Monday, 11 February 2013

Discretion Advisable: The difficult case of Venables’ Lawyer

In February 1993, 10 year-olds John Venables and Robert Thompson were convicted of the brutal murder of toddler James Bulger. Recently, presumably to tie-in with the 20th Anniversary of the event, Venables’ former defence solicitor – Laurence Lee – gave an interview to the Herald Scotland, raising issues about the appropriate role and attitude of a criminal defence lawyer in the police station and beyond. The interview was notable for Lee’s tendency to blur the lines between the personal and the professional in this context, and his willingness to tread dangerously close to the boundaries of client-lawyer confidentiality.

The murder of James Bulger was and remains an exceptional case, striking a universal chord across the UK. I was 7 years old at the time, only a little younger than Venables and Thompson; like anyone else, I can’t imagine even the slightest possibility that I, or any of my friends, would commit or even contemplate such brutal actions. The benefit of hindsight allows us to regard Venables and Thompson as vile and sadistic killers. But at the time, the possibility that two children could have kidnapped, tortured and murdered a toddler seemed inconceivable. As such, it was essential that both suspects were defended properly; revealing the truth seemed an awful prospect, but to ensure justice for James Bulger, it was imperative that the facts be established accurately, fairly and legitimately.

The views expressed by Lee make interesting reading in this light. As a human being, one can certainly forgive and understand the obvious affect the case had on him; very few would be immune from the impact of such traumatic events. This comment does not pretend that Lee is a robot. But the interview may represent some revisionism on Lee’s part in assessing his feelings at the time; otherwise it raises issues about how committed he was to the defence of his client, Venables – at that time, a child in a police station without the infamous reputation he now has.

Criminal defence lawyers are required to act as neutral partisans – detached, non-judgemental advocates for the client and his or her interests, whoever that might be, whatever the allegations. This is justifiable on the bases that all are innocent until proven guilty and should be able to access qualified representation before the law. As the duty solicitor assigned to Venables’ case, Lee’s role throughout both the police interview and the subsequent trial should have been to advance and defend the interests of Venables as robustly as possible, within the law.

Lee’s descriptions raise questions about his representation of Venables. The interview is peppered with emotive language, suggesting a less than sober approach – an essential requirement of his job. For example, Lee describes how Venables was ‘angelic-looking’; this is irrelevant and should have no influence on the professional approach of a defence lawyer.

Lee supposedly asked of himself: ‘What am I doing here? He couldn’t be capable of anything like this’. Again, this is contrary to the demands of the role – personal instincts and assumptions should be entirely divorced from professional duties, which require the lawyer to protect the client before him or her. To personally invest in the innocence of the suspect – in this case, simply because he was a child – is arguably as unhelpful as automatically assuming there is ‘no smoke without fire’, obstructing detached, sober and robust protection of the client. The answers to Lee’s questions should therefore be straightforward.

Lee described the job as ‘the easiest money’, which seems a rather naïve conclusion for a criminal defence solicitor. It should have quickly become obvious that, of all possible scenarios, this case seemed highly unlikely to be simple. Again, this seemed to derive from an assumption that no child could commit the acts Venables stood accused of.

It displays a somewhat prejudicial approach – the defence lawyer’s belief in their client’s genuine innocence or guilt is irrelevant. They must defend them within the limits of the law, protecting the client’s rights and confidences but without lying or deceiving. In contrast to this proactive professional, Lee’s description suggests a man who seems to follow the proceedings as an engrossed observer.

Lee also stated he would have ‘happily’ prosecuted Venables and that his ‘number one sentiment’ was for the Bulger family. This could be interpreted in two ways; either Lee was satisfied to both prosecute and defend suspects generally, or he would have derived satisfaction from convicting this particular client. The former reflects a detached, professional attitude, free from personal association or investment in the client (whether it be the state or the suspect).

The latter, however, is problematic. Had Lee been uninvolved in the case, one could understand his overt disdain for Venables; but his job was to defend him, and test the police case as thoroughly as possible. It raises questions about his commitment to his client. As a professional, regardless of personal feelings, Venables should have been ‘his number one sentiment’, or more appropriately his number one ‘priority’. Had he been unable to separate his emotions from his duties, it would have been wise to have withdrawn. Which interpretation Lee intended is unclear.

On a different note, Lee also mentioned his fear of reprisals and even assassination. This is entirely understandable. The case was widely covered in the media and has remained a benchmark for the worst type of criminality in this jurisdiction. Notwithstanding his role as a professional, many may have associated Lee with Venables on a personal level – as someone who approved of and defended his horrendous actions. This fails to recognise that a defence lawyer is not as one with their client, and they do not defend their criminal actions – they defend the rights of a person not yet convicted.

The defence lawyer is an essential requirement of any fair and legitimate criminal justice system. The professional defends, not out of empathy for the accused, but because all should be represented before the law, the rights of the innocent protected and the guilty convicted as the result of a legitimate, balanced and thorough investigation. To target Lee as a sympathiser would therefore be seriously misguided.

More generally, Lee seems comfortable with or at least oblivious to his troubling approach to confidentiality – a duty that continues after the dissolution of the client-lawyer relationship. He describes Venables’ statements, behaviour, and moods in very private settings – for example, a client conference with Venables’ barrister. Presumably, Lee assumes that since Venables is a despised figure forever trapped by necessary anonymity, the obligation of confidentiality no longer subsists. This is, of course, false. Lee’s decision to ‘spill the beans’, presumably for a fee or perhaps to rehabilitate his name, is inappropriate and arguably unethical (in the professional sense). After all, a (good) doctor would not publicly divulge past consultations with famous or controversial patients.

Lee’s empathy for James Bulger and his family, and horror at the nature of the case, are entirely understandable. He drew a difficult hand, but was nonetheless bound to fulfil a critical role; had he felt professionally or personally unable to handle the case, he should perhaps have passed the brief to a more experienced colleague as quickly as possible. Lee saw it through and that is very much to his credit. But in describing his experiences, he should have clearly marked a line between his professional role and personal feelings. By blurring the boundary between the two, he has undermined the integrity of his position as a defence lawyer in this infamous case.

No comments:

Post a Comment