Practice area focus: Crime

Criminal law is often seen as the more grittily glamorous version of its corporate law cousin, where lawyers and the police clash over their clients in a grimy, smoke-filled interview room.

Take away the smoke and mirrors of substandard TV dramas, though, and you are left with a practice area that features long hours, lots of stress and many an unpredictable client. Why then, would anyone choose to do it?

Life in practice

“I wanted to work in an area where I felt like I was directly affecting people’s lives,” says Bindmans criminal department co-head Katie Wheatley. Her first years were spent at a small firm on South London’s down-at-heel Walworth Road, shuttling from Walworth Police Station to her office and the magistrates court.

“As training, police station representation is second to none and any criminal lawyer needs to go through that process,” Wheatley asserts. “You are completely on your own and having to forge a working relationship with the client and have to work with police, who are sometimes pretty hostile.”

A criminal defence lawyer’s usually work starts when a freshly arrested client arrives at the police station and continues until trial (see box, below). Once arrived at the police station, the lawyer will advise their client on how to handle the interview process and ascertain how their client wants to approach the case.

“The choice is really whether to answer questions or not,” explains Kingsley Napley criminal associate Ed Smyth. “I think most criminal defence solicitors would say that in 90-plus per cent of cases, they would advise clients not to answer. The approach is always to maintain as much control as possible over what information you divulge.

“You also get to work out what information the police have because of the questions they ask. Once you start answering some questions but not answering others, it is not a good picture because you are shining the spotlight on the ones you haven’t answered.”

Although the procedures may stay the same, it is the sheer variety of the work and the people that criminal lawyers encounter that attracts many to the profession. In a corporate law firm, it is safe to say that while the type of law and the sector of the client might change, the environment in which work takes place does not change, with suited-up lawyers and clients sitting around conference tables in glass offices.

In contrast, criminal lawyers meet with the police, barristers, probation offices and all sorts of clients as a matter of routine. And while crimes stay the same, the circumstances of a case are never repeated. Criminal lawyers often have to learn a lot about different industries and sectors of society as they go from case to case. Whether their client is being investigated for fraudulent gambling practices or is suspected of drug offences, defence lawyers need to know all there is to know about the arena in which the crime is alleged to have taken place.

What skills are needed?

“The number one thing you need is to know why you’re doing it,” says Blaser Mills criminal partner Abigail Ashford. “Because it is hard work. I dreaded my crime seat during my training contract because I had an out-dated view of it.

“I wondered how on Earth you could properly defend someone but I fell in love with it when I realised that there is always a reason why people do what they do. And that being a criminal lawyer is not about trying to wheedle one over on society and get people off charges they have committed.”

Being a good communicator is one of the most important skills a criminal lawyer needs due to the constant contract with so any different people, all of whom make demands of them.

“You can go from dealing with a company director who faces charges of stealing to someone who has had a heroin habit for the past 20 years, is homeless and has an IQ of 50-something,” explains Ashford. “You will often have to explain complex criminal proceedings to someone who never finished school.”

Hand in hand with that is the need to be assertive. Difficult clients and downright belligerent police officers require defence lawyers to be assertive without becoming bullish.

“If the police perceive that you are new and inexperienced, they will take advantage of that, they will undermine you in front of a client,” comments Wheaton. “It is quite intimidating and you just have to be very thick skinned and remember that the basic principles of what you need to do applies regardless of your case and situation.”

What’s happening in the field?

Forefront of all criminal lawyers’ minds at the moment are the deep cuts to the legal aid system. As a result, the Crown Prosecution Service has found it harder to function and manage cases effectively while firms that are very dependent on legal aid work have come to a juddering halt, with work, funds and opportunities for promotion drying up.

Another trend is the rise in the work to come from white-collar crime. Recent allegations of Tesco’s accounting irregularities were picked up the Serious Fraud Office, the government department responsible for investigating corporate crime, from City regulator the Financial Conduct Authority. Wheaton believes that this would have stayed a non-criminal investigation just a few years ago but that the financial crash and Libor scandal have created a climate in which government authorities are more likely to delve into corporate scandal.

