The peace of our society rests upon the rule of law. Disputes are resolved in court, not through retaliation. Allegation replaces a call to arms, evidence replaces vengeance, and judgment replaces violence. An impartial tribunal hears both sides and delivers a decision that binds both. Yet that process only works if both sides are given fair opportunity to test the evidence and challenge the case.
A criminal prosecution begins with an imbalance of power between individual and State. The State alone may arrest, search, seize property, prosecute, and deprive a person of their liberty. Those powers exist to protect society, but they are also amongst the most draconian a democratic state possesses. For that reason, they must be exercised according to law and subject to independent scrutiny. The greater the power, the greater the need for restraint.
Faced with the prosecution of a notorious defendant, people often ask how such a person can be defended. The question rests upon a misconception. Representation exists not to vindicate the accused, but to test the accusation. The Crown must prove its allegations according to law. A defence advocate does not diminish the Crown’s powers. Proper representation provides legitimacy to any conviction by demonstrating that it has survived independent adversarial scrutiny.
Some defendants evoke such revulsion that many instinctively conclude they should enjoy no legal protection at all. Wayne Couzens is an obvious example. Yet the same principle would have denied representation to Sgt Martin Blake, who was ultimately acquitted after being prosecuted for the shooting of Chris Kaba as he drove a vehicle at officers. It would have denied representation to the innocent victims of Carl Beech’s false allegations. It would also have denied representation to Lucy Connolly, whose prosecution continues to divide public opinion. What unites these cases is not their facts but the impossibility of deciding before trial, who should be denied the ordinary protections of the law. To decide that question in advance is to usurp the function of the trial, whose very purpose is to determine guilt or innocence.
The right to deny an allegation is not the same as the right to legal representation. Without this, a defendant cannot properly test the prosecution case without knowledge of complex rules of evidence, disclosure and procedure. An unrepresented defendant is rarely equipped to test expert evidence, identify defects in the prosecution case or challenge inadmissible material. Nor can a judge undertake that role, as he has a duty to be an independent arbiter of the competing arguments. Independent representation exists therefore not as a privilege for the suspect, but as a safeguard that ensures the Crown’s case is properly scrutinised.
Representation also serves the public interest. A defendant receives advice on the strength of the evidence, the availability of any defence and whether an early guilty plea is appropriate. Advocates identify the issues that require determination and agree what is not in dispute. Without that assistance, defendants are more likely to contest everything, making trials longer, more expensive and unruly. Witnesses may be questioned by an intemperate defendant with little understanding of what may be legitimately asked.
The question is not whether today’s defendant deserves the protection of the law. It is whether we are prepared to weaken protections that belong to every citizen because we dislike the person who needs them today.
