Interview: Understanding the importance of defence lawyers in fair trials

The first major international conference focusing on the role of defence lawyers in guaranteeing a fair trial was organized by the OSCE and held in Tbilisi on 3-4 November 2005.

One of the speakers at the event was Louise Christian, a UK lawyer who gave a presentation during the session on equality of arms (the principle that each party should have an opportunity to defend its interests under conditions that do not put it at a disadvantage) during criminal proceedings. She gave this interview to the OSCE's Office for Democratic Institutions and Human Rights (ODIHR).

Why do you think lawyers matter in countries that are not really democratic?

I think that lawyers always matter, but in countries where democracy is on a knife edge, it's particularly important because lawyers help people to fight for their rights. Increasingly, there's an understanding internationally of what human rights are, so that lawyers in countries where democracy is under threat can get support from lawyers in other countries, which is very important when lawyers themselves are threatened because they are advocating human rights. Now we have a number of NGOs and organizations such as the OSCE that offer international solidarity to lawyers in countries where they are under threat. I think that's very important.

You have defended people charged with terrorism-related crimes. What is it like to defend someone who is seen as an enemy by the authorities, whether it's someone who is up on terrorism charges or, as happens in many parts of our region, people who are disliked for political reasons because they are in opposition to the authorities?

I think that it is important that a defence lawyer is strongly on their client's side and tries to overcome any prejudice that there is. We have a responsibility as defence lawyers to present our client's case and to ensure that there is a presumption of innocence. Very many times in cases that I have been involved in, although the client may have the full force of the state ranged against them and although there may be massive prejudice against them, they in fact turn out to be found innocent of the crime with which they are charged.

Sometimes in my country, this wasn't established immediately. We've had a series of miscarriages of justice, particularly in the period when there was a lot of trouble in Northern Ireland, and Irish people were sent to prison for long periods of time for crimes they didn't commit because of political prejudice. I think that illustrates the necessity of being very careful that you are not convicting people on the basis of prejudice, maybe because of their beliefs or because of their religion, but that you are only convicting people on evidence. The role of the defence lawyer is to ensure that this happens.

How does it compare to defend people who are charged with crimes such as terrorism-related offences, sexual assault, child molestation or murder? Is the principle of presumption of innocence applied equally in all cases?

There is a real problem with terrorism cases because there is often a political motivation by the government in bringing the charges, and actually there may be more pressure to convict someone who is accused of a terrorist crime than someone who is accused of multiple murders or something of that sort. The government is involved not only in terms of the usual obligation on the state to bring to justice someone who has committed a crime but also in terms of politically being seen to solve a problem that threatens all its citizens, i.e., terrorism.

Very often, governments also use terrorist prosecution as a cover for suppressing political ideas that threaten the ideology of the government at the time. And this is the thing that human rights lawyers particularly have to guard against, that terrorist prosecutions against their clients are not based on objective evidence of the commission of a crime but are based on the desire of the government to see their ideology prevail and the ideology of the opposition suppressed.

Have you been involved in cases where the public assumes that your client is guilty, where the media claim that your client is guilty, and where people ask you how you can defend a particular person, saying that it's clear that that person is guilty? How do you respond to that?

Yes I have. It's every lawyer's duty to put forward their client's case and to represent them and to abide by the presumption of innocence. That's what our system is supposed to protect. Unfortunately, even in my own country, where we have laws that are supposed to prevent the media from prejudging things - we have a strong contempt-of-court act that is broken by the media, and the attorney-general, who is a government officer who is supposed to enforce that law, does not enforce it properly because he is concerned that if he intervenes, then the trial will get into difficulties. There are prejudgments by the media, but I think there's also a tradition of people understanding the presumption of innocence. In the courtroom, the jury is told not to take notice of anything that is in the media. I think that our jury system is an important protection for people who suffer from the fact that they are being prejudged as guilty, because, actually, ordinary people are often better at overcoming their prejudices than judges are.

What is your view of the impact of a jury on the fairness of a trial? Do you think that the presence of a jury can change the public perception of a particular trial?

I think that the jury system is absolutely crucial and fundamental to the presumption of innocence being maintained, because juries are told to decide things on the evidence that they hear in front of them in the courtroom, and there's very good evidence that that is in fact what juries do.

Why do you think this topic - the role of defence lawyers in guaranteeing the right to a fair trial - is important? What is the relevance of guaranteeing a fair trial to the development of democracy?

I think it's fundamental to a democracy, but I also think that all democracies are imperfect. This concept of equality of arms becomes very difficult when you have a prosecution conducting a trial that may be politically important to the government and in all sorts of ways, it's often quite impossible to get real equality of arms.

Do you think that's something that applies everywhere?

I think it applies everywhere, including in Great Britain and the United States. So, I think that there is a common bond between defence lawyers everywhere that it is very difficult to get equality of arms, so therefore we all need to ask ourselves questions about how we can best do this and about how we can best overcome the obstacles that I believe everybody has to achieve equality of arms before a court.

I think that in a developing democracy, where there hasn't been democracy for very long, there may be particular difficulties in securing a fair trial, and there may also be particular pressures on lawyers who may themselves be harassed, prosecuted, and identified with their client. One of the fundamental UN principles on the role of the lawyer is that the lawyer should not be identified with the client. And, obviously, you may defend someone to the very best of your ability, and they may still be found guilty, and they may be found guilty because they are guilty. But you should not, as a lawyer, be identified with that person no matter how heinous their crime.