Codes of conduct

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Codes of conduct

Post  Ace Ventura on Wed Nov 07, 2012 3:48 am

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.

Chris wrote this in the other interesting thread re courts and prosecution.

Whilst written in codes of conduct, this must be stretched to the limit in many cases. People are still defended when we pretty much know they are guilty and get off on loopholes or technicalities all the time.

To be honest many are not brought to trial due to stuff that is almost beyond comprehension!

Is it a case of doing the best for a client no matter what?

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Re: Codes of conduct

Post  Chris on Wed Nov 07, 2012 7:06 am

Ace Ventura wrote:
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.

Chris wrote this in the other interesting thread re courts and prosecution.

Whilst written in codes of conduct, this must be stretched to the limit in many cases. People are still defended when we pretty much know they are guilty and get off on loopholes or technicalities all the time.

To be honest many are not brought to trial due to stuff that is almost beyond comprehension!

Is it a case of doing the best for a client no matter what?

Ace,

For me this is pretty straight forward. Everyone is innocent until PROVEN guilty.

We have an adversarial system. Designed to get to the truth through conflict. In very real terms the defence and the prosecution have a scrap and the winner is largely decided through who does the best presentation job. I often make the point that lawyers are like singers. Great singers can make a terrible song sound fantastic. Bad singers make the best songs sound terrible. In this instance the song is the case and the evidence.

It is the same in court. Evidence is evidence and facts are facts but so much rests on the opposing lawyers ability to present their case rather than the facts that it is quite frightening.

As far as telling lies about guilt or innocence then is is absolutely and without doubt unequivocally prohibited. You cannot knowingly make false representations. That said, you are obliged to present the strongest possible case for your client. That means arguing and testing the evidence and the prosecution case where you have a not guilty plea and it means for a guilty plea providing pertinent mitigation where appropriate.

You CANNOT defend someone as not guilty if you KNOW they are guilty. That isn't a suspicion, it's not a hunch, it's not even a belief that they are probably guilty. That's a certainty that they are guilty. i.e. they have confessed OR the prosecution case is unassailable and unequivocal. That gives a lot of scope for defence lawyers to state that they can defend their client. Indeed, they are morally and professionally obliged to defend that person to the best of their ability, no matter how repugnant they may personally find the individual and the charges they face. That is the greatest aspect of the system, it is blind to the individual and everyone is equal.

Do not forget, it is not for the defence to prove innocence. It is for the prosecution to prove guilt beyond a reasonable doubt. With that burden of proof I honestly find it amazing that anyone ever pleads guilty! Yet the majority do. (see my previous comments about why people plead guilty!)

You also have to take into account the fact that it is not the defence lawyers decision on whether something comes to trial or not. That rests with the CPS and the investigating police force. Decisions are made on the basis of "public interest" and the strength of the case. The defence don't have any input into whether the trial proceeds or not the evidence and the prosecuting parties on behalf of the public make that decision. (I am on record as saying that "public interest" is a nonsense and meaningless notion used to justify decisions not to proceed which basically rest on the likelihood of conviction rather than any greater good).
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Re: Codes of conduct

Post  Dave on Mon Nov 12, 2012 1:20 pm

Chris said:
"We have an adversarial system. Designed to get to the truth through conflict. In very real terms the defence and the prosecution have a scrap and the winner is largely decided through who does the best presentation job. I often make the point that lawyers are like singers. Great singers can make a terrible song sound fantastic. Bad singers make the best songs sound terrible. In this instance the song is the case and the evidence.

It is the same in court. Evidence is evidence and facts are facts but so much rests on the opposing lawyers ability to present their case rather than the facts that it is quite frightening."

This is very sad but true. It is wrong that this is the way that a lot of court cases are decided. I find it disgraceful, and it does nothing to encourage me to put any faith in the legal system, even if it is all we have. No No No
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Re: Codes of conduct

Post  Chris on Tue Nov 13, 2012 4:16 am

Dave wrote:Chris said:
"We have an adversarial system. Designed to get to the truth through conflict. In very real terms the defence and the prosecution have a scrap and the winner is largely decided through who does the best presentation job. I often make the point that lawyers are like singers. Great singers can make a terrible song sound fantastic. Bad singers make the best songs sound terrible. In this instance the song is the case and the evidence.

It is the same in court. Evidence is evidence and facts are facts but so much rests on the opposing lawyers ability to present their case rather than the facts that it is quite frightening."

This is very sad but true. It is wrong that this is the way that a lot of court cases are decided. I find it disgraceful, and it does nothing to encourage me to put any faith in the legal system, even if it is all we have. No No No

Hey Dave, you wouldn't want the inquisitorial system either! i.e. French. It's a nightmare for a whole different set of reasons. Adversarial is the lesser of two evils and at least there are a good number of checks and balances in our criminal justice system.
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