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A barrister’s advice: give the devil the benefit of the law

When he spoke at Warrane on 22 April 2015, Sydney Barrister Gregory J. Stanton gave College residents an insight into what motivated him to enter the legal profession. He said one of the main things that inspired his successful career spanning almost 30 years as a defence lawyer in NSW was seeing the film “A Man for all Seasons” in the early 1970s.

He said the thing that impressed him most was a conversation between the central figure in the movie, the Catholic Saint, St Thomas More, and his soon-to-be son-in-law, William Roper.

“More was in a dilemma,” Mr Stanton said. “He was the king’s High Chancellor. He was also the king’s great confidante and he was the king’s great friend. The king had introduced into parliament a bill to effectively annul the marriage that had been on foot between himself, King Henry the Eighth, and Catherine of Aragon for many years.

“The bill required the king’s closest servants, those in parliament – of which More was among the prime members – to swear allegiance to the King and to the Church.”

Mr Stanton noted that More not so much refused to swear allegiance but declined to do so and remained silent.

“He did so because, as a very astute, a very skilled, and a very capable lawyer, he understood that he could move within the constraints of that bill, by a silence that neither gave a verbal acknowledgement nor a verbal rejection of that which was required of him.

“His son-in-law-to-be was ropeable because he wanted More to challenge the law and to acknowledge in a very direct sense that the law and laws generally were to be treated in a fashion other than the one which More had cherished throughout his life.

“Finally, the interchange takes place in these terms… Roper says: ‘So now you give the devil the benefit of the law.’ Sir Thomas replies: ‘Yes. What would you do, cut a great road through the law to get after the devil?’ Roper replies: ‘Yes. I’d cut down every law in England to do that.’

“More then says to him: ‘Oh, and when the last law was down and the devil turned on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast – man’s laws, not God's, and if you cut them down – and you’re just the man to do it – do you really think that you could stand upright in the winds that would then blow? Yes, I’d give the devil the benefit of the law for my own safety’s sake.’”

Reflecting on this exchange, Mr Stanton commented: “Powerful words from a powerful man – a saint, a scholar and an inspiration, certainly to me. From that point in my life: an inspiration, and a goal.

“Not that I wanted to practice and ensure that people would always win and to conduct cases, and – I learnt this much later, obviously, when I started practice – not that I would want people to win at all costs and therefore fabricate evidence or mislead courts or whatever.

“What impels and compels me every day as I move through the legal system as an advocate, is this: that each of us is entitled to the protection that the law affords. The law affords that protection because that is our right. And so often I tell juries in this state: ‘for the moment put yourself in the shoes of this accused, who sits in the dock charged before you, and as it were, ask yourself if it was me, or if it was a loved one, what would I require of the law, save for the protection of the individual?’

“Really, that is at the beginning and at the end. What our legal system, in the context of its criminal jurisdiction, is primarily concerned with, is ensuring that the rights of the individual are protected and are jealously guarded, and what that requires for it to operate in any sensible, coherent and orderly sense is that the practitioners on both sides of the bar table – the prosecution and the defence – conduct their roles with honour, with dignity and with fidelity.”

Mr Stanton said he had been “very blessed” because most people don’t get to do the level of work that he had done.

“It’s intense,” he said, “it can be very demanding and to cope with it you need to maintain three things above all: good health and fitness – very important, humour – equally important, and, although I would not want to thrust it upon anyone, faith, which is likewise very important, because you need physical, emotional and spiritual strength to cope with the work as it presents.”

Mr Stanton said those who practised as criminal lawyers in Sydney in 2015 faced an “enormous backlash” generated by the media, who, he said, “take it upon themselves to be the moral custodians and the voice of our times”…

“The same papers that print lascivious nonsense and the like on a regular basis to sell their publications and who promote all forms of declining standards in entertainment and the like, nonetheless believe that among them, particularly editorially, in the press, in the papers, on the radio, that they are the moral voice of our times.

“And the perception has sadly arisen, I must tell you, as a practitioner of some considerable experience, that those charged with criminal offences are like the untouchables in Hindu society: they are diseased, they are leprous, they are persona non-grata – someone without grace.

“The media wants the general impression to be promulgated that the presumption of innocence really does not apply any longer in our society and people charged are guilty and the process of prosecution is, as it were, simply something that has to take its place and unfold as a matter of course, with the inevitable conclusion that someone is guilty.

“People talk about ‘loopholes’, and ‘technicalities’ and ‘beating the charge’ because they were really guilty, but the law protected them.”

For his own part, Mr Stanton said he had spent much of his life defending such people because he  believed that the laws of any civilised country – “and pray God this is a civilised country” – are put in place to protect “with integrity and with force” the citizens’ rights.

He said It was true that if advocates were skilled, experienced and had “been around the traps for a long time”, they could indeed “manufacture” a result. But he said he did not mean this “in any insidious fashion”, but because “experience teaches you what to say and sometimes, more importantly, what not to say”.

Mr Stanton said the number of cases in which he had witnessed a “tragic miscarriage of justice” over the many years he had practised the law were  “well less than double figures”. He added that he believed it was better for the guilty to go free than for an innocent person to be wrongly convicted.