Law: Case for defence

Lawyers who represent the world's Pinochets and Wests must often mount another defence - of the justice system. By John-Paul Flintoff
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The Independent Online
It's the question that all lawyers fear at dinner parties. A question you should never ask them, not if you want to retain their respect. However, it has picked up extraordinary potency in the last few weeks. It goes like this: "How could you possibly represent him?" Or, alternatively: "Don't you feel awful acting for her?"

Others express it more forcibly. Take the angry crowds outside the High Court last week, who gathered to confront Michael Caplan, of law firm Kingsley Napley, after he had represented General Pinochet over Spain's attempt to have him extradited. That crowd, filled with opponents of Pinochet's military regime, did not express its enquiry quite as politely.

And Mr Caplan is by no means the only lawyer associated recently with an unpopular cause - or, as some might put it, with defending the indefensible. Other lawyers, too, have been dismayed at the reaction to their work on behalf of, for example, Michael Stone, the man convicted of killing Lin and Megan Russell; Richard Gee, the judge who was excused a second trial because of his mental and physical condition; or Myra Hindley, who last month asked the Court of Appeal to reconsider her sentence.

"It's a terribly irritating question," says one criminal barrister who prefers to remain anonymous. "Nobody asks this sort of thing of doctors. And nobody blames prison staff for feeding Hindley."

Acting for seriously unpopular figures is perhaps the ultimate professional challenge. It can mean sudden and shocking fame, endless press calls in the middle of the night, reporters on your doorstep and hate mail from the public. "You do ask yourself the question: could I represent this person in the face of all this hostility. And the answer has to be a resounding `yes'," says Louise Delahunty, a partner with Peters & Peters, who managed to avoid those particular problems when she represented Judge Gee and who has had to defend the Attorney General's decision not to proceed with a retrial.

Mark Stephens, of Stephens Innocent, who has been involved in several controversial cases, recently defended the artist who made sculptures out of stolen body parts. He once acted for an artist who created ear- rings out of freeze-dried embryos. "As a lawyer you take what comes," he says.

However, not all solicitors feel quite the same way. One who prefers to remain anonymous admits to having turned away the National Front as a client. "But I don't think they have too many problems finding legal advice," he says.

Barristers - operating under the "cab rank" rule - are supposed to accept whatever case comes their way (although they can always get round this by saying that they are too busy to take on something unsavoury). "You defend people because they need it," says one barrister. "Pinochet could hardly represent himself, because he was in hospital, and others may not have the nous, the education or the experience to do so."

"The point is," says another solicitor, "that you don't have to do this work. But if you do, you have a duty to do your best for the client. You have to remember that you are just part of the legal process."

Understandably, defence lawyers place great emphasis on this point. If they defend someone successfully, only for the same person to carry out an identical crime after being released, that is not their fault alone. The judge may be equally to blame for producing an inadequate summing- up. And so may the prosecution, for failing to set out its case with sufficient skill.

If defendants come to court without legal representation, they will not be adequately defended. Who cares? Everybody should, because this is not some dry, abstract talking point. If the entire legal profession had unanimously decided not to represent Rosemary West, she would have had an excellent basis for appealing against her conviction and could by now have been released. As it is, she had the benefit of a robust defence, and it is reasonable to assume that her conviction is safe.

Many now argue that defendants in rape cases should be deprived of the right to carry out their own cross-examination of victims, because that right was abused last year in a particularly unpleasant case. But if defendants can't represent themselves, who will, if not a lawyer?

Solicitor Andrew McCooey was running a group of Christian lawyers in Kent when he was approached by an intermediary to represent Myra Hindley. This posed problems. He only took on the job after consulting his wife, who also works at his firm ("we talked through the effects on the family and the firm if I took on such a hated figure"). And, with his wife's agreement, he visited Hindley at nearby Cookham Wood prison (he went on to represent her for seven years before handing over to a firm in London, Taylor Nichol).

The job involved more than strictly legal work. "On the one hand you try to convince the court," says Mr McCooey, "but you also have to deal with the media because it is often public opinion that influences the Home Secretary on whether she gets parole."

As Mr McCooey's experience shows, acting for notorious clients by no means guarantees good fortune for lawyers. "The phones just ring off their hooks from the moment I get back to the office to the time I leave," says Mr McCooey. "Acting for high-profile killers can be profitable work, but it's not that profitable because you spend so much time dealing with the press - and you can't get legal aid for that. You'll be sitting down to your Sunday roast and the tabloids call, or you'll be about to go to bed when the phone starts."

It was a grim experience. "I knew I would come in for a lot of abuse," he says. "But it was worse than that. People said that I actually ended up damaging my career. I lost clients, commercial clients, who said that they were not willing to instruct me any more."

Taking on unpopular or vilified clients is a difficult decision - but there is an important point of principle at stake. "By trying to get Hindley out," says one barrister, "you aren't saying it doesn't matter about the horrible murder of those children in 1965. People might think: `Oh, it's only her, let her rot.'

"But this is about treating everybody equally before the law. If this was somebody else - somebody who hadn't been cast as such an ogre, for so long - most people would be absolutely outraged that she was still in prison."

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