What it really means to defend the guilty 

How do you defend someone you know is guilty? 

This is a question that criminal defence lawyer Austin Anderson-Brettell has been asked more times than he can count. 

Often the question is asked as a sort of moral concern for his character. Isn’t he helping a criminal get away with it? 

It is a question that almost every defence solicitor at award-winning firm Olliers Solicitors will have answered at some point in their career and the question comes from a point of misunderstanding of what defence solicitors actually do. 

Austin, who is an associate solicitor at Manchester-headquartered Olliers, said: 

“On a fundamental level, representing someone who is potentially guilty is not about endorsing what they may or may not have done, it is about protecting the rights of that individual and ensuring their case is effectively and fairly presented, regardless of plea. 

“The role of a defence solicitor is not to decide guilt or innocence. That role is one solely at the discretion of the court (or jury) depending on where the case is heard. 

“It is also not our role to find out if our client’s instructions are truthful, albeit we will often ask questions to clarify matters. 

“Whilst we can (and do) assess the evidence against our clients and advise on the merits of any case, it is ultimately not our job to pass judgment or shed light on the truth. It is our job to take and understand our client’s instructions and present their case as fairly as possible.”

Surprisingly, when a client admits guilt to a solicitor, that does not mean they have to plead guilty.  

In Olliers’ experience, most clients will accept pragmatic advice that they should plead guilty, but there will always be those who wish to defend a case regardless. The adversarial nature of the Criminal Justice System makes it their right to do so.  

Austin said:  

“I routinely get asked about whether I’m being dishonest if I am defending someone who is guilty. But as a solicitor my duty is to both my client and the court. 

“We’re bound by strict professional obligations and duties. If our client has advised us that they have committed an offence, we cannot present evidence stating that they have not committed that offence to the court.

“We also cannot allow a client to give evidence which we know to be untrue.  If a client did this, we would have to withdraw from representing them.

“If there are no viable lines of defence, yet a defendant still wishes to plead not guilty, that is their right. The Crown is still required to prove their case, and the court is still required to treat them fairly.”

Austin explained that defence solicitors do not spend their time coming up with ways to bamboozle the court or the jury when the Crown is being put to proof. Their role in such circumstances is to present the client’s case (if any) and to test the reliability of witnesses and evidence without misleading the court or the Crown. 

It is the Crown Prosecution Service’s duty to ensure that their case is properly presented by means of admissible evidence. If, having presented that evidence there is any reasonable doubt, then a defendant is entitled to be acquitted. 

By ensuring criminal defence lawyers abide by professional obligations and duties, they ensure dishonesty is not a factor which comes into consideration.

Presumption of innocence until proven guilty 

Austin said: 

“A shockingly often-forgotten legal principle in criminal litigation is the presumption of innocence until proven guilty.

“Whilst no criticism is levied at any individual or party in particular, there can often be a level of hostility and confusion when a defendant enters a plea of not guilty – despite the evidence not having been presented or challenged yet. 

“This reaction does nothing to assist the misconception that defence solicitors are acting dishonestly in some way.

“Whilst the court and the Crown are entitled to probe in relation to the real issues in a case (or whether the Crown is being put to proof) in accordance with the Criminal Procedure Rules, sometimes this borders on an inquisition that an onlooker may feel creates a perception of all parties being vehemently against the defence.

“The fact of the matter is, until evidence is heard and tested, guilt should not be presumed.

“Constant miscarriages of justice have shown why the fundamental right to defend a case is so very important. The justice system should not and must not, assume guilt. Guilt must be proven.” 

There are many cases where it appears that the evidence is overwhelming, and the defence team is advised by its client that they are in fact guilty. In those circumstances, they will be advised to enter a plea of guilty.

If the defendant accepts this advice, then the role of the criminal defence lawyer shifts to one of damage limitation.  

This can involve negotiating pleas to lesser offences or pleas on a specific basis. They will also present their client’s mitigation in a way which not only humanises them but places any context for their actions before the court.

Austin said: 

“We ensure the court sees the individual behind the offence, not solely the act itself.   

“This is especially important because an offence may have occurred during one of the most difficult periods of their life, something which may not be indicative of who they truly are.  

“Our role is not to argue against punishment, but to help ensure that any sentence imposed is fair, lawful and proportionate to the circumstances.” 

Defence solicitors protect the rights of individuals 

Austin adds that being a defence solicitor is far from glamorous. It can be uncomfortable and unforgiving. However, defence solicitors protect the rights of individuals who often are frightened, ashamed, vulnerable and need someone to help them.

He added: 

“Some of our clients are guilty and remorseful and some of our clients are not. But our role requires that we perform our duties not on the basis of personal feelings. 

“We act as a proverbial shield for our clients who are facing the might of the justice system, who are often facing an unknown and unfamiliar legal process and require the protection of their rights.  

“The uncomfortable reality, which is not often realised, is that the shield that protects the guilty today is the same shield that protects the innocent tomorrow. 

“The phrase ‘it is better that ten guilty persons escape than one innocent suffer’ comes to mind.  

“The truth is that criminal defence solicitors are in the business of helping people navigate one of the darkest times of their life. If you don’t feel passionate about doing that then you are in the wrong job.”