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. And the Ministry of Justice, and then-Justice Secretary Chris Grayling in particular, had their bottoms spanked by the ONS. 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.
As for the people who have been convicted of the most terrible crimes? Whatever they have done, they deserve to be treated fairly and lawfully. Just as doctors are still ethically obliged to treat whoever is in front of them, whatever that person has done, so barristers are obliged to represent and assist whoever needs our help. It’s a mark of our civilisation of which we should be proud.
11. How do you sleep at night?
The same as you. Topless and unashamed.
Love the final comment. Well written piece, and oddly reminiscent of what I tell people whenever they ask.
In one of your recent posts you said that we have to obey the law even if we disagree with it. The only problem with that is that there have been plenty of unjust laws down the years, such as slavery being legal in the United States until 1865, and people are entitled not to obey laws they think are unjust and to protest against those laws. Most people these days, for example, seem to sympathise with the plight of Alan Turing who was prosecuted for breaking homosexuality laws in the 1950s. I’m not sure how this fits in with your absolutist statement that we have to obey the law even if we disagree with it. Should people should have the option of protesting against laws they don’t agree with? The answer from most lawyers and other experts seems to be (a) no, as far as today’s laws are concerned, but (b) it was okay for people to break laws in the past which we now don’t believe in. According to this, we acknowledge that many laws in the past were wrong, while simultaneously avowing that today’s laws are so wonderful that everyone must obey them without question. That just seems a bit arrogant to me, the idea that we’ve got it exactly right today. I think it’s unlikely that our laws are so perfect at this particular moment in history.
“People are entitled not to obey laws they think are unjust and to protest against those laws.”
There’s a big difference between saying that people are entitled to protest the law, and people are entitled to break the law that they disagree with.
To take Alan Turing – the law was wrong, and we can say that he was morally right to break it, but from a legal point there was no entitlement to do so (and he suffered the consequences). Many people have broken morally wrong laws and been punished. This is not a Good Thing, but it is a Real Thing. Sometimes people chose to protest laws them by breaking them (which we might do in order to point out their absurdity, or in sufficient number that we think that prosecution is unlikely) and this can be effective, but there are clear potential consequences of that (prosecution). I suppose the statement “we have to follow even if we disagree with it” comes with an unspoken qualification “…if we do not want to be prosecuted”
I think if you see a law that is morally repugnant then it is your civil right and duty to withstand that law in the most legal way possible. Claudette Colvin as an example springs to mind.
I agree, law is fluid and must reflect the changes of society, but must also be challenged in the most lawful possible manner.
Thanks for pointing that out. My thoughts are if the laws are not by choice, in other words we find ourselves breaking the law more often than not in our daily lives and its really a gamble on getting caught or not, what then if the ones in charge of the common law, who deem themselves worthy of a healthy payment, honour and respect, do we do when they have clearly violated this universal code of conduct? Do we give respect to persons and overlook? If so, the law is biased and the system must be too, from the top down.
I dream of sleeping like that what’s your see
secret?
That’s very interesting information about the legal aid budget dropping and how it’s only .0013 % of spending. I thought it was more. lol. Great information and website!
It’s the part about ‘defending their interests’ that makes me smile a wry smile. Seems to me that their ‘interests’ basically consists of maintaining their liberty. Hence why so many defence barristers’ mitigating comments make me think that they should almost be charged themselves with contempt. I’m not a lawyer, but I can see the difference between mitigation and a totally BS made-up excuse for criminal behaviour designed solely to elicit enough sympathy to get the defendant off.
Supposedly mitigating reasons given for many forms of violence, often seem to me to fall into the category of the absurd, in reality nothing other than the desire to bully being the motive. But our system is designed to err on the safe side, something for which, in the grand scheme of things, we must, I think, be grateful.
I’d suggest that most of the problems you’ve seen relating to over-enthusiastic defense of a known guilty party are fictional (television and literature); read a Canadian book, “The Case for the Defense” by Graham GREENE. He explains the reasoning for being a defending lawyer with real life examples of people who were innocent, as our host, TSB, has noted does occur, on the hook for someone else’s evil deeds, & are looking at losing a significant chunk of their freedom & life to prison. Rarely is the erroneous prosecution done with malice (as pop fiction implies) but it is no less a danger for the innocent man for it. I used to hold to that view, too (a more ‘conservative’ view of criminal defense law & the scumbag lawyers who profit from it, but Greene opened my eyes to some unknowns in our common reality.
The legal system has checks and balances in place to deal with actual immoral lawyers on either side of a trial. I’m not worried; I’ve known good lawyers, both common & QC, prosecutors and defenders, criminal and civil, & in the main they’re decent people working towards a fair and just society for all. Here in BC, Canada, the best of the best who can work both sides of a trial, are often tapped to become judges. I’m happy they are there, and trust they will continue their high degree of integrity and expertise in the laws that Canadians have democratically made and approved through Parliament. I believe it is not so different in the UK?
The best and fair Frequently asked Q&A I have ever read. Lovin it, can’t stop myself to give a compliment.
