Defending your Defence

Are you defending your defence by calling it self defence?

There is a multitude of legal advice being given out by self defence instructors. Much of this information claims to provide guidance on how to "handle" the criminal justice system in the event that you are party to a violent encounter. The majority of such advice seems to be predicated on the idea that the criminal justce system is as much an enemy as the opponent you have just dispatched.

Such a mentality leaves me pulling my hair out and grinding my teeth!

The Criminal Justice System is neither your friend or your enemy. It merely is what it is. As a rule significant problems tend to happen when people want freedom to behave in ways they would not allow or desire for others. Specifically, when dealing with violent events this sense of self entitlement tends to result in screams of unfairness and prejudice along with accompanying shouts of "But I was acting in self defence."

My concern is that many sources are promoting self defence as a legal defence without truly understanding the context and possible consequences of making those claims.The purpose of this piece is to explain why making claims that you were acting in "self defence" is not always the most sensible option and indeed can be most damaging to your chances of being found innocent of any criminal charges that you may face.

It is true that a claim of Self Defence which is proven in a court of law is an absolute defence. That means that if you claim self defence and you were found to be acting in accordance with the requirements of self defence as an argument then you are innocent of the charge and must be found so. This means that if you meet the criteria of self defence, i.e. a reasonable action in the moment in light of the threat posed and a real and honest belief that there is a present danger of injury then you will likely walk free from any courtroom with a not guilty decision.

(please note, you are also legally allowed to act in defence of others, your property or the property of others but for the purposes of this piece we will simply concentrate on the concept of self defence as an argument overall.)

As the legal defence of self defence is absolute many instructors and laymen fixate on successfully making that claim without really knowing what the outcome of such a statement may be. Many have the perception that if you simply make the assertion that you were acting in self defence then the emphasis is on the prosecution to prove that you were NOT acting in self defence.

This is not the case. If you claim self defence then it is not on the prosecution to dispute that claim, you need to show the elements of the defence.

If you CAN show all of the elements of self defence were present then congratulations you are not guilty of the crime you are charged with. BUT… if you claim self defence and you weren’t acting in self defence as per the law then you have just confessed to a crime. Not very clever.

Breaking down the sequence of events.

A violent encounter. One person is charged with a crime (let's say assault). The accused is asked the following questions.

"Where you there?" "Yes"
" Was Mr X there?" "Yes"
" Did you have an encounter with Mr X?" "Yes"
"Did you strike Mr X?" (you can substitute this for any other question around injury caused i.e. did you choke, strangle, push, kick etc) "Yes, I was acting in self defence"

You have just admitted actions which may amount to commission of an assault. Should your subsequent defence of self defence fail then you have just supplied a confession which is practically assured of convicting you! In claiming self defence you are unavoidably admitting to all of the elements which may prove the charge of assault. You have effectively proven the prosecution case for them or if you are speaking to police officers you have certainly given the CPS enough to peak their interest in pursuing a criminal prosecution.

It is widely understood in the criminal justice system that the vast majority of violence is social and stage consentual. This means that at some point both or all parties have agreed to commence hostilities. It is usually the case that both parties are actively engaged until SOMEONE crosses a line into assault, GBH, homicide. That line may be crossed be either party and usually the one who lost is the one who claims victim status. The person claiming self defence is usually a loser in a fight rather than the true victim of an attack or abuse. As individuals who see hundreds and thousands of violent events police officers, the CPS and the judiciary are well acquainted with the reality of social violence.

Here is the reality of how judiciary or police officers will look at events which involve physical violence.

They accept that there is no requirement to withdraw but questions will be asked as to why the participants did not leave if possible.
They accept that it is possible to be acting in self defence but they are well aware that the majority of events begin as consentual actions between parties. They will factor into their judgement any injury incurred which would be considered more exreme than could be expected in the circumstances. i.e broken bones and sutures rather than scrapes and bruises.
They will unavoidably form an opinion as to each parties participation in the event. They will have a tacit view on extent of culpability and the harm caused.

You may harm your defence if you fail to mention when asked something which you later rely on in your defence but that does NOT mean you have to make admissions at the interview stage and it does not mean that you have to specifically state that you are claiming self defence until you are undergoing case management hearings. Always be circumspect about any statements made and never make any statement without being very clear about what you want to say.

Everyone knows what something means until there is a problem. Don't ever be afraid of saying you want to speak to a legal adviser before making any statements. AND.... don't claim self defence unless you are certain you can prove it otherwise you may just be confessing to a crime!

sound advice...

