Life at the Thin Edge of the Wedge – The Grim Reality of the Independent Junior Criminal Bar

When asked what I do for a living, I often hesitate momentarily before changing the subject. Despite feeling immensely proud and privileged to have made it into the illustrious world of the purported legal ‘elite’, the words ‘criminal barrister’ do not roll off the tongue with the ease I’d expected such achievement would ultimately engender. You see, experience tells me that once a new acquaintance hears the ‘B’ word, their reaction will invariably range somewhere between curious disgust right up to the unfettered revulsion you might feel if you found out you’d just mistakenly cleaned your teeth with the old toothbrush reserved for scrubbing under the rim of the toilet…

Over the months, I have gleaned with an increasing sense of incredulity (mainly through the projection of typed vitriol from anonymous members of the public who have contributed to the various comments pages in the national press) that people don’t just dislike criminal barristers: they actively hate them. It would appear that such detestation stems from a single unqualified and hitherto unchallenged belief: that criminal barristers are contemptuously rich, upper-class, cash-leaching parasites, who take pleasure in feeding off the misery of an already-downtrodden society, by plundering a bottomless trough of public money in order to fund endless rounds of golf in the Caribbean; invariably with a bunch of cockroach-headed criminal barrister chums. I have come to the sad conclusion that far from being viewed as a respected, time-honored profession necessary for the protection of a safe and fair society; the general public currently ranks criminal barristers (and indeed solicitors) somewhere between paedophiles and pond algae on the food chain. It is no wonder that the recent ‘Reforming Legal Aid’ proposals (colloquially known as ‘Butchering Justice’ to those who work within the profession) have generated at best public apathy, and at worst, public support.

Whatever your television drama-inspired preconceptions about the elusive world of the Criminal Bar, I invite you to suspend your judgment for just a few minutes. This article seeks to shatter and correct the inaccurate ‘fat cat’ stereotype, which seeks to do the vast majority of my outstanding, hardworking colleagues a gross disservice. Whilst focused upon the plight of the junior Criminal Bar, most of what is written applies equally to criminal counsel and solicitors of all levels. The views and experiences are my own and they might offend. Hey ho.

Schizophrenia, 5am Trains and Chipmunks

Being a barrister is not a glamorous job. Each case is a random selection from a veritable smorgasbord of child rape, animal pornography, domestic violence and death. Each working day requires a strong stomach, a bottomless overdraft, a thick skin and the ability to survive on a petrol-station-food diet. Despite Maxine Peake’s convincing portrayal of the elegant Martha Costello QC in the popular ITV drama, Silk, the reality of life as a junior criminal barrister is nowhere near as alluring or straightforward. Whilst Martha, red lippy neatly applied, glides elegantly into court within walking distance of her chambers just before the case starts, I am often seen resembling a slightly deranged, irate scarecrow wrestling a large suitcase, part-read lever-arch file and unruly umbrella on a windy, rain-soaked railway platform at a time when most people are in deep REM sleep. With many a 4.30am start and 2am finish, I have neglected those I love and have thus so far foregone having children, buying a property or obtaining a pension in pursuit of my career. I have pondered the subject of untimely chipmunk death more than is healthy. I have cross-examined psychopaths, received death threats, been shouted at by judges and have lost so many hours of sleep that my family tell me I have aged ten years in less than three. There is something deliciously masochistic about being an independent criminal barrister: the unenviable pressures of work, you might think, could only be rewarded by a handsome remuneration. So, what do I do and what am I paid?

A Day in the Life…

Nothing can emotionally equip you for the day that you are sitting alone in a cell with someone accused of having sex with a child, having to go through graphic details of their alleged perversion. God forbid that you are required by the court to grade haunting child pornography pictures. I recall with a sense of nausea the day in which I prosecuted a solicitor-advocate who demanded that the court re-classify a photograph of an 8-year old girl shackled on her hands and knees to a bed, from a level five (bestiality and Sadomasochism) to a level four, as ‘the presence of a dog’s head near her genitals did not indicate that she would have gone on to be forced to engage in sexual relations with the animal’. As much as I wanted to walk out and be sick, as much as I wanted to clear my mind of this awful vision; my professional duties meant that I remained on my feet, wigged and gowned, appearing to be ever the unwavering professional to those baulking in the public gallery. I later went home and cried. Becoming a criminal barrister, I learned, does not make a person an emotional automaton. You just become incredibly adept at maintaining a poker face and a cool head. What would you have to be paid to view an ever-haunting image such as the one I have described? Could you forget it? I can’t.