I would add a question, although, perhaps, not frequently asked. I remember a case, only as reported in the media, many years ago, in the eighties, in which a jury was instructed to return a guilty verdict in a prosecution involving the Official Secrets Act. The jury did the opposite. Do you think a jury should be required to obey such orders? This making their presence somewhat redundant.
My inclination, admittedly somewhat immature, would be to automatically disobey such a command, it being, certainly in those days, portant of a gravitas devoid of legal obligation, and susceptible to abuse, a means of circumventing legal process available to those with interests beyond that of the enforcement of our laws, personal considerations, as we are all aware, being at the forefront of our thinking, morality largely secondary.
i remember that one. it was political. (that is, the jury was showing that it didn’t like the prosecution or the reasons for it). Back in the old days one jury was locked up by the judge for not declaring the defendant guilty. that can’t happen now (it was that case that led to that not being able to happen now).
The jury is the trier of fact. That said, if the accused admits all the factual elements of the offence, it is appropriate for the jury to be instructed to return only a guilty verdict. There is no other proper option for them. An old boss of mine used to have theories about “jury nullification” – i.e. that the jury could “nullify” an unpopular law by simply not convicting under it. I think his scalp was hung on the wall in the judges’ dining room after he attempted to a
ctually argue his theory in a real trial.
There is, to my mind, something of a problem, in the employment of so-called expert witnesses. On occasion, they present conclusions which are factually incorrect, and, furthermore, it is possible that a mamber of the jury might be aware of this. The application of statistics, for instance, a subject far more complex than many imagine, is frequently dangerously incorrect, and its interpretation riddled with basic logical fallacies, appeal to accomplishment and to authority being the principal ones. I personally have tested the reasoning of professionals in other fields, including those of law and medicine, and found both to be startlingly lacking. As a juror, what should one do, if presented, by an expert witness, with conclusions one knows to be entirely wrong? Simply exclude these from the set of facts one is attempting to assess?
If somebody states, with authority, that one plus one equals three, is one allowed to justify, to the other members of the jury, that one’s objection arises from the fact that the answer is two? And demonstrate so? The Monty Hall problem, for instance, can be explained to most, if one approches the manner in which it is the explanation is offered with appropriate sensitivity to the resistance many have to mathematical argument, and is of a class already misinterpreted in many cases.
Many years ago I interned at a solicitor’s firm in North London. At one criminal case the barrister had to withdraw from representation because the client had previously informed him that he was guilty. At the time the barrister explained to me that this could happen up to four times. However, I never found out what the fifth barrister would do. Would he or she take the case and carefully prosecute it as you mention not proving lack of guilt, but lack of evidence to convict? Who informs the newest barrister of their client’s duplicity?
Well, no one does because your solicitor-client communications are confidential. That said, we talk in code. I had a chat with another lawyer yesterday, She is inheriting a rogue client from me and called to request his file. After making the arrangements, I said “Enjoy working with Mr X. You’ll have quite a time.” and we both laughed.
By the time the client reaches the 5th lawyer, he / she has smoothed out the lie and can present it without it being so embarrassingly obvious that the lawyer declines the file.
I guess this only confirms how astute our legal system is. Why not short circuit the whole cumbersome process and have lawyers/assistants pronounce judgement on first impressions?
If the legal aid budget has been slashed and we are no longer covered by it. Should we be taking out private insurance to cover for any criminal prosecutions? and if yes, are there insurers who give such cover? I can imagine if there are, there will be ridiculous loop holes in it for the underwriter, removing said cover at the moment you might need it.
I live in the Netherlands and I just finished the book “Stories of the Law and How It’s Broken”. Please forgive me if this isn’t the right place to ask this question.
At the end of chapter nine the writer states that he would rather be judged by the adversarial jury system then by a state controlled inquisitorial prosecution.
Is this solely based on the assumption depicted in the last paragraph of that chapter or on research in different countries and/or interviews with people from within those systems?
The Commonwealth has long ago rejected the Napoleonic Code (whereby the accused is adjudged guilty unless he can prove his innocense.); under the Commonwealth codes, the state has an obligation to prove its case, or lerarn to just not charge people willy-nilly. This prevents abuse by those who use the law to further personal/political benefits. We do this because we have, in our common history, sufficient examples of it being done by those abusing positions of authority, in the seeking of greater power.
The courts are a check on the government, to ensure they rule fairly. In our democracies, this is especially critical. There are no more reactionary “off with his head!” trial-less convictions.
Came here via the Sunday Times article, A day in the life of… (linked as a related article in today’s Sunday Times, so I’m about a year late to the party)
I loved these FAQ… really Informative.
Literally laughed out loud at the last answer… Topless and Unashamed
I’m looking forward to reading the site.
Many thanks
Amazing books … Very helpful! The MG5 discrepancies were a particular delight to hear as mine was essentially an inversion of my interview and facts of the offence – insane! I am no detective but if I had to say … The Secret Barrister is definitely a woman!