Here in the States we work on AOJP which stands for Ability, Opportunity, Jeopardy and Preclusion. For it to be justifiable defense in other words the aggressor has to have the ability, the opportunity and you must be in jeopardy and have no alternative to do anything but fight.

Obviously trying to figure all that out when you've been tapped on the shoulder and turn around to have some maniac in your face is tantamount to suicide so I boil it down to "are you fighting because you want to or because you have to?" Don't do the former and you should be okay in any subsequent legal proceedings.

Nick

That seems sound advice. When offered legal advice at a police station I would suggest always taking up the offer. Theres more chance of the police giving pre-interview disclosure to a solicitor/legal rep prior to interview so you'll have more of an idea about the prosecution case. And as for staying quiet or giving a no reply interview its very rare that any "advers inference" is drawn as it states in the police caution that will be explained prior to interview.

As I have said in the past, police officers and CPS are NOT concerned with proving you are innocent.

That is to be expected and is a fair position for them to adopt.

Their role is to show the elements of the offence. Their interview questions and their decision making around how any proceedings progress is based around building the prosecution case.

There is a notion of proceedings should be in the "public interest " and in the "interests of justice" which is a fine notion but in reality tends to be little more than a broad philosophy which is used to underpin the decision to proceed or not. That decision is based realistically on the potential for a successful prosecution.

I don't wag fingers at prosecution or police who work with that methodology. I just believe the public should be aware that those organisations have NO interest in showing that you are innocent so throwing words like "self defence" around at the preliminary stages does not have the effect of a magic spell which then places the emphasis on the prosecution to show that you were NOT simply defending yourself.

My second concern is that everyon has an opinion about how the legal system works. Everyone thinks they know what something means until the brown sticky stuff hits the fan and to be fair the majority of people I hear or speak to have a pretty good grasp of how the criminal justice system works. What they don't have is an understandng of context and how those rules and requirements they quote are applied in reality.

For example, did you know that kicking someone with shoes on your feet can be considered use of a weapon?
Did you know that the latest guidelines on assault mean that there are very strict criteria that have to be adopted when deciding a sentence?
Did you realise that you are looking at a heavier sentence if you are convicted of a crime where the "victim" has more serious injuries than could be expected in the instance?

lots more to discuss but that's all I have time for this morning.

I would agree entirely that you should always exercise your right to legal advice prior to interview following arrest. There are circumstances when saying "no comment" in an interview is appropriate, but if we work on the premise that you have acted genuinely to deal with an aggressor, ie you're not telling lies, I think the circumstances where you'd be advised not to say so are very limited!

One situation where that advice might be given is where the prosecution would not have sufficient evidence to prove an offence in the absence of you explaining your version in interview. That would be because the solicitor takes the view that your version of events amounts to admitting the offence charged. But here's the thing: in this context, if you're telling the truth, your version of events is highly unlikely to amount to admitting the commission of the offence. It could do of course. You could be accepting that you used a level of violence that any right thinking person might view as being over the top (or you might even be accepting you were the aggressor) in which case, if there wasn't any other prosecution evidence it wouldn't be sensible to give them some by incriminating yourself in interview!!

If the prosecution do have sufficient evidence to proceed, and you have said nothing when you had the opportunity to explain what happened, or worse you said something different, your credibility wil be compromised when they do proceed! In other words you'll look like a liar! And that's usually the issue in the case - who's telling the truth! It is fairly unusual for there not to be any factual dispute between you and the prosecution about what happened ie it's unlikely that your version of events is accepted by the prosecution, so your credibility is very important to the outcome of the trial! You'll be cross examined on this basis by the prosecutor because the prosecution bear the burden of proving to the high standard of "beyond reasonable doubt" that you did NOT act in lawful self defence (and this usually boils down to proving that you're telling lies). You don't have to prove you DID act in lawful self defence (ie you're telling the truth) but of course the more evidence you present in your defence, the harder it will be for the prosecution to achieve that standard!

In short, it's only likely NOT to be in your interests to explain your version if you're in the (uncommon) situation described in para 2 above. So, keeping quiet is much more likely to cause you problems than explaining what happened - if you've got nothing to hide that is!

There will be numerous and plentiful opportunities to be heard during the course of interview, court hearings and trial proceedings.

The issue is understanding the following.