It is worthy of note that I prosecuted the aforementioned case: my job is as much about looking after witnesses and victims as it is representing those accused of crimes. I frequently spend my lunch hours sitting in the witness suite, not being paid for such, explaining cases and procedure to those who have been burgled, attacked or sexually abused. I frequently sit with women who have been beaten by their partner for the twentieth time in front of their children, who wish to retract their statement but may be prosecuted themselves for doing so, in a bid to guide them through the law. Sadly, the press chooses to ignore such efforts, as ‘fat cat’ is much easier to type.

Further, unlike many other professions whereby it’s relatively easy to turn up each day and turn in a standard, often-rehearsed performance, being a criminal barrister means that most of your life is spent living on your nerves. No two days are the same: the criminal law is constantly changing and unlike civil practitioners whose cases are often decided on paper, the scrutiny of the public gallery, press and fellow practitioners is enough to give you cold sweats on a daily basis. The English Criminal Bar is revered the world over as a centre of excellence: simply put, any practitioner who is judged as less than outstanding would find it very difficult to be briefed, let alone be respected by colleagues and judges alike.

Being a junior criminal practitioner affords you no concessions: once you stand up to make your submissions, no judge, jury or journalist will look upon you with sympathetic consideration. If you forget to ask a crucial question, dry up or your interpretation of the law is woefully wrong, your chambers and instructing solicitor will hear about it on the grapevine before you even get back to the robing room to cry in the toilets. Being a self-employed, independent practitioner means that your learning is instinctive; through osmosis watching senior, more accomplished barristers as well as through rigorous ongoing self-learning. In the early days, self-esteem plummets to make way for superficial confidence necessary to do the job; before incremental benchmarks of competence are reached. I have found this to be a necessary process which serves to keep me switched on, focussed on excellence and grounded. But an easy process it is not: in the early days, I am not ashamed to say that the pressure and politics of pupillage, the unpredictability of travelling the length and breadth of the UK on cases received the night before and the stress of working 70 hours plus each week was enough to put me temporarily on anti-depressants.

Whilst my training and education took many years, costing tens of thousands of pounds; at no stage was I ever taught to recognise or deal with signs of Schizophrenia, personality disorders or other mental health problems; an increasingly common situation which besets me each week. I frequently sit in front of clients in conference rooms, who have self-harm injuries, a history of suicide attempts or drug and alcohol abuse problems. Bear in mind that unlike social workers or police officers, who have managers and co-workers with whom to discuss difficult cases, an independent criminal practitioner generally works alone, with only their sense of judgment for company. Reasoning with an agitated, unmedicated, violent Schizophrenic who has been locked in a cell overnight requires patience, understanding and unparalleled communication skills. To then stand up in court and articulate your case to a judge requires tenacity, adaptability and poise. Are these skills not important? Would they be more important if it were your son or daughter in the dock or witness suite?

Fortunately, the majority of criminal barristers whom I have been fortunate to encounter during my short career thus so far, are best described as well-spoken social workers in wigs, who care immensely about doing a truly outstanding job. To say that anyone can do this job would be to suggest that the average person is an indomitable, fearless, perfection-oriented workhorse who strives constantly to be better than they were yesterday, in the pursuit of justice and fairness: hardly ubiquitous characteristics in today’s disposable, convenience-obsessed world. It therefore offends me when it is suggested by those who have no idea what I do and for what financial reward; that my contribution is worth very little to society. You might be surprised to learn that what I earned last year couldn’t be construed as a ‘living wage’ – i.e. enough to sustain my already frugal standard of living. Whilst many in other professional roles or indeed civil barristers can easily make a few hundred quid from a few hours’ work, junior criminal practitioners are at the coal face of abuse, violence and neglect every day of their working lives, for a relative pittance.

We work incredibly long hours borne out of sheer personal passion, professional pride, the love of the struggle, and because the vast majority of us actually care about what we do. Contrary to popular misconception, criminal lawyers are not self-serving robots: we may have woefully failed on the public relations front; however this isn’t because we have nothing to say on the subject. We are simply too busy working 70-hour weeks on behalf of our clients and victims to have regard to correcting a misaligned stereotype largely perpetrated by lazy, selective and often downright inaccurate journalism designed to sell newspapers rather than educate the masses.

Many will not be persuaded that I am an ordinary working class woman with a lovely dinner-lady mum and a huge, ever-increasing overdraft. As people watch me sweep, raven-like through the court foyer in my billowing Batman-inspired fancy dress, I see the envious pounds signs reflected in people’s eyes, as I secretly worry whether I can afford to buy my instructing solicitor a vending machine coffee… So, let me tell you what I get in return for my efforts.

What Does It Cost to Be in Practice?

