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?

[TandB]

mustbe - the CPS are not a perfect organisation. There are some great prosecutors, and there are also some crap ones who know that they will never be pulled up on their lack of work because, ultimately, the prosecution get an awful lot of leeway from the court. That is because there is only one prosecuting body for mainstream criminal work, whereas there are thousands of defence firms. If a defence firm cocks up they run the risk of being sacked by their client and having costs awarded against them by the court. If a CPS lawyer/branch cock up they can't be sacked and the costs come out of the public purse anyway. They might get a shouting at, but the person standing in court is highly unlikely to be the person responsible for the cock-up so it is likely to be shrugged off.

Because defence lawyers work for private firms, albeit under contracts to provide public defence, they are much more personally invested in getting it right. Where deadlines aren't met, it is generally the CPS who fail to meet them. Where documents aren't served it is generally the CPS who haven't served them. Not always, but more often than not.

Crap or dishonest defence lawyers tend to sink to the bottom. Crap or dishonest prosecutors get carried by their good and honest colleagues.

They are also working in non-ideal circumstances because the government keep bringing in all sorts of new initiatives that make fuck all difference to the running of the court system but sound good on paper. So the CPS are constantly being expected to change the way they do things. This means that things get lost in the system or just not done in time.

It is absolutely impossible for me to make more than a broad stab at some of the possible issues in your case but here goes:

1. Police report - it might well have been in the original file handed to the CPS, but for some reason never actually copied or disclosed to the defence until so late in the day that the judge decided it would be unfair to admit it. This would mean that the defence barrister had absolutely nothing in his hand to gainsay what his client was asserting. I think this unlikely as it would presumably be a fairlly key piece of rebuttal evidence and judges tend to take a robust view of even very late service of documents.
   
   Another possibility is that there was some sort of defect in the document leading the judge to refuse to allow it to be relied upon - there may have been some sort of credible assertion that the report had been tampered with, possibly typed up after the allegation was made or something along those lines. Again, it would be unusual.
   
   A third possibility, and I mean this as nicely as possible, is that you have misunderstood/missed some key issue re: this document. I mean no disrespect when I say that you have an imperfect understanding of the mechanics of a criminal trial. I have an imperfect understanding of them! And any lawyer who says they know every single little bit of procedure and legislation without having to look it up is lying, I'm afraid! It is a complicated system and barristers are surgically attached to their copies of Archbold (legal bible) for a reason.
   
   
2. Lying by defence barrister. I think this spectacularly unlikely. I strongly suspect that you are once again imperfectly processing something pretty standard, albeit incredibly confusing to hear. A barrister puts the defence case to the witnesses. Anything the defendant is relying upon MUST be put to the witness. So if the defendant says "It is a lie" then the barrister must put it to the witness that it is a lie so that they can respond. If something isn't put to the witness that the defendant ultimately relies upon then the witness would be recalled to give them a chance to respond to it. What you are hearing is the defence barrister filtering the defendant's case.
   
   I have very, very rarely come across an overtly dishonest advocate who has actually got away with it. I can think of one solicitor that openly lied in court about a procedural matter. He was called on it and given a major public kicking by the judge. I would imagine that was very far from the end of what happened to him. I also came across a relatively inexperienced prosecutor who lied to the court. She was clearly out of her depth and thrown into a panic when the case didn't pan out as she had expected. She was reported to the bar council. That is it, for 11 years.
   
   For a defence barrister to get away with actually lying about something, you would have to have a dishonest defence barrister, an incompetent prosecution barrister and a crap judge, all in one trial. This would be highly unusual. In the nicest possible way, I suspect there is more too it than you have been able to ascertain, and it is a shame no-one has been able to take you through this and make sure you do understand. That is not to say you would be happy with, or agree with, the explanation, but at least you would have things clear.
   
   
3. Sleeping juror. This should have been dealt with. I have had this twice and it was dealt with swiftly and robustly on both occasions.
   
   You may be right. You may have been spectacularly unlucky and ended up in a case with two dishonest or incompetent advocates, an incompetent judge and a disinterested jury. This would be a devastating situation. But what is more likely is that no-one has taken the time to make sure that you understand how the various bits of law have worked together to produce the result you didn't want. I would have thought that it would be of some comfort to know that, even if you found yourself coming out of the system without the outcome you had hoped for, it was because your case was effectively caught in all the various safety nets in place to ensure that every case is tested in the most rigorous way, rather than because everyone got it wrong. Unfortunately, if that was the case, no-one has answered your questions and there is no way of knowing exactly what happened.

[mustbetimetochange]

I'd prefer a less adversarial system whose aim is to get at the truth.

