1. What’s the difference between a solicitor and a barrister?
The simplest analogy is that of a GP and a consultant/surgeon. In the criminal defence context, your solicitor provides you with advice and representation in court for less serious (magistrates’ court-level) matters, and will refer you to/instruct a barrister to represent and advise in more serious (Crown Court) cases. The solicitor is the client’s first point of contact, handling the litigation (the administrative trial process, for want of a better phrase), while the barrister provides advice and courtroom advocacy. Due to recent structural changes, it is increasingly common for solicitor-advocates to appear in the Crown Court, and barristers can now in certain cases conduct litigation, so the distinction is blurring. Realistically a fusion of the professions isn’t far away.
2. Who employs you?
Most barristers are self-employed. We operate out of “chambers” – essentially a collective of barristers sharing premises, staff, administration expenses and, most importantly, clerks. The clerks are responsible for getting in the work and distributing it among the barristers. Each barrister in chambers contributes to the running costs by paying chambers expenses and/or rent.
3. Do you prosecute or defend?
Both. Many criminal barristers prosecute (instructed predominantly by the Crown Prosecution Service (CPS), as well as other prosecution agencies such as HMRC and local authorities) and defend (instructed by defence solicitors), although there are particularly worthy chambers who will only defend, and some hardened types who solely prosecute. My two penn’orth is that doing a mix probably makes you better at both.
4. Do you wear a wig and gown?
In the Crown Courts, yes. They are expensive (I forked out £560 for my wig and £150 for my gown) and, particularly in summer, hot and uncomfortable.
5. Are you rich?
I am not, although I know people who are. These barristers are typically either (a) commercial/chancery practitioners; (b) from old money or (c) rode the crest of a generous legal aid wave pre-1997. Legal aid rates have been cut in real terms by an estimated 40% since 1997, and further cuts are likely. What is sometimes missed is that, being self-employed, barristers keep less than 50% of the fee for any case, once chambers expenses, staffing, VAT, travel and income tax is factored in. The median take-home income of a criminal barrister for 2012-2013 was around £27,000, so slightly more than a courier, but significantly less than a trainee manager on the Aldi graduate scheme.
6. But didn’t the Ministry of Justice/ the Daily Mail tell us that the average income for a criminal barrister was £84,000?
Yes. Yes they did. The Ministry of Justice, and then-Justice Secretary Chris Grayling in particular, have had their bottoms spanked by the ONS more times than Max Mosley did by people who definitely weren’t Nazis. In January 2014, in response to threatened industrial action by the criminal bar, the Ministry of Justice rushed out figures for criminal barristers’ incomes from 2012-2013, and hit the airwaves proclaiming the “average income” of a criminal hack to be £84,000. Their methodology involved removing all the low paid barristers from their calculations as they were deemed “unrepresentative”, leaving in the highest earners, adding VAT (which is paid directly to the Treasury) and working out the overall mean (rather than the median). It’s a bit like working out survival rates at a hospital by discounting all the people who died as “unrepresentative”, adding in all the outpatients and declaring a resulting average 100% survival rate. Taking the median gross figure of £56,000, allowing a conservative 52% deduction for VAT, expenses and tax (my personal deduction is is 58%), leaves you with a take-home figure of £27,000.
7. But the legal aid budget is out of control and the most expensive in the world, right?
Proof positive that if you tell a lie often enough, people will start to believe it. Criminal legal aid cost the Ministry of Justice £912m in 2016-17 (out of a total MoJ spend of approximately £7bn, and a total governmental spend of around £700bn). So criminal legal aid costs 0.13% of all spending. And the cost is rapidly dropping, due to various factors including cuts/efficiency savings already made (and will in fact continue to drop even without the proposed further cuts). Nevertheless, the Ministry of Justice rarely tires of telling the public that we spend more on legal aid than all manner of progressive Western states, including France, Germany, the Netherlands, Sweden etc. What is not shouted as loudly is that the reason it appears expensive compared to other jurisdictions is that the comparators have entirely different legal systems, with the costs falling on other departmental budgets (e.g. the court budgets or the public prosecution budgets). It’s like comparing apples with Caramac bars. When you adjust for these factors, the costs of the UK criminal justice system as a whole in fact fall below France, Germany, the Netherlands and Sweden. This was shown by a report commissioned by the MoJ itself in 2009, although strangely unavailable through the MoJ website. Happily it is still available here.
8. How do I instruct a barrister?
In most criminal proceedings – and certainly those where a defendant qualifies for legal aid – you will have to go through a solicitor. Some barristers are registered for “public access”, meaning you can instruct them directly – however as the regulations governing this arrangement will not permit you to claim legal aid, you will be required to pay privately. Private fees, even for criminal barristers, are not cheap.
9. How can you defend someone you know is guilty?
Quite easily. If they tell me they are guilty, I will strongly advise them to plead guilty. If they refuse and insist on running a trial, as is their right, I am strictly limited in what I can say on their behalf. I cannot assert anything in court that I know not to be true. So in that example, I can “test” the prosecution evidence (i.e. point out holes or inconsistencies in the prosecution case and suggest to a jury that the prosecution has not proven its case beyond reasonable doubt), but I cannot positively assert something false (i.e. my client did not do X, where he has told me that he has). If the evidence against a client is overwhelming, but in the face of the evidence and all common sense they instruct me that they are not guilty, then I will fight their corner at trial. Finally, if someone has pleaded guilty or been convicted after trial, I can defend them by representing them at their sentence hearing and putting forward mitigation on their behalf.
10. What about sex offenders and paedophiles? How can you defend them?
Because they will be prosecuted by a state agency with an annual budget of £500million, an investigative squad of 128,000 police officers and an experienced, well-qualified barrister in the Crown Court. And fairness requires that people suspected, or even convicted, of offences, however grotesque, receive advice and representation from someone suitably qualified to defend their interests, particularly where their liberty is at stake. Perhaps most importantly, however, it’s because a defendant, even where the evidence against him appears to be overwhelming, may be innocent. Not just “not guilty beyond reasonable doubt”, but completely, totally innocent. History is littered with examples of miscarriages of justice where The Wrong Man has been imprisoned for years for serious criminal offences. Where often, the real, dangerous culprit has been roaming free undetected. If there is not a strong, fearless cadre of experienced, competent defence lawyers digging into the prosecution case, testing its strength and teasing out the flaws, innocent people will be convicted. And you can be darn sure that if it were you – if the police became convinced that you had committed a serious criminal offence, and you knew you were entirely innocent – you would want an accomplished defence lawyer in your corner. Someone whose role is not to judge you, not to form their own view on whether you’ve done it or what sort of person you are, but to act on your instructions, and, when you tell them you’re innocent, fight to the bitter end to uphold your liberty.
11. How do you sleep at night?
The same as you. Topless and unashamed.