To be in practice costs hundreds of pounds every month. For every pound that I earn, I must pay out the following:

  • Chambers’ rent (around £400 – £500 per month)
  • Clerks’ fees (7% of what I am paid that month + VAT)
  • Tax at 20%
  • VAT at 20%
  • Train fares (I work all over the country between Carlisle and London)
  • Parking (city centre weekday parking, so always double figures)
  • Fuel and vehicle running costs
  • Practising certificate costs,
  • Professional liability insurance
  • Practitioner texts (published and replaced each year at a cost of £900 per annum)
  • Legal database subscription fees
  • Data controller fees (another government tax designed to steal from hardworking people who dare to send work emails)
  • Compulsory continuing professional development courses and seminars

This list fails to mention all of the other countless expenses associated with being a self-employed barrister, such as clothing, stationary, accountancy fees, computer costs, dry cleaning of suits, (etc.).

Now let’s look at what I don’t receive:

  • Holiday pay (typically 4-6-weeks per year for many employees)
  • Maternity pay
  • Sick pay
  • A pension
  • Company car
  • Expenses such as travel, parking, fuel (etc.) I pay for it! It is not reimbursed by the expenses fairy, in case you were wondering…
  • Pay towards my ‘uniform’ (my wig and gown cost a mere £800; loose change to me, obvioulsy)

Remuneration

So, the question on everybody’s lips: what do I get paid? If I told you my annual income after deductions for the last financial year, you wouldn’t believe me just yet. Let’s build up to it by taking an ordinary day last month. It involved the sentence of a young man (let’s call him James), who suffered with severe mental health issues including Schizophrenia. He had pleaded guilty on advice to an offence of Actual Bodily Harm. James had no parents or siblings, having been orphaned following an abusive childhood which had left him with severe learning difficulties. Stuck in the care system, he was a youth to which many outside ‘the system’ will have little regard: he is by all reckoning a socially invisible individual by virtue of him being completely unloved. Sadly, I meet many clients like James a lot. I sat with this bewildered, frightened young man in the cells for probably the longest period that anyone had spent with him, for no good reason other than to chat to him, in a long time. Having prepared the case the night before, I had already spent around two-and-a-half hours researching the relevant law, reading his psychiatric report and case papers and drafting my oral submissions. I drove two hours to court, liaised with the court clerk, the consultant psychiatrist, my opponent who represented the Crown and my instructing solicitor in advance of the hearing, as well as making a few trips up and down to the cells to explain the developments in the case to James himself. Finally, I presented the case in court, questioned the psychiatrist in front of the judge and made my closing submissions, which were to have a far-reaching and life-changing impact upon whether this young man was ever released from a psychiatric setting. Those in the public gallery would have seen me bewigged and gowned, looking very much the traditional courtroom barrister. How much would you assume that I got paid for that ‘brief’? £1,000? £2,000? More?

The psychiatrist and I chatted in the lift as we made our way out following the case. He told me that he had billed over £2,000.00 for his day in court. I was paid £84.50 (yes, you read that correctly: eighty four pounds and fifty pence). The psychiatrist was paid expenses; however, after I had paid out my £12.60 in parking, £15 in petrol, chambers’ rent, clerks’ fees, tax (etc.), I would have earned around £30. For the ten hours’ work, excluding the four hour commute, I was paid approximately £3.00 (yes, three pounds) per hour. Whilst the doctor walked away with enough money to buy two weeks in Mexico, I could barely afford a sandwich.

I knew what I would be paid in advance, but fortunately, my conscience and sense of public justice overrides any desire to trade in my executive 2004 Toyota Yaris for an Audi Quattro. You may be surprised to learn that many cases which I prosecute or defend pay fees equivalent to those cited in this case. Whether I travel to Birmingham, Ipswich, Newcastle or Manchester; I am not paid travel expenses. When the £84.50 fee is less than the £145, eight-hours-long, return train fare, I still know without reservation that I will always, always, always do my best for the client. Even, as happens with increasing regularity, if I am paying out of my own pocket to be in court. With my financial self-interest often diametrically opposed to my client’s best interests, I can only say that the Criminal Justice System is lucky to benefit from publically funded lawyers like me, who work tirelessly to their own and their family’s financial detriment in the name of justice.

Today, I spent five hours researching and drafting grounds of appeal against sentence for a 71-year old client who was sent to prison for an offence he committed following the nursing of his wife through terminal cancer. I know that I will not get paid to draft an advice on appeal. I did it because my conscience tells me that it’s the right thing to do, not because I am financially incentivised. If I only worked when such work remunerated me to a decent standard, I would not work very often. In fact, I would not work at all. Criminal barristers are not paid for written work; however it must come as no surprise that we do a fair amount of written work throughout the week. In fact, when we are not in court or reading a case, we are writing our submissions, drafting attendance notes or preparing advices; all in the spirit of doing ‘the right thing’.

