Tony Freitas

— Tony Freitas is the Head of the Criminal Law Department at McKinnells Solicitors in Lincoln. He says this is an interesting article to read, as long as it doesn’t interfere with longbow practice.

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A good April Fool’s Day trick has to have a certain sense of believability in order to be truly successful. For that very reason, the following article was never going to work on the 1st of April, as no one would have believed it, despite the fact that it is all completely true.

What we are doing here is looking at some old laws that now seem rather bizarre in their nature. Parliament has been making laws for over 700 years, so it is not too surprising that some old laws, passed for good reason at the time but overlooked for repeal, now look rather odd.

A prime example of how things can be overlooked is the fact that, legally, Berwick-upon-Tweed has been technically at war with Russia since 1853. The background to this is that the Treaty of Everlasting Peace of 1502 between England and Scotland recognised that Berwick was part of England, but that it was not actually in England. From then on, all laws were passed referring to Berwick as a specific entity.

The same applied to declarations of war, so when the Crimean War was declared against Russia in 1853 Berwick was specifically mentioned as a separate entity in the declaration. However, after the war, the peace treaty (The Treaty of Paris 1856) failed to make any mention of Berwick, so technically it is still engaged in a war with Russia.

In the same way that Berwick was overlooked, there are still laws on the statute book that have no modern-day application. For example:

• All English males over the age of 14 are to carry out two hours of longbow practice every week, supervised by the local clergy. This law dates from the middle ages when there was no army and is still in place today.
• London Hackney carriages (taxis/cabs) must carry a bale of hay and a sack of oats. The vehicle must be tethered and the local authority must provide a water trough at the rank.
• It is illegal to impersonate a Chelsea pensioner
• A Member of Parliament may not enter the Houses of Parliament wearing a full suit of armour.
• Mince pies may not be eaten on Christmas day! Oliver Cromwell, whose puritan instincts objected to the pagan origin of the practice, passed this law but on the restoration of Charles 2nd the law was not repealed, just ignored.
• Destroying or defacing money is illegal.
• It is illegal to be drunk in a pub, or in charge of a pushbike.

These are all national laws, but there are some local byelaws that are equally as bizarre:

• In Chester, a citizen may shoot a Welsh person with a bow and arrow inside the City walls during the hours of darkness. On the other hand, you may not shoot a Welsh person with a longbow in the Cathedral Close on a Sunday in Hereford
• In Liverpool, it is illegal for a woman to go topless in public, unless she is a clerk in a tropical fish store.
• In York, it is legal to shoot a Scotsman with a bow and arrow, except on a Sunday.

Of course, most of these laws have been superseded, so there is no way you could actually get away with shooting a Welsh person in Chester with a bow and arrow, even if you wanted to. We have homicide laws to cover that now!

There was a move, some time ago, to tidy up all these outdated laws. It never really happened and, in many ways, perhaps it is rather nice to have such quirky laws still in place.

However, I may think rather differently if I was forced to take my longbow out onto the common for practice two hours each week.

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

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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.