With tens of thousands of lawyers in NSW alone, and just as many criminal laws to follow, it might be difficult to imagine a society without a rigid criminal justice system – devoid of defence lawyers to advise and represent defendants in court.
This blog takes a look at the origins of professional legal advisors and representatives.
The earliest surviving written laws were transcribed at the direction of a Babylonian king in 1700 BC – but legal scribes, experts and orators have been a feature of many ancient societies.
Between around 700 and 500 BC, litigants in ancient Athens could hire a member of the court to speak on their behalf, or could represent themselves in respect of allegations against them.
Interestingly, private Athenian citizens performed the role of prosecutor – with the citizen who arrested the alleged wrongdoer bringing the case to court and acting on behalf of the city. This is, of course, different to modern day Australia, where the vast majority of prosecutions are undertaken by professional prosecutors employed by the Police Force or Office of the Director of Public Prosecutions (the DPP), not by the aggrieved party or another private citizen.
By around the time of Christ, the Roman Empire had developed a complex legal system was for civil cases. But the same could not be said of criminal law, where prosecutions could be conducted by any member of the public, and punishments were often creative as well as brutal.
For instance, anyone who killed a parent or close relative was to be:
“Sewn inside a sack with a dog, a cock, a snake and a monkey; and, sealed in with those bestial inmates, he is thrown, as the nature of the place allows, into a nearby sea or river.”
Middle Ages to Modernity
Going to a British law school during the Middle Ages was an option – if you were male, relatively well-off and did not mind all classes being in Latin!
The 12th to early 19th centuries generally wasn’t best time to be a defendant in Britain. Defendants did not have the right to hire a lawyer – the King’s permission was required for civil cases, and it was not until the Prisoners Counsel Act of 1836 that accused persons were given the right to hire a lawyer, if they could afford one.
Before that time, defendants in criminal cases were allowed to obtain advice from legal experts, but had to speak for themselves in court. By contrast, prosecutions were generally conducted by experienced and well-resourced professionals, with investigatory powers.
Bills of Rights
The American Bill of Rights (1789) has been instrumental in guaranteeing US citizens a range of legal rights, safeguards and protections. The Bill is embodied the first ten (of twenty-seven) amendments to the US Constitution, including the Sixth Amendment which guarantees the right to a lawyer:
‘In all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defence.’
By contrast, Australia has no bill of rights – but important common law safeguards were conferred on defendants by the courts, such as the right to be presumed innocent until proven guilty and the right against self-incrimination.
However, those concessions have been significantly eroded by legislation in recent years, and do not include the right to legal representation.
The Legal Profession in Australia
Before the British settled Australia, various Indigenous groups had their own customary laws and punishments for those who acted contrary to the rules.
Various penalties were enforced depending on the conduct, ranging from execution and spearing, down to shaming and public ridicule.
But after colonisation, Britain gradually implemented English laws and legal traditions; which were the building blocks of our legal system. And despite initially having a large population of convicts, Australia now has a high ratio of lawyers and law graduates.
In fact, as of October 2014, there were 66,211 practising solicitors in Australia, with the highest number registered in New South Wales.