One of the most entrenched and harmful myths about the justice system in Scotland is that criminal defence solicitors are for the guilty. It causes a reluctance to seek representation by none other than those for whom early, effective legal assistance is most important: the innocent, the wrongly identified, and those who are caught up in a system whose complexity they do not understand and whose consequences they have not anticipated. Solicitors like McGovern Court Lawyers represent clients in every facet of criminal charges, because the need for good legal representation depends on the circumstances a person faces, not on whether they actually committed the crime they are accused of.
How Innocent People Become Accused People
The path from innocence to criminal accusation is shorter and more travelled than most people assume. Mistaken identification is a known cause of wrongful prosecution, and not all witnesses are always correct. The conditions under which identifications are made in real investigations are far from the controlled circumstances that produce reliable recall. Investigations of false allegations, whether made in a spirit of personal grievance, for financial gain, or due to a lack of understanding of what actually happened, are taken seriously by the police and pursued when they occur. Presence at or near the incident in the early stages of an investigation is enough to raise suspicion, even if no culpable conduct occurred.
The Complexity of the Legal Process Regardless of Guilt
The stages of criminal procedure in Scotland are: arrest, custody, interview, charge, petition, indictment/complaint, and a preliminary hearing or a trial diet, all of which have several procedural requirements, rights and strategic decisions. The individual who goes through that process alone is making choices with the ramifications of which they may not be fully aware, and is also likely to be in a high state of emotional stress. Questions in a police interview, whether to answer, how to answer a specific question, and what information to provide or withhold, are not decisions that lend themselves to being made without advice. Those decisions can affect the entire subsequent process.
The Police Interview as a Critical Juncture
In Scotland, it is a fundamental right to have access to legal advice before and during a police interview and using it does not imply guilt, but rather an understanding of the interview as a formal procedure with legal implications. An innocent person who thinks that simple cooperation will lead to a speedy resolution of the issue may unwisely give evidence which is inconsistent with the evidence of the witnesses, or which gives rise to inferences which were not warranted, or which closes off lines of defence which could otherwise have been taken up on proper preparation. A solicitor at or consulted before a police interview ensures that the client is aware of the nature of the interview and is in the best position to respond.
What the Presumption of Innocence Actually Requires
Innocence presumes that the Crown must prove guilt, and that proof must be to the exclusion of reasonable doubt. That is not a passive protection – it involves active defence work to ensure that the evidence on which the Crown relies is properly analysed, disclosure obligations are complied with, procedural requirements are satisfied, and any weaknesses in the prosecution case are identified and pursued. A person who a lawyer does not represent cannot do that, and a person who is represented by a solicitor who is not specialising in criminal defence may not do that either.
The Consequences of Conviction for an Innocent Person
The impact of a wrongful conviction goes beyond the conviction itself. The impact of a criminal record extends beyond the legal proceedings and impacts employment opportunities, professional licensing, travel rights, and personal relationships. If you are a professional such as a teacher, doctor or other regulated person, just a conviction for a minor crime can be the end of your career. The consequences of a miscarriage of justice are great enough to warrant the best representation possible, no matter how expensive or inconvenient it may be to obtain.
Early Representation and the Ability to Shape the Outcome
The sooner the criminal defence lawyer is brought in, the more influence the solicitor has on the course of the case. During the investigative stage, prior to any formal charges being laid, there is the possibility of providing a structured statement that covers the evidence against the client, identifying and preserving evidence on behalf of the defence, or challenging the basis on which the investigation is being conducted. However, if a charge has been filed and the case is now in court, those early opportunities have been lost. Representation instructed promptly, in response to the first indication that a person is under investigation, has the greatest scope to achieve a good outcome.
Representation as a Right, Not a Last Resort
Getting a criminal defence lawyer is not an admission of guilt; it is a sign that there is a criminal matter, no matter how trivial it may seem at the outset. What may appear to be simple investigations can get complicated. What may seem like a minor charge can have much deeper implications than one realises at the time of the charge. The choice of an innocent person to seek early representation from a solicitor with the appropriate experience for the particular situation is the choice that affords them the best possible protection in a system which, while just in its design, can lead to unjust results.
David Prior
David Prior is the editor of Today News, responsible for the overall editorial strategy. He is an NCTJ-qualified journalist with over 20 years’ experience, and is also editor of the award-winning hyperlocal news title Altrincham Today. His LinkedIn profile is here.
