Criminal barristers speak of being “often asked” how we can defend someone we know is guilty. The answer, we explain with varying degrees of pomposity, is that we never really know: the verdict is for the jury, and the advocate is only concerned with the evidence — and what can or cannot be proved beyond reasonable doubt.
Which is all very well, but actually sort of nonsense. Yes, clients almost never confess while fighting a trial — and when they do the advocate will usually have to step away from the case. But the best answers to many tactical decisions, including how to cross-examine the other parties’ witnesses, vary according to the likelihood of guilt. A wise barrister will keep an eye on it.
And the truth is that defending an almost-certainly-guilty man can sometimes be difficult and unpleasant at first, depending on what he is supposed to have done. The early clouds of moral judgment tend to evaporate, though: feelings can be made to follow action, and there’s nothing quite like going in to bat for someone to make you realise that, deep down, they’re actually not so bad.
This is how criminal barristers of all political stripes come to inhabit, at least while they’re at work, an unusually non-judgmental shared moral landscape. You could argue about whether this tendency is best characterised as enlightened or psychopathic, but either way it’s why there is such limited enthusiasm in Crown Court robing rooms for the latest bit of knee-jerk canting from Home Secretaries and Justice Ministers.
Chris Daw QC is no outlier in this regard. His short new book, Justice on Trial: Radical Solutions for a System at Breaking Point, which is aimed at a general audience, does not suffer moralising lawmakers gladly. Policy announcements with judgmental overtones are variously described as “grandstanding nonsense”, “populist garbage”, “brazen ignorance”, “idiocy”, and so on. Indeed, it’s probably fair to say that there are few things Daw dislikes more than moral judgment. A late chapter draws to a conclusion with the following:
“…I see these men and women, some grey and ashen from decades ‘behind the door’, others fuelled with anger, drugs and resentment, and I just cannot bring myself to judge them evil. I cannot place them in a cage marked ‘outsider’ and draw comfort from my own superiority, just because I am not one of those designated by society as ‘criminal’.”
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