Austin Anderson-Brettell answers the question "How do you defend someone you know is guilty?" and explores what this question reveals about the ways criminal defence work is misunderstood.

"How do you defend someone you know is guilty?" It is a question I have been asked more times than I can count.

It is usually framed as a moral challenge, as though representing a defendant is the same as endorsing what they may have done. It isn't, and the confusion around that point sits at the heart of one of the most persistent misconceptions in criminal law.

Representing someone who is potentially guilty is not about condoning their conduct. It is about protecting their rights and ensuring their case is presented fairly, whatever plea they enter.

It is not my job to establish whether my client's account is true, though I will often ask questions to clarify instructions.

Deciding guilt or innocence is a matter solely for the court, or the jury, depending on where a case is heard. It is not my job to establish whether my client's account is true, though I will often ask questions to clarify instructions.

I can, and do, assess the strength of the evidence and advise on the merits of a case. What I cannot do is pass judgment or claim to know the truth. My job is to take instructions and present the case as fairly as the evidence and the rules allow.

Guilt admitted, plea not required

A client admitting guilt to me does not automatically mean a guilty plea follows. Most clients, once they understand the evidence against them, accept pragmatic advice to plead guilty. But some choose to contest a case regardless, and the adversarial nature of the criminal justice system makes that their right.

My professional obligations run in both directions. My duty is to my client and to the court.

If a client has admitted committing an offence, I cannot then present evidence to the contrary, and I cannot allow a client to give evidence I know to be untrue. Where that happens, I would have to withdraw from the case.

If a client has admitted committing an offence, I cannot then present evidence to the contrary, and I cannot allow a client to give evidence I know to be untrue.

None of this means a not guilty plea without a viable defence is dishonest. If a defendant wishes to plead not guilty, the Crown Prosecution Service is still required to prove its case through admissible evidence, and the court is still required to treat the defendant fairly.

Defence solicitors are not, as is sometimes assumed, spending their time devising ways to mislead a jury. Our role, where the Crown is put to proof, is to test the reliability of witnesses and evidence, not to obscure it.

Presumption of innocence

One principle is too often forgotten in criminal litigation: the presumption of innocence until guilt is proven. A not guilty plea, entered before any evidence has been heard or challenged, can attract hostility and confusion. That reaction only reinforces the misconception that defence solicitors are somehow acting dishonest by doing their job.

Until evidence has been tested, guilt should not be assumed. Miscarriages of justice, repeated over the years, are the clearest reminder of why the right to defend a case matters. The system must not presume guilt. Guilt has to be proven.

From defence to damage limitation

Many cases involve overwhelming evidence and a client who accepts they are guilty. Where that advice is accepted, my role shifts from contesting the case to limiting the damage: negotiating pleas to lesser offences, agreeing pleas on a specific factual basis, and presenting mitigation that gives the court context for what happened, not just the offence itself.

My task is not to argue against punishment, but to help ensure any sentence handed down is fair, lawful and proportionate.

That mitigation matters. An offence can occur during one of the most difficult periods of someone's life, in circumstances that do not reflect who they truly are. My task is not to argue against punishment, but to help ensure any sentence handed down is fair, lawful and proportionate.

An uncomfortable but necessary job

Defence work is rarely glamorous. It can be uncomfortable, unforgiving and thankless. But defence solicitors protect the rights of individuals who are often frightened, ashamed and vulnerable, at a moment when they most need someone in their corner.

Some of my clients are guilty and remorseful. Some are not guilty at all. Either way, I cannot do this job on the basis of personal feelings about a client's character. We act as a shield for people facing the full weight of the justice system, often navigating an unfamiliar and intimidating process for the first time.

We act as a shield for people facing the full weight of the justice system, often navigating an unfamiliar and intimidating process for the first time.

That shield is the uncomfortable reality of the job: the same protection that shields the guilty today is what protects the innocent tomorrow. It is better, as the old principle holds, that ten guilty people escape than one innocent person suffers.

Criminal defence solicitors work with people at some of the darkest moments of their lives. If you don't feel passionate about that, you are in the wrong job.

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