- when it is appropriate to make statements which may aid your defence or assist in mitigation.
-when you MUST make certain statements and when you have the right to refuse to make statements.
-how disclosure and acceptance of facts work between the defence and the prosecution and how the defendant has very little direct input into what facts as accepted by both parties.
-what the elements of each offence are and what the prosecution is trying to prove.
-what the elements of any defence you may claim are and when you need to make statements claiming the defence
-how the burden of proof works and which test applies in which circumstances.

if you are uncertain about each or any of those things I would suggest you may be better taking specialist legal advice before accepting the second hand view of a martial arts instructor! it's kind of like having a serious injury and not seeking specialist medical advice before self treating using the advice of a first aider at work. or even worse.... the advice of someone who has watched a few episodes of Casualty on a saturday night.

Chris,

What's your criminal defence view of practical adjustments to techniques, for example, using palm strikes/slaps rather than fists to reduce collateral damage on the opponent and thus potentially limiting the seriousness of the charge?
Or is it a matter of you if you're justified in using force then the damage won't matter?

If you are unlucky enough to be convicted and face sentencing then damage definitely does matter Dave. Unequivocally the amount of damage the other party sustains will impact at the sentencing stage. (and likely increase the possibility of prosecution in the first place.)

Generally, the system is trying to implement a test which asks for an evaluation of the injury and whether it was reasonable in light of the events. So... if it's an assault case because of a couple of blokes having a quick scuffle outside the chippy but the loser has a broken nose, cheekbone, smashed teeth and a broken eye socket then those injuries may well be considered outside of what would reasonable be sustained in the event and you would be looking at pushing up through the sentencing band.

That's if you are convicted of the offence.

If you are foind not guilty then you are not guilty. In order to be found not guilty then you have to have shown a defence in law and if you aren't guilty on the facts of committing the necessary elements of the crime then you are heading out of the door. The extent of damage you cause then is important as far as debating reasonableness of the action (if you are claiming self defence). Not really possible to claim self defence if the guy has two broken legs, a fractured skull and a stab wound inflicted while unconscious.

That said, if you can show all of the elements of the defence then you can act appropriately to the threat posed and there MAY be instances where the use of lethal force and extensive damage could be "justified". As a result, it logically follows that the damage could be pretty extensive up to and including lethal force provided the justification was there. How closely the court looks at the justification for the damage tends to be directly linked in my experience to the seriousness of the offence. (no judge would admit this but if someone has a black eye because they were in a handbags scrap then you aren't losing too much sleep but if someone has a life altering injury as a result of that same scrap then you are going to spend a lot more time looking at justification for the damage done). That's anecdotal though and certianly nothing more than just my experience.

As far as whether certain techniques are more "judiciary" friendly then absolutely. Again, in my experience I have found a general distatste for headbutts, kicking, weapons. Not so much with punches and slaps. The judiciary in general have no real understanding of what real violence looks and feels like even though they have a LOT of experience of the outcome of violence. SO, they TEND to have a fairly middle class, remote view of how violence looks and what is "bad form" when it comes to violence. They are a pretty middle of the road bunch.

I'm trying to be fairly general in my response as I don't want to get into too much detail and start giving people some "get out of jail" free cards.

Thanks, Chris. Confirms my understanding.

I also know of one story from a criminal defence solicitor who was defending a guy who headbutted his assailant. His hands were trapped at the time and he literally had no other option other than headbutt...yet the magistrates didn't like him using a headbutt...!

As with other things in life, I personally would want to try to sway the odds in my favour. If I can drop someone and leave no (or fewer) marks, it's got to be the smarter option.

Regarding the points you highlight, interestingly there's actually a definitive answer to most of them:

1. There's no situation where you "MUST" make statements. A defendant or suspect has the right to say nothing from the start of the process (arrest) to the finish of it (trial/sentence etc). As I said in the previous post, if you've nothing to hide, you're usually better to explain yourself at the first opportunity. If you don't, it might end up being your 'Achilles heel' in any trial.

2. What facts are agreed in a trial is the product of the defendant (through his solicitor or barrister) and the prosecution discussing their respective versions of the events. In this way what's agreed and what's disputed is identified; the trial obviously is then able to focus on what's in dispute. In most cases there are disputed facts, but not always; sometimes all the facts are agreed and the dispute is a legal one. There's the potential for this in a self defence case; this would be where both sides agree what happened factually, but the prosecution say that these facts amount to excessive force and the defence say otherwise. This would then be the sole matter for the jury to decide.

