Wednesday, 19 February 2014

Young Barristers' Committee's submission to Sir Bill Jeffrey's Review of Criminal Advocacy



Introduction 
  1. This is the response of the Young Barristers' Committee (“YBC”) to the Jeffrey Review (“the Review”).  Annex A conveys the views of some junior barristers. 

  1. The YBC is one of the Bar Council's main representative committees and it represents barristers who are under 10 years' Call. Led by a Chairman and Vice-Chairman, it comprises elected members of the Bar Council (employed and self-employed barristers) under 7 years' Call, as well as barristers who are co-opted to ensure representation from different areas of practice and from each of the Circuits. Its membership is therefore diverse and representative. 

  1. The YBC acknowledges that the Review’s remit does not include consideration of remuneration rates for criminal advocacy or the requirements for public funding.  Nonetheless it would be wholly remiss for the YBC not to state plainly and clearly that inadequate remuneration seriously jeopardises the provision of independent and high quality advocacy services in England & Wales.  To ignore the issue of remuneration is akin to reviewing the capability of an army with no consideration given to its kit and its weaponry.  

  1. The YBC also notes that the Bar Council has made a full submission to the Review which it adopts in its entirety.  This contribution is intended solely to focus on the concerns and views of barristers under 10 years’ call. 
The experience, capabilities and skills needed for independent criminal advocacy 
  1. The key word for consideration is ‘independent’.  Junior barristers are as anxious as their more senior colleagues as to the future provision of independent criminal advocacy.  The vast majority of criminal barristers still work in self-employed practice.  Advice given in a case and decisions made cannot be swayed by line managers and the financial motivations of the firm because there are no line managers and there is no firm.  The handling of the case is a matter for the conscience and competence of the individual independent barrister. 

  1.  Criminal barristers in self-employed practice are subject to a system of checks and balances, beyond their own assessment of a case, which dictates that cases are only undertaken commensurate with their experience.  Instructing solicitors will not look to brief very junior barristers in the most difficult cases.  Watchful clerks and senior members of chambers are on hand to counsel juniors who might be anxious that a case is beyond them.  It is not at all uncommon for junior barristers to return cases that they acknowledge to be beyond their experience. 

  1. Increasing pupils’ exposure to the courts is a careful and measured process; they do not run before they can walk.  The reputation of a chambers with its instructing solicitors depends on junior barristers being up to the cases in which they are briefed.  Being professional clients solicitors are very quick to notice when errors are made, especially if caused through inexperience. 

  1. Capability in the context of independent criminal advocacy is synonymous with competence.  Years of call do not necessarily denote capability and the age of an advocate is not necessarily an indicator of his or her competence.  A virtue of the independent referral Bar is that more difficult or more remunerative work is not automatically briefed to barristers simply by virtue of the length of time they have been practising. 

  1. The chambers system is effective at identifying those barristers who are capable and therefore competent to be briefed in increasingly difficult work.  Pupils and junior barristers are very conscious in this respect of the need for them to prove themselves repeatedly in order to enjoy any progression in their practices.  This proving exercise occurs under the watchful eyes of clerks all the time receiving feedback from instructing solicitors and also of Q.C.s and leaders of the profession. 

  1. There is no question that independent criminal advocacy is a skill and requires long practice to ensure development.  Barristers always have and continue to see themselves as specialist advocates.  Newcomers to the profession expect to be advocates before anything else and to appear daily in court with their focus directed at honing and refining their courtroom skills. 

  1. Many of these skills cannot be taught in the classroom and during the pupillage process pupil supervisors and other senior member of the profession devote large amounts of unpaid time to demonstrating and assessing their pupils’ advocacy skills.  Most criminal chambers provide advocacy teaching to their pupils and some even arrange mock trials whereby senior members can scrutinise prospective applicants for tenancy.  The opportunities presented to these embryonic barristers to learn from those at the pinnacle of the profession are invaluable. 
 The arrangements for training, having regard to the recommendations of the Legal Education and Training Review 
  1. The YBC endorses the recommendations of the Legal Education and Training Review (the LETR).  The YBC notes with concern the numbers of BPTC graduates increasing when the number of pupillages available is decreasing (figures taken from BSB website): 
BPTC Year 
2003/04 
2004/05 
2005/06 
2006/07 
2007/08 
2008/09 
Applicants 
2,570 
2,883 
2,917 
2,870 
2,864 
2,540 
Enrolments 
1,449 
1,665 
1,745 
1,932 
1,837 
1,749 
Successful 
1,251 
1,392 
1,480 
1,560 
1,720 
1,330 
 
BPTC Year 
2009/10* 
2010/11 
Applicants 
2,657 
3,099 
Enrolments 
1,793 
1,407 
Successful 
1,432 
1,256 
* Provisional figures 
Entry to the Bar 
Start date (academic year) 
Applications for pupillage  
Applicants for pupillage 
First Six 
Second Six 
New tenants 
1998/1999 
 n/a 
541 