The ‘right thing’ is a noble concept, often lost on profit-driven companies like G4S, Eddie Stobart and Serco. I wonder with trepidation how clients like James will be treated if Chris Grayling pushes through his catastrophic plans which derive, in my opinion, from personal greed, arrogance and an almost psychopathic career-oriented need for self-advancement, rather than an altruistic attempt to save money or help the already-stretched Legal Aid system. Many others have eloquently written about this subject; therefore I shall simply say that for every reason Grayling could proffer to legitimise his ludicrous, ill-thought out schemes, I could find you a thousand criminal lawyers and a dozen reasons to rebut him. Such lawyers will talk not of their already diminished fees which have been reduced significantly over the last fifteen years, but of the risk to ordinary people like you. The risk is this: in the event your husband is arrested for a historic rape allegation allegedly committed during his university days, or you are arrested and remanded in custody for death by careless driving after running over a drunken pensioner who stepped out in front of your car, you will be allocated call-centre, wholesale ‘justice’; namely, a non-specialist lawyer whom you have never met nor chosen, who is contracted potentially to a firm more commonly associated with tachographs and haulage (yes, lorry drivers) on the basis that they were the lowest bidder. I am sure that I need not say more on this subject.

Working Twice the Hours of a Non-Lawyer, for a Quarter of the Pay

So, what is all of this worth to the Government and society? What was I paid in exchange for the time, money and effort I invested over the last ten years of relentless study and hard work?

Last year, for twelve months’ work, averaging six days and between sixty and seventy hours per week, covering thousands and thousands of miles all over the UK, I was paid a grand total of £20,429.75 after VAT but before before tax and expenses. After estimated deductions of around £10,000 for the expenses, travel costs, chambers/clerk’s fees I have detailed earlier, I would, quite literally have been better off on benefits and would ironically qualify for tax credits and Legal Aid. If money is the barometer by which society measures value based upon a person’s skills, qualifications and experience; mine, it appears, is worth less than minimum wage. So, should I continue to break my back to go that extra mile for complete strangers, as I descend deeper and deeper into debt and stress? When the alarm goes off at 3.30am, do I feel incentivised to drive the six hours to Ipswich, knowing I will be sixty pounds out of pocket for the privilege? Last time I did this, the Judge said prophetically: ‘I know that you have driven a long way to get here. You do know that you won’t be paid for today, but you should look on this experience as character building’. I wondered whether my bank manager would accept payment in character towards my burgeoning loans, as I made the lonely seven hour trip home just minutes after hearing that my case had been adjourned; something everyone else knew before I even awoke at 3am to make the trip… Would you work a 16-hour day and pay for the privilege? Non-criminal lawyers might be shocked, but my junior criminal practitioner colleagues can match my story over and over again without batting an eyelid.

For those wondering about my background, I am three years into practice having been called to the Bar in 2009. I am 34-years old, with an accomplished former civilian career in the police, having paid for university and postgraduate education from my own pocket. Part of me regrets giving up the chance of a pension, job security and the stability of predictable, steady work in order to chase my lifelong dream of being an advocate. It pains me to say that at this rate, I will end up bankrupt before I am able to confront the issue of being to take time out to have a family. The reality is that I can barely afford to pay the utility bills, let alone take a six-month unpaid maternity break or pay for full-time childcare.

What many outside the profession refuse to entertain, let alone comprehend, is that criminal practitioners often work for free: gratis, sans payment. We are not paid by the hour, we are not paid expenses and sometimes, we are not paid at all. The bitter irony of being a junior criminal practitioner is that for the vast majority, we have some excellent dinner party stories; we just can’t afford to have a dinner party. The general public has benefited from the efficiency, industriousness and good grace of a profession, whose junior practitioners work twice as many as hours as other professions for a quarter of the pay. This is unacceptable, exploitative and disenfranchising for the talented, dedicated people who give up so much of themselves to do what can only be described as an incredibly challenging job.

Conclusion

Speaking with an ex-criminal barrister yesterday, we both agreed that our profession can be a masochistic, all-consuming, expensive adventure with occasional moments of triumph. The truth is that there are rarely winners in any criminal case, irrespective of the result. Lives are ruined, relationships and reputations destroyed, whole families torn apart: no barrister delights in the misery of others, no matter the result. We are rarely thanked and often criticised by the press. Our work is taken for granted by the public, who unknowingly demand excellence in exchange for peanuts.

After three short years in practice, I am mentally, physically and financially drained. But, I can think of no other vocation which would fill me with the fire, passion and tenacity to push on in the face of adversity, in the way that this noble profession does. It might not nurture me financially, but I will continue to fight to the bitter end to do the job that I love in order to protect the system of justice for the public. I will continue to feel fortunate to work in an arena where I can be a solitary voice for those who are often at their most vulnerable and frightened when I meet them.

