Training: Criminal injustice
9 September 2013 | By Becky Waller-Davies
Legal aid changes could have a serious impact on junior barristers
Transforming Legal Aid was the name of the Government’s consultation paper, aimed at cutting one-fifth off the legal aid budget by 2018.
The Government responded to the bar’s reaction to the paper last week. While many of the cuts will go ahead, the Justice Minister Chris Grayling said plans to hand legal aid to the lowest bidder would be dropped. Nevertheless, if the remainder of the well-publicised proposals find their way into bar practice they could, in the words of the chairman of the bar Maura McGowan, be “a blunt instrument that will leave deep scars on our justice system”.
Criminal barristers with established practices will be hit hard, but what of junior criminal barristers? Will the newest ranks be able to sustain and develop their practices?
Nichola Higgins of Doughty Street Chambers is a former head of the Young Barristers Committee (YBC) and was called to the bar in 2005. She is frequently listed as one of the future stars of the bar and says: “There’s a definite unease. There’s no stability. Morale ebbs and flows in any profession but we have taken a significant hit since the latest consultation. The mood of the bar was – ‘here we go again, how much more can we take? We’ve already been through two rounds of cuts, where are they going to get the savings from again?’”
James Jackson of 9-12 Bell Yard is a new tenant, having joined the chambers in July after being called to the bar in 2009 and completing his first pupillage at 2 Bedford Row. He describes the morale of his cohort as low and cautions that even people at reputable chambers such as his are struggling to see how their future at the bar will pan out.
“My friends who have been taken on at good places are perhaps slightly more upbeat,” he continues. “But even people at busy chambers are thinking, for the amount I earn, is it worth it?
“And they don’t do it for the money, despite what people say. Even people who are doing relatively well are having second thoughts and those at the other end are definitely suffering. It’s not all doom and gloom. People try to make the best of it and stick it out.”
As present head of the YBC and an established tenant at 23 Essex Street, Hannah Kinch is able to compare the health of her practice with the general health of the criminal bar. She says she does not want for work, but admits this is not an experience shared by most junior barristers.
“People are anxious, they have come into the profession laden with tens of thousands of pounds of debt,” she says. “Often you run into more debt during your pupillage because fees take a while to come through. And now they find themselves in a precarious financial pos-ition where there’s all this talk of further legal aid cuts.”
“The criminal bar, frankly, has always been a bit doom and gloom,” reasons Zoë Saunders, a family barrister at St John’s Chambers in Bristol. “But this time it’s probably justified. It’s pretty clear the criminal bar is under unprecedented pressure and a lot of sets just aren’t recruiting. People just don’t think it’s fair, not knowing what the future of the criminal bar holds. They’re having a horrendous time.”
Young barristers are now combatting this shrinking of work and fees by diversifying their practice areas.
“If you look around you see a lot of people doing regulatory work, which I have no problem with – the only issue is, of course, that most people who come into the criminal bar want to do criminal work,” comments Jackson. “I’m already trying to break into regulatory work and am doing some international work at The Hague. A few years ago nobody wanted to do it, from the UK at least, because the money is not seen to be so good. But now a lot more people are looking into it as a supplementary area.”
Higgins confirms: “People are doing different areas of work within the bar. Those who have mixed practices are tending to do the other area rather than crime.”
Whether young criminal barristers choose to branch out into complementary areas to supplement their criminal practice, the difficulty of establishing and developing a practice – which has always been a significant challenge – is now viewed as an uphill struggle as classic criminal work gets hoovered up by other practitioners and fees for work are cut by the Government time and time again.
Jackson emphasises how difficult it is for young barristers to get onto the next rung of the ladder – quality Crown Court work.
“What a junior barrister ends up getting is the dregs, the stuff people don’t want to do because it’s not cost-effective or it’s an absolutely horrendous case,” he explains. “That’s something I hear a lot of junior barristers talk about – ‘we consistently get the garbage’. You need to work your way up, but it makes it hard to progress, do the right cases, practice your advocacy and build your reputation because a lot of cases are cherry-picked at source, which is precisely what barristers can’t do.”
Kinch cautions that barristers now take longer to graduate from the magistrates courts and that a Crown Court practice is no guarantee of a healthy pay cheque.
