I have been a barrister specialising in publicly funded criminal work for eleven years. Throughout my career I have both prosecuted and defended. Virtually everything I have earned has been paid for by the state.
In recent times I have become very angry at the suggestions in the press that legal aid lawyers earn a fortune. I have been prompted to write this article by a letter in The Times on Saturday in which the ill-informed author expressed, as a fact, the wholly baseless assertion that Legal Aid lawyers earn at least £125 per hour. We don’t. I wanted to write this article in the hope that those who are not in the profession, in particular our uniquely unqualified head, the Lord Chancellor, would see it and be better informed of the true position.
There is an undercurrent flowing against access to justice. Methodically and quite deliberately, the Government is dismantling the legal aid system. The populist press is aiding them in this. The poorest and most vulnerable in society will lose. Victims will lose. The rule of law will lose. Democracy will lose. Society will be all the poorer for it.
Because of the way all of this is being presented, society at large doesn’t really understand what is happening. By the time that the first serious miscarriages of justice occur, it will be too late.
The letter written in Saturday’s Times provides an example of just how misinformed the general public is.
I think it is time for an honest debate about legal aid remuneration for both the solicitors profession and the bar. I am tired of the now familiar routine of the MOJ releasing the supposedly highest earning legal aid barrister’s income just before another round of cuts is announced. Helped along in the propaganda campaign by the Daily Mail publishing pictures of those individuals in their full-bottomed wigs.
We all know that there are a few individuals that do very well out of legal aid defence work. Those individuals work extremely hard, on the most complex and important cases. They are at the very top of their game. We know that those figures do not reflect earnings, they reflect turnover, and may relate to several years work paid up in one year.
So what then is the truth? The truth is that the vast majority of us earn a modest income. In order to earn that income we generally work exceptionally hard. In my experience I can say that in the past year I have worked well over 60 hours a week. Those who know me well, know that the past 5 months of my life have been occupied by a case that has seen me working 17 hour days consistently.
The fee income we receive for the work we do reflects turnover. Each one of us is a micro business. At the independent Bar we are all self employed, and have overheads in order to run the business. Typically those overheads are about a third of fee income. The remainder is net profit; which is analogous to salary, except there is no pension, no healthcare, no holiday pay, and no employment protection.
I am prepared to let the public know what a busy junior barrister of eleven years call earns.
I am not “minted”. I live in a modest but comfortable semi detached house in Essex. I don’t drive a Bentley Continental; I have a Renault grand scenic. My wife is an assistant headteacher. Between us we live a comfortable middle class existence. Every year we take a holiday, but we don’t spend it living the high life in fancy hotels, we tow a trailer tent round Europe, because that’s what we like to do. Our children attend the local state school.
In terms of work, I am generally in court every day either conducting trials for the prosecution or defence, or appearing on the whole range of other hearings that occur in the Crown court. When I get home of an evening I will generally spend between seven o’ clock and midnight working on upcoming cases or the next day. Frequently because of the way the warned list system in the Crown court works I will be preparing a case for trial the following day in circumstances where I was given the brief at about 6pm.
My last set of accounts declared a net profit of about £68,000. That figure is broadly consistent with the preceding two years. By comparison a GP earns between £53,000 and £81,000 (but gets a pension etc). I think £68,000 is a reasonable and fair income for the work I do. If I divide that figure over the hours that I work I end up with an hourly rate of about £23 per hour. I have no complaints about my income if I am able to sustain it. I do have a concern that it will not keep up with inflation as fees go down and the cost of living goes up.
The fact is some things are inherently costly but necessary to maintain a free and democratic society. If the rule of law is to be upheld we need justice and justice is expensive. Of course the state doesn’t pay my net income, it pays the fees from which my net income is derived. It actually works out at about £33 per hour. The state can get my services for £33 per hour. That, it seems to me, is pretty good value for money. If I doubled it, it would still represent good value for money. If I doubled it again, it would still be substantially less than lawyers undertaking commercial work would charge.
The Government wants to get rid of the criminal bar. It wants to put criminal legal aid work out to tender to the lowest bidder. The effect will be that the lowest bidder will get the work. Quality will become irrelevant. Large national firms or alternative business structures will get the contracts. They will have to provide advocacy services at a fraction of the costs that are now paid. The problem with this is that if the cost is driven down, there will come a point very quickly where there are insufficient people of even the barest competence to do the work. We have seen this happen very recently with the provision of interpreter services to our courts.
People who train for a career in the law, do so because it is a fascinating career. Those people are generally amongst the brightest in our society. People who choose criminal law know when they go into it that it will not earn them anything like the money their colleagues who go into corporate or commercial law will earn. Lawyers who work in criminal law do it because it is a public service. The problem is that a fascinating career in public service which doesn’t pay enough to sustain a modest standard of living is not a career that a sufficient number of people will chose. It follows that if cost is driven down the work will end up being conducted by people who are not sufficiently competent to do it.
Why are talented lawyers needed within the criminal justice system?
I vividly remember my enthusiasm and passion for the work when I first started out. I remember attending various Magistrates’ courts and conducting trials for very little money indeed. Those of us who do the work know that’s how we all start out. As time marches on, our clerks attempt to advance our careers by giving us trickier cases. Solicitors with whom we have contact get to know us. They see us in court, and before very long you begin to receive instructions in your own right. It is a steady process, throughout which the skills required to conduct criminal advocacy are developed, the rules of evidence are learned, and good and sound judgment is obtained.
The bar code of conduct forbids us from taking cases that we are not competent to do, and so we only take the more serious or difficult cases when we have acquired the skills to do them well. This way the system ensures that the any defendant is properly represented by someone competent to deal with his case. This minimises abortive trials, successful appeals, and miscarriages of justice.
The same applies to prosecution work. Any advocate conducting a trial should be competent to undertake the work. Incompetent advocacy leads to guilty people being acquitted and innocent people being convicted.
So why should defendants be properly represented at a cost to the state?
The answer to this question can be expressed in one word. Confidence.
If the public are to have any confidence in the system of justice operated by the state; it has to believe that the system works in ensuring the conviction of the guilty and the acquittal of the innocent.
As lawyers we have all been asked the question “How do you defend someone you believe to be guilty” and we all know the stock answer. If a person against whom the state brings a charge insists that he or she is not guilty, the state must prove that they are so. That means that the evidence against that person has to be tested. It means that the defendant’s version of events has to be put and considered and either accepted or rejected. If that does not happen, and a defendant’s case is not properly examined, how do we know he is guilty? If we are not sure that the people we are locking up are guilty people and that the people we are letting go free are the innocent ones; how can we have any confidence that the system convicts the guilty and acquits the innocent? It is, perhaps, symptomatic of how little understanding the general public have about the criminal law, and the importance of an independent bar, that none of us ever seem to be called upon to field the more troubling question “How do you prosecute someone you believe may be innocent?”
Public confidence in the rule of law is an essential feature of a working democracy. Competent talented lawyers are an integral and necessary part of the criminal justice system. Without them the system would fail. The independent criminal bar provides the vast majority of lawyers providing advocacy services in the criminal justice system at Crown court level. I say that they represent good value to the taxpayer. This Government should think long and hard about the destruction of the independent Bar because once it is gone, it will be gone forever. It provides an excellent resource of talent. It provides value for money. It provides justice.
What price justice? Or should I say: what price injustice, Mr Grayling?