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.

Image

[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

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2 comments

  1. All of which is very interesting, but the conclusion it leads me to is that the business model of “independent practicioners in chambers” is outdated, obsolete and unsustainable. Why do you persist with it?

    Let me offer you an alternative vision of your life:

    You’re employed by a legal representation firm. The firms clients come via a variety of sources – some direct, on day rates; some through insurance packages that the public can buy, offering legal representation when they need it; some through bulk purchase arrangements with firms of solicitors, and the rest through bulk purchase contracts with the courts system.

    Regardless of how much business the firm brought in that month, you’re paid a nice, predictable, bank-manager friendly salary in the 45K region. You get sick pay, maternity leave and the full protection of employment law. The firm repays your business expenses.

    You’re doing a nice, stable, middle-class employed professional job. Just like a large section of the rest of the population, who will cease to regard you as a port-swilling Rumpole, as see you as one of them.

    Of course, you’ll need to give up the chance to be a Rumpole, one of the rockstar briefs defending dodgy Russian oligarchs on astronomical retainers. But it sounds like you don’t want that anyway. You want to do a good job for your clients. So why persist with the outmoded business structure that makes it so difficult for you to do?

    Working for Eddie Dentresangle Legal Services and Haulage Ltd. might not be a bad thing after all.

    1. I would love that model – if it were a public and not private sector version. No good can come of privatising the legal system; placing it in the hands of non-legal, profit-hungry, faceless corporations will see standards drop and lives ruined. I do agree however, that the we no longer need huge chambers’ buildings: people tend to work from home these days and running costs could be reduced for practitioners if chambers downsized and charged less rent. But, with more and more ASBs and mergers, that will invariably happen in the next decade anyway.

      That said, we cannot keep atrophying tradition in the name of globalisation, as we are going to end up with a single provider of everything we need/buy/consume. The ultimate Tesco one-stop shop, which will kill the high street, and provide everything from milk to legal service to funerals. Is that the kind of world you would want to live in? I would prefer law firms to specialise in law and funeral directors to specialise in funerals. Capitalism can be beneficial, but we are running the risk of losing our social values and individuality in the name of profit. Thanks for reading!

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