Without fear or favour part 2
Last week I wrote about the silk prosecuting in the recent prosecution of Sir Stephen Richards, Court of Appeal Judge. This week I would like to consider the same professional considerations in respect of the QC who was defending him.
The pressure on the defence silk would have been enormous. Had he been found guilty, Sir Stephen's career would have come to an abrupt end in ignominy. Since committing such a crime would have been frankly bizarre for someone in his position, and given the high regard in which the judge was held, many lawyers would have been likely to assume that the defence had bungled it had Sir Stephen been convicted. Being known as the person whose lack of skill had led to a premature end of a glittering judicial career would not be an appealing prospect.
Nor could he have considered too much the personal anguish of Sir Stephen and his family. Not because the QC was not bothered, but because he was there to do a job. Fairly and fearlessly. Worrying about the consequences of getting it wrong would have just hampered him from doing the job he had to do.
Sir Stephen's defence was a simple one. I did not commit the crime. I was not there. That is inevitably the case in mistaken identity cases. There are some cases where the defence is very different. (Say someone charged with assault who admits striking a blow, but says that they were defending themselves from being attacked by the other person: that is a straight conflict of evidence between the alleged victim and the alleged perpetrator). For someone who was not there, and who had nothing to do with whatever went on, there is little they can say other than that they did not do anything wrong and were not present at the alleged events.
This always risks a dilemma for the defence advocate. Broadly speaking there are two alternatives. Either a crime was committed and the client has been arrested as a result of mistaken identity. Or possibly a crime was not committed at all. The client has no positive case to put one way or the other. So do you challenge or explore whether a crime was committed? This can be a case of damned if you do, and damned if you don't. If the evidence for a crime appears poor and you do not challenge its existence, then if the identification seems strong it is too late in your closing speech to suggest that even if the identification is correct, there was no crime at all. (If you're going to challenge a witness's evidence you have to do it when you are cross-examining them). However if the victim when giving evidence seems obviously truthful, having challenged the victim might end up undermining points about identity.
This is a common dilemma. However rarely will an adverse verdict effectively finish someone's life (although occasionally it will). In those cases, as with this defence, defence counsel has to think extremely carefully about the right line to take.
The defence purely challenged the question of identification. It was plain from the judgment that the court regarded complainant as extremely credible and were in no doubt that an offence had been committed. However given the identification evidence Sir Stephen was acquitted. (It is a commonplace that identification evidence is dangerous precisely because truthful people are so often wrong about it, and it is very easy to identify the wrong person because of the vague similarity to the person who actually did it). Defence counsel plainly took the correct line. Since everyone can be wise after the event, had he taken the wrong line it would have been all too easy for people to criticise him.
Ultimately though, as with the prosecution, he did what he had to do. Worked out the right way to present case without worrying who might take what view afterwards. Of course in the event the only view anyone could take was that he approached the case in exactly the right way.