3. In a self defence case the defendant is likely to be charged with an assault of some description in the event of force being used on another person. It could of course be murder or manslaughter if the person died! Because of the nature of the defence ie the defendant accepting using force on the person, the only 'element' of the offence the prosecution have to prove is "unlawfulness" (this word appears in the definition of all these offences as a mechanism to allow the defence of self defence to potentially operate); in other words the prosecution have to prove that the use of force was not lawful self defence.

4. In a self defence case the only two elements are whether your actions (whatever the jury decides your actions were if there has been a dispute about them) were necessary and proportionate (ie reasonable) in the circumstances. If the jury conclude they might have been you'd be acquitted.

5. The burden of proof in any self defence case is on the prosecution. In other words they must satisfy the jury so that they are "sure" that the defendant's actions were not reasonable in the circumstances ie they must prove that his actions were "unlawful" and therefore amount to the offence charged. The defendant doesn't have the burden of proving his actions were reasonable ie he doesn't have to prove his defence!

What is harder to pin down is what view the police and the court might take of the evidence in any given case and where it might end up!!

Interesting post, Rob. I'll put together a full response when I'm in front of a full sized keyboard.

Couple of minor points to pick up on and clarify about statements, prior disclosure and burden of proof and the use of supporting evidence.

The bits I agree with is the majority of the post where you re-wrote my previous posts.


What's your background? Some shared ground may save me some wear and tear on my fingers.

I write as a very occasional 'poster' on this site - this is my 8th in five years! I enjoyed reading your posts and as it's an area of specialism for me, I couldn't resist making a few observations on the topic!

As far as my background is concerned, to avoid being too specific and to use your medical profession analogy in an earlier post...I'm probably a surgeon!

I hope my input on the topic has been interesting (rather than irritating) reading! The former was my genuine intention.

Some of the points being discussed are a matter of opinion, like whether it's best to remain silent on arrest, others are actually established aspects of mainstream criminal practice with, as I said in my previous post, definitive answers. Quite refreshing really for an area of the law where the essence of it is notoriously difficult for the layman to grapple with!

Hi Rob,

Feel free to jump in anytime, the water is warm.

Talking some of the points from the last few posts in order we can give some clarity I think.

As far as statements, absolutely correct. A defendant has no obligation to give evidentiary statements from start to finish of the process. There will, however, be unavoidable statements they will have to make as part of the criminal justice system runningits course. They will eventially need to enter a plea for instance, they can withold plea for a certain period of time but eventually they will be compelled to state whether they are not guilty or guilty. In itself that statement can and does form part of the ultimate sentence should they be found guilty. (directly through tariffs for guilty plea at first opportunity or on the day of trial etc)

Legal representation can handle case management, mode of trial etc but again the defendant will be pressed to make statements at mode of trial hearings. Again, those statements will directly impact on the sentence they can expect to receive in the event they are found guilty.

Decisions on accepted facts, witnesses etc can be handled by legal representation and usually will be following direction from the defendant. Again, good communication with legal representation is key as early as possible.

Burden of proof is absolutely with the prosecution. Defendants can claim self defence and that does not change the burden of proof for the offence BUT.. I see time and time again the belief that "self defence" as a claim is a magic bullet which then means that the prosecution has an additional hurdle to cover. NO they don't. They simply need to prove the elements of the offence are in place and that the defendant is guilty of them. Self defence as a plea does not put the prosecution under any additional burden other than they will likely now have a greater focus on the evidence which aids them in showing lack of reasonableness and proportion in the actions of the defendant. It also means that in real terms the defendant best have some evidence to indicate that self defence is applicable, if you raise it then you best be able to show it otherwise you will fail. Time and time again I see defence claiming that their client was defending his or herself and the prosecution claiming that the evidence proves an assault was committed.

Very little time is spent in retiring rooms ruminating on the legalities of self defence. Much more time is spent on weighing the evidence and deciding simply who you believe was the instigator of what is usually mutually agreed events (up to the point where someone loses the fight!) That holds true for crown and magistrate court.

Mode of trial is another very interesting question. Which court hears the case is based on the offence itself, the seriousness of the offence and the decision of the defendant or the court. Lots of scope for differring results.

Thanks Chris.

