Why #ProtestForJustice really does matter

So much excellent writing has been produced on the ‘Protest for Justice’ movement that has taken hold of Scotland’s legal profession.  The movement is in response to the Scottish Government’s plans regarding criminal legal aid.

The concern from the legal profession is that the proposed changes to legal aid will harm access to justice for the poorest and most vulnerable in our society.  They are the people who are working and contributing to society, but are low earners who are living on the breadline.  They can ill afford the costs of living let alone significant contributions towards legal aid should they find themselves in the unfortunate position of requiring the services of a defence lawyer.

I have written before on just why criminal legal aid matters to everyone in society and not just those that people consider to be ‘criminals’.  It provides a few examples of how everyday situations can result in an otherwise law abiding person requiring the services of a criminal defence solicitor.  There are many more such situations where something a person does every single day of their life can suddenly result in finding themselves in a living nightmare facing, sometimes very serious, criminal charges.

Most of us knew that when the decision to strike was taken that there would be little support from the general public in Scotland.  Criminal lawyers are not particularly well liked by many in society.  They are seen to be earning salaries which often only partners in the bigger commercial firms have the potential to earn and while earning these salaries they are engaging in activities which society appears to find morally repugnant.

I’m not a criminal defence lawyer, but those who know me will know that criminal defence is the area that I want to practice in when I complete my studies in 2014.  When people ask me what type of law I wish to practice I get the same questions that those already practicing in the field get.  These questions are flawed in the presuppositions they make and are based on an understanding of the criminal justice system that is ill-informed and could even be described, on occasions, as prejudiced.

The role of a criminal defence lawyer is multifaceted.   However, the central principle is to ensure that the accused receives a fair trial (and that includes the guilty).  There is absolutely no obligation upon any individual to convict themselves.  A guilty person is perfectly entitled to run a trial and put the Crown to proof.  The burden of proving the accused’s guilt rests with the Crown.  It is for the Crown to prove the accused’s guilt and not for the accused to prove their innocence.  The system is built in this way primarily to take account of the power of the State against the power of the accused.

The State has at its disposal a vast array of resources that an accused person does not.  To begin with; the State has a professional investigation team (the police) to gather the evidence supporting the view that the accused is guilty of an offence.  It then as a professional legal team (the Crown Office and Procurator Fiscal Service) to assess the evidence, build the case and present it in court.  The professional legal team can instruct the investigation team to conduct further investigations, to take statements from particular individuals and conduct further (expensive) forensic examinations.

On the other hand the accused has their single defence lawyer (if the case is going to the High Court that lawyer will often be assisted by Counsel in the same way that the State is often assisted by Counsel in the High Court).  They don’t have an investigative team with the resources and experience of the police.  The knowledge and experience gap between the accused and the State is somewhat filled by the defence lawyer.  They will assess the evidence obtained by the Crown and advise the client based on that evidence.  If the defence lawyer can see no possible or realistic defence to the charges brought against the individual then the advice would be to plead guilty.  However; it is only advice and not an instruction.  The accused might not feel as though they are guilty or they might be able to bring something to the evidence at a later date which casts a different light on the Crown’s evidence.  In both circumstances the accused has the right to put the Crown to proof.

Putting the Crown to proof is simply telling the Crown: ‘you think I’m guilty, so prove it’.  There are incentives built into the system to persuade a guilty accused to enter a guilty plea.  For example, pleading guilty at the earliest opportunity can attract up to a one third discount on the sentence given by the Court.  In serious cases a third can be a considerable amount of time off a prison sentence.  You might argue that it’s not fair to reward an accused person for doing “the right thing”; that reducing their sentence is an injustice to the victim of the crime.  One could view it that way; or one could consider that a guilty plea can save the stress of the complainer having to give evidence to prove that they are a victim of a crime.  It also saves expensive court time and frees up the police and prosecution to focus on other crimes that have been committed.

The role of a criminal defence solicitor is essential in ensuring both the integrity and fairness of the criminal justice system.  It is essential that all those who cannot afford to pay for a lawyer can obtain the specialist services that they offer when facing a criminal charge.  If it was you who was in the dock protesting your innocence you would want someone fighting your corner.  Don’t let the Scottish Government remove that from you and others.

Further Reading

Sarah Prentice: Why I won’t desert the ‘sinking ship’ (Sarah Prentice, Scotsman)
Vulnerable left to count the cost of justice (Aamer Anwar, The Scottish Sun)
Courts face widespread disruption as angry lawyers plan first national strike (Gareth Rose, Scotsman)

2 thoughts on “Why #ProtestForJustice really does matter

  1. Good post, but there is one point that you have missed out, no doubt due to not actually being in practice yet.

    When an accused gets the papers stating what they are accused of, it specifies a particular description of events and the criminal offence charged: if you plead guilty you are pleading guilty to EXACTLY what it specifies.

    Very often an accused does accept they are guilty of AN offence, but not necessarily the exact one specified. A major role of the defence lawyer is to discuss with the accused what they actually did, then go to the prosecutor to try to agree an amendment of the charge from the one the accused believes inaccurate to one the accused agrees they are guilty of.

    This doesn’t happen immediately, as obviously after the defence and prosecution have organised a time in both their schedules to discuss the case, the prosecutor then needs to go back to the police to see whether what they have in evidence agrees or disagrees with the accuseds position. Only when the prosecutor comes back agreeing the changes can the accused put in a plea of guilty, and until that time the criminal court procedure carries on regardless.

    This is not a minor issue: there can be a world of difference in sentence for someone guilty of “you did punch him once in the face” against “you did repeatedly punch and kick him in the face”. Without the defence solicitor the accused would have no choice but to plead guilty to a crime they did not commit (all be it that the did commit a different crime) or plead “not guilty” and attempt to defend themself in a full trial (with all the costs that would incur to the taxpayer). Therefore in this type of case (which actually makes up the majority of cases in practice) the defence solicitor is assisting the accused to plead guilty to what they have actually done (just not anything they have not done) and saving the taxpayers money in the process.

    1. A very important point HL…it was in an earlier draft and I hadn’t realised I’d taken it out! Thanks for the comment.

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