Defence lawyer, David Wells discusses the challenges of defending murder cases.
I have represented clients in some of the country’s most high-profile murder cases. I am currently advising and assisting one particular client whose murder trial has attracted more publicity than virtually any other. That case is currently with the CCRC and there is much optimism about a future appeal.
Murder investigations, murder prosecutions and murder trials are invariably factually and legally complex. Cases of this type present many challenges and require considerable experience and intuition. They are invariably dealt with by more experienced police officers, more experienced prosecutors, defence lawyers and judges, and all for good reason.
Violent crime on the increase
Nowadays, the death of another is an ever-increasing consequence of conflict. One could argue that this is linked to the apparent increase in the possession and use of knives and other weapons. Violent crime is undoubtedly on the increase. Home Office figures for 2018 show a 19% increase in violent crime recorded by police in England and Wales. Certainly, for some of the inner-city regions such as London, death as a result of homicide (murder/manslaughter) appears to be spiralling out of control.
Defending murder cases
My interest in representing and defending clients facing investigation and subsequent prosecution for murder and other complex crimes has never wavered. Although having to deal with a case that involves the loss of life is never pleasant, representing a client facing trial for murder or manslaughter draws upon every legal skill and attribute that you possess as a lawyer.
Establishing the issues early
When you are first instructed in a murder investigation or prosecution for murder, your mind turns immediately to how the case might be defended. Is it a case of mistaken identity? Was the death an accident? Does the client have an alibi? Does forensic evidence link the client to the scene or the deceased? If so, is there an innocent explanation for this?
Other issues are often live as well, such as intoxication through drink or drugs, or whether the suspect or defendant has the capacity to form any criminal intent at all due to mental illness. Was the client acting in self-defence? Have the police wrongly assumed that the client is guilty just because he was present at the scene? Is there a potential defence regarding the application and interpretation of the law of joint enterprise? Did the client intend the deceased to die, or even be injured at all?
In most murder cases you need to adopt an investigative approach. Your immediate thought is to find out as much as you can about the crime scene as if you were the first detective to arrive on scene. The crime scene can invariably say so much about what may or may not have happened. All sorts of relevant considerations apply. Did the police make any mistakes, or could they have done? Have the police been flawed in the assumptions they have made about what happened?
Knowing what to look for and knowing what to do to assist a suspect facing trial for murder requires not just experience as a criminal defence lawyer, but experience in dealing specifically with murder cases. Defending murder cases requires a forensic approach. Every aspect of the police and prosecution case needs to be carefully scrutinised and tested. You need experience of dealing with forensics, telephone and electronic data, pathology evidence and expert evidence generally. From experience comes the confidence to challenge experienced police officers and prosecution lawyers.
Focus on the facts and not the emotion
Murder is one those offences which immediately conjures up an adverse reaction toward the suspect. Experience tells you to ignore such sentiments and focus on the facts. Being accused of murder can never be pleasant, but the reality is that many people who are charged with murder are genuinely not guilty of that offence.
One problem that can arise in murder cases is that the police and prosecution can develop a ‘theory’ early on as to who is responsible for a ‘murder’ and how it happened. They can then not be prepared to listen to alternative theories or explanations. This creates a burden on the defence to disprove the ‘theory’. A more experienced lawyer will not just seek to undermine any weaknesses in the prosecution case at trial, but will actively investigate police and prosecution claims with a view to dismantling the theory in any every way possible. An example of this could be that the police and prosecution may misinterpret innocent text messages or phone calls. The police are looking for evidence to implicate a suspect to try and build a case against them. In their attempt to do so, they may look to interpret texts and electronic communications in such a way that is completely wrong.
I have been involved in cases where the police and prosecution at trial have tried to suggest that texts and communications were to be read in such a way that meant that my client was part of a conspiracy to kill, were consistent with an intent to kill, or were consistent with guilt generally. Closer inspection can often reveal quite innocent interpretations of such communications. Equally, there is always a real danger that the police and prosecution will try and establish a motive by something a defendant did or said to someone which in reality has a quite innocent or plausible alternative explanation. Furthermore, cases that involve multiple defendants can often result in considerable potential injustice under the principle of joint enterprise.
A case in point
A few years ago, I defended what I regard as the most tragic prosecution of my career. A lady in her 70s charged with killing her husband. She was his prime carer at home. Regrettably, he developed sepsis and died. She was said to have caused his death because of her alleged ‘lack of care’ for him. The reality was that she was barely able to look after herself let alone her husband as well. The case was difficult and both legally and factually complex. The correctly identified experts were instructed and together with one of the best jury defence barristers I have ever come across, she was rightly acquitted. It was a fascinating case and demonstrated just how important experience is in order to identify how to negate the prosecution case with a view to successfully defending a very serious charge.
How can I help?
This article is specifically aimed at defending murder cases, but the basic premise of having a lawyer defend you in any serious case who has the necessary experience is the same. If you, or someone you know, is currently released under investigation in relation to a serious allegation and you need any advice at all, simply get in touch. Please contact David Wells on 07939 026751 or call Wells Burcombe in London (West Drayton) on 01895 449288 or in Hertfordshire (St Albans) on 01727 840900 or by email via our contact page.