Here are a couple of observations worth contributing I think:

Yes, a defendant obviously has to say whether he committed the offence or not! But this is crucial: if we're talking about a genuine self defence situation there's no choice - he should plead "not guilty" (unless he wants to plead guilty to something he hasn't done...and then be sentenced for what he hasn't done!!). So credit for an early guilty plea doesn't come into play.

His "not guilty" plea isn't incriminating at all (quite the opposite obviously), and will in the ordinary course of events lead to a trial.

At the trial, his defence will be "self defence" because that's what genuinely happened. Again no choice about it. He can't concoct an artificial alternative reality in the absurd hope it will somehow make the prosecution's job at trial harder! It would do the very opposite for obvious reasons! In order to be acquitted the defendant does not have to prove his defence. It's the other other way around - to secure a conviction the prosecution must disprove his defence. After all this is the only live issue in the trial as the use of force (and possibly causing injury) is accepted!

Where the defendant accepts that he wasn't acting in self defence he should be pleading "guilty"...and accepting his just desserts!!

Good stuff Rob, and I can't argue with any point you make in theory but the grey areas and blurred edges of the system can and do come into play.

If someone is not guilty then they absolurely should not plead guilty and vice versa BUT.. I see many many instances where the accused doesn't actually know if they are guilty or not and without serious examination of the evidence neither does their representation. When it comes to claiming self defence for example, many have no idea of what the requirement is and whether they qualify. Bearing in mind that the vast majority of violence is social violence where both parties consent to the exchange up to a certain non specified and difficult to quantify point.

Also, sentencing and early guilty pleas become very important when a case may be problematic and the accused is facing an uncertain acquittal or a definite one third reduction in any possibler sentence because they get in front of a charge early in the game. Doesn't make it right but it is sometimes a pragmatic option I see people take time and time again, especially when the evidence isn't particularly clear. It's not really about concocting an alternative reality, it is often about dealing with an uncertain reality and taking the high percentage option. No need to concoct or alter evidence when either case can and does hold water. Very rarely is there one guy in a black hat and the other in a white stetson. Not to say that in amongst all the mess one party isn't acting in self defence at a point just that it can be incredibly difficult to show and even to understand when a fight ends and self defence begins.

Black letter law gives some definite answers, the application of that law presents another raft of questions.

Just by way of follow up:

The question of whether the defendant has a defence in law ( whether that be self defence or any other defence) is for the lawyer to advise upon. The defendant won't know because he's not a lawyer! What the defendant knows (and the lawyer doesn't) is what happened on the street as it were. So the defendant explains what happened and if that explanation amounts to a defence in law eg self defence, the lawyer should be advising a not guilty plea. To do otherwise is wholly unethical. The lawyer can't advise the defendant to plead guilty...because he has given an explanation that means he is not! If the defendant did enter a guilty plea in these circumstances it would all unravel at the sentencing hearing anyway unless of course he made up a new fabricated explanation of what happened. This is because the factual basis of the plea is a crucial aspect of the sentencing exercise and will be explored by the judge. If he maintained his original version of events the sentencing judge would not give him any credit for the guilty plea anyway...precisely because he's trying to play the system!! And the lawyer would be carpeted for allowing him to plead guilty!

It's only where the defendant provides an explanation of events that doesn't amount
to a defence in law ie it's not self defence, that the lawyer can advise a guilty plea. In these circumstances there's no problem (unless his factual basis is so watered down that it isn't accepted by the prosecution!) and he gets his one third discount on the sentence.

Regarding trials, acquittals are are always uncertain! That's just the nature of a criminal trial. But the defendant must take his chances at the trial if he maintains an explanation that means he's actually not guilty.

It really begins and ends with the defendant's account of what happened. If he says he was fighting because he enjoyed the challenge etc (social violence) it's not a self defence case anyway. That's thuggery.

Anyway, food for thought.

Now you're making me think you don't spend a lot of time in a court-room Rob.

The vast majority of cases are decided on the strength of the evidence rather than guilt or innocence. (blasphemy for law students and academics but that's the reality).

The representative will certainly speak with and listen to the accused BUT for the most part the strategy within the courtroom rests with the legal representative. I would never state that a lawyer would tell the accused to lie about their guilt or innocence but I will state quite clearly that where guilt is uncertain and where evidence is non-conclusive (which is usually is) then pragmatism rules and I have seen many times a decision made when I felt a defence may have been offered which was not pursued presumably because of the lack of supporting evidence.

As a result, the accused pleads guilty and takes the reduction in sentence for a guilty plea. I estimate that more than 90% of all pleas I hear are guilty pleas.

