Law &
Morality
In the last issue I talked about ethics
and how solicitors are governed by
regulations, a code of ethics which set
out certain behaviours which can be
expected of solicitors when they deal
with their work. In many ways such
ethics are the cornerstone of what it
takes to be a solicitor. However, it leads
me to reflect on the wider issue of the
relationship between law and morality.
Sometimes it isn't easy to see the two
hand in hand.
When I was a criminal law practitioner,
the usual (and dreaded) cocktail party
question asked of me was “how can you
defend someone when you know they
are guilty?" It is such a common question
asked of lawyers that in the USA it is
known as "the question" as in "oh, I've
just been asked the question".
I don't think I ever gave the same
answer to "the question". It depended
on what mood I was in. I felt I needed
to say, just to counter TV police drama
propaganda, that if a client told me they
were guilty but still wanted to plead
not guilty, it was almost impossible
to represent them. Some TV dramas
I have seen would have you believe
otherwise, but there is a conduct rule
that says you can't knowingly let your
8
client give evidence that misleads the
Court, so if someone says they are
guilty to you but then fabricates an alibi,
you can't just lead them through the
alibi as if it were true.
I also sometimes went on about a
person's right to have their case put as
well as possible, so even if you felt the
client was guilty, and that their "defence"
was less than credible, you still had a
duty to advocate it in a way that put it
in the best light. This sometimes also
extended to arguments about the less
fortunate individual against the might
of the state and sometimes I was able
to give an example of a case where the
client was almost certainly innocent and
I had succeeded in getting that message
across to the Court, but inevitably it
makes you think of cases where clients
manage to evade justice, with your
legitimate help, and makes you reflect
on whether that is really why you chose
law as a career.
In such instances, it does not feel as if
the law as it is practised always gives rise
to just outcomes.
On the other hand, laws that protect
rights such as the presumption of
innocence, the right to have one's case
heard, and the right to be free until such
time as proven to have committed an
offence are all fundamental protections
in a democratic society, and removing
or curtailing them is the mark of a State
overreaching its authority.
There have been some recent judicial
lectures around these issues of law and
morality, and the historical reflections in
those lectures do make you think about
whether there should be any attempt to
link law and morality at all. For example,
how about this;
In re Besant (1878) it was held that
the publication by the activist Annie
Besant of a book about contraception,
which was found to constitute an
obscene libel, was sufficient grounds for
removing her seven-year-old daughter
from her custody.
Or this;
Following the Report of the Committee
on Homosexual Offences and
Prostitution (The Wolfenden Committee)
(1957), Lord Denning denounced the
“evil” of homosexual activity as “so
wrongful and so harmful that … it should
be publicly condemned and, in proper
cases, punished”.
Look at the date on this last quotation
and perhaps even more surprisingly,
look at the author of the comment - Lord
Denning - famous for his liberal and
anti establishment views, and the Court
of Appeal leading Judge that granted
various rights to cohabitees (subsequently
overturned) to try and bring them more
into line with married couples.
Happily, neither of these views would
be likely to form the basis of any
judgement by a Court today, and of
course legislation has helped remove
issues such as the correctness or
otherwise of homosexuality from the
hands of the Judges, but there are still
good arguments in favour of thinking
that law, and the way it is interpreted in
the Courts, should reflect the values of
the society in which it operates.
Judges still retain a great deal of
discretion about how some issues
should be dealt with, and rightly so. It
is not possible to legislate in a way that
could remove the need for an individual
to assess what would be a fair outcome
where difficult choices need to be
made, and in such situations, it is right
that Judges should attempt to ground
their decisions in a set of values which
hopefully reflect wider opinions of fairness.
I have dealt with cases where I felt that a
Judge reached the right decision without
necessarily ensuring that the facts lined
up behind that decision, and I have also
dealt with cases where I felt the Judge
had decided the matter in a way that did
not properly reflect a wider view of what
justice should have looked like.
An example of the latter is a case which
in many ways is an example of the folly of
litigating on a matter of principle. An elderly
client decided to cut down a hawthorn
bush at the bottom of his garden. The bush
was slightly beyond a fence but the client
believed that the bush was within his land.
Needless to say it wasn't, and the bush
was in fact on land belonging to a wealthy
and (as it turned out) litigious neighbour
who promptly issued a Writ (as they
were then known) for Trespass claiming
substantial damages.
At the time the client was presenting
himself. Had he come to us earlier,
we could have advised that he had no
arguable defence to the action, and
would have strongly advised him to settle
soon and as cheaply as possible. By the
time he came to us, he had lost at Trial
and was facing an enormous claim in
legal costs, payable to the neighbour in
addition to her claim for damages.
Under the current Court rules, this would
not be as likely to happen. First, if this
were to happen now, the neighbour
would be penalised in legal costs for
having gone straight to Court action
without v