March 9, 2012 1.54 pm This story is over 140 months old

Lincoln Lawyer: How do lawyers sleep at night?

Lincoln lawyer: Looking at how lawyers manage to defend criminals that can be hard to defend.

Tony Freitas is the Head of the Criminal Law Department at McKinnells solicitors in Lincoln. 

As a criminal law solicitor I am often asked the question “How can you represent someone you know is guilty?” In fact, if I had £1 for every time I was asked it I could probably spend my time in Barbados rather than working 7 days a week.

The easy answer to the question is that I can’t and I don’t. However, this answer is something that needs rather more explanation.

The first point is that I may be asked to represent someone who is guilty and who admits that they are. At court, they enter a guilty plea.

The prosecution will outline the facts and my job is then to put in a plea in mitigation. This means that, while the defendant admits to having committed the crime, there are factors the court can and should take into account when passing sentence.

I can’t put forward anything that suggests the defendant has not committed the crime, but I can perhaps put the circumstances in some sort of context, challenge the prosecution’s version of events if it appears to be overstated and give details about the defendants home and personal circumstances.

In this scenario, I am simply representing the defendant and presenting material so that the court can take a fully informed judgement when sentencing.

However, the question usually relates to situations where the defendant wants to plead not guilty. How can I then act for them if I know that they are?

The answer is that I cannot, it’s as simple as that. If I know they are guilty and they want to plead not guilty I have to stop acting for them. But it is important to clearly define what is meant by “know they are guilty”.

As we know, the criminal system in this country is based on the presumption of innocence until they are proved guilty by a court of law after hearing the evidence.

The result of this is that there are only two situations when a solicitor can “know” their client is guilty. The first is if they themselves witnessed the incident and clearly saw the crime being committed. The second is if the defendant admits to the solicitor that they committed the crime.

The first situation is so rare to be virtually unheard of. If it does exist, the solicitor will be a witness and cannot represent the defendant in any case.

The second is more common. It may well be that a person charged with an offence admits that they committed the crime, but they still want to plead not guilty. It is, in limited circumstances, still possible to represent them.

Because the burden of proof is on the prosecution, it is possible to have a trial to test the evidence. You cannot put forward a defence that the defendant did not do it, but you can challenge to see if the prosecution can prove that he did.

Take a simple example. A man is charged with assault. The only evidence is from the victim. He does not know your client. It was on a dark night. The incident was over in seconds.

Nevertheless, the victim picks out your client on an identification parade and he is charged. Your client admits to you he was there and did assault the man, but claims that he was provoked.

If he wants to plead not guilty, you can still challenge the prosecution evidence. Can the victim be absolutely sure of his facts? What you cannot do is suggest anything that misleads the court, such as implying your client was not there or call him to give evidence to say he did not do it.

Unless, though, you have either of these two circumstances you have a duty to do the best possible job for a client who pleads not guilty, even in the face of what looks to be very strong evidence.

You may be sceptical. You may not believe your client. That is neither here nor there. You are there to represent someone who the law says is innocent until proved otherwise and you act accordingly. There are too many high-profile cases where people have been wrongly convicted not to do anything other.

Tony is the Head of the Criminal Law Department, after initially joining McKinnells in May 2005. He rather foolishly left the firm in mid 2010, before returning in September 2011 in his current role.