Parents protecting children – How to select a criminal lawyer?

Approximately 59,000 children were arrested in the year to March 2023.  The reference to “children” means anyone under the age of 18.  Any child that has been arrested, or who is going to be interviewed by the police on suspicion of committing an offence, is entitled to have an “Appropriate Adult” present with them in the police station.  In the vast majority of cases this will be a parent.  As such, the first call a parent may receive to notify them that their child has been arrested will be a call to attend the police station.  This article is designed to assist parents in that position, as well as parents whose child has been interviewed and is now subject to police investigation.  Who do you turn to for advice and when should you seek that advice?

First things first – remain calm!

Protecting our children from harm is hard-wired into our DNA.  It’s pretty much a parent’s primary function.  So when we hear that our child is in trouble, the instinct is to spring to their defence.  Modern day parents are far more likely to argue their child’s case to the schoolteacher who has handed out a detention than in generations gone by.  However, jumping in to scream and shout on our child’s behalf if they have been arrested by the police is unlikely to end well.  Arguing with the arresting officer or the Custody Sergeant is not going to force a change of heart.  In fact, you’re more likely to find yourself in trouble.  If you really want to help your child, to protect them from the worst outcome, you will need to remain calm, be available to attend when required, obtain advice from someone who can talk you through the process and help your child understand what is happening.

How do you go about finding a lawyer who can really help and who will look out for your child’s best interests?

My child has been arrested – what should I do?

If your child has been arrested and is now sitting in the police station, chances are you will be in a state of panic.  It is too easy to make a poor decision in those circumstances.  Should you go online and frantically search for the most expensive sounding criminal defence solicitor?  Should you ask a few trusted friends or family if they can recommend someone?  Should you accept the police’s offer of a Duty Solicitor?

There is no correct answer, of course.  The one suggestion I would make, and you would expect nothing less, is that it is better for your child to have legal representation than not.  Accepting the advice of a qualified lawyer will not make your child look guilty.  It is a legal right.  The police are used to suspects having a legal representative present and, in many instances, it can make the officer’s job slightly easier.  So they certainly won’t be drawing any unhelpful assumptions.  An experienced lawyer can help to facilitate communication between the police and your child and between the police and you.  This will avoid the risk of the wrong thing being said.  The lawyer can ask pertinent questions and really find out what is going on in a way that you, as the parent, probably cannot.  They will obtain disclosure from the police before any interview takes place.  They can make sure that the police are playing by the rules, that there are no sneaky tricks being played and that unfair pressure is not being applied to your child.

Perhaps just as importantly, the presence of a lawyer can help to calm everyone down, including your child and you.  They will explain what is happening and what is likely to happen next.  They can explain the consequences of each available option and provide guidance.  They will assist with the key decisions – whether to answer questions during interview, whether to provide samples, whether to provide the mobile passcode to the police etc.

Should I allow the Duty Solicitor to represent my child?

The Duty Solicitor, whoever that may be on the day, should be equipped with the experience and knowledge to provide this basic level of assistance, at the very least.  Some will be better than others of course.  You won’t have any choice in the matter.  Your child will be allocated the legal representative on duty at that time.  But having someone present to assist your child will always be better than going it alone.

Should my child remain with the Duty Solicitor or seek to instruct another firm?

Having a lawyer present with your child at the police station is pretty much a no-brainer, whether that is the Duty Solicitor or not.  The more difficult issue is whether to remain with that Duty Solicitor (or the firm they represent) when your child has been released on bail or is subject to an ongoing investigation.  Do you stick or twist at that stage?

To some extent, this may well come down to a matter of cost and ability to pay.  The Duty Solicitor will have claimed a fee for their attendance at the police station under the Legal Aid scheme.  As such, another firm of solicitors will not be able to make a separate claim for legal aid all the time the case remains with the police.  The situation changes if your child is charged with an offence.  If that happens, any firm can make an application for Legal Aid to represent your child in court.  In the meantime, if you require any further advice or assistance from a lawyer, before a charge is brought (or in an effort to avoid one), it is likely you will have to pay privately.  There is a limited right to legal aid advice and assistance at this stage, but it is only available to those on low paying benefits or no income at all.

How do you know who to instruct?

As stated above, you can carry out an online search or you can seek a referral from friends or family.  Alternatively, if you tend to use a lawyer in other aspects of your life (buying or selling your house, writing a will, divorce, contract advice etc) it may be worth seeking the views of the solicitor you have used in the past.  Whilst there are very few multi-disciplinary firms with a criminal department these days, your solicitor is likely to know some criminal lawyers and may be able to refer you to a trusted acquaintance.  Good lawyers will often know other good lawyers.

If you don’t have anyone to ask, you may be reliant on an internet search.  Be aware that the websites appearing at the top of the Google do not necessarily belong to the firms best placed to assist your child.  Your research may need to be a little more detailed than that.  Look out for client testimonials.  Do they have a ring of truth about them?  Moreover, it is worth checking whether the firm of solicitors you are considering is listed in one of the main legal directories, such as Legal 500 or Chambers & Partners.  Firms ranked by these directories have generally had to demonstrate a certain level of quality and expertise.

