Rough justice

As they face significant court backlogs, unsocial hours and regulatory barriers to practise, CILEX Journal speaks to CILEX members about the frustrations and rewards of working in criminal law

Practising criminal law is not for everyone. The pay is not brilliant, unless you are fortunate enough to work in a private client department or act in very high-level cases, and it can involve evening work and even all-nighters. Despite this, speaking to CILEX members who specialise in the field, it is evident that criminal work can bring satisfaction on a scale that few other areas of law can offer.

For seasoned Chartered Legal Executives who are also criminal advocates, there is an additional frustration: you have to renew your advocacy application every three years, whereas solicitors much younger than you do not. This anomaly has been ironed out for new graduates, but even those with decades of experience must reapply regularly.

Other difficulties experienced by all criminal law practitioners include court delays, bad before Covid and even worse since. Clients facing trial on very serious matters involving the potential loss of their liberty can wait for years before achieving justice. Everyone knows, of course, about the long-running battle that is legal aid, but what is life like as a criminal defence lawyer beyond that?

"The increasing use of remote contact with clients since the start of Covid has, like in many areas of practice, been good news"

The increasing use of remote contact with clients since the start of Covid has, like in many areas of practice, been good news as it often means less travelling to hearings up and down the country. For straightforward contact with clients in prison or remand, this can free up a criminal lawyer from one of the most time-consuming aspects of the job.

CILEX Lawyers are arguably well-suited to this line of work. They are less likely to come from privileged backgrounds, may well have graduated in the teeth of adversity and perhaps given they themselves come from humble beginnings, are better able to talk to frightened and desperate people in a language they understand.

Fulfilling work

CILEX members interviewed for this feature ranged from a recent CILEX graduate to very experienced long-term criminal practitioners who are used to running big cases and departments which also employ solicitors.

Louise Turner, a senior associate at five-office national firm Monan Gozzett and a Chartered Legal Executive, works in privately funded criminal law, so is largely immune from poor legal aid rates. Her firm specialises in defending people against misconduct allegations they claim to be false. She advises the CILEX criminal law special reference group.

Ms Turner started off in an administrative role in her local magistrates’ court. After moving to a firm of solicitors, she became a caseworker helping to prepare Crown Court cases and the firm funded her to study with CILEX. She wanted to undertake advocacy in the magistrates’ court, so took a litigation advocacy rights course and obtained rights to represent people in the magistrates’ court and join the duty solicitor rota.

Since joining her current firm in 2021, much of her work is investigatory, “work I wouldn’t get paid for doing on legal aid”. She goes on to say: “I can confidently tell a client, ‘I have left no stone unturned in your case, I've looked into everything and I fully prepared everything as much as it possibly can be prepared’.”

Matt Tye, a Chartered Legal Executive at Lincoln firm Sills Legal, also represents people in police stations and magistrates’ courts, as well as preparing Crown Court cases that will be argued by a barrister. He entered criminal law when working for a solicitors’ firm and became an accredited police station representative, while studying by distance learning.

CILEX practitioners are greatly outnumbered by solicitors in magistrates’ courts, he observes. He has never experienced any sort of prejudice against Chartered Legal Executives and the most he has had to do is explain to confused clients exactly what he can do for them.

Chartered Legal Executive Steve Rollason, a practitioner at Manchester firm JMW and an adviser to CILEX, is an experienced advocate whose cases have included murder and other serious crimes, as well as Proceeds of Crime Act 2002 cases. Unusually, he came into criminal law in his 30s, after spending a decade in the commercial world and reaching a fairly senior position, although he studied law at university.

In search of greater fulfilment, he studied part-time with CILEX. He then took a massive pay cut and has never looked back. The corporate world “gave me a lot of transferable skills to the law”, he says. “Negotiation being one of the key ones, but also general inter-personal skills and how to deal with people at different levels. The job I was doing previously involved me dealing with, for example, international and national buyers of large companies through to Joe Bloggs on the street and people working in bars and kitchens. In crime, you see a wide range of different people from different backgrounds.”

Renewing rights

The issue of renewing rights of advocacy every three years is faced by every Chartered Legal Executive who does not hold additional practice rights in criminal litigation (which became available to Chartered Legal Executives in 2014). Those qualifying now have criminal litigation and advocacy rights as part of their authorisation to practise in their own right, much like solicitors do.

Criminal defence practitioner Craig Tickner, CILEX’s 2020/21 president, admits that the obtaining of full practice rights is a “frustrating process”, a situation he pins mainly on the regulator. “For older practitioners like me [he is 51], we have to go back and keep proving ourselves in many ways. It is irritating, but it’s just a legacy of the piecemeal way we got those rights over time.”

The CPQ helps remove this anomaly, in conjunction with the advocacy skills course, so as to obtain authorisation from CILEx Regulation. “I’ve been a partner in a firm for 10 years and had my advocacy rights since around 2009. You would therefore have thought I was quite able to run my own company, which of course I am. But in order to do so, I would need to obtain full practice rights, submitting yet another bundle of evidence - and paying the associated cost - to CILEx Regulation to satisfy them that I’ve met that standard. They haven’t made it a straightforward process for very experienced lawyers as they should have done.”

He continues: “When we were first granted advocacy rights, I think a lot of people like me thought that by being an advocate and then a partner, that was probably sufficient. But although you’ve got a cohort of people now studying who will get full practice rights automatically with the new qualification, it doesn’t solve the issue for existing Fellows. I have to be in a firm with a supervising solicitor, for example, which as you can imagine, is a little bit disrespectful.”

