Solicitors sleep at night.

[lollilou]

When they are defending someone who is accused of a horrible crime and that they know are guilty yet have to come up with a defense to try to get a not guilty verdict? It must happen a lot, how could you live with yourself in that situation? What if the accused gets off then commits another crime?

It's a game I think amillion it's not about truth or even justice, it's about points of law not people.

I do have a far greater understanding as a result of posts like mayors - the "people" - defendant or victim, aren't important - the points of law are.

I still couldn't do it, but until we change our system - I guess someone has to.

I do see barristers as perpetuating their clients lies - but if they can tell themselves that's their job and they are upholding the great british legal system - that's for them to decide - I guess defence barristers aren't reponsible for the fundamental flaws in the system.

One day we will have a system where the truth is the most important thing - bit I doubt it will be in our lifetime - it requires a huge amount of change and willingness to change - and even then the wheels of beauracracy grind ever slowly.

mayors - yes I understand - but to me tbh - it's just word games - the basic concept I have taken from this thread is if a client wants to please not guilty it's a barristers duty to try to find flaws in the prosecutions case.

I do have far more respect for some defence barristers - it's clear from this thread that the legal professionals posting on it - are dedicated to the law - it's not their fault the "law" is letting so many victims down.

There is one noticeable exception to that - the poster who immediately jumped in with age old rape myths - but in every profession there will be exceptions.

It's not my version of your post, it is your post. At least own it.

I think it would require teleportation and time travel to ever be sure that you have arrived at the 'truth' of something. Even then you could transport all the jurors back to observe the incident happening and you would probably still end up with more than one version of the 'truth' of what happened in most instances. One thing that becomes plain to anyone who has worked in the criminal justice system that even impartial witnesses are very likely to give differing accounts of what they have seen and heard. If they give identical stories it usually raises significant suspicions that they have in fact invented a story to agree on.

What most trials hope to end up with is a consensus. An agreement as to how a bunch of evidence should be interpreted. Each person involved in reaching that consensus probably holds a different version of the 'truth' in their mind. What each version entails is as much shaped by things that have influenced those individuals outside the courtroom as what they have heard within it.

As mumsbum has admitted, she now has an inclination to believe that there is likely to be truth behind any allegation of sexual assault, and would struggle to overcome this prejudice if she sat on a jury in an unrelated case. Maybe the answer as to why the jurors in the case she was involved in found that there was not an assault is just as much shaped by their influences outside of that case than those within it?

Its been a really interesting thread. I believe absolutely in the pillar stones of our justice system, innocent until proven guilty and everyone has a right to and deserves a proper defence and ability to put their defence forward.

I agree with the pp who said the best way to look at it is that the prosecutor has to prove his case, the defence is their to make sure that he does that.

When my DH started out, he started in criminal law, I know a lot of defence solicitors and barristers. Without exception they are intelligent, moral and thoughtful people who believe in the concepts of our justice system but do acknowledge the practical limitations of it.

A lot of the people they defend are career criminals, however as said above a robust prosecution and defence are required. My DH thought that in his short 'criminal' career that only a couple of the people were innocent. The key word is thought, he didn't know and it isn't his job to try and sentence someone, that is the role of the court with a jury.

"In an ideal world truth and justice should come first."

But your version of justice and may be very different. Ditto with concepts of justice in relation to an individual trial and how you would like to run a whole system.

So lets take the example I gave above of a faulty search warrant. We have a fictional crime whereby irrefutably damning evidence was found on the back of an improperly obtained search warrant. The evidence found is the essence of the prosecution case and without it a conviction would not occur. Should we let the evidence stand even though improperly obtained? After all then justice will be served, the accused is guilty of the crime as proved by the evidence.

However you could also argue that justice would not be served as this mans right to a fair trial will have been breached, he will be convicted based on evidence found in contravention to the legal process and unlawfully obtained.

Let's go one further and look at the system as a whole.
Can we all agree that we would not wish to vest in the police the authority to search anyones house they feel like? (although some may still argue "if you've got nothing to hide etc.")
It is only right and just that citizens will have their right to privacy and autonomy of dwelling infringed upon where there is just cause and where the relevant authority has vested such powers of entry,search and seizure. To that end we then say that to obtain a search warrant certain strict procedure must be met and the authority given by people in positions who have the power to vest such authority (be it judges or chef super intendents etc. depending on where you live.)
If these procedures are not properly followed then surely it is not justice to post-facto justify or grant authority on the basis that something was found.
That is justice as well. If evidence is obtained in contravention to lawful procedure then it would be wholly unjust to allow it to be presented in court.

Similarly if a prosecution case has not been tested to the point where one can be certain that it has proved the accusation beyond reasonable doubt it would be wholly unjust to proceed with a prosecution.

"the basic concept I have taken from this thread is if a client wants to please not guilty it's a barristers duty to try to find flaws in the prosecutions case."