We have to remember that the vast majority of defendants are recidivists. They are habitual criminals and a vast majority have drug and or alcohol dependancies. I have seen a number plead guilty simply because they want to either be in jail for a few weeks or they want to take some assistance from the Probation service.

What you outline is absolutely factually correct, it is only notionally correct in application when real life intercedes. Will a legal representative lie, absolutely not. That doesn't preclude them acting in conjunction with their client in the way above.

...you might be surprised!

Interestingly, what you describe Chris is how it shouldn't be done, not how it should be done.

A trial is decided on the evidence. The plea is determined on the basis of what the defendant says happened. The strategy doesn't rest with the lawyer because the lawyer MUST act on the basis of instructions. The lawyer can't unilaterally decide anything in the case!

When you say, "where guilt is uncertain" etc this doesn't really make sense. Guilt, as far as the correct plea to enter is concerned, is never uncertain precisely because the defendant's explanation dictates the matter. If you mean where the outcome of a potential trial is uncertain the defendant (on advice or otherwise) should plead guilty for pragmatic reasons that can't be right because he'll be pleading guilty to something he hasn't done!

Of course the courts are full of the people you describe: habitual criminals with drink and drugs problems. They're also full of liars and violent thugs. There are also incompetent and dishonest lawyers floating about (it seems quite a few in the court you describe!). But I'm not writing this for their benefit. My concern is for the 'good guys', yes, the man in the white stetson you mentioned previously...the member of this forum who is telling the truth when he says that he used force only because he feared he was about to be attacked. This guy shouldn't be pleading guilty to anything.

So my point is, don't accept this kind of shoddy, incompetent handling of your case. You should never be treated like this if you're in the unfortunate position of having had to defend yourself and found yourself facing a criminal charge.

Imagine the situation of the "hypothetical innocent forum member" doing what you seem to be suggesting is what happens:

1. He enters a guilty plea to lets say an ABH charge despite having told his lawyer he thought he was about to be attacked.

2. What does he tell the probation service about what happened when they are preparing his pre-sentence report? If he tells probation what he told the lawyer (ie the truth - that he thought he was about to be attacked) this will be recorded in the report and the judge will read it prior to sentencing and know that he doesn't actually accept committing the offence. It would be ludicrous to be in a position where he's effectively having to make up a false confession to the probation service so that the truthful position isn't revealed in the report.

3. At the sentencing hearing what does the lawyer say about the offence when addressing the court in mitigation? If he presents the defendant's account that he thought he was about to be attacked, he's telling the court that the defendant hasn't committed the offence!!! In which case there is a massive problem for the lawyer and the defendant! The judge will want to know why he's been allowed to plead guilty to something he hasn't done (problem for lawyer - incompetence!), and there's every chance of the plea being "vacated" ie a not guilty plea being entered and the case adjourned off for the trial he should have had. If this doesn't happen the defendant won't be entitled to credit for the guilty plea because he's not accepting he committed the offence (problem for defendant - that was his motive for pleading guilty in the first place)!! An honest lawyer won't be telling lies and/or misleading the court on the defendant's behalf when mitigating. A crooked lawyer who does so risks being reported to the Law Society/Bar Council and being sanctioned or struck off.

So, I respectfully suggest this is hardly pragmatic - it's the opposite!

Of course, if the "honest hypothetical innocent forum member" is actually masquerading as such and did not think he was about to be attacked and is telling lies, it would be pragmatic for him to come clean, tell the truth and enter a guilty plea - not least because the weight of the evidence will probably indicate this anyway and his lies would be seen through by the jury leading to an inevitable conviction.

What the "honest hypothetical innocent forum member" should do is plead "not guilty" and have a trial. And I'm talking about real life. Not a 'rose coloured' view of how it ought to be in a fantasy world. How it actually is if you're being represented properly. The outcome of the trial depends on the evidence and there's always a realistic prospect of being convicted (it wouldn't have got this far otherwise). But the "honest hypothetical innocent forum member" does have at least one thing going for him - he's telling the truth!

I can also suggest a good test for the "honest hypothetical forum member" to use to assess the quality of his legal representation: if it's suggested by your lawyer that you should plead guilty to something you haven't done, the lawyer is the one wearing the stetson hat. He's a cowboy.

And you're right, there are a few around.

Hey Rob, now I know you are a Bar student. That's the barrister operating manual quoted verbatim

okay, let's break this down.

