I am not a habitually angry person. Those who know me professionally would, I hope, attest to my happy-go-lucky demeanour and brimming joie de vivre. By way of example, I considered illustrating this blogpost with a jovial (and nostalgic) nod to Busted’s What I Go To School For.

In fact:


See? Jocular. Convivial. That’s me all over.

But barely a month into the job, new Lord Chancellor and Justice Secretary Michael Gove has managed to dig a fork right under my rib, not so much tickling at my intercostal muscle as lancing it clean through.

For while Mr Gove made plenty of flirtatious noises during today’s speech to the Legatum Institute – his un-Grayling-like acknowledgment of the rule of law, of the inefficiencies crippling the criminal courts, and of the remote possibility that legal aid lawyers are not simply slumped with their faces in the money trough – what chases, pins and tortures my gander is the throwaway allusion to the panacea of pro bono. And in particular, the helpful suggestion that the chronic inefficiencies in the courts could be ameliorated if the lawyers did just a little more for free:

“When it comes to investing in access to justice then it is clear to me that it is fairer to ask our most successful legal professionals to contribute a little more rather than taking more in tax from someone on the minimum wage.”

Now I know that, as Mr Gove told World At One, his comments were directed primarily towards Magic Circle (or “golden circle”, as Gove curiously put it) city firms and, presumably, chancery and commercial sets of chambers. But. But but but but but. We will put to one side, in the spirit of charity, any perceived insinuation that criminal legal aid work is the kind of jape that a Mergers & Acquisitions associate at Allen & Ovary can knock out during a 10-minute power walk round Bishops Square, rather than the most rapid-changing, pulsating and chaotic area of law, one in which people specialise for YEARS until feeling even vaguely competent to appear before a Crown Court Circuit Judge.

No, what I would like to take this opportunity to mount my soapbox, conveniently high up and equine-shaped, and shout about, is what as a criminal barrister I ALREADY do pro bono. What successive governments of every political colour, the Legal Aid Agency and the Crown Prosecution Service assume that I will do for free. And what I do, in fact, do for free.

So, herewith a non-exhaustive list:

1) If a trial I am defending is adjourned (as happened today, in fact), for reasons entirely out of my control – an interpreter not attending, a prosecution witness unavailable, lack of court time in spite of courtrooms sitting empty in that very building – I receive nothing. The Legal Aid Agency includes the day spent at court waiting to re-list that trial within one of my four “standard appearances” built into the already-slashed “brief fee”, and I get nothing for that day.

2) If a trial I have prepared is refixed by the court for a date I cannot do, I lose the brief, and get paid nothing at all for the hours spent preparing for trial.

3) If the court suddenly lists one of my cases for a mention hearing due to – for example – the CPS not having confirmed that they are ready for trial, and I am unable to attend, I have to pay someone else to go in my stead. I actually lose money, rather than risk showing the court the discourtesy of not attending.

4) I get paid nothing for drafting advices, legal applications or skeleton arguments, either for the prosecution or the defence. Depending on the complexity of the case, advices on evidence can take up to a full day, particularly if I am instructed (as frequently I am) to resuscitate a dying fraud or drugs conspiracy that the CPS have buggered up before admitting defeat and instructing counsel. This free advice is done on a day that I have to take out of court, meaning I earn nothing twice over.

5) I get paid nothing for drafting Defence Case Statements, theoretically the preserve of the instructing solicitor, but frequently thrust upon the barrister to knock up.

6) I get paid nothing for a Plea and Case Management Hearing when defending. Nothing for completing the 30-page form, nothing for the lengthy conference with the Client beforehand, nothing for waiting all day while the court slogs its way through a 40-case list. And nothing when the PCMH is adjourned due to the CPS having not served the papers.

7) I get paid nothing for the second day of a trial. I receive a fee to cover, notionally, preparation and the first day of trial. I receive a “refresher” fee for day 3 and onwards. But day 2 of any trial is a freebie.

8) I get paid nothing for reading Unused Material. This is the often voluminous material gathered by the prosecution in the course of the investigation, which they have a duty to disclose to the defence if it is capable of assisting the defence case or undermining the prosecution case. For complex cases – particularly involving sexual allegations – this can amount to quite literally crates and crates of old (and often handwritten) Social Services documents and medical records. I have to read every word, as the key to my Client’s case can be buried within, but get paid not a penny.

9) I occasionally get paid nothing for reading the actual evidence. The fee for a case is calculated by reference to the number of pages of prosecution evidence (PPE). Where the prosecution choose to serve evidence electronically on disc, rather than on paper, a byzantine bartering ritual kicks in where the Legal Aid Agency can choose to arbitrarily withhold the fee I would have received, had the exact same evidence been served on paper.

