April 22, 2012

For the defence

Filed under: Europe, Law — Tags: , , — Nicholas @ 11:09

Paul Mendelle explains why the Breivik trial in Norway seems so strange to those used to British or American court practice:

It’s the dinner party question that every barrister gets regularly asked — how do you defend people guilty of such terrible crimes as murder, rape and paedophilia? It’s a simple enough question, and one I expect to hear often now that the Anders Breivik trial is under way, but there’s not a simple answer. The query raises issues that go far beyond mere problems of professional ethics. It touches upon matters of fundamental constitutional importance to us all.

The shortest answer is to say that we don’t defend people who are guilty of these crimes; we defend people who are accused of them and who tell us they are not guilty. Contrary to just about every drama series on TV, barristers do not provide their clients with defences. It’s the other way around: clients give us their instructions, and we are bound to act strictly upon them. The joke among barristers is that if we were in the business of providing our clients with defences, we’d come up with something a damn sight better than they do.

[. . .]

But while we are obliged to take our clients’ cases and to act on their instructions, we are certainly not obliged to act as their mouthpiece. Quite the contrary, the court is not to be used as a soapbox from which the defendant spouts political views. We are obliged to defend the man accused of racially motivated crime if he is adamant he is not guilty, but not if he wants to use us to justify his racist views. And if we did, the judge would stop us.

That’s why the Breivik trial seems so strange to the eyes of an English lawyer: because what is being proffered by Breivik does not appear in any legal sense to amount to self-defence. No individual has the right to resort to mass murder to defend his country, as he claimed when he concluded his ludicrous evidence. The court does indeed seem to being used by him as a platform for him to express his twisted views and while it has had the very good sense to impose a broadcast blackout, I cannot imagine that an English court would allow the defendant to give that evidence, or to call the sort of witnesses he plans to call. I hope I never have the occasion to be proved right.

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