I broke the golden rule in criminal defence: the less evidence the better. And it is the client who pays when a barrister makes a mistakeby Alex McBride / November 20, 2005 / Leave a comment
When a barrister makes a mistake, it is his client who pays, and in criminal law the price is often imprisonment. Nothing you say can make it better, as I discovered when Arthur, a 23-year-old client of mine, was charged with arson. On a drunken Saturday night, Arthur and some friends had driven to a half-built industrial estate to steal diesel for his van. The fuel caps on the diggers were all locked, so someone thought of burgling the temporary offices that had been erected on the site. Arthur smashed a window with his elbow, slicing his arm. The lads helped themselves to computers and drove back towards the exit, allegedly to see whether the police had been alerted. No one came. Feeling braver they returned to a second complex of offices, six feet from the one they had just burgled. At some stage soon thereafter, the second complex burned almost to the ground.
In criminal trials it is for the prosecution to prove a case beyond reasonable doubt. The prosecution’s take on the gang’s return to the site was this: Arthur ransacked the second complex and then, realising he had bled profusely, set the fire to cover his tracks. The prosecution had photos. His blood was everywhere. The spatters were marked out with plastic numbers. It looked like a crazy-golf course. Arthur had also bled on the computers, which had been found neatly piled in his flat. The weakness in the prosecution case was that the blood had been found at the first set of offices—but it was the second complex that had burned down. My case was simple: if you wanted to break an evidential link, why torch the wrong building?
The prosecution had one eyewitness, a 17 year old called William. In a previous statement he had recalled Arthur saying, “Let’s go back. I’m going to torch the place.” William was the witness who glued the circumstantial evidence together. If convicted, Arthur was looking at five to six years. With live witnesses, a jury can use only what they say in court. When questioned by the prosecution, William hadn’t mentioned Arthur’s words. There is a golden rule in criminal defence: the less evidence the better. If something hasn’t been said, shut up. Sticking too closely to my notes, which assumed William would have given Arthur’s “verbal” to the jury right between the eyes, I picked up a…