People working in Medicine, Finance, Law or any professional job can find their professional lives at risk for an offence that may be viewed in the criminal system as comparatively minor.
Any offence potentially resulting in a conviction or custody can be distressing. It is perhaps ironic that a client with many previous convictions is often better equipped to deal with a criminal prosecution than someone who has led a life free from any criminal allegations, such as a doctor or other professional.
The approach of an experienced criminal lawyer is to treat the case of anyone whose career is vulnerable with the respect it deserves. By being proactive and aggressive where required, proceedings can often be stopped early, saving a person from the stress of proceedings and the consequences of a conviction.
Strategy when representing professionals
It must first be said that there is no ‘works every time' key to success in any allegation against an individual. Of course, the fundamentals are important time spent with the criminal lawyer, appropriate research into the issues, and briefing a good advocate. But in respect of specifics, where someone is a professional accused of an offence, or someone with no previous convictions, the best tool that they have to defend themselves is the thing they stand to lose their good name. With this in mind, character evidence, ideally both written and from a person or people who actually attends court, is absolutely essential.
At a more strategic level, the whole attitude with the police, the prosecution and the court must reflect that the defence team regards the client as someone who should not be there. It is surprising how often a criminal case can be dealt with in a way that does not result in a conviction simply because the criminal lawyers are bold enough to ask. The authorities have several ways of dealing with an accusation. It's not just a case of charge or no charge, guilty or not guilty. Being aware of possible outcomes, their implications and what to aim for is hugely important.
Cautions should be avoided wherever possible. Even though they are not the same as a conviction, they are regarded by the court as an admission of guilt, and will usually appear on a DBS (what used to be known as a CRB) check. Any caution for an offence of violence (e.g. assault or dishonesty) will usually be available to a prospective employer, educational institution, or professional body. Cautions are often doled out by officers at police stations and accepted by individuals who believe that they amount to little more than a ‘slap on the wrist'. This is not the case for anyone who has not been convicted of an offence. A caution can potentially do damage to a person's professional prospects on a similar level to a conviction handed down by the court.
At the interview/investigation stage at the police station, an officer can consider a warning or reprimand as an end to the matter. This enables the officer to consider charging the individual more readily if a similar allegation is later made. Sometimes an officer can be persuaded to take this route. A warning is just that it is not a conviction and not usually disclosable to employers etc.
Certain penalties exist which a court can impose which do not amount to criminal convictions and do not result in a DBS file being endorsed. One of these is a ‘bind over'. It has traditionally been used as a penalty to prevent future breaches of the peace, so is usually handed down by courts for offences of public order or mild violence. It is a civil penalty, not a criminal conviction, and is therefore a far better alternative than a conviction. A good criminal lawyer will table this with the prosecution if the offence is minor enough. Negotiation skills are very important here, because the prosecution must offer it. It cannot simply be obtained from magistrates or a Crown Court judge.
A discontinuance, like a bind over, is something that must be obtained with agreement from the Prosecution. Again, negotiation is very important, although the prosecution will usually ask for written representations (a letter from the defence explaining the reasons the case should be discontinued). For the prosecution to agree, the defence must show that the circumstances of the case or the client are exceptional. Even then, there is no guarantee that the prosecution will agree.
Conditional and Absolute Discharge
In some circumstances, court proceedings and a conviction cannot be avoided. However, the battle does not then stop there. A good criminal lawyer will look to mitigate on behalf of their client to minimise the impact in terms of the punishment imposed. In some cases, a Conditional Discharge may be argued as the appropriate sentence. If imposed, once the conditional period of the discharge has expired the conviction becomes spent which means it does not have to always be declared depending on the particular job and circumstances. If an Absolute Discharge is imposed, it becomes spent immediately. These low level punishments also reflect the low level of seriousness of the offence, and can often mean that people are still able to keep their jobs even when a conviction has to be disclosed.
Advice for someone called for interview
Of paramount importance when attending an interview is to always have a criminal lawyer. The police are trained to present their role as one of an impartial fact finder. This is misleading. Police are driven by results and regard arrests and charges as successful outcomes. Their only aim is not ‘to hear all sides of the story to get to the truth', as they often make out. The right advice at the police station stage can prevent a case ever being brought in the first place.
Letter of Representations
In certain circumstances, it may be appropriate to write a letter of representations to the decision-maker about whether a case should proceed to charge or not. This must be carefully considered, and is dependant on how much information is available to the criminal lawyers. A letter of representations should never be submitted just for the sake of it. The defence team must consider the benefits and risks involved, and whether strategically there is a good chance of the letter containing information which will actually assist in persuading the police or CPS not to charge.
Funding for low level offences where a conviction has serious consequences
Some people may decide to have free legal advice when being interviewed in the early stages. However, people who have never been in trouble before will often choose to pay privately for their representation at the police station in order to ensure that they receive specialist advice from a criminal lawyer, and ensure that everything can be done to stop matters progressing to court where possible. This is because this level of work may simply not be possible where they have opted for free legal advice on legal aid. Likewise, because of limits to legal aid funding for most people in employment, most people have to fund a magistrates (where most minor cases are heard) case privately. That doesn't have to mean huge legal fees, but it does mean that the client should allocate a level of funding consistent with the goal.
Where a trial cannot be avoided, the case must be prepared thoroughly. Expert evidence and private investigation should be considered where appropriate. The client must be well prepared for trial, and difficult areas in the evidence should be considered well in advance, not during the trial itself. A barrister should be briefed early and should be hand picked to suit both the client and the case.
A good criminal lawyer will never take a 'blanket approach'. Each case needs to be carefully considered on its own facts and the circumstances of the individual client. The defence team should also always be thinking a few steps ahead when making any strategic judgment call.
Regardless of how minor the allegation is, criminal lawyers should always have in the mind the implications of the conviction itself and prepare the case accordingly. Allocating proper resources and time to the preparation of a defence case and considering the evidence from different angles, can be the difference to achieving a positive result on behalf of a client.