You might not fully understand what we do or why we do it, but one thing is clear: as in the case of bin men or those who work processing raw sewerage, you would undoubtedly notice and start to value Legally Aided criminal practitioners if we downed tools and stopped doing what we do, without question or complaint, every working day of our lives. If you found yourself on the wrong side of the law, or indeed the victim of a terrible crime, you might be surprised at just how quickly you would come to appreciate our unwavering dedication to justice, tenacity to maintain standards of excellence and sheer hard work: hallmarks of the work of the junior Criminal Bar; most of which is poorly paid, if paid at all. The Government has already taken advantage of the goodwill of the Criminal Bar for too long:  the junior end simply cannot and will not weather any further cuts.

Criminal practitioners allow ordinary people to turn a blind eye to the atrocities happening daily within our society by frequently dealing with the detail which the press refers to as ‘too distressing to print’. When a person is convicted or acquitted, our revered, unparalleled legal system reassures people that miscarriages of justice are rare. It is through the tireless and often unrecognised efforts of criminal practitioners, alongside judges, interpreters, the police, prisons, the Probation Service and Youth Offending Service, that people are afforded the freedom of a civilised society. It would be a travesty if the profession became the province of profit over common sense, convenience and targets over justice and parity. I only hope that I am able to remain in the profession long enough to see it saved from Grayling’s slippery grasp, as junior criminal barristers like me are quickly being priced out of the Criminal Justice System, sadly becoming relegated to the category of endangered species.

A junior criminal practitioner, 2009 Call, Lincoln’s Inn.

27th May 2013.

The Indignity of Impotence – Why We Must ‘Strike’

They observed one another; the undeniable feeling of anticipation was tangible and electric. After weeks of pregnant expectation and waiting, the time had finally come. She smiled wryly and his heart skipped a beat as she advanced provocatively in his direction. The move wasn’t entirely unexpected, but he nevertheless felt the hairs on the back of his neck stand to attention as the pressure mounted. He knew that she would be watching his every reaction. ‘This is what I was born to do’ he thought, as he loosened off his collar. But, he couldn’t turn away from the nagging feeling of internal doubt, which suddenly enveloped him like a cold, wet blanket. As the crucial moment of impending conquest approached, something happened; something unimaginable.

Flaccidity.

He didn’t notice his own unconscious reluctance at first, but she of course did. It was difficult to ignore his limp, wilted enthusiasm or the clumsy, artificial attempts to rouse that once libidinous, proud member into action. He momentarily floated outside of his body and grimaced as he watched himself going through the motions. Something which should have been instinctive and natural had suddenly become desperate and over-thought. Denial and frustration replaced passion, as he became an unwilling victim of the dreaded paralysis by analysis. ‘Why me?’ he thought resentfully. ‘I used to be good at this! Why can’t things go back to the good old days?’ He reflected, with melancholy wistfulness, his now-receding, former prowess.

She tilted her head to one side and her face creased into a half-smile which didn’t quite meet her eyes. He couldn’t tell if it was genuine disappointment or patronizing delight. Everything was changing and resented himself deeply for it.

A Week of Sex…

You would be forgiven for thinking that I am describing erectile dysfunction; however you would be wrong. Most criminal lawyers would agree that in this sometimes-pleasant, pro bono hobby we call a profession; we don’t much get time for a sex life. In the shrill words of one frustrated solicitor last week: ‘We don’t get time for a bloody life!’ A criminal practitioner’s ‘week of sex’ is more likely to involve the uncomfortable cross-examination of a defendant accused of paedophilia; not a seven day, oxytocin-induced, Craig David-inspired love-in.

The hypothetical impotence, of which I speak however, is professional, not sexual. The metaphorical ‘she’ might be the public, the Government or other criminal lawyers. ‘She’ is your gut instinct, your sense of conscience, your inherent integrity. ‘She’ is now watching and waiting to see how our great profession reacts to the impending assault on our Criminal Justice System. The time is now and each and every one of us is accountable.  Such accountability is all-encompassing and spares not a single one of us. Not even you.

Legal Armageddon

As Great Britain retrogrades further and further into the socially immobile days of Victorian Britain, criminal practitioners watch wide-eyed and with their hands covering their mouths, as Grayling steamrollers ahead on a one-man demolition mission of the Criminal Justice System. The deafening avalanche of fifteen thousand unanimous responses urging him to reconsider has barely turned his head, nor persuaded him to alter course. This breathtaking arrogance/stupidity* (*delete as appropriate) of a man, who lacks the basic rights of audience to conduct a simple bail application, is as dangerous as it is misguided. As the first missives of Legal Armageddon rain down, we can be left in no doubt, that this bizarrely-appointed, non-lawyer Lord Chancellor is not for turning. As the shutters come down on access to justice for ordinary people, those who have actual (rather than absolutely no) experience of working within the law, wonder how things have got so out of hand.