[RosemaryHoyt]

This thread has angered me to the point of white noise in my ears. I sleep ok. Thanks. My loose moral of upholding out justice system strangely enough don't keep me awake, the shockingly low pay, erosion of job security and lack of future prospects for doing something I love and believe in do. the OP's question gets asked to all defence lawyers at least once a month. It never gets any less infuriating. Ffs. Get some insight. It is people with the OP's attitude who, when arrested, get the most strident, outraged and poor me about their situation. Froth, fume and storm off!

The mass generalisations about lawyers lying REALLY wind me up. I don't. I fight damn hard, but I fight scrupulously fair. Why? Because they have some fucking integrity. Because very few want to jeapordise their career over one defendant.

[TandB]

Sorry, forgot to deal with school records issue. That would almost certainly have been dealt with under the Bad Character rules. These are a relatively new procedure for dealing with negative assertions about parties' previous character and they are an ever-evolving bloody nightmare. There are a hundred and one ways by which they particular outcomce could have been reached.

[RosemaryHoyt]

Also, what KFP said. Re school records, the nightmare that is third party disclosure application was possibly an issue.

[mustbetimetochange]

Sorry cross posted Kung-Fu.

You are probably right, I don't undersand any of it - all I know - it's that a pack of lies was presented as the truth, a bunch of things that could have proved they were lies were not presented, a very specific incident that required police involvement was put forward as never having happened, despite the police confirming they had found the incident logs of that night, a juror slept and a rapist walked free despite contradicting his own statement, himself, refusing to answer prosecution barrister until directed to by judge

Even the press reporter contacted me post trial to let me know his personal opinion was that he had fully expected a guilty verdict and was "gob smacked".

If that's a fair trial - from a victims point of view - then our legal system is failing victims.

I cannot believe what was "dragged" up by defence and left put by prosecution.

Our live are in absolute tatters and the rapist is walking around laughing at us - he is spreading various malicious runours about us all and no-one can do anything about it - because they are just "runours".

All I got from that trial is the truth means nothing - nothing at all.

We were warned at the start of the trial, that juries do not like to put young men in prison, at the end of the trial - when it appeared a guilty verdict was likely - we were warned again.

And the most galling - the decision the jury came to makes no legal sense - it complex but all parties are agreed it makes no legal sense.

So if the jury has made a decision that makes no legal sense - how are we to feel they have followed the trial?

[mustbetimetochange]

The judge ruled he was going to allow evidence of bad character at the PCMH hearing - but no-one said what that evidence was btw.

[mustbetimetochange]

Ps - thank you Kungfu Panda - I really do appreciate the time you are taking to explain this system to me.

There is clearly a lot I haven't posted - I feel absolutely betrayed and let down - hindsight is a wonderful thing - I wish we had never agreed to the prosecution in the first place - our whole family has been branded as liars and it isn't pleasant.

[TandB]

Juries are generally pretty good at following and digesting evidence. But they are not infallible and yes, there are sometimes not guilty verdicts where I think "Really? Were we involved in the same trial?" There are fewer unexpected guilty verdicts - I do remember one where my mouth pretty much fell open in shock - but generally you can see them coming.

You do occasionally get a verdict that makes no logical sense, but again it is rare. It is usually where one defendant is acquitted and the other convicted, where their defences are closely linked, or where a defendant is convicted of one charge and acquitted of another. It is open to the CPS to appeal a completely irrational verdict but that is very rare. I'm not sure why, to be honest.

It sounds shit.

The only thing I can say is that isn't a typical experience. Unfortunately, the people who feel that they got justice aren't generally the ones who are out there talking about their experiences, so it tends to be the negative experiences that are heard.

[TandB]

Sex crimes are always, always going to be a problem for any judicial system because they almost always take place with only two people present, both of whom have a vested interest in their version of events being believed.

No matter what safeguards are put in place, it is difficult to see how we will ever get close to ensuring that the guilty are convicted and the innocent acquitted where sexual allegations are concerned.

[mustbetimetochange]

The mass generalisations about lawyers lying REALLY wind me up. I don't but why do they wind you up? If you have been raped, and you know you have been raped - the defence barrister is the public face if you like of the defendant - so clearly a defence barrister is going to be tarred with the same brush as their client.

You don't like being called a liar through mass generalisation - how the hell do you think a victim feels?

[mustbetimetochange]

You do occasionally get a verdict that makes no logical sense, but again it is rare. It is usually where one defendant is acquitted and the other convicted, where their defences are closely linked,

That's almost word for word what the OIC said - and also apparently the barrister - who said he (according to OIC) hadn't come across it in 19 years of prosecuting.

That's the thing with our case - it wasn't 1 persons word against the other, there was plenty of other evidence but I don't want to say what.

