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  • Print publication year: 2018
  • Online publication date: April 2019

5 - Ethics in Criminal Justice: Proof and Truth

Summary

Introduction

Television and movies often portray criminal practice as the most glamorous speciality within the legal profession. In fact it is among the least attractive to most new lawyers – probably because defending accused criminals can be seen as repulsive and mostly low paying. Yet it is for these very reasons that the criminal defence advocate is usually taken as the paradigmatic example of the reason why adversarial advocacy is necessary, is ethically justified and is fully deserving of our admiration. As one senior barrister puts it:

The quality of the system is tested by how it treats the worst … The worst, most revolting criminal or terrorist or whoever it happens to be, if you can get a fair trial for them then everyone else is guaranteed a good run. But if the system starts taking short cuts because somebody is so bad, then it's the system that's coming apart.

Because the potential sanctions for criminal offences, such as deprivation of liberty, are so serious and the resources and capacity of the state to investigate and prosecute crimes so vast, our system assumes and insists that an accused should always have the opportunity to ‘put the Crown to proof’ of any charges brought against the accused. This effectively holds the state (including the police and other prosecutors) accountable by making sure that they have strong enough evidence to justify a court deciding to convict. It also maintains the integrity of the criminal justice system by making sure that the accused is treated fairly.

While there are unfortunately a few examples of dodgy lawyers in this area of the law as much as in others, and we must teach by reference to the cases which highlight these issues, we are completely convinced of the moral authority and examples set by the notable advocates who can and do represent ‘undesirable’ or high profile defendants, in the interests of public confidence in the justice of the overall system. The lawyers who represent, for example, alleged terrorists, or alleged paedophiles, or those whom media and commissions of inquiry consider have protected these defendants, receive only limited support from the general public. It is for this reason if no other that they deserve the complete support of the wider legal profession.