10) I get paid nothing where a Client decides – for reasons entirely outwith my (admittedly limited) competence – to instruct new representation. I recently spent approximately 100 hours preparing for a complex Proceeds of Crime Act hearing, involving thousands of pages and hundreds of miles of travelling to see the Client in prison to take instructions. When, a month before the hearing, the Client dispensed of the services of my instructing solicitors, his new firm brought in their preferred counsel, and I was left unable to bill a farthing for my work.

I could go on. I want to go on. But I also want to weep. Because any serious discussion about the future of the criminal justice system which does not recognise that the courts only keep running because of the unsustainable goodwill of those involved, is not a serious discussion at all. It’s a charade. And with a few poorly-chosen sentiments, Mr Gove has indicated that he’s only here to play the game.

thesecretbarrister Law Inaction, Legal Aid, Politics , , , , ,

22 Replies

  1. Vote with your feet. Why waste time complaining about doing a complex and challenging job for free? In what other industry would it be acceptable? If, despite your justified complaints, you still agree to do it, then nothing will change. Striking for a day does nothing. Just leave and seek the reward and recognition you deserve. Caring about justice or any other worthy reason for choosing this job over the city will soon wear thin when you are still living in a house share at 35 and unable to buy yourself the train fare back from court. The tragedy is that defendants are left represented by either the privately wealthy who can afford to complain but still get on with the grind, and those unable to do anything else. Although this blog is well written and absolutely spot on, it is also just another variant of the same article written by hundreds of other criminal barristers every year and still nothing changes. Use your numerous skills elsewhere.

    1. I would love to say, Rob, that you are a cynic, and that my unique brand of derring do and boundless optimism will confound your hardened pessimism. But you’re right. Absolutely spot on. Realistically, whatever the highs of this vocation – and there are, as you know, those rare and splendid moments of euphoria; the acquittal against the odds, or nailing a really nasty scumbag to the wall in cross-examination, – they will have to give way to reality. While I’d love to think I’ll complete a second decade at the Bar, the decision will probably be made for me.

  2. What is desperately sad is that this was exactly the same position as I found myself in 6 years ago and was forced to leave a job I had fought hard for, coming from a single parent family with no financial support and huge debt and deciding to forego a proper London graduate salary in the name of doing a job I was passionate about, and actually pretty good at. Being the voice of the vulnerable and the guardian of the rights of those unable to properly protect themselves was the most exciting thing I have ever done. I sadly had no choice but to take a ‘proper job’ (ie one that actually pays you) – I could not afford to live in London despite my completely booked diary and my genuine aptitude for the role, the holes in my shoes needed repairing and bills needed to be paid. Seeing the same issues and newer I justices being flagged up yet again in this latest blog post, it is evident that I was right to leave, but sad too. There a plenty of excellent advocates who are talented and continue to do this gruelling job for the right reasons, at their own personal sacrifice, but I also see a lot of privileged morons who do this as a hobby whilst daddy pays the bills and they exclaim that ‘things are going great at the criminal bar!’ These people, the ones who have no idea what it is like to find themselves in the position of many defendants, are the only ones left to be the voice of social justice. yes you can be privileged and still empathise or have insight, but something doesn’t sit right about this remaining the reserve of the elite.

    1. I agree entirely. And if the inference to be drawn from Mr Gove’s speech is correct, namely that he wishes to see publicly-funded work turn into a pro-bono past-time for wealthy commercial types, the situation will only get worse.

  3. I hope you have sent a copy of this to Mr Gove. I doubt he will read it otherwise…and possibly not even if you do send it to him!

    1. There seems little point, Paul. Nothing I have said would be a surprise to Mr Gove, and, as Rob says above, has been echoed a thousand times before. We’re all just railing against the elements.

  4. The author comes across as so incredibly entitled!!! Every skilled profession requires hours of voluntary labour… This is the nature of specialized, technical professional labour as opposed to a wage labourer whose work is based on the ‘exchange of discrete quantities of effort for discrete quantities of reward on a short term basis’.

    1. The distinction you draw between ‘wage labourers’ and certain professions doesn’t exist.

      Anyone who works and receives a wage is, in effect, a wage labourer. It is not entitlement to expect to be paid fairly for one’s labour (although, as you point out, it is customarily expected across several fields, including in teaching, where most work beyond the nominal 35 salried hours).

      1. I’m equivocating. We are all ‘wage labourers’ in the sense that we receive payment in exchange for labour. The salaried worker has as much right to be fairly and sustainably remunerated as anyone.

    2. I’m sorry if that was the impression you gained, AT. It’s not intended to read as self-entitlement, more a plea of recognition from the powers that be that, when they call for lawyers to do more work pro bono, there’s an entire legal sphere working for free on a regular basis.