In some circumstances that's exactly what it is.
But that is how it should be imho. The core principal is that if you accuse someone of something then it is up to you to prove the veracity of that accusation.
This can't be done (in any field of acadmia or debate) without having someone test and examine the case. It's never as black and white as truth vs untruth or justice vs injustice.
There will be gaps of memory, contradicting statements. both accused and victim will often try and present their best version of the truth and downplay any failings they have in the incident (normally around drunken fights etc.)
So even if you are not putting forward a positive defence, it is still vital that someone is there to say "witness x said that the first punch was thrown with the left hand on the landing but witness Y says the accused had a drink in that hand at the time... is that plausible. have the prosecution convinced you beyond a reasonable doubt that the version of events which they present is the correct one." etc.

I had a great post, but it got sucked into the ethersphere.

All I can add is that often the "truth" is much more subjective than you'd like to believe.

When I was prosecuting cases I had a victim who had no idea that they were in fact the abuser. No clue. Honestly believed that they were the victim. The accused didn't really refute this as they were embarrassed by the whole thing. After some interviews and digging, we dropped the case. The "perpetrator" was the victim in that particular case. But if you'd spoken with the victim, there was a great injustice done.

Yikes.That was a long answer. I am pretty sure I and a lot of posters are going to struggle to plough through and understand it,though I am grateful you posted it.
Any chance you can shorten that? It is going to take me a certain amount of time to understand and digest it.

amillionyears - in summary - the courts do not concern themselves with 'truth', but with 'justice'. This is because there is no such thing as 'truth'.

HTH

I guess the problem is that Jo Public thinks "Well the police obviously have a watertight case, how can the Defence lawyer stomach defending against that?" But the only reason the police seem to have a watertight case is because the police expect the Defence to test the evidence; the police would be tempted to do a shoddy job otherwise in their gathering of evidence, if they could get away with a lower burden of proof. So if you want the police to investigate crime competently, you want good Defence lawyers.

Alternative scenario: we lock up people willy nilly because they sure seem like guilty scumbags, and if they're not guilty of this particular crime they're probably guilty of something else just as bad; meanwhile the cleverest criminals get away with loads because nobody looks hard enough to make sure we've caught the truly guilty for each and every previous crime. We could even have a scenario where rich criminals paid poor people (or their families) to take the blame for crimes & serve the prison sentences. Some people would take the payments. Imagine if Al-Mugrahi did exactly that for Lockerbie bombings.

What if only the rich could pay for a good defence lawyer, and the poor had to represent themselves? That's why everyone is entitled to a qualified competent confident lawyer, if you want any semblance of justice being fair in the legal system. And why Lady Justice is blindfolded.

May I point out that some confessions are false, or coerced? A confession is not truly good evidence of guilt, either, quite often.

major,I have tried to have a better read of your post,and somewhat understand it I think.
I dont really understand the concept of a faulty search warrant. How can a search warrant be faulty?
Am beginning to think there are systems failures in the legal system. Would you agree with that?
Does it make you personally cringe if you have defended someone,who the jury decides is guilty? Not just because you lost the case,but because the jury,with all the evidence submitted to them,has decided that the person is guilty.

My father is involved in international politics and as such has lived and worked in countries where the concept of justice is lacking. He will tell you that there is no justice system in the world that is flawless but he does say that a legal system that speaks for/supports the victim as well affords a defendant the right to counsel and upholds the idea of innocent until proven guilty is the corner stone of a functioning democracy.

Every defence barrister I know sleeps very well, as they should.

I think what mayor means by a faulty search warrant is where one has been obtained but not by due process, or it has been uses improperly- for example the police obtain a warrant to search a suspect's place of business, but they also search the suspect's home, for which they don't have a warrant.

I would not agree that there are systemic problems with the criminal justice system. I accept that it is not perfect, and that it doesn't always get the right result, but it has been refined for hundreds of years by people who genuinely have tried to obtain the right result. Human behaviour and experience is so varied it is impossible to design a neat little box into which every scenario neatly fits.

And no, I don't think defence lawyers cringe when they lose. At the end of the day it is your job, and if you over-invest and take each verdict as a personal reflection you will burn out within months, and not be able to do your job effectively.

I'm actually pissed off with some of the comments on this thread all over again.

I've just spent all bloody day sat in a badly-managed court to represent a woman who, but for one bad thing that happened in her life, through no fault of her own, would probably be happily Mumsnetting at this very minute. She was highly educated, articulate and had worked in a number of professional jobs. She had a family and children. And then something fairly mundane went wrong - something that is posted about on MN all the time - and it had a catastrophic knock-on effect on her life.

She is now hopelessly enmeshed in the criminal justice system, with every substance abuse problem going and a catalogue of mental health issues. She has been abused, assaulted, abandoned by everyone she loves and was sleeping on a bench for a while.

And now she is going to prison again because nothing I said I could persuade them not to lock her up.

It's shit, utter shit what happens to some people, and then a whole bunch of posters, most of whom have not a solitary clue what they are talking about, come on MN and give a massive, ill-informed kicking to those of us trying our best to help people through the system.

