Saturday, 22 June 2013

Criminal Defence: just who's the criminal and what's the defence?

Great to see a sign advertising the availability of ‘Criminal Defence’. Now, I know what the words really mean, but I find what they could mean – if taken at face value – far more interesting. 

OK. So who's being defended?
And with what sort of defence?

On the one hand, they could mean the defence of criminals only. That idea opens up quite a can of worms. After all, no-one’s a criminal until convicted by a court. So a lawyer doesn’t know whether he’s really engaged in the defence of a criminal until the case ends. What’s more, he’ll only be sure of his ground if he loses. 

That might lead to awkward moments between lawyer and client in the cells afterwards.

In one scenario, the lawyer would be saying, ‘well, it turns out you’re a criminal after all, despite all your assurance to me, you vile piece of scum. So criminal defence fees apply and you owe me ten zillion pounds.’

In the other scenario, the client would be saying: ‘see? see? I didn’t do it. So I’m not a criminal and I’m obviously not paying for criminal defence. So, thanks, but you know what you can do with your invoice.’

Not sure how well the system would work, though. It would rather incentivise failure in the profession, wouldn’t it?

On the other hand, ‘criminal defence’ could mean that the defence itself is criminal. Not perhaps technically criminal, in the sense that it actually breaches the law, but morally criminal in the sense that it resorts to practices that are simply unacceptable in a society with any claim to upholding civilised values. Bullying rape victims in cross examination, perhaps, or even those ethically greyer acts such as getting telling evidence excluded on the basis of some trivial technicality.

But I have only to write those words to know that such an interpretation is quite untenable. No lawyer would ever sink so low.

Which reminds me of my wife’s favourite joke.

An engineer dies and finds himself in Hell. He looks around and immediately sees that it badly needs sorting out. He gets straight to work, installing air conditioning, escalators, refrigeration, proper lighting and ventilation. Within six months, he’s transformed the place.

News of his work filters upstairs. St Peter gets straight on the blower to Satan.

‘What’s are you playing at down there? In Hell’s name?’ I apologise for the weakness of the pun, but that
’s Peter for you: he has a taste for them. A historian in this matter, I merely record.

‘Great guy. Love what he’s done with the old place. Delighted to have him with us.’

‘Well, you won’t be having him long. Send him up here.’

‘Send him to you? No chance. He stays with us.’

‘You’re going to fight us on this? Watch out. We’re ready to sue.’

‘Sue? Don’t make me laugh. Where are you going to find a lawyer?’

Note to my lawyer friends: I really do know what ‘Criminal Defence’ means. And I appreciate the people who do it. I always remember the words of John Mortimer, pointing out that the defence barrister is the only person who stands alongside someone in trouble when the full panoply of the state’s arrayed against him. That’s admirable.

I just think that lawyers should be able to roll with the punches and take the jokes in good part. And, if they can’t, they’re probably paid enough to cope.

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