Court had been going so well for me, and as a consequence well for my clients. Then recently a Glasgow jury reminded me that you can't win every case. In the aftermath of the majority verdict of guilty I found myself trying to console the family of my now remanded client for over an hour. The client was on his way to prison for the first time in his life and he was plainly in shock, pale and quiet when we consulted after the verdict.
It was a stark reminder that defending people accused of serious crime is a huge responsibility. Despite what some newspapers and many politicians would have you believe, the accused in a criminal trial is a real human being. When you defend someone, particularly in the High Court, you are being trusted to resolve one of the most traumatic episodes in the client's life, and in my experience that applies just as much to those accused who have criminal records as to those who do not. The most terrified man in most High Court cases is the accused, and he or she is sometimes innocent.
This inconvenient truth is something that our journalists and politicians generally chose to ignore. That is until of course they find themselves accused, and I have in my time successfully defended both journalists and local politicians. It's sad that national newspapers only really report convictions, or if they do report acquittals it's because the accused is well known or it's to blame someone for the failure to get a conviction. In this blinkered view of the criminal justice system the defence lawyer is the villain. Only his clients disagree.
In terms of the resources available, there is no doubt the Crown have a massive advantage with only the super-wealthy able to compete against the investigative, forensic and legal manpower available to the state. The ordinary accused in a serious case has a solicitor, a counsel and whatever extremely limited forensic work the Scottish Legal Aid Board will authorise. In the days before disclosure there was also an investigator, but the current rates paid for investigative work, and the likelihood that even that may be abated from a solicitor's account in a legal aid case, has turned the defence private eye into a dying breed.
It's a real shame, because in the past my firm employed, full time, a former Serious Crime Squad officer who more than once blew a Crown case apart. He found many an independent witness by good old fashioned legwork, and in one high profile case he discovered that a Crown witness had secretly married a man she was claiming only to know vaguely. Andrew Hardie QC, later a fearsome High Court judge, was defending my client and he destroyed the witness rather elegantly using the copy marriage certificate I gave him. The client was acquitted and was suitably grateful.
In my youth in the 1970s, the public view of defence lawyers was a thousand times better than it is today. There had been a number of high profile miscarriages of justice, such as the Birmingham Six and the Guildford Four, where lawyers were seen to be fighting against injustice. TV shows about defence lawyers, like Rumpole of the Bailey and Perry Mason, were extremely popular. It was a noble profession I couldn't wait to join. In 1989 I set up my own firm ,and the relentless attack on my integrity and my income has never abated to this day.
I was reading recently that in the USSR under Stalin, the constitution guaranteed the citizens freedom of speech, freedom of assembly, freedom to demonstrate and freedom of the press. But there was no right to independent legal representation to enforce those rights. As a consequence these supposed rights might as well not have existed. In the absence of defence lawyers a trial was just a charade. A show trial. On the other hand, in the USA the constitution does allow the accused the assistance of counsel for the defence. However, without a proper legal aid system for the ordinary citizen, only the rich can employ the best lawyers without bankrupting themselves. The ordinary working man or woman can sometimes get enough money together to pay for a high quality defence if he or she finds themselves accused, but by the end of the trial the lawyer will likely be the new owner of their home.
The poor get an appointed public defenders, and often get an inadequate defence. If you doubt the latter statement, just think of the countless young men from minority communities in America released from long sentences, and even Death Row, following the development of DNA technology. Worse still, most of them had to depend on the Innocence Project, a charity, to facilitate their release.
Contrast this with the system we have in Scotland at the moment, which allows everyone the right to choose their own lawyer. It doesn't force middle income accused to give away all their worldly goods to defend themselves. Even the unemployed and the impoverished can obtain a high quality defence. In the case I referred to above, Lord Hardie, then a very eminent QC, defended an unemployed man in his early 20s for a relatively modest sum, given the rates I presume he charged his privately paying clients at the time. Donald Findlay QC has spent his career fighting fearlessly for the weak, the drug addicted and the dispossessed. It's sad that one of the main criticisms the press sometimes has of him is that he does it rather well. That our legal aid system provides ordinary people charged with serious criminal offences the facility to be defended properly, and by lawyers of the highest quality such as the two brilliant men I've been referring to, is something we should be proud of.
So the next time criminal lawyers are under attack for being leeches, scheme lawyers or fraudsters, we should start responding, rather than just taking it. Because the truth is that most of us work hard defending ordinary people against the combined force of state institutions such as the Crown Office and the police. We do it with limited resources and in most cases a single lawyer is the only line of defence. Whether or not the accused is guilty, it's a noble profession.Robert Mitchell is senior partner with Tod & Mitchell, Paisley