“My Clients Plead Not Guilty” is a phrase I seem to recall from the advertisement of a venerable defence lawyer whose legacy was built well before there was any such thing as the ‘World Wide Web’. Slogans can often mean nothing, and this one would not be original in any event. Nevertheless, “my clients plead not guilty” is a motto I strive to fulfill.

It is generally understood that as many as 90-95% of accused persons actually plead guilty without a trial of any kind (even when the accused pleads guilty, there can still be a trial to determine what are the precise facts affecting penalty). While I have not deliberately analyzed in-house statistics, I have no doubt that my clients plead guilty significantly less often than the norm. This is not to compare myself to other defence counsel, for the statistics allow no such analysis. Many people plead guilty without even having the benefit of a properly instructed criminal lawyer in the first place. Some do so out of ‘convenience’ against the advice of a lawyer. Also, when and whether to plead guilty is something about which reasonable professionals might reasonably disagree.

Obviously, certain cases demand a plea of Not Guilty and a full trial on the merits. There is no room even to discuss the prospect of pleading guilty.
Yet the statistics are inevitable. The overwhelming majority of cases are resolved by way of guilty pleas. How and why some lawyers might conduct more or less guilty pleas than others is not the question. It is perhaps more interesting to note that even where there is no room to discuss the prospect of pleading guilty the system virtually requires such discussions to take place as a precondition to scheduling a trial.

How many accused people end up pleading guilty when they should not is a question that concerns me greatly but not one that I should answer here. How and why my clients exercise their options and rights, and how they come to give me final instructions is a question I can answer. My clients instruct me in a manner that is truly and fully informed, with confidence about the likely outcome. Again I respectfully submit that an accused person’s most important decision may be the choice of retaining an experienced criminal defence lawyer in the first place.

Needless to say, if a lawyer’s general approach and reputation is to take matters to trial and to put the crown and police to every burden known to law, that lawyer is more able to negotiate the best deal available in those matters where it may be in the client’s best interests to plead guilty.

Obviously the choice of whether to plead guilty or not guilty is of fundamental significance, but there are also many other critical decisions to be made between the time a charge is laid and its final disposition. In spite of the justice system’s best intentions, the unrepresented accused is inevitably disadvantaged. Accused persons who retain experienced counsel put themselves in a position to control the outcome favourably, truly aware of all available options – especially the option of confronting and challenging the police and Crown rather than bowing before them. We bow only before the Court. In return for this, the Court promises to ensure that it is the evidence and the law which determine the outcome rather than the Crown’s  superior material resources.