Lack of funding and a massive backlog of court cases means barristers are hanging up their wigs
The criminal bar has an image problem which it just can’t shake. The potential reasons are obvious: the bowing and my learned friending, the harking-back work clothes, the posh theatre with the proscenium arch of the courtroom, the ritual, and orotund talk. No wonder it’s seen as an exclusive profession reserved for the well-paid upper middle class. Money and class: two myths, deadly to its survival. My friend’s response when he found out I was a criminal barrister says it all. “You must be minted!” “I wish.” “Come on, can’t fool me.” “No, really, the money’s terrible. Start-out criminal barristers earn about £12,000 a year. Factor in the hours. It’s less than the minimum wage.” He listened, but in his eyes I could see his heart wasn’t buying it. As Ronald Reagan said, “If you’re explaining, you’re losing.”
The criminal bar has been explaining and losing for years. The public still believe the first myth that we’re minted. The government doesn’t care, no votes to be had in barristers anyway. So the cuts to legal aid keep coming and make a bad financial situation desperate. In the last twenty years criminal barristers have seen their incomes reduced by over a quarter in real terms. The bar has tried strikes and work to rules but they haven’t changed the direction of flow. It’s hard to maintain a strike at the criminal bar. It’s highly competitive. You have to fight hard for the best cases and guard them from rivals. A colleague of mine once lost a nice fraud case to a barrister who stood in for him at a pre-trial hearing. The stand-in discovered that the defendant, a devout Nigerian woman, was a believer in spirits. A few days later a letter written in blue felt tip arrived at the prison telling her to take the stand-in’s services. It was signed “Her Friends”. The woman followed the spirit world’s advice.
The collapse of incomes during the pandemic has firmed up the criminal bar’s resolve. It is demanding an immediate 25 per cent increase in fees. The Ministry of Justice has countered with 15 per cent, which would not come into force until October at the earliest and would, in any event, be swallowed up by inflation. In response the bar has voted to stop taking “returns”. This might sound like small beer but covering returns is one of the Cinderella jobs the bar does to keep the criminal justice system moving. Returns are trials which the instructed barrister can no longer do because their current trial has overrun. This “return” goes into a pool for another barrister to pick up, last minute. It could be a simple theft or a multi-defendant fraud with thousands of pages of evidence to read overnight for trial the next morning.
This work to rule must be seen in the context of the wider crisis in the criminal justice system. At the beginning of this year the backlog of crown court trials passed 60,000. The root cause of the backlog is not the pandemic but the failure of the government to properly fund the courts and the people who make them work. Things are falling apart and a disorderly exodus from the criminal bar is well underway. In the past five years a quarter of criminal barristers have left, and 10% in the last year alone. The 60,000 backlog isn’t going down anytime soon. It’s not just a numbers game. These are cases involving real people: victims, witnesses, defendants and their families. Justice delayed is justice denied: witnesses forget, evidence gets lost, things slip.
The question now is whether the criminal bar can survive and if not, what comes in its place. The bar’s death might seem like a good thing if you believe, myth number two, that the bar is populated with roguish ex-public-school boys. You know the sort: actor manqué, defrocked vicars, and Tatler baronets with a girlfriend and an unpaid bar bill in every court. The reality is that the bar is not only the cheapest and most efficient way of providing advocates for criminal trials but has become a vital engine of social mobility, opening up legal careers to people who were previously excluded.
Teresa Hay, a barrister for over twenty years, says the criminal bar is a natural at recruiting people from modest backgrounds because it’s so visible. A bright kid with no links to the law sees a courtroom drama on the telly and thinks: I’d like to do that. Let’s face it, no teenage channel-surfer stumbles across the chancery or commercial bars and thinks, “just wow”. Visibility doesn’t turn into social mobility by magic. People at the criminal bar like Hay have made determined efforts for years to open up the profession. Hay isn’t posh. Before she became a barrister she worked in the pub at the end of Brighton Pier. Now, instead of pulling pints she spends her weekends at Middle Temple doing scholarship interviews. She also assesses pupillage applications at her chambers, where they try hard to cast their net as widely as possible. Her chambers noticed they weren’t getting as diverse a bunch of pupils as they should. They added a question to the application form: why is diversity important to you and what have you done to further it? One question and it completely changed their intake. The result, Hay says, is that her chambers is “no longer the uber-posh set it once was”.
The criminal bar is not doing this just because it’s the right thing to do. Junior barristers supply the QCs and judges of the future. They need the brightest and the best who reflect the communities that they serve. But social mobility, levelling up, call it what you want, is only possible if the criminal bar remains a viable career. The signs are not good. Some civil sets now sponsor criminal pupillages because criminal chambers can no longer afford to. This is like donating to a food bank: laudable, but it proves something is broken.
Tony Kent, another not-posh barrister who grew up on a council estate and was the first person in his family to do GCSEs, thinks the cuts have already undermined the criminal bar’s ability to be open to all. “The amount of women dropping off is huge and the reduction in minorities applying is enormous. You can’t do this job as a working mum, you can’t do this job if you come from my background.” Hay is more optimistic. “Perversely, I think now is a good time to join. Investment can only go up, the backlog means there’s plenty of work, and most chambers have diversified income streams… so if, and it’s a big if, you can afford and survive the qualification and training, you have a bright if challenging future.”
Diversification means junior barristers are out on secondment rather than trialling in the courts. Secondments can turn into permanent jobs and a barrister lost to the independent bar. Hay has taken three part-time judicial appointments which means she’s only practising 50%. Full-time trial work, she says, “has become too much for too little”. Another criminal barrister I spoke to, who wishes to remain anonymous, won’t take a part-time criminal judgeship. Why? “Because even from the bench it’s just so broken that I don’t have the energy to try and make it work.”
Fewer barristers doing fewer trials means less representation for those who need it. The wealthy will always be able to pay for top-class briefs but what about everybody else? Kent fears an American-style legal system where people are pressured to plead guilty under the threat of massive sentences. I hope he’s wrong. The criminal bar is there to ensure victims and defendants receive fair trials. It’s an essential public service. Without it or with a substandard replacement we are headed towards a world of police “fit-ups” and miscarriages of justice. It’s a scorched earth future. Only committed, properly resourced barristers, the brightest and best, from the widest background, can guard against it.