The Law Society rewards solicitors’ firms who meet certain performance standards in terms of client care and file management.  Firms with “Lexcel Accreditation” are assessed on an annual basis on behalf of the Law Society.  Look for the Lexcel logo on the firm’s website.  This is generally a sign that the firm is well managed and takes good care of their clients.

How do you know who not to instruct?

Be wary of any firm or lawyer who makes the following promises:

• I can get this case dropped for you
• I have a 100% success rate
• If you pay me lots of money, I will investigate the case, obtain witness statements, view all the CCTV and make representations which will avoid a prosecution

No lawyer can promise to bring a police investigation to an end.  That simply isn’t within their power.  Any firm with a 100% success rate is deliberately ignoring cases where their client pleads guilty or where a plea deal is struck before trial.  The offer to do lots of pre-emptive work in an effort to avoid a prosecution may be genuine but this needs careful consideration.  You are not in possession of all the facts at an early stage in the case.  You do not know exactly what material the police are working with.  There is a danger of providing the police with evidence which completely misses the point.  Worse still, you might present them with evidence which can then be used against your child.    If you provide a detailed response now, might the police put that to their witnesses so that they can find a way to rebut it or to lessen its impact?  Might it be better to wait to see exactly what has been said by the witnesses?

Criminal defence is not a game and shouldn’t be treated like one.  But, to use the metaphor just for a moment, if you’re not in possession of the important cards, you’re unlikely to win by showing your hand – even less so when you don’t yet know what the important cards might be.

This is not to say that it is never a good idea to collate evidence and to present the police with some helpful information at an early stage.  Or that it is always entirely futile to make representations to the police or CPS.  Sometimes that can be the most sensible thing to do.  It’s just not always the right thing to do.  You need a lawyer who can assess the evidence, in the context of the allegation your child faces, who will weigh up the pros and cons and explain the options to you carefully and in a way that allows you, or your child, to make an informed decision.

Will I need to pay privately for legal advice?

There is a right to free and independent legal advice whilst in the police station.  This means you will not have to pay the Duty Solicitor for their attendance.  Equally, if you choose to instruct a particular criminal defence lawyer, they may be able to claim for their attendance using Legal Aid (providing they have a Contract with the Legal Aid Agency).  However, the most experienced criminal defence solicitors may require payment of a private fee in order to attend the police station.  This should be made clear at the stage instructions are accepted – so you will always know whether you are going to have to pay or not, in advance.

Advice outside the police station is less likely to be covered by the legal aid system.  As such, if you want to discuss your child’s options or find ways to assist your child’s case while the police continue to investigate, it is likely you will be charged a private fee.  Some firms will charge by the hour, others will offer a fixed fee for specific items of work.  Make sure you know what you’re going to be charged with ahead of any meeting or correspondence and select what works for you.

If your child is charged with any criminal offences it is highly likely that they will be eligible for Legal Aid to cover the court process.  However, the more specialist or experienced the lawyer, the more likely they may charge a private fee for their services.  Your decision, as a parent, will depend on issues of cost, affordability and the degree of trust you have built up with the legal team working on your child’s case.

First steps – what should I ask the solicitors to do?

Whether you opt to take up a referral or whether you select a firm from the look of their website, the first port of call is generally to arrange an appointment.  A phone call may suffice, depending on availability.  But, generally speaking, it is worth meeting with the lawyer you are hoping to instruct to look after your child’s interests.  This can be face to face (usually in their office) or via videolink (Teams or Zoom etc have become realistic and dependable options in the post-pandemic landscape).

Whether you want the solicitor to take detailed instructions from your child, to gather evidence and to speak to potential witnesses, will depend on the nature of the case and a careful balancing of the pros and cons, as explained above.  But a meeting to discuss the issues and the options open to you and your child if the very least you should ask for.

How can Old Bailey Solicitors help?

Old Bailey Solicitors have a contract with the Legal Aid Agency which allows us to provide advice and assistance at all levels of criminal defence work.  However, we also have a collection of experienced lawyers who focus their time on privately paying clients.  We offer fixed fees for all aspects of work, from an attendance at the police station, a single consultation, drafting representations to the police or prosecution to attendances at court and preparation for trial.  Our fees are quoted in advance and we set out what each fee includes so you know what you are paying for before you pay it.  We try to avoid nasty surprises where costs are concerned.

Nothing in this article is designed to suggest that your child cannot be adequately looked after by the Duty Solicitor or by the Legal Aid system.  It simply addresses the reality that payment of a private fee can ensure a degree of experience and continuity that might not otherwise be available.  Instructing a criminal defence lawyer will always be a crisis purchase but it’s worth taking a moment, to consider how your child might be best assisted and whether careful and informed legal advice is likely to be of value to you, before you accept the first option on the table.