Our views on ambulance chasers are probably very similar, and I agree the role of a defence lawyer always fascinates. It's the question every lawyer who defends is asked most often. The difference between "think" and "know" isn't simply semantics, but I concede the distinction becomes very fine when, using our experience of life, knowledge of the circumstances and trained mind we're sure someone is guilty - know 'in our heart', as you put it. But it's not a legal definition of "know" which allows us to say we don't know, it's the proper meaning - which is different from (for example) from strongly suspecting, or even being totally convinced of something.
The Present system (summary):
Someone who says he's not guilty is entitled to plead Not Guilty and let a jury decide.
The prosecution has the burden of proving his guilt; he doesn't have to prove his innocence.
To prove his guilt, the prosecution has to satisfy a jury so that they are sure he's guilty.
The Crown/the state is represented by a lawyer - almost always by a barrister in the Crown Court. (Probably a solicitor in the Mags Court.)
The defendant is also entitled to be represented by a lawyer, usually a barrister in the Crown Court.
A barrister is required by professional rules to represent a defendant if asked, and to represent him to the best of his ability, regardless of his personal views of the defendant's guilt or innocence. (He'd be disbarred if he refused.)
The jury hears the witnesses, cross-examination by both sides, arguments by the barristers on each side, the judge's summing-up and then decides the verdict.
Which, if any, of those aspects would you change?
Should someone accused of a crime he says he didn't commit have to search around for a barrister who believes him?
I don't claim it's happened very often, but there have been occasions when I've "known in my heart" someone's guilty and, under cross-examination in court, witnesses turn out to be lying and I've been left in no doubt whatsoever that the man was innocent. In each case, they've been found not guilty. (I'm referring to the Crown Court with judge and jury, not magistrates court.)
Just out of interest ~
Should a surgeon be entitled under his professional rules to refuse to treat a terrorist who's injured himself while trying to kill others?
Or to refuse to treat a paedophile who's been injured by a distraught parent?
Or should the rules of a profession (proper meaning, not popular mis-usage) require its members to act to the best of their professional skill and ability uninfluenced by personal views and/or prejudices?
"I suspect that most lay people would believe the number of guilty allowed to go free would outnumber by a factor of multiples those innocents imprisoned. I would further suspect that even most of the legal profession would admit that off the record."
I'll admit it on the record as, I'm sure, would any experiencd lawyer who does criminal work. There's no doubt whatsoever it's true. To use the much-quoted old expression, our system is based on the principle that: It's better that 100 guilty men go free than that one innocent man is convicted."
The difficulty arises because, while most people agree 'in principle' with that principle, many are uncomfortable with the consequences of the principle 'in practice'. ie
The high ideal is all very well, but they don't like seeing the 100 guilty men going free.
Since no legal system could ever be perfect, if we are to change the '100 guilty men go free' principle, are we prepared to have more innocent people convicted to ensure fewer guilty people get off?
In fairness to Unwell_Raptor, whom you mention, he's not a lawyer. He's a lay magistrate and, from what I've heard from some solicitor colleagues, is respected. (None of those have been motoring cases. If I thought he allowed his extreme views about motorists to influence his decisions in court Id' be seriously worried - but I'm sure he leaves his prejudices safely outside!) I agree U_R appears to see fewer faults in the system than I do but, again in fairness, I've been a lawyer for almost 30 years and, just like everyone in their own sphere, I see the shortcomings from the inside.
It's true U_R never seems to agree any law is bad, or that the process ever works unfairly, but I don't know if that's because he feels the need to defend the system or that's what he genuinely believes.
"That's how it is, take it or leave it"
isn't always conducive to discussion but, in the context of this discussion, it might be a good starting-point
in deciding if we should take it or change it and, if the latter, how.
The "common sense" factor isn't dismissed in the courts. Every jury is told to use common sense and experience of life when considering the evidence.
"Many others like me find it difficult to accept the rigidity and inflexibility of such a system which flies in the face of our everyday experiences."
I agree there are certain areas of criminal law and criminal trial procedure where the majority view of 'common sense' conflicts with the law.
One was the Right of Silence. A suspect was entitled to remain silent when questioned by the police. That changed a few years ago. He still is - but a jury is now entitled to draw an adverse inference from his exercising his right. The change isn't as effective as it could have been (or should have been in accordance with Parliament's decision) because solicitors know how to get round the new rule, and some do.
Another was a defendant's previous convictions. Juries weren't told about them except in very limited circumstances. That changed last December - the prosecution is now entitled to tell the jury about a defendant's character, except in certain circumstances.
A third area is the 'Householder disturbing burglar'
situation where the law appears to be out of step with majority public opinion - the Tony Martin case was much discussed here. The Prime Minister recently "took advice" about whether the law needed to be changed in light of the public outcry over the Martin case and continuous calls for a change in the law. He decided the existing law is adequate, so no change. Whether or not it is adequate, it remains out of step with what I perceive to be widespread public feeling. That was a Government decision.
Sentencing: The public is horrified that people sent to prison are released long before they've served the sentence imposed by the judge - under changes introduced by the present government, sometimes after serving as little as one third. Don't blame the judges - the government decides how long prisoners actually serve.
If most people don't respect their system of justice because they believe it is not serving them well, perhaps we have to explore some alternatives?
If most people don't respect the system, I agree.
What do you suggest?
Is it really essential for every word to be taken at its most literal ..... etc
Tricky one, that. I agree, loopholes are often an attempt to subvert the underlying meaning. However, if the state is going to convict and punish citizens, should the state ensure the loop-holes are sealed?
I can offer some comfort - in fact, and contrary to popular / tabloid opinion, very few cases are thrown out on technicalities. Cases which are thrown out are almost invariably because of problems with evidence.
"I'd feel a lot better if we got rid of the necessity for a unanimous jury verdict."
We have in the UK - so long ago I now can't remember when it changed.
A concluding thought - If I had a pound for every time I'd been asked a variation of How can you defend someone you know in your heart is guilty?
, I'd have retired a very rich man by now. If I had a pound for every time I'd been asked a variation of How can you prosecute someone you know in your heart isn't guilty?
, I'd still be waiting for my first pound.
Just some thoughts for what they are worth. Sorry I've rambled on - you wanted dialogue.
In order to avoid any misunderstanding, my criminal work is and always has been roughly 50/50 prosecution/defence.