Deterred from justice: The criminal bar’s darkest hour
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.
The issue
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.
Delayed 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
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.
13 Comments
Anon
I’d be interested to hear from criminal barristers involved in recruiting pupils. Have application numbers dropped? Are pupillages being left unfilled? And who is taking them: people who are financially independent, or are ordinary people still applying?
Anon
I’m skeptical of there being a recruitment crisis. I’d welcome the views from the bar, but I still expect it’s incredibly competitive. Were hardly talking about thousands of nursing positions that are left unfilled.
Anonn
Add Criminal Solicitors to the article.
Serious lack of junior talent qualifying into general crime work.
FFS
I can find articles in online archive of ‘The Times’ that predicted the demise of the criminal bar 20 years ago, but evidently it’s still around. How many applicants apply for each pupillage and tenancy place again?
Remember kids – a barrister’s job is to persuade. It is of course within their interests to claim that they live in ‘poverty’ and that anyone who challenges these claims is a ‘hater’.
Stuck in a long queue
The data sets used as PR spin for this alleged “crisis” are skewed by only referring to the first three years when after that increased and continued payments for concluded payments result in a higher income stream.
The criminal justice system needs streamlining as trials simply take far too long and are too indulgent. One relatively minor domestic abuse trial involving a celebrity went on for three weeks recently, which shows the problem. Creating a 21st century system would free up courts and reduce the numbers of barristers that need to be funded publicly.
Grump
You spend a day in the public gallery at your local magistrate’s court and tell me the process is “indulgent”
Sneez
No, you tell us why 3 weeks for matters like the footballer’s trial isn’t.
Grump
Because it’s not representative of the normal everyday workings of the criminal justice system! Do you actually think most domestic abuse cases take up three weeks of court time?
If your point is “judges allow too much time for cases in general” then provide some proper evidence of this from across the court system, not the Daily Mail-level observation of “that bloke from the footy’s case took ages, that’s what wrong with this country”
Henry
For my part, for what it’s worth, I understand completely and agree with the big picture effect on the system etc., but like, I imagine, the vast majority of people, it’s hard to sympathise too much with this dispute, set in the context of the plight of others and the state of the country generally. Compared to bin men, railway workers, health workers and so many others, who could care about barristers? In how many disputes of the past have they been out in force in support of other workers? Sure, the system in which they work, in part, has its downside but what about the privileges, the access to the media, those people in high places supporting them, their positioning at the core of the Establishment, with powerful families and contacts often on their side? Of course, the younger ones have to struggle like everyone else but why should they be more privileged or advantaged and be able to buy property and suchlike any more than others when, over time, unlike many others, rewards may well come to them, particular, especially the minority who are already rich from having done nothing? The published data bear this out. The younger ones, over the past 20 years, have gone in with their eyes open. They could have become binmen but calculated that they could do better, which they probably will. They could even have chosen other branches of law. I don’t believe that they are all societal heroes and protectors of the poor but rather they have placed their bets, perhaps unwisely, in the expectation of rewards. I think we should hope for a fair outcome for them, no better or worse than for others, and if so, hope that they will be on the barricades for others in future. I am not optimistic, though. As the government for which many of them will have voted reminds us constantly, these are most difficult times, and we have to prioritise. I hope they find their rightful place on the ladder.
Anon
You are completely right.
When they claim “B-b-but, but you MAY need access to a criminal lawyer one day!!!”, they omit the fact that the vast majority of people or their families won’t in fact ever need a CRIMINAL lawyer. Most people in the UK aren’t involved in crime and don’t find themselves becoming accidentally involved in it.
In contrast, how many people reading this and their families WILL need or have extensively needed NHS help?? When have criminal barristers ever supported life-saving , educated nurses to get an increase in pay? They couldn’t care less because they really do think they are ‘better’ than people working within other professions.
You are dealing with people who are literally professional debaters. But that doesn’t mean that their complaints are true.
LOL
Congratulations, Anon, you’ve reached the pinnacle of being a troll. Whilst I generally cannot be bothered spending more than 2 minutes looking at various statistics for you; some of these suggest that about a third of the population has a criminal record. Now if you take into consideration the ever-decreasing police force, the increase in the seriousness of youth offending, delays in reporting, and a bunch of other factors – I’m sure the number of people that DO eventually require a criminal barrister increase significantly. There are no projections in sight to say that all crime will soon be eliminated.
As for your nonsensical comment re how barristers think they are better than everyone else – do I sense a grudge for never getting pupilage there? Just so I’m clear, you’re saying that because barristers are “professional debaters” means that everything they say must be a lie? Wouldn’t that apply to every legal professional then?
And How Many Are Born In NHS Hospitals?
Acting on emotion because you want barristers who are your friends/partner to like you more is not a reason for the public to support a 25% pay rise.
SourLemon
@Stuck in a long queue, tell me you’ve no idea how the criminal justice system actually works without telling me you’ve no idea how the system works. Speak to anyone at all who prosecutes or defends and then tell me how things take too long.. Daily trial listings are reaching ridiculous levels at some of the bigger courts. Everything is being rushed, there’s less and less leeway given to either side to try and resolve any issues, the justice system is just a massive conveyor belt as is, getting worse day by day.
You say the system needs streamlining to reduce the no. of publicly funded counsel? How exactly would you achieve that? By reducing crime rates? Brilliant-send your ideas to the gov., I’m sure they’d love to hear from you. Or do you think solicitors should take over advocacy as well as doing all the paperwork, managing daily caseloads, answering calls/emails, attending police stations, managing targets etc?
As for your argument regarding “lower income only in the first 3 years of tenancy”-where are you getting this from? Even if that was the case (which it absolutely isn’t), why should any professional agree or be content with working all hours of the day, completely foregoing any right to a personal life, being continuously stressed and then being barely able to survive on that income?
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