Towards the end of the 18th century, the English jurist William Blackstone wrote, “It is better that ten guilty persons escape than that one innocent suffer.” The theory of Presumption of Innocence prevails that, “The accused is innocent until proven guilty.”
This means that the Court will not convict an accused of a crime until he is found guilty. The prosecution has a liability of evidence, that is, to prove the accused as guilty and under the duty to prove it beyond reasonable doubt. If a nominal suspicion is raised by the defence with sufficient evidence, the accused is entitled to be released. Meanwhile, there are crowds of innocent people in Bangladesh prisons. There are many more who were unjustly punished when charged under criminal law against them.
Whether it is the brutality of the NusratJahan Rafi murder case (Feni) or the Rifat Sharif murder case (Barguna), after observing some recent criminal incidents, these are the most random opinions of the common mind. It is very clear that ordinary people are aggressive towards a rapist or a murderer but it is also important for them to understand that no one can be identified as a criminal unless proven guilty.
Consequently, expert defence lawyers are often attacked by the public for dealing with such cases, nowadays these can be seen on social media. Lack of minimum legal knowledge leads the public to discredit the character of lawyers.
Basically it is the lawyer who decides which case he is going to deal with. According to Bangladesh Legal Practitioners and Bar Council Order and Rules, 1972 Chapter-II, Section-9, Bangladesh Bar Council Canons of Professional Conduct and Etiquette it is embodied that- it is the right of an advocate to undertake the defence. Section 12 of the chapter states: Full of judicial disfavour or public unpopularity, no fear can discourage him from his duty.
In addition, if the defendant fails to appoint a lawyer, then the court will appoint a defence lawyer. In highest penalty cases, if there is no lawyer to stand, the State will appoint,which is called ‘State Defence’. Defence must be present during the hearing, otherwise it will not be possible to take the statement of the defence witnesses, to calculate and measure the defenceevidences - which are barrier for the Court to find the truth, the prosecution might be dictatorial and try to misdirect the Court, in consequence, may vitiate the trial and lead to injustices.
An important principle of natural justice is the Audi AlteramPartem - a Latin phrase that means listening to the other side. An essential aspect of natural justice is that all parties must be heard before making a decision.
At the end, let me leave you with an example. Suppose you are driving happily on a spring day. To catch the aromatized air, car windows were open. A bee flies in and bites on your face. You drive over a bicyclist. He was crushed to death. Next, you are charged with murder. Technically, you are guilty because you did it. Do you think you don't have rights to have a lawyer? Would it be unethical to hire a lawyer for you?
The writer is a Barrister