Legal representation cannot make representations they know to be untrue and they cannot advise their clients to make representations they know to be untrue. That's inviolate and written large through both solicitor and barrister codes of conduct.

What you have written is straight out of "the manual" of legal representative good behaviour, almost word for word which is why I know you are a student

BUT.... here is the reality of legal practice in the criminal justice system.

1) Everybody tells their version of the truth. Lawyers, police officers, witnesses and the accused. ALL are subject to their interpretation of the facts. Unless you have a time machine which allows you to be present when events actually took place you are ALWAYS working through the filter of subjectivity. Now some facts are simply that, facts but when you have to make a plea based on your (as the accused) actions, feelings and belief in a moment and those things form the basis of your guilt or innocence then it's certainly not a black and white answer when a client says, "I was acting in self defence" I will also be very clear here, I have listened while police officers lied, witnesses lied, lawyers lied and the accused lied. That's not me saying I felt they were being dishonest it is me saying absolutely that I have been there and watched them being caught in an untruth. No doubt for some they were justifying the untruth on the grounds of greater good but it was a lie nontheless.

2) I can find a defence in every criminal case I have seen. Without exception I can find an argument I could make. It doesn't happen because I would be accused of time wasting and I would be flying in the face of the evidence. A decision will be made early in the interview stage about the strategy of the case based on the evidence, statements or admisisons of the accused and the likely outcome. That "weighing up" also includes possible sentencing options. As a side note, I have seen guilty pleas come from accused who are already on remand or awaiting sentencing on other offences. They take a guilty plea for strategic reasons in light of their overall position within the system. Now, are they all guilty, perhaps. What is relevant is that their guilty isn't forming the basis of the decision of their plea it is a strategic one which would change like the wind if their circumstances changed.

3) A lot of cases are managed in court. A serious number of accused are addicts of one type or another. They are sometimes itinerant, often with a lifestyle which makes time and appointments meaningless to them and usually resigned to their life of criminality and sentencing. As a result I have seen many times solicitors at court apologising for their client not turning up. I have seen solicitors meeting with their clients for the first time in the foyer of the court house and walking into the court-room with them. I have seen accused who were unable to put together a coherent thought and response to simple questions. I have seen the accused walk into a court without representation and literally ask a passing solicitor to represent them in their appointment which is taking place in a few minutes. I have seen CPS without files, I have seen defending solicitors withour files. I have gone weeks without any case proceeding to trial for any one of a number of reasons. The picture that paint of legal practice in the criminal justice system is a textbook one. Reality is somewhat more chaotic and prone to mess. Without all parties bringing their experience and a measure of pragmatism to the proceedings the system would grind to a halt.

4) Most accused are clueless. I sat recently and watched as a man was brought in on a warrant. Was brought into the dock, asked how he was going to plead and responded with "guilty" His solicitor nearly fell out of his seat. I asked him agains as it was clear that his solicitor was sufferring some minor difficulty with this notion and he said, "I'll plead guilty."
His solicitor shrugged with a resigned look on his face. His client then piped up, "If I plead not guilty am I gonna get seven years?" His lawyer spent a minute or two speaking with him and the court took a not guilty plea. Finally. Now, you would have to possess the patience of Job to be that solicitor dealing with that type of situation and deliver legal representation in the manner described below. You have to be aware that many of the accused in crminal hearings are "challenged" and human nature being what it is there is neither the time, patience or the will to spend the necessary hours and days it would take to deliver representation in the manner described below. Another true story of the guy who didn't speak English at all and required someone to interpret for him. How is he going to get the kind of representation described below in real terms when he doesn't share a common language and there is no time (or money) for further delays to his case progressing after four previous adjournments.

5) Some cases end up in the crown court, either because they are required to be transferred there or because they are either way offences which can be dealt with at the magistrates court or the crown court and the defendant has elected to be heard in the crown court. ALL cases start in the magistrates court and 97% of them will end in the Magistrates Court. The criminal justice system is a conveyor belt designed to reach resolution as quickly as possible in as many cases as possible. You MUST be pragmatic and realise that lawyers cannot be expected to spend days and hours sifting through evidence, interviewing clients and meandering towards the gold nuggets of truth that are presumed to exist when the likely sentence may well take less time to discharge than it takes to decide on the plea!.