You see, Christopher Grayling, despite arguably having all the charisma, presence and oratory skills of an out-of-date, own-brand cornflake; has somehow managed to dismantle the Great British Legal System in front of our very eyes; with all the care of a five-year old destroying a crudely built Lego house. Make no mistake: this is happening our on our watch. We each bear witness to this mindless atrocity, and in the event that we don’t stop this self-serving megalomaniac, history will rightly judge us. Impotence, my learned friends, is not an option.

The 7th March 2014 is a historic day: the criminal side of the legal profession will stand united in a day of protest, for only the second time in five hundred years. We are on the precipice of something unprecedented. As each of us glances nervously from side to side, it is gradually dawning on doctors, lawyers, soldiers, probation workers, court interpreters, police officers, nurses, firefighters and civil servants generally that we can no longer rely upon our Government to act with common sense, in the best interests of the majority of the people. The elective dictatorship we quaintly refer to as democracy has no apparent interest or concern for 95% of the population; less so for the vulnerable and disadvantaged. Yet, despite the average hard-working Briton feeling thoroughly disenfranchised, ignored and insignificant, protest and unity is rare. Why so?

Great Britain?

The Western population has slowly and sadly become a nation of armchair voyeurs. Millions are passionately committed to the globally irrelevant performances of a bunch of overpaid ‘celebrities’ kicking a leather bag of wind up and down a football pitch, yet feel motivated to do precisely nothing to combat the gradual destruction of our planet. We gossip with our workmates about which latest vacuous personality has eaten a frog’s eyeball on I’m A Celebrity, yet petrol prices increase by another 20% and it’s all that we can do to let out an apathetic sigh as we resignedly hand over even more of our already heavily-taxed wages. Akin to worker ants, we conform to the bizarre social ritual of spending thousands of pounds commuting to work each year, in a car we don’t own; to fund the mortgage on a home in which we rarely relax because we’re always out, working most of our waking hours in order to pay off debt, utility bills and tax. We have become desensitized to pain, suffering and tragedy; moreover we have seemingly lost the once inherent ability to stand together and fight injustice and corruption. We are drip fed a 24/7 brain-food diet of disinformation and distraction, whilst the media brainwashes the new working-middle class to blame the poor, the disadvantaged and the powerless for the ongoing catastrophe created by corrupt bankers, disgustingly rich corporations and certain politicians.

So why does the responsibility lie with criminal lawyers to restore order out of chaos? Why do I beseech each of you to search your soul and your heart, in order to fight to win the case of your lives?

We Cannot Change What We Refuse to Confront

I’m going to say something that might cause mild outrage across the profession. I predict that several solicitors or barristers might be driven to putting down their sandwich. There may even be isolated outbreaks of frowning.

The uncomfortable truth is this: there are a significant number of practitioners who fear that we will not win. They believe that we are simply going through the motions in a vain and transparent attempt to ensure that historians will be kind to us, when future generations question how we allowed justice for all to be sacrificed on the hastily assembled altar of Grayling’s single-minded career aspirations.

We must confront reality. To describe professional morale as waning would be to award an unworthy compliment. An accurate description of the mood would range between self-excepting, optimistic denial and resigned defeat. This week alone, one of my instructing solicitors was made redundant on the day he qualified as a criminal practitioner. His dream of orating in court was dashed on what should have been a long-anticipated, hard-earned day of celebration. I know personally of numerous practitioners who are working each day despite being under their doctors for work-induced clinical depression. Two others told me how they are soon to be taken to court to face bankruptcy proceedings; their homes and small offices to be repossessed. I know of others who can no longer afford to remain in practice and have hung up their wigs and gowns forever; a bleak and uncertain future ahead.  The idea of a qualified barrister on benefits is no longer an oxymoron: this is the new-found, grim reality of criminal practice for many. Social mobility has unfortunately reversed for working class practitioners, as the Criminal Bar returns to the domain of the privileged and elite. Sadly, so too does access to justice for defendants and victims of crime alike.

Many practitioners are secretly hoping that we are going to witness a movie-style ending, where all manner of unlikely scenarios serendipitously coincide, despite the laws of time and physics. Just as the Criminal Justice System descends into catastrophic meltdown, Grayling’s mask is ripped off and everyone breathes a collective sigh of relief as a bumbling, cartoon Homer Simpson is revealed. The world makes sense again. Fairness is restored. Superman flies in and leads the canary yellow caricature away in handcuffs on charges of being a complete and utter idiot.

