My Response to MOJ’s second Consultation on legal aid reforms

I am a barrister in private practice specialising in criminal prosecution and defence. I have been in practice since 1986 and have worked exclusively from Pump Court Chambers (chambers of Oba Nsugbe QC). I entirely agree with the submissions of the Western Circuit and the Criminal Bar Association and just wish to add a few remarks based on my own experience. I believe that these proposals, if implemented, will spell the death of the criminal bar as it exists today with disastrous consequences for our justice system.

My chambers is a mixed civil and criminal set. When I started in practice it was usual for members of chambers to have a broad practice covering both criminal and civil law. Gradually the number of specialists in one area or the other has increased, and there are now very few barristers within chambers who still have significantly mixed practices. One of the reasons for this appears to have been the increasing complexity of criminal work. For example, criminal barristers are now regularly required to edit videos of witness interviews, to draft (or to respond to) Defence Statements, bad character applications, hearsay applications, S.41 cross-examination applications, special measures applications and so on, all of which have been introduced relatively recently and all of which cumulatively impose a far heavier paperwork burden on barristers than traditionally was the case.

Geographically my chambers has offices in London, Winchester and Swindon. My own work is mainly south of the M4 from Guildford, Winchester, Southampton and the Isle of Wight west to Dorchester, Taunton and Bristol, with the bulk concentrated in Hampshire and Wiltshire. I work mainly in the Crown Court but also practise in Courts Martial and occasionally in the Magistrates Courts.

Practically all of my income as a barrister is derived from publicly funded criminal work. Most of my clients are the poorest of the poor and hardly any would be able to afford representation of any sort without legal aid.

Graduated fees for Crown Court advocacy have been steadily cut both in absolute terms and by the effect of inflation since 1997. Since 2007 alone they have been cut by at least 30%.

There are no other professions comparably dependent on public finding– doctors, social workers and teachers all spring to mind – which have had their funding cut as remorselessly as criminal advocates. It is absurd to pretend that the criminal bar can collectively absorb yet further cuts of 17.5% and continue either to attract competent recruits to the profession, or indeed to retain competent practitioners. Our own experience within chambers is that hardly any of our new recruits now wish to specialise in criminal law.

Speaking for myself I will try to continue in practice as long as I can because I love the criminal bar and I am proud to play my small but important part in the justice system. It is inconceivable that young barristers and solicitors will wish to specialise in a branch of the profession in which the remuneration is so poor.

The Lord Chancellor has repeatedly expressed the view that there are “too many criminal barristers.” However it is hard to see how reducing the number of barristers will in itself reduce the legal aid bill, unless it is accompanied by greater delays for defendants and witnesses. What reducing the number of barristers will do, however, is to reduce the diversity of the bar and reduce the amount of choice available to those who require its services.

Lady Hale recently commented that the bar is in danger of reverting to being a “club for the rich” and observed that the opportunities for people from diverse backgrounds to enter the legal profession appeared to be getting worse. This is a trend that has already started. Further reductions in fees payable for criminal legal aid will simply make the situation worse. It should not be forgotten that young barristers, unless they come from rich families, almost always have large personal debts and inadequate remuneration will make it impossible for them to specialise in criminal work.

Reduced diversity within the solicitors and barristers’ professions will inevitably have an effect on judicial diversity and on the quality of circuit judges. Of the six circuit judge appointments from my own chambers in the last ten years, every single one had been a criminal practitioner and was appointed to sit mainly in criminal cases. Such a pool of ability and expertise will simply dry up if the financial reward for practising criminal law is cut further.

Very few criminal barristers joined the profession in order to get rich. But there is no self-evident reason why they should not be paid a comparable amount to other professionals within the criminal justice system. One obvious comparison might be with police officers, who, on average, are much, much better paid.

Take the Metropolitan Police, for example. Once a new entrant to the Met has completed his or probationary two years he receives a basic salary as a PC of £32,610: very similar to the amount paid to a typical criminal barrister. But the difference is that unlike the Police Officer that is all the barrister gets, whereas the Police Officer gets many generous extras..

All police officers are immediately enrolled into a generous final salary pension scheme, albeit contributory. The barrister gets no pension at all unless he makes his own arrangements.

The list of other benefits for police officers is a long one (this is taken from the Metropolitan Police website):

22-30 days paid annual holiday, depending on length of service. This is on top of public holidays and an average of two rest days per week.

* Maternity, paternity and adoption leave

* Special leave with pay

* Special leave without pay

* Parental leave

* Career breaks of up to five years.

* Free travel on London Underground and buses

* Heavily subsidised travel on National Railways

* Loans of up to £50,000 to buy a house

In addition some Metropolitan Police Officers are eligible for annual housing allowances of up to £5,000.

The self-employed barrister gets none of this. Moreover, the barrister has generally paid thousands of pounds for his or her own education and training, and generally starts work thousands of pounds in debt. The police officer (who requires no formal educational qualifications at all) is well paid throughout the training process.

And this is a comparison between a newly qualified police constable and the average barrister (which of course includes many able and experienced barristers who have been working for many years). The police officer can look forward to many years of automatic pay rises, even without promotion. The barrister cannot. If the barrister is very good, and very lucky, there is a chance that after many years he or she may eventually start to earn an income comparable to that of a Police Inspector, although still without the perks and fringe benefits. The chances of doing better than that at the criminal bar at present are almost vanishingly slim, and these proposals are going to reduce them still further.

I am not in any way suggesting that Police Officers are over-paid. Theirs is a hard and difficult job. Many police officers risk, and sometimes lose, their lives dealing with dangerous and aggressive people. But many others have routine office jobs. They are paid the same.

 This remorseless attacks on a profession that is still somehow providing an excellent service for a very reasonable price is going to be counter-productive. If barristers’ legal aid payments – and very similar arguments apply to solicitors too – are cut further, able people will simply stop trying to practise criminal law. Trials will become more and more of a lottery. The quality of prosecution lawyers will also fall. More guilty people will get off. More innocent people will be gaoled. The quality of criminal judges will collapse and our once proud justice system will be ruined.

If these proposals are implemented some sort of criminal bar will no doubt survive. The very rich will perhaps be able to practise advocacy as a hobby. A few dedicated individuals may continue to practise out of a sense of duty. Some barristers will perhaps do the odd criminal case for nothing. And perhaps some sort of third rate public defender system will develop, rather as in America where – aside from a few glaring exceptions – the poor and uneducated are generally defended by either beginners or fourth raters. But it will be a tragedy, and the costs both financial and human will far outweigh the £220M that the Government wishes to save.

 I have confined my response to criminal law because that is my area of practice. However I also strongly oppose the plans to limit legal aid for foreigners, many of whom are particularly vulnerable and in need of legal assistance, and for prisoners.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

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