‘He which hath no stomach to this fight, let him depart; his passport shall be made, and crowns for convoy put into his purse.’
If you have come to me, most probably you are in trouble with the criminal law and want to be defended, hopefully found not guilty or given the lowest possible penalty. So what do you get from me? What is the ‘art of defence’?
Firstly, as the Shakespearian quote from Henry V indicates, you get a lawyer up for the fight. If I am less than fully committed to you and your defence I am not doing a proper job and am not worth the trust you place in me. I am a bad loser and will do all I ethically can to act in your best interests.
Secondly, you get a lawyer who will make the prosecution work. If they want to convict you of whatever you are accused of, they will have to work for it. They will have to prove every required element of the offence and they will have to show the prosecution is fair and in the public interest. And I won’t make it easy for them. In our free country, the burden is on the prosecution to prove you guilty, and I won’t let them forget. In the immortal words of John Mortimer’s famous comic creation Rumpole, the prosecution will not make a ‘balls of the burden of proof.’
Thirdly, I will live up to the maxim of leaving ‘no stone unturned’ in your defence. That means not just dealing with the obvious but actively taking measures to defend you, finding material that can assist you, questioning the prosecution case, striving to achieve the best result at all times, and finding unorthodox arguments to challenge the prosecution and improve your case.
And fourthly, I will always strive to be one step ahead of the prosecution. I will be better read than them, better prepared for hearings, will never leave their case unchallenged and will continually place the burden of response back on them.
Years ago I went for a job interview. The interviewing partner was married to a senior lawyer in the Crown Prosecution Service. She described me in defence terms as a ‘complete nuisance.’ It was a badge of honour I still proudly wear today.