“Everyone knows it’s quite difficult in the first couple of years when you’re doing magistrates court work because everyone is aware of just how badly paid that is, or can be, but I had not appreciated how hard it would still be when you got to Crown Court,” she admits. “It’s changed from a few years ago, before the cuts and before there were quite so many solicitors taking over shorter Crown Court trials. People generally thought they would be able to establish a Crown Court practice early on in their career, and once that had been established it would be easier to make a living. That’s something that takes longer now, and when you do establish it, it will be at reduced rates.”
The danger to the bar lies not just in the time it takes to establish a quality practice and become financially secure, which has a detrimental effect on diversity and means many young barristers cannot stay the course. Danger also lies in young barristers struggling to rack up the cases and experience they need to become a silk.
Jackson comments that the current climate means “having a successful career and becoming a silk as the goal has become more difficult”, while Higgins notes a growing trend among criminal lawyers of her year of call for leaving.
She says, “This trend started in 2011 and it’s gathering pace – there’s a lot of diversification but there are also people leaving. The profession is definitely leaking talent.”
Readies, steady, go
For some young barristers it is more difficult to develop their practice than others. Kate Loftus became a tenant at Farringdon Chambers in February and focuses on criminal defence work.
Loftus believes she will be able to build her practice to a reputable standard but her situation is representative of how conditions are restricting diversity at the bar as, even after candidates have funded their qualifications which can cost as much as £17,350, those who lack parental support are disadvantaged.
“It’s the best job and I love it,” Loftus says. “I can’t pay my rent on my earnings but I’m consistently busy. I don’t know how most people survive; I’ve had to take a second job. I’m a police station representative once a month, on call for the whole weekend with one solicitors firm. I enjoy it though.”
Both Jackson and Loftus reason that the traditional view from the bar when looking at the situation of younger criminal practitioners is flawed.
Jackson says: “Ten years ago people would say ‘if you stick it out you’ll be okay’, but these days, even though there are good chambers and I’ve been fortunate enough to do my pupillage and become a junior tenant at those, the future is by no means certain.”
Loftus adds: “I’ve been told it will get better, but the people who are saying that are 15 to 20 years my senior and when they joined the bar the picture was very different.”
As for the future the consensus at the junior end of the bar is that if the Government chooses to pursue its cost-cutting strategy, criminal sets will shrink, with solicitors taking much of the remaining criminal work from barristers.
Saunders is convinced the criminal bar will see drastic change.
“I suspect there’s going to be a massive reduction in the number of criminal practitioners, which will be painful for everyone involved,” she predicts.
Higgins emphasises that the future of the bar depends on the outcome of the Transforming Legal Aid paper.
She says: “We are on the cusp of change, a lot is happening and a lot will depend on what the Government thinks of the profession’s reaction to the consultation paper. That will dictate what happens next.
“It would not surprise me if, at the legal aid end of the bar, we have less specialisation and more people doing a little bit of everything, more common law sets. We used to have more common sets and then there was a trend towards specialisation and it wouldn’t surprise me if there was a slight reversal of that.”
Jackson agrees. He believes there will still be a criminal bar if cuts continue but points to a system whereby a small number of primarily criminal chambers will do niche work, private work and big, high-profile cases.
“You’ll always be able to find somebody to do a high-profile case to keep up their reputation, and then you’ll have an array of firms employing various people and that will be it,” he says. “I don’t see a future for good- to middle-par chambers doing primarily legal aid work. So I think you’ll end up with a top tier doing criminal work and then the firm approach, and nothing else.”
Loftus, however, struggles to see a future for the bar if Government proposals go ahead.
She says: “If the proposals go through things will look pretty dire. I don’t know if the criminal bar as we know it will exist in five years. If these proposals go through it will wipe out the junior bar, specifically people in my position. I don’t see how an independent junior bar will survive.”
What next for legal aid?
The Government estimates that its proposals would save £220m per year by 2018/19 against a current annual budget of £1bn.
The proposals include reforming prison law to ensure that legal aid is not available for matters that it believes do not justify the use of public funds; the introduction of a household disposable income threshold above which defendants would no longer receive criminal legal aid; a residence test for civil legal aid claimants, ensuring that only those with a “close connection” to the UK would receive legal aid; and reforms to reduce the use of legal aid to fund ‘weak’ cases. A borderline test would be introduced to weed out cases with a less than 50 per cent chance of success.
Until 5 September, the Government intended to establish Price Competitive Tendering. It has now abandoned this decision due to the response from the legal profession. It has also decided to allow clients to have the same level of choice when selecting their lawyer as they currently do, recognising that this is crucial to client satisfaction.