The government has suggested it is looking to remedy barriers to career progression within the CPS 

Regarding submitting portfolios of evidence when applying for advocacy rights and again for full practice rights, he wonders: “It makes you think, ‘How many times do we have to tell them?' 'How many times do we have to show that we are good enough?' It’s insulting and patronising. We qualify as specialist lawyers whereas solicitors obtain a general qualification, and yet they get full advocacy and practice rights automatically upon qualification and we don’t. Arguably we are more fit for purpose, but forever having to prove ourselves.”

Mr Tickner also questioned the monopoly that the Law Society has in relation to the Criminal Litigation Accreditation Scheme for duty solicitors “primarily because it seemed odd that the qualification was entirely within the gift of the Law Society……effectively a rival legal profession, who had the right of veto [over] whether I was a duty solicitor or not”.

It will take time but CILEX is working to change the situation, with significant progress being made – the government’s full response to the criminal legal aid independent review published late last year included a continued commitment to removing these barriers and making it easier for appropriately qualified CILEX Lawyers to take on more police station work.

Chartered Legal Executive Deborah Okebu first started her career as a receptionist and is now the head of the criminal department at BNG Law in Essex. “Solicitors don’t have to jump through the hoops that I have to jump through in order to keep my qualification for advocacy every three years.” She is currently in the process of re-applying and complained that the 10-page form was a burden to complete.

Vicky Purtill, acting chief executive of CILEx Regulation, says: “Chartered Legal Executive Advocates may only exercise their rights of audience if they are employed by a firm regulated to undertake criminal litigation and advocacy. CRL renews the advocacy certificate once every three years to confirm these working arrangements. Since 2014, CRL has been able to authorise Chartered Legal Executives to undertake litigation and advocacy by specialism (in this case criminal litigation and advocacy), and once successfully authorised, these individuals become CILEX Practitioners.

“CILEX Practitioners, unlike Chartered Legal Executive Advocates, are able to practise without supervision and therefore, their certificate, once issued after the first year’s renewal, is valid indefinitely (although renewed annually), subject to other compliance matters (e.g., CPD requirements).”

In order to work as a freelance criminal lawyer, Ms Okebu would have to submit another portfolio for sole practising rights. “It’s demoralising. My colleagues, who are all qualified solicitors, can walk out of here immediately and work as a freelancer anywhere they want. We can’t. We have to complete another qualification to have that right. It’s very unfair.”

Another very experienced criminal specialist agrees and says she avoided the advocacy qualification in order to focus on cases in the higher courts. Manchester-based Chartered Legal Executive Amanda Long has a long list of notable cases, one of which, decided by the House of Lords, is currently a leading authority on management receiverships. She has conducted many high-profile historical sexual abuse cases, including those arising from Operation Cleopatra, an investigation that looked into allegations of child abuse in children’s homes dating back to 1958.

Variety and responsibility

Despite these frustrations, without exception those consulted agreed that criminal law is always stimulating and varied. Mr Rollason says: “You have the variety of different cases, different people, different places that you go to. So you're not chained to a desk, although [there’s more of that] as you become involved in more serious cases. But the variety of caseload keeps you alert, rather than being quite repetitive.”

Variety is also what attracted Ms Okebu to criminal law. “It wasn't [like a lot of property law where you] just repeated the same thing… you had a variety of issues to deal with, you had a variety of people to deal with, across the board.

“Unlike white collar crime, where it was always one level, one standard of people that you were communicating with, this was accessible to all different types of people in all different walks of life. You didn't have to come from a well-to-do school or family to get in, it wasn't about who you knew.”

Not every criminal practitioner recommends it for newly qualified CILEX Lawyers, however. Advocate Zoe Heron says: “You learn something new every day but it’s incredibly time-consuming when you’re doing police station work out of hours and working through the night and then in court the following morning, especially when you’re on call for clients who have been arrested and taken into custody.”

She points out that higher rights in the Crown Court or practice in military courts are not available to CILEX Lawyers yet and that she cannot currently join the Crown Prosecution Service (CPS) without also having criminal and family practising certificates – something the government has in the past hinted it would remedy.

CILEx Regulation recently consulted on whether to seek the power to grant higher rights of audience for criminal or civil work to CILEX practitioners with litigation and advocacy rights for the lower courts. This move was supported by CILEX which said the move has the potential to open up new career paths for members both at the CPS, and in the longer term, the judiciary.

"The court delays are now ‘horrendous’. Those cases that were listed for trial in 2020 are now listed for 2023, while new cases ‘might take it back to 2024 or 2025’."

Ms Heron would not recommend criminal law to recently qualified CILEX graduates because of the relatively poor pay. “I don’t think it’s a financially viable option for newly qualified lawyers. I would [instead] focus on areas which are not publicly funded, such as employment, commercial contracts or financing.”

Ms Long, who intends to practise increasingly remotely in future, observes that the court delays are now “horrendous”. Those cases that were listed for trial in 2020 are now listed for 2023, while new cases “might take it back to 2024 or 2025.”

But she commends CILEX for the “amazing work they’ve done” in obtaining practising rights for CILEX Lawyers. She adds that life is so much better as a criminal practitioner since Covid normalised remote working. This had been a “game changer” in terms of giving her access to clients around the country without having to travel to them.

For Mr Rollason, the responsibility given to a criminal practitioner even at an early stage in their career stands out. “You don’t necessarily realise it when you’re there, but when you start conducting your own trials and so on, you understand how much responsibility you have.

“I think that’s a differentiating factor from other areas of law. Yes, you have a supervisor you can contact [but] you can’t do that in the middle of the night when you’re making decisions that can affect people’s futures, when you’re the one [solely] responsible for analysing [the situation].”