Sadly, this isn’t going to happen. Our fearless leaders have brought us this far, but the turbulent journey from herein is up to us.

A strike by any other name…

Impotence can be embarrassing and lonely. It causes frustration. It can make a person feel powerless and out of control. As a former therapist, I can tell you that the primary cause of erectile dysfunction is the result of a little-known phenomenon referred to as Coue’s Law of Reversed Effort. Simply put, the more that you think about the adverse outcome, the more likely the adverse outcome will re-present. As the symptom intensifies, so too does the compulsive thought process. Eventually, the mind, which processes fact and imagination in exactly the same way, starts to ‘believe’ the imagined worst case scenario as a foregone conclusion.

To combat impotence, one must focus strongly upon the desired, rather than feared outcome. The desire must become all-consuming. We must desire victory in the same way.

Failure is not a foregone conclusion. We still hold destiny in our hands. Grayling is not the bogeyman. He is a solitary politician in a transient, temporary role, pitted against an entire, time-honoured profession. We must recognise the strength we have. We must decide on our desired outcome. The word decide comes from the Latin decidere, meaning ‘to cut off’. A true decision involves cutting off all other possibilities and committing to such without the consideration of defeat. Just as Hernán Cortés instructed his men to burn the boats as they descended on Mexico in order to conquer the land, we too must cut off every possibility of defeat.

As yet, we have fought the assault on Legal Aid by allowing the Lord Chancellor to dictate the rules, the position of the goalposts and even the dates and times of our games. Thus so far, we have bargained on his terms: we have pleaded, we have begged, we have reasoned. On the 7th March, we will politely abstain from attending court. Sadly, I fear that this is just the start. We must be prepared.

You, the reader, are being called upon to stop it. Do not think that others will overcompensate for your lack of participation in this all important battle.

Do or don’t do; there is no try.

The time has come to pin your colours to the mast.

Remember the analogy of bacon and eggs: the pig is committed but the chicken is just involved. Don’t be the impotent, uncommitted chicken as  your colleagues run into battle, burning boats in the background.

Save Legal Aid is a command; not just a catchy strapline.

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Social Mobility and Public Perceptions of the Criminal Bar

‘What do you call fifty barristers at the bottom of the ocean?’

‘A good start.’

It’s an old, well-worn joke, but the sentiment is crystal clear: the general public have never really liked those hailing from our mysterious bewigged profession, with many outside the Bar traditionally believing us to be privileged snobs possessing questionable moral fibre. Despite this, the latest buzzword of the Bar hails itself a ‘meritocracy’; promising that the profession has moderated its once-VIP door policy to welcome any candidate who is talented, hardworking and dedicated enough to practise, irrespective of background. So, has this paradigm shift seen the modern Criminal Bar shrug off its former stereotypical image as a domain for the socially advantaged few? Moreover, given the current financial stranglehold on the profession, have public perceptions towards barristers softened? Looking to a recent online article[1] penned by Michael Mansfield QC regarding the latest round of Legal Aid cuts, the mood of non-lawyers does little to inspire confidence:

“Oh boo bloody hoo. Less of my tax money being given to lawyers to represent terrorists and murders. If you think the legal profession offer [sic] such a great service and such moral integrity why don’t you stop taking the Government’s money and see if you and your lawyer friends can survive on your own. Perhaps you should consider lowering your rate like everyone else not subsidised by the taxpayer when business dries up. Lawyers are not gods.”[2]

This comment would indicate that far from improving, the climate of public resentment towards our profession is gaining momentum. If this bile-infused rhetoric is to be taken as the barometer of social opinion, what belies the heart of this perceived contempt aimed at the Criminal Bar? Given that we are a client-focused profession, dealing with some of the most challenging and vulnerable cross-sections of society, why do we not enjoy the same social adoration enjoyed by our equivalently-qualified, handsomely rewarded cousins in the medical profession?

One consideration is the public assumption that we are but one step removed from our criminal clients. In a climate where crime and disorder stirs up such public emotion, it seems that a body of professionals who represent alleged criminals may be disliked by association. After all, we do spend many hours sitting in windowless court cells giving advice to alleged paedophiles and attempting to persuade Judges that our drug-dealer clients really weren’t the ‘big fish’ of a particular operation. This privilege is not something that members of the Bar take lightly, however. The very fact that criminal barristers put their own personal feelings and prejudices to one side in order to listen to people accused of the most terrible crimes is at the very heart and strength of our adversarial, rather than inquisitorial system of justice: namely; that suspects are innocent until proven guilty and not the other way around. Can it be said that society truly understands and appreciates that its ongoing collective faith in the court process is borne from the fact that defendants are properly represented and therefore properly convicted or acquitted?

