The announcement that lawyers for Paris terror suspect Salah Abdeslam would no longer act for him cast the media’s spotlight on a number of important issues faced by criminal practitioners, particularly those acting in controversial or difficult cases.
Abdelsam’s lawyers, Franck Berton and Sven Mary, explained that they had withdrawn because he had chosen to remain silent. Berton is reported as saying that he was not engaged simply to make ‘social visits’. I can’t comment on the specific facts of this case, but it highlights a number of issues which are relevant to lawyers in this country. How can defence lawyers act for clients who do not wish to engage with us or provide instructions? Are our clients obliged to provide an explanation for their alleged conduct, and what does it mean for us if they refuse?
At the heart of these issues are two principles which underpin the workings of our criminal justice: the presumption of innocence; and the entitlement to legal representation. Although firmly embedded in our common law, they are also enshrined in Article 6 of the European Convention on Human Rights and, therefore, apply as much to the inquisitorial systems of justice found across the channel as they do to our own adversarial model.
The presumption of innocence means that it is always for the prosecution to prove guilt and never for the defendant to prove innocence. In practical terms, this means that a client is perfectly entitled to remain silent, whether in a police interview or at trial. In some cases, it might be their best bet. This doesn’t mean that a lawyer won’t always try to obtain the best possible instructions, but every now and again we will find ourselves acting for a client who is either unwilling or unable to engage with the evidence. There might be many reasons for this, including mental ill health or a lack of trust. Often the two go together. Where this is so, it might take a number of ‘social visits’ before the client is willing to open up. Those facing serious criminal allegations often have a number of overlapping anxieties, especially if they have been remanded in custody; and not all will relate to the evidence in the case. A lawyer may have to address at least some of these before it is possible to take meaningful instructions.
That said, I suspect most criminal practitioners will at some point have had to conduct a case in which their client has given them virtually nothing to go on – I have certainly done so myself. I once acted for a young man accused of robbery. He had been picked out in an identification procedure, but beyond a robust insistence that the young complainant was lying, he had very little of relevance to tell me. Despite my best efforts, I was still without detailed instructions on the day of trial. However, I did not consider this a good reason to withdraw.
Although far from ideal, a client’s silence would not normally result in professional embarrassment. A defendant is entitled both to put the prosecution to proof and to the assistance of a lawyer in doing so, even if he or she has no positive case to put. The biggest anxiety facing advocates may be being at a loss for anything sensible to say at trial, but even then, a careful reading of the case will usually reveal some inconsistency on the face of the prosecution evidence – enough at least for some decent cross-examination and a closing speech, even if not always for an acquittal. That is exactly how things turned out in my client’s case.
By robustly testing the prosecution evidence at trial, a criminal lawyer serves both the interests of the client and the interests of justice. It is important to remember that without effective legal representation, the presumption of innocence would scarcely be an effective safeguard and the proceedings might cease to comply with Article 6. This is why dedicated defence lawyers are the cornerstone of our criminal justice system and without them, it would be unable to function. In order to discharge their public function, criminal lawyers must carry out their professional duties diligently and determinedly, regardless of the nature of the crimes alleged against their clients (and must be given adequate resources to do so – hence the concern over cuts to the legal aid budget).
This has not always been an easy role to perform. In an obituary written last year for the well-known criminal solicitor, Michael Fisher, Helena Kennedy QC recalled his work defending IRA terror suspects in the 1980s: ‘a hard time to be a lawyer doing high-end terror cases’.
Kennedy recalled that Fisher had faced considerable hostility and even threats as a result of this work, although none of this deterred him from fighting his cases with determination. Hopefully, we have made progress since then. The UN Basic Principles on the Role of Lawyers, adopted in 1990, oblige governments to ensure that lawyers are able to perform all their professional functions without hindrance, harassment or improper interference. They also provide that lawyers are ‘not to be identified with their clients or their client’s causes as a result of discharging their functions’. These principles are clearly important ones for lawyers acting in difficult and high profile cases and hopefully, they will continue to be respected. Criminal lawyers are entitled to get on with the job of representing their clients, even those who would rather remain silent.
- Why defence lawyers must speak up for silent clients - 28th October 2016