The Devil’s Advocate

Published

George Binning weighs up the scales of criminal justice with Scottish legal heavyweight Donald Findlay Q.C.

If you believed everything you read in the tabloids, Donald Findlay QC would be a name to steer clear of. This is a man who only ever seems to appear in connection with the most horrible crimes, who has forged a career no doubt in gleefully hypnotising juries into acquitting the hardest criminals and murderers. Although there are two sides to the story, it is rare for Mr Findlay to defend himself in public. He claims he has no inclination to speak to the press, or have anything to do with them, made clear by his refusal to let us photograph him.

“Given the way I regard the media as having misrepresented and mistreated me in the past, I don’t frankly see why I should waste my time talking to them. I haven’t read, bought, looked at a newspaper for ten years. Principally I wouldn’t waste my money on a paper, I don’t read them and if that upsets them I don’t care.”

The highest earner in the Scottish legal trade for three years running, Findlay has lead the defense in a number of infamous murder cases including Peter Tobin, Luke Mitchell and ex-soldier Michael Ross, who was convicted last year for the murder of Shamsudden Mahmood in Orkney in 1994. He has most recently been recruited to defend Tommy Sheridan against his perjury charge.

Although he would not discuss any of his cases past or present, I was keen to hear, straight from the source, why those accused of the worst crimes needed and deserved the strongest legal representation available.
Findlay explained, as he continued his denunciation of the popular press, that the image of court proceedings portrayed by the media was far from accurate.

“Generally the media are not interested in justice, they’re only interested in sensationalizing certain aspects of the trial. And that, I came to the conclusion, has been evidenced over the years because when in a major trial someone is acquitted, you never see that as being heralded as a triumph of the Scottish legal system. Its always presented along the lines of: another guilty man walks free.”

One of the most admirable, yet difficult to grasp, aspects of criminal law is the dispassionate approach which a lawyer must take with their clients. This became quite evident in speaking to Findlay, who never seemed to let his professional guard down, and his opinions, though often controversially phrased, seemed well grounded.

“If your professional role is to represent someone charged with a crime then the nature of the crime is almost irrelevant, any more than would a consultant cardio thoracic surgeon, confronted with a patient who had a lengthy criminal record for child killing or child abuse, say, ‘Well I’m not going to try very hard for him’, of course he would, it’s his duty. He does not make a value judgment on the person in front of him, that is not his job.”

To illustrate his point further, he recalled a time in 2002, when journalist James Doherty had written a condemning story about him for the Scotsman. Although it was very difficult to get past his unwavering professionalism in the field of law, Findlay certainly was not holding back his distaste for the media.

“Some years ago I was asked casually if I would defend Osama bin Laden, and my answer was ‘yes of course’. Some journalist somewhere wanted to run this great story that I was prepared to defend Osama bin Laden, until somebody else pointed out to him that if I wasn’t prepared to defend Osama bin Laden, that would be a story. The fact that I was wasn’t a story at all. The reality is that if I had been around in 1946, I could have found myself representing the Nazis at the Nuremberg trials and of course I would have done that because it was my professional responsibility.”

Whilst his point served its purpose in the wider context of our discussion, I could easily understand how his outspoken manner was easily picked up upon in the press.

It follows, then, that accepting a client’s instruction is also a question of professionalism, but I wanted to know how far a criminal lawyer would put their trust in an accused suspect’s statement. Again Findlay was a model of good practice, adamant that he had no personal opinion on the subject.

“You will test it to some extent obviously, for example if a person says I have never been in that bank which they say I robbed, but his fingerprints are found inside the bank vault, then you would have to point out to him that that would tend to indicate that he is either a safe maker or a safe breaker and that his position that ‘I have never been in that bank in my life’ does not appear to hold good.

“If somebody comes to me and says I committed this crime, I’d like you to get me off, then we would part company there and then. We don’t sit around with various defenses on the shelf and pull one down and say ‘that’s the one for you my boy’.”

Findlay’s career frequently puts him in the unenviable position of devil’s advocate, but his description of his role in the perspective of the Scottish legal system as a whole was based much more on principle than pragmatism.

“You really have to go back to the fundamentals of what the legal system is all about, which is very seldom, if ever, portrayed. In a free society, if you take the view, which we do in this country, that if the state makes an allegation against one of its citizens of a criminal act, and it doesn’t make any difference if it’s a minor criminal act or a serious criminal act, our law says it is the duty of the state to prove it…. An accused person is entitled in an open court, to have the allegations against them tested and that quite simply is what defense lawyers do. Very often the claims the prosecution makes are, to say the least of it, optimistic.

“It is the job of the court to decide the guilt of the accused, and it’s our job to make sure the evidence is tested, and if it stands up to that scrutiny and the accused is convicted, that seems to me that justice has been done. If you test that evidence and it doesn’t stand up to scrutiny and the accused is acquitted, that also seems to me that justice has been done. If you don’t like it, don’t bitch about it.”

In 2008, the Scottish Parliament began to discuss a proposal to revise the double jeopardy law — a law which prevents a citizen being tried for the same crime twice. Findlay was extremely critical of the idea, highlighting a number of the issues it raised for an accused suspect and their lawyers.
“The double jeopardy is a huge issue; there are so many ramifications to it. For example, where do you draw the line? If somebody is acquitted can you come back five, 10, 20, 25 years later and reopen it? What if an essential witness for the defense has died in the meantime? What if evidence has been lost?

“The basic principle of the law is if you are tried for the defense, you are tried once. Now if an appeal is successful you can be retried, the crown can have another go, but I believe the state should be given one opportunity to prove guilt, and if it fails to prove guilt then that should be the end of it. Otherwise you just leave the thing open ended and it brings a level of uncertainty to the whole legal system that is not in the interests of anybody.”

While I certainly would not like Donald Findlay’s job myself, and perhaps because of this, I do admire his dedication. It can’t be easy to suffer the accusations leveled by the media, and when the importance of one’s role in a free society is understood by relatively few, it must take a steadfast constitution as well as a fantastic legal mind to take on such notorious and challenging cases.