The lawyer, the accused person

A conversation which I overheard at a funeral recently confirmed the widely held but erroneous view that persons accused of a serious crime do not deserve legal representation.

 A heated conversation ensued among a group of middle-aged women who were genuinely upset at the manner of death of the deceased: brutally killed whilst defending his property, in an armed robbery. 

One of these ladies made the poignant statement, “No doubt! The criminals will just hire a lawyer who will get them off.”

That statement is pregnant with all the negative sentiments harboured by some people.

The general view is that persons accused of a crime should be left to rot and should not be permitted legal representation. 

However, there are good reasons why all persons accused of a crime should be availed of the full gamut and extent of competent legal representation.

Not least, because they may be innocent after all. 

Widespread

This widespread misunderstanding of the work of criminal defence lawyers is not only wrong but also undermines the overall confidence citizens may have in the administration of justice. 

The perception is wrong because the ethics of the legal profession do not allow lawyers to knowingly defend an accused person if the lawyer is aware that his/her client did indeed commit the offence. 

The code of ethics of the Bar expressly prohibits this and any lawyer who disobeys is subjected to disciplinary proceedings which could lead to a long suspension. 

I remember vividly, whilst doing my pupillage, how my pupil master had to dramatically pull out of a major trial at the Old Bailey in London when our client confessed to the crime during the trial.

The erroneous perception in Ghana is that defence lawyers fiercely defend accused persons even when they know them to be guilty of the charges.

 It is, however, a lawyer’s duty to fearlessly defend a client if the person professes his/her innocence.

Of course, if the evidence is overwhelmingly against the accused person, the lawyer can explain why it would be better to plead guilty. 

In other jurisdictions, pleading guilty before trial attracts a discount; sometimes up to a third of the total sentence.

So there is an incentive to plead guilty if the evidence against the accused is strong. 

Clear cut

There is no clear-cut provision in Ghanaian law which allows this.

Therefore, accused persons are reluctant to accept counsel’s advice to plead guilty even in the face of overwhelming evidence. 

It is hoped that the government will amend the criminal code and put this discount for an early plea of guilty on the statute books, as this will go a long way to saving precious time and financial resources for the state.

Some may question the rationale for legal representation for persons accused of crime.

There are important legal and human rights reasons emanating from the United Nations, and most modern constitutions guarantee the right to legal representation.

 At its most basic, the right is an important cog in the wheel of the preservation of social order.

Society

Society has devised a system to preserve peace and maintain social order.

This entails the creation of a criminal justice system which is founded on the principles of fair trial. 

Rules and procedures are in place to ensure that whoever is accused of a crime is given all the necessary facilities and time to defend him/herself. 

This system legitimises the institution of law whilst promoting public confidence in the system, which ultimately leads to social stability and peaceful co-existence. 

An accused person is, therefore, given a whole array of rights to ensure that he/she can properly defend the allegation. 

These include but are not limited to, the right to a lawyer, both during police questioning and at trial, the right to be presumed innocent until proven guilty, the right to not be pronounced guilty until the prosecution proves their case beyond reasonable doubt, etc.

When all these are strictly adhered to and an accused person is found guilty at the end of it, he/she cannot complain or fault the system.

This process legitimises the law, which in turn promotes societal stability.

In conclusion, it is very important in modern democracies to provide accused persons with legal representation and fair trial provisions to promote social stability. 

If the evidence is strong, no smart lawyer can get a guilty person off.

However, an unfair trial can be very devastating to an individual as it can lead to loss of liberty, reputation and, in some cases, life.

The writer is a lawyer.

E-mail: georgebshaw1@gmail.com