Thems the breaks I guess but from our side - living with it is so hard - especially when the rapist is determined to make things as difficult as possible still.

[FamiliesShareGerms]

A family friend used to specialise in defending sex offenders. Often they would plead guilty, so her job wasn't to "get them off", but she felt she had done her job when their sentence included the right sort of treatment or therapy to help them and so reduce the likelihood of them re-offending. She sleeps very well - and, for all the reasons outlined above - I am so glad that there are decent people like her doing difficult jobs.

[RosemaryHoyt]

Because being accused of lying for a living is insulting and an attack on my character. Not all lawyers lie. Not all victims fail to get justice, some do, but not all. I am sorry you didn't.

[mustbetimetochange]

But in cases of sex crimes - relatively few victims see justice and that is well recognised.

As I see it - a defence barrister chooses to be the public face of a defendant, many defendants lie. No one likes being accused of lying but I have a lot more sympathy for a victim than I do a defence barrister who has chosen that profession.

Not many victims of crime have chosen that path.

[mustbetimetochange]

The Stern Review mentioned a lack of clear stats - I'd love to know what % of not guilty pleas result in a conviction - can't find that info anywhere.

[RosemaryHoyt]

Being accused of sex crimes is of course serious. It is serious for the victim, but it is also serious for the person accused. It is a label that will stay with even an innocent accused forever, just as it is a horrendous experience that stays with the victim forever. The conviction rates are not the 'fault' of the lawyer, but far wider and encompass procedure and policy.

Some defendants lie. Some complainants lie. 'Many' has no basis whatsoever. Not asking for sympathy, just not to be regarded as a hired liar, as I'm not. Just as you (on a clearly more serious and personal level) feel aggrieved about not being believed.

I have been a victim and the criminal justice system was truly, truly fantastic. Not everyone's experience and obviously not yours, but it is a case by case basis and not all defendants, victims, lawyers or judges should be tarred with the same brush.

[RosemaryHoyt]

I think individual courts have stats, I don't know about nationwide.

[FourthTimeAround]

But, mustbetimetochange, what you are overlooking is that this thread is not about how victims cope with not being believed but how criminal defence lawyers sleep easy if they know they have defended someone who was guilty.

I'm not sure what evidence you are referring to when you say that few rape victims see justice when you can't judge yourself which defendants are guilty and which are not - and, as I feel I must point out, you have only ever attended one criminal trial.

[mustbetimetochange]

I'm not sure what evidence you are referring to when you say that few rape victims see justice

Is that a serious question??????????

It is well documented in numerous official reports and publications that only 6% of victims who report rape/sexual assault see a conviction, taking into account conservative estimates of under reporting - that can fall to as low as 1.2% - one charity estimates male under reporting to be 10 times that of female.

That tells me that relatively few victims - in fact only 6 out of every 100 who even make the brave step of going to the police - see justice.

[FourthTimeAround]

But you have to break down those figures. Why did they not result in conviction? Was the crime reported but the matter not seen through? Did the complainant decline to go to court? 34% of cases brought to court in 2010 ended in conviction.

[mustbetimetochange]

The conviction rates are not the 'fault' of the lawyer, but far wider and encompass procedure and policy that I completely agree with.

Sorry if it offends but even before my own experiences - I tended to assume victims do not make up horrendous crimes - if you perpetuate the lies of abuser - you are as bad as them - barristers are not stupid or unintelligent - the guilt or innocence of their client is not their concern.

In simplistic terms - bit like blindly defending a naughty child when deep down you known they were wrong - allowing them to get away with it - doesn't really help them - just teaches them if you are going to lie - it's best to do it well.

[mustbetimetochange]

There are numerous reasons - which the govt is trying to address - but that just points to a failing system, not being able to access therapy, length of time to get to court, family pressure, indirect harassment, MH issues brought on by abuse, suicide, false reporting if I remember accounts for around 6.8% but I haven't checked that.

The CPS requirement for a 70% chance of a successful prosecution?

Very few of these actually mean an accused is innocent.

[RosemaryHoyt]

Yep, that's me, rapist, pederast, wife beater extraordinaire

You don't really understand what it is like to do my job. I have done it for ten years. I've never lied, or knowingly advanced lies on behalf of a client. There is a code of conduct, you see, professionals tend to adhere to it.

That code of conduct means, simply, if someone tells you they did it, you can't advance a not guilty case. My beliefs are not important, it is for the jury to decide. I tend to point out difficulties in client's cases. They can't then change it to something better, I'd have to withdraw.

There are a variety of reasons why complainants lie too. More often it is an exaggeration with elements of truth. That cuts both ways.