Why do barristers defend the guilty?

By Jonathan Goldberg, February 7, 2013

Jerome from Bournemouth writes: I am an avid reader of your column and enjoy learning about the various areas of law thrown up by the problems of your readers. However, I have read that you have defended in many high-profile criminal cases, some of which involved murderers and child abusers. I have always wondered how a barrister can plead innocence for such a client when he knows he is guilty, and whether you are allowed to refuse a case (say a terrorist who attacks an Israeli target) if his crime is offensive to your own conscience. Can you explain?

Jerome, even after 40 years in the law I am surprised how widely this issue is misunderstood. Any English barrister (or indeed solicitor) works to the following ethical principles when defending any man or woman accused of crime.

The first is the presumption of innocence. No man may be convicted of a crime unless and until the prosecution prove him guilty beyond reasonable doubt by admissible evidence, or (which amounts to the same thing) he confesses his guilt by entering a guilty plea before the court. As it is sometimes said: “An English court is a court of law, not a court of morals”. Thus he may in fact be guilty, but that is far from being an end of it.

Next, a defending advocate is not there to stand in judgment upon his own client. On the contrary, he is there to act as a mouthpiece, to make every proper point and to raise every possible argument as eloquently as the client would do himself, if only he had the skill. The whole world may be against the client (and I have had notorious cases where the hostility from the press, the wider public, and even the judge, is palpable), but the defending lawyer must ever be his champion.

When I teach young advocates, I tell them that the greatest possible betrayal is where the defending counsel forgets himself and makes it appear to his tribunal that he does not believe in the truth of his own client’s case, even for a moment and even by some accidental body language, such as an inappropriate sigh or gesture.

'A defending advocate is not there to stand judgment on his client'

Thus I frequently give my client a very hard time in private in seeking to confront him with the flaws in his own case, and sometimes in seeking to persuade him to accept the inevitable and to plead guilty. But if my advice is rejected, and provided he has not confessed to me privately, as few do, it is my duty thereafter to suppress whatever private misgivings I may have, and to “go out on stage” and give it my all.

Nor may I pick and choose my cases according to whether I like or dislike my client, or have a personal view on the crime with which he is charged. We operate according to a “cab rank” rule, which means that (just like a black taxi) I must take him to his destination provided the fee is appropriate, whether or not it is convenient to me personally. I do know of a famous female barrister who would never accept to defend an alleged rapist, but that was in my view a shameful betrayal of our professional ethic.

The good sense behind these professional principles is obvious. Courts are completely unpredictable places, and innocent people sometimes appear to be guilty, and vice versa. This does not just happen in drama and crime novels, it happens regularly in real life, I assure you Jerome.

Likewise, any experienced lawyer will tell you that he often wins the cases he expects to lose, and loses the cases he expects to win. If the advocate were once allowed to sit in judgment upon his own client, it would mean that the innocent man against whom all the cards are stacked could never have his day in court, and that by extension, the liberty of the citizen would soon be lost.

Finally, it may surprise you to know that I am usually the very person worst placed “to know” if my client is guilty. Most guilty people deny it to the heavens. They try hard above all to persuade their own advocate to believe in them. I sometimes joke that there are no guilty people left in Britain’s jails.

The above is not formal legal advice and is given without liability. Jonathan Goldberg QC is a leading London barrister. Visit www.GoldbergQC.com

Last updated: 10:51am, February 7 2013