In the same way as a GP's surgery will see the vast majority of medical cases in the first instance then will pass on those which need to go to other areas. As a result, the cases which reach the crown court tend to be more serious (from a sentencing perspective for the accused) and tend to have more time and money spent on them from the view of legal representation. Yes, I can absolutely see that a case which may result in someone spending years of their life behind bars will result in some serious discussion and strategising but they account for less than 3% of all criminal proceedings. The average trial time in the magistrate court when an accused is pleading not guilty is two hours. They are set down for 120 minutes. That's for ALL the evidence to be reviewed and ALL witnesses to be heard and questioned by both sides. It's not Kavanagh QC in there, it's a conveyor belt. It's serious business and handled accordingly but it is predicated on the requirement for speedy resolution and progression of cases to conclusion. Indeed, the whole criminal justice system is measured extensively on moving cases to resolution as quickly as possible. There are unequivocal directives which prohibit faffing about and meandering and time spent on adjournments to gather more evidence or discuss disclosure etc. You try being a solicitor asking a bench for a further two week adjournemt because the prosecution has not supplied some piece of evidence you wish to view and see how the bench views unnecessary delays!

I'm not saying you are wrong Rob, just a little naieve. Reality is messy, it has people of all types and ability within it. You are writing from the perspective of an academic looking at the utopian view of how we are told the system should be. The trenches are somewhat different though the rules of engagement remain the same.

Let me just finish with a statement I have heard made in mitigation a good number of times.
"You have found Billy guilty and he accepts that. One thing I will say in mitigation is that you will see from his record he has over 150 arrests and over 100 prosecutions and he has always told me when he was guilty in the past. He maintains he is not guilty in this instance."

That's the level most of the criminal justice system operates! Where mitigation is put forward on the basis that some recidivist with hundreds of arrests usually tells his lawyer when he is guilty but this time maintains he is not guilty!

Chris,
Since you don't recommend claiming self defence as justification for physicality what is the other option?
A guilty plea to affray and hoping for a slap on the wrist in the magistrates court

If you have to handle a violent situation and do so effectively with gumpture the reality is that the other party may likely suffer injuries unless they choose to desist with their intimidatation/assault before that point.

If the injured party then goes to the police and you're identified you will likely be charged because of the injuries.

I see you're point that claiming self defence is admitting causing the injury but what is the other alternative? Denying being there or saying nthing at all, then you'll likely be in an identity parade and look guilty if you're identified and it goes to court.

If one party is injured by another the only lawful reason for doing so is defence of self/others/property is it not? (Out side of not having full mental capicity to understand your action/sleep walking etc)

I don't want to ever have to defend my actions in crown court again but if someone pursues a course of action that leaves me no option other than to use physicality i suspect i may have to

Tony,

I never said "don't claim self defence."

I said, be aware of the requirements for a successful self defence plea.
I said be aware that claiming self defence and failing aids the prosecution
I said the prosecution has to prove their case beyond reasonable doubt and making early, pre-emptive claims of self defence gives the prosecution a number of admissions to work with beyond a "not guilty" plea. Bear in mind, you can simply plead not guilty without having to say anything else!
I said if you claim self defence expect to be tested so have your evidentiary ducks in a line.
I never said "dont claim self defence."

I have seen hundreds of cases with charges of violence against another. In the vast majority which are heard in the Magistrates it comes down to two people in an argument and one of them "loses" a physical altercation. I have listened as defendants claim they were defending themselves and usually it makes absolutely no difference to the outcome of the case which is decided on the basis of the evidence presented. We did not view the case any differently because of the self defence claim in real terms. Remember that the two most common defences to any criminal charge are " it wasn't me." and " it was self defence."

Thanks for the clarification

I'm inferring that since the prosecution put their case forward first in the trial that when you claim it was self defense under questioning it catches them on the hop with out a formal prepared rebuttal. That makes sense!!!!

People just have the notion that claiming self defence is the magic get out of jail free card, i'll be honest i was just expecting a pat on the back from the custody sergeant for dropping the drunken aggressor and not 2 days in crown court

Hey Tony,

You have no idea how bent out of shape some people get (good, law abiding people) when I tell them the police service has absolutely no interest in proving you are innocent.
Really, its a percentages game. The police want to make their numbers of arrests etc, CPS want to make their number of successful prosecutions and defence lawyers are looking to fight the remaining fires.

Very few people in the process actually care one way or the other if the defendant is guilty or innocent. It's simply about what can be proven and how you get a "win" for your side.