“How can you represent someone you know is guilty? - A view from the Criminal Justice Clinic

Lecturer in law, Emma Curryer writes about a question she is often asked and how we focus on it with students in our Criminal Justice Clinic project.

“How can you represent someone you know is guilty? “ I hear you ask. 

As a criminal solicitor, who has both prosecuted and defended, this question, or at least a version of it, is the one that I am always asked.  My law students often feel a need to conceptualise, and ponder on, what they might do in the future as a criminal lawyer with a social conscience.  Will they be able to act for a client they know, or think, is guilty?

When asked this question I have a stock answer: Justice. One word with many meanings.  On one level, justice to me is the aspiration that everyone is equal in law and should be given a fair hearing. Theoretical maybe. In practice, too often not the case.

So, what about miscarriages of justice? The concept of justice might be subjective but surely a just and fair society doesn’t want an innocent person to be convicted and serve endless years incarcerated.  The law also acknowledges that it would be wrong for a person to serve years in prison having been wrongfully convicted.  Please don’t get this confused with innocence, a person might well be guilty of an offence but convicted on tainted evidence or as a result of a failure within the criminal justice system. Maybe the judge was wrong on his summing up or the police obtained a confession through inappropriate means. Justice requires that the prosecution process has to follow certain rules for any conviction to be considered ‘safe’.

History is filled with cases where miscarriages of justice have occurred. One only has to consider the Birmingham Six (R v McIlkenny & Others) , and more latterly the Post Office Postmasters’ cases (Hamilton & Others v Post Office Limited) to understand the awful and far-reaching effects that a wrongful conviction can have.  

Enter the Criminal Justice Clinic.  A pro bono project run within the Open Justice Centre.  It has been set up this year to  give students an opportunity to research and advise on live criminal cases under the direct supervision of a solicitor.  They consider the evidence and unused material on cases where the convicted defendant continues to protest their innocence. Students apply legal principles to determine whether there are any grounds for referral to the Criminal Cases Review Commission.  They look at whether the conviction is safe and whether the sentence is manifestly excessive. In doing this task, students are participating in the criminal justice system.  They are also playing their part in ensuring that a miscarriage of justice has not happened, and, if it has, trying to resolve it.

During their time with the clinic students will have an opportunity to gain professional legal skills such as legal writing and research, professional ethics, negotiation, workload management and collaboration.  They deal with a wide variety of cases such as murder, manslaughter, robberies, assaults, burglaries, and firearms.  The workload is large and often pages of evidence can run in to the thousands.  Participation in the clinic is not for the faint-hearted.

Before participating in the clinic, students are trained in criminal law, appeal and legal skills including vicarious trauma.  A bit like Marmite, some students love it, and others hate it. It also gives students an indication of whether criminal law is for them.

However, the clinic is much more than that.  It is about making sure that everyone has a voice and is listened to.  The clinic is a small, university-led research project with social justice at its core.  It epitomises justice to me and answers the question at the start of this blog: whatever I think about someone’s guilt or innocence, justice requires that they should only be convicted on evidence which is beyond reasonable doubt.

References

R v McIlkenny & Others (1991) EWCA Crim 2

Hamilton & Others v Post Office Limited (2021) EWCA Crim 577

Emma Curryer

Emma Curryer is a solicitor and lecturer in law at The Open University. She set up and manages the Criminal Justice Clinic.