to think that being a criminal defence solicitor...

[VampyreofTimeandMemory]

must be a really difficult job for your conscience? inspired by reading a solicitor's comments about his client being 'lonely' and knowing what prison is like and not wanting to go back there... his crime involved 'trawling the internet' for illegal images. I would imagine finding it emotionally hard to defend a person who was definitely guilty of something so awful.

VampyreofTimeandMemory Thu 06-Feb-14 00:43:27
genuinely haven't seen this type of thread before and I do agree that if there is reasonable doubt, the defendant deserves a fair trial.

Fortunately, we live in a country which doesn't let individual lawyers, who may or may not be good at their job, make that decision. We live in a country where every single person, no matter who they are or what they have done, has a right to a proper trial, where the evidence will be examined and tested, and the various laws applied.

Removing someone's liberty is an extremely serious matter - it's one of the most fundamental things you can do to a person. Things have gone very badly wrong over the years, and our criminal justice system has reacted to those things, to try to get as close as possible to the point where the innocent are exonerated and the guilty are convicted. And we still sometimes have spectacular miscarriages of justice, where entirely innocent people spend years of their life behind bars.

Have a look at the Sally Clark case, and then have a think about whether or not you want a system where people like me work as hard as we can to ensure that every safeguard is applied, and ever avenue explored, before a horrifically bereaved woman is sent to prison and, ultimately, to her death, because of a mistake.

Some people are clearly guilty. You'd probably be pleasantly surprised about how many of them plead guilty at some point during proceedings. Some people are clearly guilty and insist on going to trial. This is non-ideal for everyone concerned, and that's why the majority of defence lawyers give very robust advice about plea, and it's also why there are sentencing consequences for a defendant who loses after a trial.

Some people tell you they're guilty and still want to go to trial - in which case there's a very technical hearing of the evidence and you can't advance any defence for them. Some people tell you they're guilty and want to lie to the court - and then you bow out.

Sometimes the truth lies somewhere between what the client is saying and what the witnesses are saying. Sometimes there are shades of guilt involved - the client is guilty of something, but not necessarily what he was accused of.

Some people have every appearance of being guilty, and actually turn out not to be. I've been wrong about a client before. I've been sure he's done it and is lying through his teeth, and then further evidence has come to light, entirely exonerating him. Good job it wasn't up to me to decide whether or not he was properly represented, or allowed to go to trial.

If we want to live in a society where we get the benefit of a decent criminal justice system, then we have to support that system being as rigorous as it can be. Otherwise, the day we find ourselves on the wrong side of it, we're going to be regretting it.

Anyway, it's probably all a moot point. The government is doing its utmost to dismantle the criminal justice system and restrict proper representation to those who can pay for it. So I'm fairly sure that more and more people are going to be unrepresented, or represented by lawyers who aren't being paid enough to be bothered about doing a proper job for everyone, and not applying their own moral judgements about who is worth their limited time.

just on the "you're lying" to vulnerable witnesses point,
If you're client intends to state to the court that someone is lying then a defence barrister has to put it to that witness in cross examination if the defence seeks to rely on it later.
This isn't a bullying tactic or anything like that. Rather it is to allow the witness the chance to refute the accusation of lying. The defence can't wait in the long grass and not raise the issue with the witness only to later in their defence introduce this line of argument and say "my client says X is lying and there has been no evidence from the prosecution to refute this"

Op the solicitor does not decide whether their client is guilty. That is the jury. The solicitor doesn't decide on the penalty, that is the judge.

Chunderella Thu 06-Feb-14 08:23:44
I recall someone claiming that individual lawyers ought to make a preliminary assessment as to a client's guilt and then not represent them if they thought they'd done it, based on what evidence I don't know

Chunderella - this is what always puzzles me about these discussions. Bearing in mind many people seem sure that lawyers are completely without morals or common sense, and are willing to do whatever they fancy on the day, irrespective of the evidence or the law, I'm always a bit confounded by the fact that people seem to think that these same lawyers should be trusted to do some sort of secret pre-trial assessment as to who is worthy of a proper trial.

I know ultimately that the sentence is not down to the solicitor. however, is it not the job of the defence to argue for a lesser sentence?

anyway, of course this thread is full of more knowledgeable people who have made good points. I can't begin to imagine being sent to prison as an innocent person.

It's the job of the defence to present all relevant mitigation to the sentencing judge.

And yes, this is geared towards someone receiving the lowest appropriate sentence for the offence they've committed. The sentencing exercise is subject to strict guidelines, and heavily governed by case law. If a judge imposes a sentence that is outside the guidelines, he will have to justify it, and he will generally be appealed, by either prosecution or defence. There is relatively little room for manoeuvre.

Do you think a young person who commits a serious assault on someone who abused them throughout their childhood should receive the same sentence as someone who goes out, gets pissed and beats up someone at random?

Do you think that someone who is prostituted by her drug-addicted mother and ultimately becomes an addict herself should not have this mentioned at her sentencing hearing?