I probably won't sleep terribly well tonight because I am upset about that poor bloody woman. That should make some people feel better.

I'm done with these threads. They are all bollocks sweeping generalisations and "oh but I don't mean yoooooou". This is the last legal thread I am even opening on MN because I really, really can't be bothered anymore. It's bad enough sometimes doing the job without having to defend it as well.

mayor I think I get it - but the difference between you and me is - if something "proves" that someone did something - I don't really care how that something was obtained, it's not my job to care - as a member of the public, I only care that a criminal is taken off the streets - and I had first hand experience of what is allowable as a defence as opposed to what is allowable by the prosecution and the defence has a lot more leeway than the prosecution.

A defendant can say whatever he/she likes as I said a victim has no recourse.

So a barrister can say in summing up (RL example), this can't be a rape victim, they aren't upset enough.

That victim has made numerous suicide attempts, been through over a year of psychiatrist treatment and also counselling from a rape crisis centre.

Because we are at the summing point - it's too late to answer this.

The victim has no opportunity to answer the defences accusations that they aren't a "proper" rape victim - this being the first and only time the defence has referred to this.

Tell me - from a victims point of view - how is this "fair".

panda as I said upthread, your posts have helped changed my views on defence barristers - they haven't been pointless.

Kungfu

Sorry you've had such a shitty day. I completely agree those are the kind of cases that keep you awake at night. I often say that there are very few people I've represented who had nothing at all likeable about them and that many cases make me think ' there but for the grace of God'.

But that's why it's worth doing isn't it? And I hope you continue to post on these threads, your posts are really thoughtful and clear.

Hope you get some rest and have a better day tomorrow. Just don't think about your hourly rate for today, it might push you to .

Well a search warrant could be faulty if it has the wrong name, address, time or date on it.
It could be faulty if it is obtained under false pretences or without just cause for suspicion etc. there's a million different ways.

"Does it make you personally cringe if you have defended someone,who the jury decides is guilty? Not just because you lost the case,but because the jury,with all the evidence submitted to them,has decided that the person is guilty."

Absolutely not. I do not cringe in the slightest. The job is much less adverserial than many seem to imagine. The role of both defendant and prosecuting counsel is simply to present the evidence to the courts.
If my client says that he was nowhere near the scene of the crime then that is as much evidence as the victim identifying him or even definitive cctv images of him committing the crime. It is not my job to decide what evidence is to be accepted as fact, that is the sole role of the jury.
I have no dog in the fight, anyone thinking that they will build a practice on shoddy methods or underhand practices to get off guilty clients will not survive in the profession for the most part. What you do is set out to test the prosecution to the extreme.
If we are to accept that the standard should be to convinve a jury that someone is guilty beyond a reasonable doubt then there must be someone who's role it is to present arguments and doubts about the prosecutions evidence. It is then for the jury to sift through what they have been presented with and decide which evidence rings true for them and if having considered all the evidence presented they believe the person is guilty.
If a jury sifts through all the evidence and finds a client of mine guilty then I have still done my job and fulfilled my role in the courts.

"if something "proves" that someone did something - I don't really care how that something was obtained, it's not my job to care - as a member of the public,"

but as a member of the public surely you would care if the government decided that any member of the police could at any time and for whatever reason enter and search any member of the publics private dwelling.
Cases can't be viewed in isolation. We have rules of law and evidence to protect the innocent because every knows that absolute power corrupts absolutely.
So we put checks and balances in place. The police can't search a house unless X procedures have been complied with and fulfilled. If they do then they will be held to have brokenthe law and unlawfully obtained evidence will not be admissible in court. Otherwise the police would be put in a power where they could too easily abuse their power and become unchecked and corrupted.

kungfupannda - I'd like to repeat what mumsbum said.

I can completely understand that threads where posters have really strong opinions but no understanding whatsoever of what goes on in the criminal justice system can be really depressing and demoralising, but I'm certain that your posts do a lot of good in helping people to understand a lot better how the system works.

I also notice that on MN quite often a really good post simply gets no response. Possibly this is because other posters are digesting what's been said, possibly it's because many posters are in a confrontational mood and just don't want to say 'thanks, I understand now'.

But I've been reading your posts for a couple of years now and they always interest me as I know they'll be very, very intelligent ones.

Just wanted to let you know.

If you don't care how the evidence was obtained then you don't care if it was planted, either, or fabricated, right?
Badly obtained evidence increases the risk that the true guilty person will go free. It serves interests of no one except the corrupt.

It's everybodies job to care. You'd soon care if it was you.

Because it's their job. To ensure people get a fair trial. They should sleep as well as anybody else.

I don't believe our police force are fundamentally corrupt.

And the few that are - I am sure they find ways .......

I have been on the other side of this system - and from a victims point of view, I don't think it's fair at all - and stats bear this out.

Too many criminals walk free - free to live their lives and free to offend over and over again.

Mumsbum, do you know what the conviction rate is at the crown court and magistrates court? If not, take a guess