The fact that Legally Aided barristers are paid from the public purse only serves to incense the public, who resent our often non-working clients being represented at a cost of millions of pounds to the taxpayer. We are seen as both facilitators and beneficiaries of a system which openly benefits those who break the law, at a cost to those who don’t. Many will think ‘What does the court process have to do with me? I have no convictions and don’t see why I should have to pay so that rapists can be represented for free’.

The press does little to help improve our misaligned image, instead choosing to sensationalise stories about overly-lenient sentences, ‘legal technicalities’ and ‘fat cat lawyers’. Ironically, those once-heavyweight felines have been replaced by much slinkier versions; forced to crowd an ever-atrophying saucer of milk alongside thirsty solicitor advocates, whose firms’ job it is to pour the cream.

Despite woefully inaccurate misconceptions of vast wealth, those at the coal face of criminal practice know that it is an infinitesimally small, but widely-publicised proportion of criminal barristers[3] who enjoy the trappings of a lavish publically-funded income. After significant deductions and expenses, the majority of practitioners face daily financial hardship simply to stay afloat. With extortionate overheads and often derisory fees, many junior barristers are lucky to be making £50 per day after deductions. As one former barrister said: 

‘Don’t go to the Criminal Bar. It’s not a proper job. It’s a hobby, and a pleasant one for those with an independent income – but you simply cannot make a living from it in the first four or five years’.[4]

The former head of the Criminal Bar Association, Max Hill QC, recently confirmed that financial adversity is now a widespread reality of practice:

“We may be [Rumpole’s] successors but we spend our days worrying about paying the mortgage; worrying about how we can ever afford a pension.”[5]

Joe Public remains blissfully unaware of the changing landscape; instead still imagining the average barrister to be an Oxbridge-educated, port-quaffing, middle class aristocrat whose existence has been comfortably buttressed by a the cushion of a generous private income. Irrespective of the veracity of such an image, few people will either reconsider or warm to such a stereotype; especially in times of ongoing austerity.

So, is this public image deserved? According to the Neuberger report of 2007[6], it would seem so. Despite headway made in respect of the number of entrants drawn from BME[7] groups, the majority of pupils have traditionally been drawn from the top two socio-economic groups.[8] Would-be lawyers from socially disadvantaged backgrounds may have been priced out of qualifying, or, could have been dissuaded from even considering the Bar as a career because they didn’t fit the customary stereotype of the pupil habitually selected by chambers. More controversially, some pupillage committees may have steered away from candidates who originated from backgrounds which were dissimilar to their own. ‘People like people who are like themselves’ one senior practitioner privately admitted. ‘The question we always ask is ‘are they one of us?’’

Nevertheless, the Bar Council has been proactive in implementing some of the recommendations of the report, more recently publishing a guide promoting social mobility and equality of access to the profession. Chairman of the Bar, Desmond Browne QC, suggests:

‘The perception of a privileged profession, narrowly drawn and recruiting in its own image, is progressively more outdated.’[9]

As outdated as it might be; the grim reality remains that those without a private or second income will find it impossible to survive at the Criminal Bar in the first five years of practice; irrespective of talent or ability. The combined countervailing pressures of increased university and Bar School tuition fees, the proliferation of Higher Court Advocates and the repeated reduction in publically funded remuneration now threatens to reverse many years of effort by the Inns, the CBA and the Bar Council to improve access to the profession, with only the wealthy few being able to qualify, enter and remain in practice. Ironically, this will only seek to reinforce public perceptions that the Criminal Bar is the inaccessible province of the social elite; an image from which the Bar has worked so hard to distance itself.

August 2012.

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[1] Legal Aid Cuts: If Lawyers Don’t Defend Justice For All, Who Will? by Michael Mansfield QC, Guardian Online, May 2012 http://www.guardian.co.uk/commentisfree/2012/may/22/legal-aid-cuts-what-price-justice

[2] Ibid, comment by ‘Mouseelephant’, 22/05/12.

[3] The Times’ annually-published top earning Legal Aid barristers list.

[6] Entry to the Bar – Working Party – November 2007 –The Rt Hon Lord Neuberger of Abbotsbury; http://cms.barcouncil.rroom.net/assets/documents/FinalReportNeuberger.pdf

[7] Black and Minority Ethnic

[8] In 2007/2008, 62% of pupils were from the top two socio-economic groups according to the Neuberger Report.

[9] No Bar to the Bar, Barristers Promoting Social Mobility, published by The Bar Council.

http://www.innertemple.org.uk/downloads/general/No-bar-to-the-Bar-final.pdf