Years of underfunding has created a retention and recruitment crisis, writes aspiring barrister Edmund Mawoko
The opposite of poverty is not wealth. It is Justice — Brian Stevenson.
In recent publications which have documented the current strikes from barristers across England and Wales, the criminal bar’s lack of funding has been the central issue. Undoubtedly, there have been several publications documenting the stories of many underpaid barristers and the increasing backlog of cases. Without a doubt, these are issues of high importance. However, I dare say the strikes represent a more pertinent issue, one which should garner more public support. That is the rule of law, a term coined by Professor AV Dicey which encompasses the following:
• The law views all people as equal (no one is above the law)
• Accessibility to the law for all
• An independently functioning judiciary
• The accessibility of justice for all people
The funding crisis simply resembles the downshift in which the criminal justice system (CJS) has been placed lower on the list of importance when considering areas requiring more public funding. What does this mean to the average person? In addition to more underpaid barristers and an increased court case backlog the nature of our CJS is being threatened meaning:
• An insufficient number of criminal barristers to take on cases and reduce the current case backlog
• The justice system will mainly benefit those capable of privately funding their cases
• Victims will wait longer to obtain justice through the court system
Despite insufficient funding not being the primary issue, sufficient funding plays a large role in providing the criminal bar and the CJS with an adequate set of remedies for their current issues.
Retention and recruitment
The notion of ‘fat cat lawyers’ is a mirage for many members of the criminal bar, especially for junior barristers and aspiring barristers. The severity of the funding crisis has meant about one in eight barristers have left the profession in the last year. According to the Bar Council, “the number of barristers declaring their practice was full time publicly funded criminal work was down more than 10 per cent (from 2,670 to 2,400)”. Considering there are less than 6,400 criminal barristers and only 2,400 full-time publicly funded criminal barristers to cater to approximately 60 million people in England and Wales the figures clearly display an unsustainable and undesirable trajectory.
In addition, many aspiring barristers with a passion for criminal justice work, are now reconsidering their choices when faced with the potential hourly rate of £6.25 upon qualifying. This figure falls well below the national living wage. When factoring the thousands of pounds spent and years invested by aspiring barristers into their education such figures make other areas of the law more attractive and viable options. In the absence of sufficient funding, fewer aspiring barristers will consider careers as criminal barristers and judges. Their years of hard work should be incentivised. The current state funding threatens the future of the criminal bar as it is no longer a sustainable career path for many. This causes damage to the efficiency and growth of our CJS. More importantly, it threatens the rule of law within our society. How can the rule of law be upheld without the necessary people to enforce it?
Money talks, empty pockets don’t
The publicly funded criminal bar plays a vital role in ensuring equality of opportunity within the CJS. In many ways, it creates a level playing field between those who can afford to cherry-pick their own privately funded legal team and those who cannot. Public funding for the criminal bar creates fairness for the public. A contrast to the feudal justice system of the Medieval Ages, which largely benefitted the nobility. In modern terms, the rule of law just means no one is above the law. Therefore, publicly funded barristers play a vital role in the upkeep of the rule of law within our CJS, as those who cannot afford legal fees can still hold wealthy criminals to account. No funding means no justice.
Between 2010 and 2019 there were 295 court facilities closed, while the backlog of cases continued. The side effect is the lack of resources for the court to facilitate and administer justice effectively and efficiently. This in addition to other factors causes a large number of outstanding criminal cases. On the ground level, it means victims of crimes have to wait longer for their cases to be heard. This is damaging to the public’s confidence in the CJS, as members of the public will begin (if not already) regarding the CJS as incapable of providing them with timely and just outcomes.
The future of the publicly funded criminal bar depends on the support and funding provided in the criminal bar’s darkest hour, which is now. The issue is not funding but sufficient funding is a large part of the solution. The primary issue is the rule of law. The way in which it is prioritised and preserved is central to the current strikes.
• Barristers leaving the profession.
• Aspiring barristers reconsidering their options.
• The court case backlog increasing.
• The closure of hundreds of court facilities.
• Delays in victims receiving justice.
These are all side effects of when the rule of law is not prioritised and supported with adequate funding despite these encumbrances, the strikes held display the dedication of members of the criminal bar to preserve the efficiency of our CJS. The barristers striking across England and Wales have demonstrated their commitment to advocating the interests of their clients which are the public. Their persistence in highlighting the damage faced by the CJS and demanding adequate solutions should instil hope in the aspiring barristers, practising barristers and the public with regard to the future of the criminal bar and the CJS.
Edmund Mawoko is an aspiring barrister. He is a law graduate and vice president of Middle Temple Student Society.