  5. Although I have ambivalent feelings towards self -employed estate agents-if one were to substitute trial/case for listing,hearing for viewing,trial delayed for client cancelled meeting etc.I feel the majority of self employed people would call these the costs of doing business.A fact of life not always appreciated by those who have had it fairly easy in life.To extend the analogy a self employed estate agent/salesman who doesn’t get the right result-will get not a jot.Whilst all the overhead still has to be paid for-even if he did” put on a good show”

    1. I’m afraid I can’t agree with the analogy, Nick. If estate agents had their fees set well below market rate by government, and cut by 40%, and then cut again, and then cut again, and were then told that, additional to that, they were now expected to forego their commission entirely on certain sales, that might be comparable. Speaking as someone who was the first person in their family to go to university and who, prior to coming to the Bar, meandered through an entire catalogue of minimum wage jobs, I don’t believe I’d qualify as someone who has “had it fairly easy in life”. My argument is simply that there’s an awful lot of work that the state requires criminal barristers to do which attracts zero remuneration and which cannot be sensibly characterised as “the costs of doing business”. On the subject of which, most self-employed people can build in to their commercial rate the “costs of doing business”, whereas rates for legal aid for criminal barristers are set by the state at fixed fees. The state sets the payment, the state expects you to do the work, and the state can arbitrarily withhold payment for work done. That’s my gripe. Thanks for your comment though.

  6. I hope you are a trusted Barrister with scruples. However of the six my son husband and I used through family and criminal trials for our GD only Sarah Pope was worth her fee and I feel would have won our case if she had been available, to continue. ALL the rest were not worth a fig. Not sure they were actually trying to eat the paltry LAid fees for my son while screwing my husband and I out of the better part of £20k. Leading us down the garden path.
    Legal aid needs protecting and I was shocked at what you get paid (or not). But while the av fees at £250 per hour ( my hourly rate to save your life if you have a heart attack is £17.34 minus tax NI and Superann) or more is being charged by non LA lawyers how are normal people going to afford representation or is that what the cgovernment want

  7. Can’t add anything to this excellent article (and the comments). However, more people need to know the risks that exist to UK Justice and we will circulate on all our social media platforms.

    Good work and very well written!


  8. So just wondering, how much does the average legal aid criminal lawyer take home every year pre tax? I ask because although I genuinely have no idea I kindof assume that although less than that of a different type of lawyer, it is still better paid than say, a teacher or similar. But like I say I have no idea.

    1. It’s something I deal with under the FAQ tab on the blog. The most recent statistics released by the Ministry of Justice indicate that the median take home pay of a criminal barrister is around £27,000 per year, or equivalent to pre-tax earnings of around £35,000. As we are self-employed, however, there is no pension, holiday pay, sick pay, maternity pay or any other benefits that attach to being employed. As far as working hours are concerned, a short working week for me would be 60 hours.

      Hope that helps.

      1. I should say, that median disguises a significant divergence between London practitioners and those in other cities. Due to the increased competition for work in London, it is common for junior barristers to take home less than £10,000 per year.

  9. This is exactly why I was put off following a career as a criminal lawyer and fled with my tail between my legs to the commercial legal sector (where I remain in hiding). I would have loved to have been a criminal lawyer, but for the fact that I can’t bring myself to work my knuckles to the calcium for such a piffling wedge and what seems like remarkable ingratitude from all around. For what little it is worth, I am grateful for your dedication to the justice system and hope you persevere, though I would equally have no criticism were to you join me at the money trough. There’s always room for one more.

  10. Lots of excellent reasons why I *don’t* go to court any more. After 20+ years of taking the flak from all sides, I decided to do as Rob R suggested and get out. When I look back on it, I got lots of excellent results for clients on both sides of the fence, but I’d come to hate every second of it – and the pay and conditions were a fairly easy part of the job to hate. More invidious was the fact that as the roles of those instructing and supporting me were cut (solicitors replaced by paralegals; paralegals replaced by temps; temps replaced by, well, not replaced at all, and a “trickle-down” effect of “Counsel can do that; we’ll say that it’s all part of the brief fee”), so the pressures, stresses and unpleasantness increased. Approximately half of GPs feel that they are approaching burn-out; I bet that for the Criminal Bar its at least as many, and probably for a lot of the same reasons (although doctors do have much better pay and conditions).

    I now have a 37.5 hour week, which STOPS at 5pm on a Friday and doesn’t resume until 9am on a Monday, for a company that gives me a pension, sick pay and holiday pay. And actually appears to value my input! I earned more for *most* of those 20+ years at the Bar, but frankly it was getting harder and harder, and I was making less and less. And the money was no compensation at all for the late evenings, the cancelled holidays, the Sundays in Chambers and the waking at 3 every morning.

    To those that carry on, I salute you. The Romans saluted gladiators in much the same way. Some of whom were wildly popular, talented and earned their freedom. But most of whom were slaves, leading rather unhappy (and short) lives.

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