“Society’s failure to understand our role as defence lawyers can put lives at risk.”
There is a dinner party conversation that every criminal lawyer in the world has had. Your friend recites the facts of the most notorious crime currently in the news and asks whether you could represent such an individual. My answer always starts with the fundamental principle of the rule of law, that anyone accused of a crime is entitled to legal representation. You cannot have a fair trial without a lawyer who is prepared to take a defendant’s case; anything else is an attack on our values as a civilised society.
Of course, the relationship between a client and a defence lawyer is complex. At times, we are treated with suspicion by clients who may not trust anyone, not least another professional in the criminal justice system. We may have to deliver unpalatable truths about the state of the evidence, the prospects of acquittal or the likelihood of lengthy incarceration. But sometimes we are the only ones left to trust, the only ones prepared to fight for their interests. We can get to know our clients, their vulnerabilities and their failings in ways that even their closest friends do not. The nature of human contact means that often, irrespective of the crime, it creates a bond between us.
We are there, though, as professionals, not as friends or supporters of their actions. This has been highlighted by two recent cases. First, the disgraceful death threats against Richard Egan, who acted for Jack Shepherd, the ‘speedboat killer’ (see Clive Coleman, ‘Speedboat killer: Jack Shepherd’s lawyer receives Nazi death threat
’, BBC News, 28 January 2019). Shepherd had been convicted for gross negligence manslaughter, in his absence, after he crashed his speedboat on the Thames. Egan believes that the widespread press coverage of the case misrepresented the role of the defence solicitors, leading to a climate of hate towards his team, and ultimately death threats.
Compare and contrast the welcome comments from Lord Matthews, the judge in the case of child killer Aaron Campbell, about defence counsel, Brian McConnachie QC (see ‘Alesha MacPhail murder: child killer Aaron Campbell’s QC grateful to judge
’, BBC News, 29 March 2019). During sentencing, Lord Matthews highlighted the defence’s role during the distressing case, indicating that the trial had been conducted in an ‘exemplary way’. He continued: ‘As I said to the jury after they returned their verdict, counsel do not make up defences, but present the case on the basis of their instructions.’
This should be the default position: putting forward our client’s case without fear or favour, scrutinising and testing the state for the strengths and weaknesses of its prosecution. Society’s failure to understand our role not only undermines the criminal justice system, but can put lives at risk. Such a statement is not hyperbole. We can look not only to Egan’s experience but the tragic case of Patrick Finucane.
Finucane, a solicitor in Northern Ireland, was one of the inspirations for me to become a lawyer. I grew up in Northern Ireland at the height of the Troubles and Finucane’s murder is an event that I still remember clearly. He had represented high-profile IRA members and was murdered by loyalists in February 1989. What struck me at the time was the demonisation of Finucane’s role before his murder. The month before Finucane was killed, Douglas Hogg, then a Home Office minister, said in the House of Commons: ‘I have to state as a fact … that there are in Northern Ireland a number of solicitors who are unduly sympathetic to the cause of the IRA’ (see The report of the Patrick Finucane Review – the Rt Hon Sir Desmond de Silva QC
, HC 802-I and HC 802-II, 12 December 2012, para 14.1, page 282).
Even the de Silva report (which has been criticised and subject to legal challenge) indicated that the RUC wanted to ‘discredit’ defence solicitors and that the Ulster Defence Association considered the minister's comments ‘significant’ in its decision to kill Finucane (ibid, paras 14.64 and 14.62 respectively, page 292).
It is a reminder of how careful we must be in describing a defence lawyer’s role, what a vital cog in the rule of law it is, and why I never really tire of answering that dinner party question.