EHJ August 2005, page 29

In this month's legal, Julie Barratt asks EHPs to put themselves in the shoes of the defence counsel and consider how they would defend cases that they intend to prosecute

Although most EHPs' litigation experience covers prosecution, it is worth giving some thought to the art of defence. Most people's belief, fanned by popular fiction and television, is that it is the job of defence counsel to "get his man off", and to employ whatever sneaky and devious means are necessary to achieve that aim. These methods can range from prosecution witness character assassination to downright bending of the truth. Nothing should be further from the truth.

Defence counsel who knows that his man is guilty cannot represent him if he elects to plead not guilty. A lawyer is not allowed to lie to the court, and this includes being party to a plea, which he knows to be false. In such cases the instruction is refused, and the client has to look elsewhere for representation.

Where the defendant asserts his innocence, defence counsel has two options. He can prove that what the prosecutor says is wrong in fact or law, or he can show that the prosecutor, although correct in what he claims, has not provided evidence to prove every part of his claim, and therefore the defendant has no case to answer.

The first of the two routes is the easier. The prosecutor, to make his case, must assert that the defendant did, or did not do something. It should be relatively easy for the defence to deal with this. They will know from their client's version of the facts whether he did, or did not do what is asserted. He either did leave a machine guard off, or he did not, or he did send a notification or he did not. It will not matter to the defence that someone did or did not do what is claimed, all that matters is that it was not their man. They are under no obligation to provide the prosecutor with details of the true facts. Their only duty is to their client.

The second route is more complicated, because it may mean that the defence counsel has to take instructions from someone who freely concedes their guilt and advises them to tender a "not guilty" plea. Does this not contradict what I said earlier about not representing a guilty party? No, because that advice will be qualified advice. Counsel will advise the defendant that a not guilty plea can be entered on the basis that the prosecutor does not have specific evidence that shows that, for example, the defendant was part of a group of conspirators or that the counterfeit goods ever passed into his possession or control or whatever. Rather, in the event of this evidence being produced, the defendant will have to change his plea. In such a case, were the missing piece of evidence to be produced and the defendant seek to maintain his not guilty plea, counsel would have to withdraw even if the case was underway, citing to the court "professional embarrassment" as his reason for doing so. In the event of the missing piece of evidence not coming forward as part of the prosecution case, defence counsel will make an application of "no case to answer". He will advise the court that no evidence concerning one of the essential elements of the case has been provided, hence the prosecutor has failed in his obligation to make the case against his client, (although it may have been made out against his client's co-accused). If the court accepts this application, the defendant will be acquitted, known in the trade as "getting out at half time".

Defence counsel has one final duty, and that is to his client's finances. Very often it will have cost his client a considerable amount of money to prepare his defence and to advance it in court. Defence counsel has a duty to recover those expended costs, either from the prosecution or out of public funds. Where the client has had the benefit of legal aid there is no merit in seeking costs, the pot from which they came will be the same as that from which they would be recovered and to which they would be returned. However, it is a very rare client who has not had to make a considerable contribution from his own pocket to his defence, and he will wish to have that returned in whole or at least in part to him. Usually this comes from public funds, but the court, at its discretion can order that the prosecution pay the costs of the defendant.

Criminal defence is by no means a passive art. Local authorities would be well advised to consider how they themselves would defend cases that they intend to prosecute - lateral thinking can expose loopholes in the case, which are better dealt with sooner rather than later

Julie Barratt is director of CIEH Wales