Presumption of Guilt


Lawyers often a get a bad rap merely for doing their job. Take for instance the lawyer defending two brothers charged with terrorist related offences. He stated that he would explore every constitutional freedom available to them in their defence, including, if they were heading overseas to fight for ISIL, their freedom of religion.

A number of people pounced on this and claimed it was outrageous. Civilization will end if this is successful.

Well, maybe, though it hasn’t ended yet. The defence is unlikely to be effective for a whole bunch of reasons but that shouldn’t stop their lawyer from at least trying it. Certainly popular outrage shouldn’t impact on his legal arguments either.

The simplest thing is to simply allow no defense to people accused of heinous crimes. I mean, if the police or the secret service thinks they committed a crime, it must be true, right?

Really? Exactly how often do they have to be dead wrong before you begin to doubt their judgement? The police are there to gather evidence that might point to a crime and, if they gather enough, the prosecutor may choose to lay charges. Then you have a trial, which hopefully will lead to something resembling the truth. In order for that to work the defendant needs the strongest possible defence.

Remember, the state has a massive apparatus to achieve its ends — hundreds of police, dozens of lawyers — while the defendant is lucky to have a decent lawyer willing to put up a stout defence.

Lawyers like that aren’t threats to civilization; they are its bulwark. The rule of law means something very specific. It means that courts must be held in public and not in secret, that defendants are innocent until proven guilty, that everyone deserves the best defence that can be mustered for them. Everyone seems to think the system is weighted toward the criminal, the guilty. But no one is a criminal until convicted.

The courts are and should be protective of the innocent — innocent victims and innocent accused. Where bias exists, as it historically has in cases of sexual assault, it should be rooted out, but even then the balance between the state and the accused must be level. And lawyers who are prepared to go against the popular instinct for the presumption of guilt should be lauded and not condemned.

Judge all you want — it’s natural. But the state of nature is not civilization and the presumption of guilt, which comes so readily to most people, must never overwhelm the hard fought victories for justice.

But that’s ten minutes.


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