I am frequently asked how can I, as a former Procurator Fiscal, justify defending someone I know is guilty? I am then usually asked how can I justify defending someone charged with a particularly horrible crime?

The simple answer is that I have always believed in Justice and continue to do so.

To understand this, it is necessary to consider the real difference between being guilty in legal terms and having committed the crime. The difference is crucial and is at the very heart of Justice.

Turning this question around, we can consider what is meant by innocence. It is why those emerging from court after a not guilty verdict are quite wrong in proclaiming they never committed the crime and the verdict proves it. It does no such thing. A not guilty verdict only means that the Crown has not proved they were guilty. It does not prove they never committed the crime. It may well be that the not guilty verdict was because they never did anything wrong. But it equally may be that they may have done something wrong, but, what they did, simply cannot be proved.

The difference is not simply legal semantics. The concept of being innocent until proved guilty is common throughout civilised society for good reason. The effect of that is that it really does not matter whether or not he committed the crime, he must be treated as innocent until he is proved guilty. If the appropriate authority cannot establish his guilt, he remains innocent in law.

One does not have to look back too far to see what happens if this fundamental requirement is ignored. Simply consider the show trials under the Nazi and Communist regimes. The flagrant abuse of Justice there demonstrated led directly to the European Convention on Human Rights, which contains Article 6 “Right to a Fair Trial”. Article 6 [2] states “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” That is nothing new. It is simply a restatement of what has been part of our law for centuries.

To return to the first question, the reply must be how can I justify not defending someone whom the law presumes to be innocent? What right do I, or anyone else, have to act as prosecutor, judge and jury in his case? Justice and the rule of Law demand that he be defended and not presumed to be guilty. If we as a society fail to support this stance, we are doomed to anarchy.

It follows that it is even more important to have a proper defence in the more repugnant cases to ensure that justifiable feelings of disgust and anger play no part in deciding his guilt or otherwise.

Justice requires the case to be proved.

You may ask where is the justice for the victim? It is no coincidence that the symbol for Justice is a set of scales. In one pan is the right of the accused to a fair trial. In the other, are the rights of society and the victim not to have criminal offences committed. A balance has to be achieved. In arriving at that, society has to decide what weight is to be given to each element. The result is what constitutes Justice.

That balance is also why it is right that it is for the Crown to prove that someone is guilty and why, if it cannot be proved, he must not be condemned. It follows that the issue is not whether or not he committed the crime, but whether the Crown can prove it. What else are we to accept? Convict those who admit it, whether or not they actually committed the crime? Can we be confident that all such “confessions” are genuine and freely made? The history of appeals would suggest not. What about those who are less honest and do not admit it? Are they to get off because they were dishonest but their more honest co-accused are punished? Do we really want to reward dishonesty and punish honesty?

What then if my client tells me he is guilty but wants to deny it? He too is innocent until proved guilty. The Crown still has to prove its case. However he will not be allowed to give evidence in his defence, as I would know he was committing perjury.

As I have already said, it is for good reason that civilised society requires the prosecutor to prove his case. The result is that there will be times when someone committed a crime and is not punished for it, at least not in this life, but it also means, as far as can be made possible, that the truly innocent are not convicted. Today’s victim may be tomorrow’s accused. Change the balance at your peril.