Charged With a Crime

Here's what happens. When someone is charged, Police prepare what's called a “Summary of Facts” a document setting out the allegations. In my experience, that summary changes remarkably often once the real evidence comes out, because the truth is usually somewhere in the middle. But its first job is to tell the Judge what Police believe happened. Police are a respected and integral part of any functioning society — they protect us, detect crime, and help keep things running so we can all get along. Because of that, the picture Police allege is taken seriously, almost as though it has already happened. I fear the presumption of innocence, a fundamental human right we all have has become little more than a token remark. It shouldn't be. So when that summary goes before a Judge, alongside a person's criminal history if they have one, it paints a picture of risk. You can almost hear the prison doors slamming shut before I've even opened my mouth to say: your Honour, the reality here is quite different from what you've just read.

To make matters harder, the party making the accusation is also the party that decides, in the first instance, what evidence the accused gets to see. That's the formal process of disclosure. This is exactly why having a lawyer who cares and who is prepared to hold the Police to account matters so much. A good lawyer applies for further disclosure, sets out its relevance, and keeps pressing so that what counts as “relevant” isn't defined solely by the person making the accusation. The accused has a mind too, one that's entitled to say: but what about this?

Far too often, I come across files, nearly every file I've worked on, where these disclosure requests are necessary, or where the Summary of Facts shifts as more comes to light. It's heartbreaking.

The tipping point for me, the case that cemented my path as a defence lawyer, was one I actually prosecuted. A man had spent two years in custody on remand, waiting for his day in court. I was handed the file at the last minute, thrust into trial because of COVID-19 disruptions. I loved it; being handed a file at short notice is simply the nature of the job as a prosecutor. It was exciting.

But what struck me was the theory the prosecution had been running for two years: an unhinged man, roaming the streets late at night, stabbing another person. The picture at trial was nothing like that. It turned out his own sister had been badly beaten, injured, bleeding, and he had stepped in to save her. All of this was information available to, and known by, Police at the time of arrest. There was no evidence identifying who had actually done the stabbing, despite ample CCTV footage in the area and security guards on site who were never even spoken to, just the word of the pack of young men most likely responsible for beating his sister so badly in the first place.

I questioned a great deal from that point onward. Gratefully, the defendant was acquitted. The jury, twelve good minds of the North, saw the evidence for what it was, and let him go. That doesn't undo the two years already lost, two years of change that could have happened in this man's life, opportunities missed that will never come back. Not long after, I left prosecuting to work for people, individuals, up against the full weight of the state, who need someone in their corner. Often they are among the most looked-down-on people in our society. They still need help too.

None of this is an attack on Police. I do feel for them. The job is overwhelming, and society asks them to wear more hats than any one person reasonably can. They're often in situations where they're unwanted and abused, and still have to make split-second decisions. As a lawyer, I know hindsight serves my career well, it's easy to ask, "Officer, do you think you could have handled that better?" from the comfort of a courtroom months later.

But once a charge is laid, it's game time, and the preparation for that game needs to start immediately. You have to be ready. You have to be fair and open. Justice has to be given to the accused. Charging someone is only the beginning. Seeing a charge through to trial properly should not be an afterthought. Too often, once someone is charged, Police move on to the next job without weighing what that means for the person left behind. Bail is opposed. People sit in jail awaiting trial, or struggle to secure bail and end up relocating to another region entirely. Their lives are upended. They're judged. They lose family, loved ones, partners, children.

I struggle with the harshness of this job, but the law is harsh, it has to be. Lady Justice carries a sword for a reason. What I can say is that this system can do better for the people caught up in it, and so much of that comes down to the lawyer standing beside them. A lawyer who cares. A lawyer who understands that this role is bigger than themselves.