Do right and fear no-one? Barristers' Days of Action

As I, like many others at the criminal bar, engage in days of action, no returns and no new instructions, I have found myself reflecting on the proverb ‘do right and fear no-one’ – a proverb that encapsulates the essence of practice at the criminal Bar. Who will be there to ’do right and fear no-one’ if junior barristers cannot afford to take criminal defence work? What does the future hold for our criminal justice system if barristers are walking away from the criminal Bar? What does the future hold if the cracks in the criminal justice system are now simply too large to paper over?

What we signed up for?

I suspect I speak for more than just myself when I say I did not join the criminal bar to be wealthy. I was well aware, working in an area primarily funded by legal aid, my earnings would differ substantially from my colleagues practising in other fields. It was a choice willingly made, with lofty but truly held ambitions of ensuring justice was done – and seen to be done – in the criminal courts. I passionately believed, and still do, in the importance of access to justice for all. In the integrity of an adversarial system ensuring equality of arms for both sides. That said, I hoped my work would be fairly renumerated. That this renumeration would allow for some semblance of a work-life balance. The facts and figures provided by the Criminal Bar Association, illustrate this simply isn’t the case. The following example is particularly striking: “junior criminal barristers in their first three years of practice earn a median income of only £12,200, which is below minimum wage.”

Doing the maths…

It doesn’t take a mathematical genius (which I am not) to work out why this may be the case. To start with, it should be put in the context of the fact criminal barristers have suffered an average decrease in real earnings of 28 per cent since 2006. For hearings such as a sentence, or mention, the fees are £126 and £91 respectively, inclusive of any preparation you have done. This then needs to be set against expenses. Travel is a common feature of criminal practice – and train fares do not come cheap, especially at peak times into or out of London. It is easy for the fee to be entirely taken up by train fare, commission to chambers, and an amount set aside for tax, leaving you with precisely nothing in your pocket. Not to mention that,  as we’re self-employed, there is no maternity pay, holiday pay, sick pay or workplace pension. For those joining the profession in particular, these low fees are crippling.

Crippling to the extent barristers are simply walking away. The CBA states:

• ”We have lost a quarter of our specialist criminal barristers over the last 5 years, with 300 walking away last year alone.”
• “Nearly 40 per cent of our most junior criminal barristers departed in one year.”
• “The alarming attrition of criminal advocates resulted in 567 trials last year being postponed for want of an available prosecution or defence barrister.”

The implications

The reality is a career at the criminal bar a is no longer seen as a financially viable option for many, I suspect especially so in the turbulent times we’re currently experiencing, with rising costs of living. What does it mean? It means we are losing criminal barristers in droves – and it means there are too few willing to take a risk on a career path which seems financially unstable. That has obvious ramifications for the long term diversity of the criminal Bar and beyond, particularly given our most junior members are the most diverse. Continuing to recruit a diverse and representative intake of pupils – and retain them through the early years of practice – is key to securing diversity at all levels of seniority in the future, including at the highest levels of judicial office.

The reality

The reality is the financial instability isn’t the only problem. With the entire criminal justice system under pressure with a vast backlog of cases which existed prior to the pandemic but has been exacerbated by it, court listings are chaotic and subject to change at the last minute. As criminal barristers, we routinely end up cancelling our own medical appointments, postponing holidays, missing time with our families – and friends’ weddings, as cases run over, or are simply listed with no regard for the availability of counsel. Time and time again, we work through the night and through our weekends to make sure the standards of justice are maintained, the wheels keep turning. That takes its own emotional toll.

A crumbling court system?

I am well aware the issues go beyond defence advocates. I know our instructing solicitors are both overworked and underpaid. Court staff, the police, the Crown Prosecution Service, are all struggling. The very court buildings are crumbling around our ears for lack of investment, and I mean that quite literally: water leaks, collapsed sealings, broken chairs simply taped off rather than replaced. In our world of technological advancement, you’d be hard-pressed to find a courtroom where a witness can give evidence via video-link without a hitch (no sound, no picture, microphone interference, etc, usually all attempted to be solved by turning off the systems and turning them back on again). This is a criminal justice system that has suffered years of neglect and underfunding at every possible level and it’s no longer just full of cracks – it’s full of gaping chasms.

The after-effects

The effect of that on the public is very real. Whether a complainant, defendant, or witness, you could quite literally wait years for your case to be heard in court. Your case might be listed, only to be removed at the last minute. You may be at court to give evidence, only to be told the case has been adjourned and won’t be listed again for another 12 months. It is understandably frustrating. It does not serve the administration of justice. It does not engender confidence or pride in the system.

Justice and access to justice requires a properly funded criminal justice system. It requires criminal defence advocates receiving a proper fee for work properly and diligently done. Otherwise, justice is not served, not for defendants, not for victims, not for witnesses. This is still a profession I wholeheartedly believe in, but it feels unsustainable if we do not see some change meaning we can both attract and retain new criminal advocates. I do not know a barrister taking part in this action who does so lightly; we would much prefer to be speaking inside the courts than standing outside. However, it feels we have been left with little option. That is why, as excruciatingly difficult as I find it, I take part in the Days of Action, in no returns, and in not taking new instructions. I do so with a heavy heart, but with hope being uncomfortable now will pave a positive future for the criminal bar and all those working in or experiencing the criminal justice system. I hope it will mean a future of a talented, dynamic and diverse criminal Bar, working to do right and fear no-one.

Sarah Day is a barrister with Libertas Chambers: libertaschambers.com; Twitter: @LibertasChamber3