If not, then you presumably agree that defence lawyers should be able to present all the mitigation and ask for the lowest appropriate sentence within the guidelines?

tbh I was really thinking of crimes such as rape and premeditated murder particularly those committed by serial offenders.

I do the job because I enjoy it. Not really sure what that says about my moral code. HTH.

Yes mitigation of sentence is a major part of any defence lawyers job especially as the vast majority of clients plead guilty.

The idea mooted above that if someone admits guilt then they should receive the maximum is a bizarre one to me. Offences tend to happen in different grades of severity (stealing £10 as opposed to £100) and also they don't happen in isolation personal circumstances need to be taken into consideration (previous convictions, family circumstances, upbringing, addiction)

All mitigation is doing (in the most basic of terms) is saying to a judge my client is guilty the punishment for this offence spans between X (minimum) and Y (maximum) these facts are why it should be closer to X than to Y.

Then the judge takes everything into account and sentences

The reality is that defence lawyers are steely professionals.

They believe that everyone is entitled to the best defence no matter how guilty they seem. Be glad of this. One day it could be you. Or one of your DCs. And who will you want on your side then?

Lawyers don't get involved emotionally. Not the good ones.

However, the general public are obsessed with the idea of lawyers being 'unable to sleep at night.' So this was the premise of my first novel. A lawyer who wrapped herself up in knots worrying that she may be aiding the release of a dangerous person. It sold a lot of copies .

so in the case of a killer who is found to be 'sane' and pleads guilty to planning and carrying out murders, is the defence team allowed to not try and negotiate a more lenient punishment?

if me or my dcs ever rape or murder someone I would probably agree that the maximum sentence should be given.

If we didn't have defense lawyers then we would truely have a system where judges and proscetuting lawyers would not be able to sleep at night. Without a defence lawyer you end up with a kangeroo court rather than a balance between the accused and the victim. There have been far too many innocent people wrongly convicted in the past inspite of having legal representation.

I feel that the most heinous killers deserve the best legal represenation money can buy. It needs to be shown beyond all doult that the person is guilty.

Even Adolf Hitler and other top nazis were innocent until proven guilty.

Negotiate how?

Mitigation is done in open court. In front of the press and any members of the public that want to drop in.

It's not done behind the scenes or by 'well if you do this, then I'll get him to admit this.'

No 'team'. The instructed advocate gets up and says what he/she needs to say.

The mitigation is presented. The judge decides the sentence in accordance with a fairly strict and these days quite mathematical exercise.

And once again, if you want to restrict mitigation for serial offenders or serious offenders, where do you draw the line? And who do you propose should draw it?

I agree tired I really meant after they've confessed to a heinous murder. and I still can't see how a paedophile should ever be excused.

If he's pleaded guilty that's mitigation already. He's admitted guilt, it shows accepting responsibility for his actions, he's spared the state a great deal of time and any civilian witnesses or family members of the deceased the trauma of a trial and they now have closure.
Just because he's sane wrt the offence doesn't mean he won't have had significant mental health issues or difficult upbringing etc

Unless explicitly instructed by your client not to say anything in mitigation then you do a plea in mitigation.

i've mostly only read about cases in American tbh. I have repeatedly said I know very little about criminal law.

VampyreofTimeandMemory Thu 06-Feb-14 09:36:49
if me or my dcs ever rape or murder someone I would probably agree that the maximum sentence should be given.

Then you'd be in a tiny minority. I've represented young people who've committed some horrendous crimes. And their lovely, devastated parents have fought tooth and nail for the best outcome for their child, and hoarded up every single piece of evidence or mitigation that could possibly help them. I've never yet seen a parent shrug their shoulders and say 'yes, lock them up and throw away the key.'

well thankfully, i've not been in the situation so I really couldn't say for sure.

I don't know how I'd feel if any of my dcs told me they'd murdered someone without motive, just because they enjoyed it.

I rather think this whole argument about restricting certain rights in certain cases is a bit like the moral version of means-testing for certain benefits.

The scaffolding required to set up the system can cost more than the system will ultimately save.

The million and one possible scenarios and loopholes and provisos that would be needed to restrict access to justice in certain cases would be unwieldy, unworkable and involve greater expenditure of time and money than it would save.

"I agree tired I really meant after they've confessed to a heinous murder. and I still can't see how a paedophile should ever be excused."

They still need a proper trial. It is not unknown for innocent people to be intiminated into making false confessions. For a serious crime it is essential that a conviction is watertight.

I am sure that many paedophiles or serial killers have mitigating circumstances. A newborn baby was not born a paedophile or a murderer. Looking at mitigating circumstances means that the person gets the right level of sentencing and help. For example pychiartic help in a secure insitution may be more appriopiate than prison.

But they wouldn't. Not unless they were in the 0.00000000001% of the population who is without any morals/fear whatsoever.

They'd cry and tell you they didn't do it. They'd tell you they'd been forced into it by someone else. They'd tell you they were sorry. They'd tell you they'd never do it again. They'd tell you they were frightened of going to prison. They'd ask you to help them.