ACTIVE DEFENCE PHILOSOPHY
A revolution in criminal defence practice began in England in the mid-1990s, resulting in widespread adoption of Active Defence practices.1 We are applying the lessons learned in England to set new standards of best practice in Queensland.
Traditionally, defence lawyers used passive tactics. “Let’s wait for the evidence”, “It’s best to tell us nothing for now”, “Don’t ask a question if you don’t already know the answer.” There were good reasons for these strategies. After all, the person accused does not have to prove their innocence. The prosecution must prove guilt and prove it beyond all reasonable doubt.
All too often these strategies become an excuse for inaction and delay. Sitting back, saying nothing and waiting might seem safe, but it can also harm the defence of an innocent client. For example, a witness can disappear, or their memory fades. CCTV evidence can be wiped automatically when the tape is re-used. Such lost evidence might have helped free the accused.
The right to silence is an important protection for an accused person. But it is not always best to stay silent. A powerful statement in interview can sometimes put an end to the investigation. It may also sway a jury if the case goes to trial (and avoid any need for the accused to stand in the witness box and be cross-examined).
- Solicitors should be active and present at the police station and intervene in interviews when necessary.
- Case preparation should be early and intensive.
- The risks and benefits of any action should be explained to the clients who always make the final decision.
- Work should only be performed by qualified solicitors, or under their close and regular supervision. (We remember one notorious case where a solicitor delegated all the preparation work for a murder trial to his unqualified sister because the solicitor was in other Courts all day and supervision meant, “If she had a problem she could come to me.” His poor client served 14 years before being freed on appeal. To this day the solicitor thinks he did nothing wrong.)
- A solicitor must never be a post office, simply passing paper to a barrister.
- A solicitor must brief Counsel early; ideally as soon as the depositions are received. Counsel and the client should have met to discuss the case well before an indictment is presented.
- No-one should ever feel bullied into pleading Guilty or Not Guilty. Lawyers are servants and advisers. Clients are their masters and deciders. A solicitor should always respect a client’s final decision.
Call us now to find out the difference an Active Defence approach can make to your case. Call 3377 0107 for a free initial consultation.
- “Standing Accused: The Organisation and Practices of Criminal Defence Lawyers” McConville et al, OUP, 1994; “Active Defence” Ede R., Law Society 2000.
- In the classic case a passive lawyer at the police station was held to have contributed to a false confession, “the solicitor who sat in on the interviews seemed to have done that and little else. It seemed that his presence might have actually rendered a disservice since the officers might have taken the view that unless and until the solicitor intervened they could not be criticised for going to far.” Paris, Abdullahi and Miller  Crim LR 361
- Adams  EWCA Crim 1
- It should go without saying, but unfortunately not in practice. One academic characterised the “Guilty Plea Culture” like this:
“The defence commonly trails the prosecution in adopting a strategy of case disposals through guilty pleas. In addition to those cases in which defendants voluntarily admit guilt and choose to forgo trial, guilty pleas become an achieved outcome of the intervention of defence lawyers and the way they handle clients. Defence lawyers approach their work on the basis of standardised case theories and stereotypes of the kind of people who become involved in criminal events; images of clients as feckless and dishonest are allowed to structure the way their cases are handled from the outset; the views of clients are given little weight and their accounts not investigated; and the case proceeds on the basis that the lawyer knows best in a context in which all the incentives point towards a guilty plea.” M. McConville, “Plea Bargaining: Ethics and Politics” (1998) 25 Journal of Law and Society 572