As Smythe concludes, what really drives criminal lawyers is a common “deep-rooted dislike of injustice”. “That all sounds very grand,” he admits. “But fundamentally that is what drives most of us. You need to have a strong belief in the right of every single individual to have proper representation.”

Firms with crime expertise

Few of the large commercial firms usually covered by Lawyer 2B handle classic criminal law (though some have teams devoted to its upmarket cousin, white collar crime). If you want to work in this area you’ll probably need to look at the high street. However, some larger firms do take on a mix of criminal and commercial work: Kingsley Napley is one of them, typically taking on instructions from more well-to-do clients than your average person on the street: Rebekah and Charlie Brooks when embroiled in the phone-hacking scandal, for example.

At the police station…

  • Criminal solicitors usually get instructed when people have been arrested although clients sometimes instruct them when they suspect they may be arrested or that the police are interested in speaking to them.
  • Often, the Defence Solicitor Call Centre (DSCC) contacts solicitors upon a prospective client’s arrest. The DSCC will receive calls from various police stations around the country and then farm them out to the relevant solicitors. The firm will then get a call to tell them to attend the police station to represent a client.
  • The solicitor attends the interview, ascertains the situation and advises their client, who is then either released without charge or charged.
  • When advising clients, lawyers approach how to tackle the police interview and whether or not to answer the police’s questions. The usual advice is to not answer so that clients maintain control over what information they divulge. As soon as clients start to answer some questions and not others, it emphasises that the client has something to hide.
  • If the client is charged, the solicitor must ascertain how they intend to pay for their legal advice: by legal aid or by private funds.
  • The charged client is then bailed or remanded by the police and waits for their first appearance in the magistrates court to deal with how they intend to plea.

In court…

  • All alleged crimes, no matter how serious or trivial, must have a preliminary magistrates hearing, even if all the court can do is to refer it to the crown court without hearing how the client intends to plea.
  • For all but the most serious cases, the prosecution hands the defence a bundle of papers called advance information at the preliminary hearing. This will not contain all of the evidence but it contain enough information to enable the defence to advise their client on how they should plead.

Guilty

  • If the client pleads guilty, the prosecutor outlines the case to the magistrate and makes any application for costs and possible compensation.
  • The defence then talks about mitigation. If it can be dealt with in a reasonably minor way such as a discharge then it is dealt with that day by the magistrates.
  • There are two types of discharge – absolute and conditional. Absolute means that there is no punishment. This is very rare and is only used when someone has technically committed an offence but there is a very good moral reason for it, for example speeding in an emergency. A conditional discharge is one of the lightest ways to sentence someone and decrees that there is to be no punishment at that time but that if another offence is committed within a set period, say six or 12 months, then the client can be resentenced for their offence.
  • If the case cannot be dealt with by the magistrates that day, then they will adjourn the court, contact the probation service and see what it recommends in the form of a non-custodial sentence, such as community service or an anger management course.
  • The third option is that the case is serious enough to go to the crown court for sentencing. In that case, the procedure is similar to the magistrates court as the probation service prepares a report on your client, who awaits trial by jury.

Not guilty

  • The process for not guilty pleas depends on the category of offence as it will either be dealt with entirely in the magistrates court or the crown court.
  • The magistrate will set a trial date and the defence will then have to arrange with the court or prosecution which witnesses it wants to consult at the trial and which statements it is prepared to just read out at trials and whether there will be a particular legal strategy.
  • Once the magistrates have that information, they can estimate how long the case will last and set a date.
  • All but the most major and minor cases can be tried in the crown or magistrates court, with the defendant able to choose whether to have a trial by jury in the crown court or for a judge to sentence them in a magistrates court.
  • Clients are statistically less likely to be found guilty in a crown court than a magistrates court. Juries comprised of ordinary citizens are less hardened than district judges and so less cynical.