1999/2000 
 n/a 
511 



2000/2001 
 n/a 
695 
700 
535 

2001/2002 
 n/a 
812* 
724 
541 

2002/2003 
n/a  
586 
702 
698 

2003/2004 
 n/a 
518 
557 
601 
182 
2004/2005 
 n/a 
556 
598 
544 
156 
2005/2006 
 n/a 
515 
567 
531 
191 
2006/2007 
 n/a 
527 
563 
499 
228 
2007/2008 
 n/a 
562 
555 
494 
239 
2008/2009 
 2,802 
462 
518 
497 
213 
2009/2010 
 2,841 
460 
460 
467 
171 
 2010/2011 
 2,865 
446 
477 
x 
x  
* NB due to 30th September 2002 falling on a Monday, 112 pupillages which would normally have been registered in the 2002/3 year were registered in the 2001/2 year, causing the higher than usual figure for that year and the lower than usual figure for 2002/3. 
  1. The recommendations made as to equality and diversity will be extremely difficult to implement in a legal landscape shaped by funding cuts.  The junior end of the criminal Bar is a hugely more diverse place in terms of gender, ethnicity and social background than it was even thirty years ago.  However these great leaps forward will be swiftly reversed if barristers without a private income are unable to make a living at the Bar. 

  1. The experience of many barristers is that valuable though the training provided on the BPTC is it is only when that training is applied in pupillage that concrete learning takes place.  Criminal advocacy is best learnt through real life observation, real life assessment and real life practice. 
 The standards needed to maintain and improve the quality of advocacy 
  1. Pupillage and led work have been the historic processes by which senior barristers impart their advocacy skills to trainees and their more junior counterparts.  However the marked reduction in the award of criminal pupillages is cutting off entry to the criminal Bar: 
‘Criminal pupillages accounted for 2 (6.9%) pupillages on the Midlands Circuit and 1 (3.3%) pupillage on the North Eastern Circuit in 2010, however there were no pupillages in purely criminal sets outside of the South Eastern Circuit for 2011 and 2012 (four criminal pupillages on the South Eastern Circuit were outside of London for 2001 and 2012). Overall the number of criminal pupillages has remained relatively stable.’ (An analysis of pupillages advertised between 2009 and 2011 published by the Bar Council) 
  1. The criminal Bar has been told that a process of contraction is inevitable.  However that process is unplanned and there is a real danger that it will be a disordered contraction.  Good quality barristers seeing incomes decline will choose to move away from criminal advocacy and the loss of their expertise from the courtrooms will be mirrored in lost expertise in training the next generation of criminal barristers.  A barristers’ chambers without pupils is cutting off its feet and there is a danger that the supply of independent specialist criminal advocates will simply cease to exist. 

  1. Even those few barristers that succeed in winning pupillage and thereafter managing to persuade their chambers that they represent a viable tenancy  prospect are, with increasing frequency, realising that criminal advocacy will not even service their debts accrued in education and training let alone provide an adequate living for the future. 

  1. Junior criminal barristers of today are discovering that the transition from a magistrates’ court based practice to a Crown Court based practice is becoming increasingly difficult due to the proliferation of solicitor advocates and employed counsel retaining cases in-house.  This move is an essential stepping stone in building up the experience and quality of a barrister. 

  1. Furthermore there has been a marked diminution in the quantity of led work briefed to the junior referral Bar.  The criteria by which judges determine applications for two advocates are made ever more stringent and many cases which historically would have justified the instruction of two advocates, such as murder cases, ordinarily are now conducted by one. 

  1. Another regular phenomenon when two advocates are certified by judges is that the leading advocate is instructed from the ranks of the self-employed referral Bar but the led advocate emanates from the firm of instructing solicitors.  This has had the effect of dramatically stifling the opportunities of junior barristers in self-employed practice to conduct led work. 

  1. Over time this will have a deleterious effect on the standards of advocacy in the most serious cases because once in practice the only realistic way in which junior barristers can actually learn to improve their skills is by observing their senior counterparts in action.  In addition the mechanism by which the qualities of junior barristers are brought to the attention of leading advocates is being eroded. 

  1. A led barrister within chambers knows that he must give his utmost to his senior colleague because a poor performance on the case will ensure reluctance on the part of that colleague to lead that barrister again.  If however the leading barrister leads an advocate from his instructing solicitors candid assessment of that advocate’s performance is inhibited. 

  1. Historically once a practice in the Crown Court has been established another major milestone in a barrister’s practice is the transition from led work to leading work.  If junior barristers have little or no experience of led work it is much harder for them, their clerks and their instructing solicitors to determine when they are ready to make that transition. 

  1. The inability of junior barristers properly to make that transition would be less concerning to the overall standards of advocacy within the criminal courts if those that were currently undertaking led work as employed advocates were themselves making that transition.  However that does not appear to be happening with much regularity and it is very uncommon to see an employed advocate leading in the Crown Court. 

  1. It is not difficult to see how standards in the future are in real jeopardy of declining if there is no process by which specialist advocates can be exposed to the most serious and demanding work being conducted by leaders of the profession. 
 The future structure of the profession providing advocacy services 
  1. It is very difficult to foresee the future structure of the provision of criminal advocacy services save that the YBC feels a real and justified anxiety that it may by very much less professional than hitherto.  It is highly likely that the number of criminal barristers will reduce, many will look to other areas of law to practise in, some will leave the Bar and those that remain will have to adjust to dramatically lower incomes.  The number of chambers specialising in criminal law will shrink and there will be a potentially traumatic process of amalgamation and consolidation.  Access to the profession will be impeded to all but the wealthy. 

  1. As the self-employed, independent, referral Bar shrinks the number of employed advocates will necessarily have to grow.  Few of those advocates will be exposed to the expertise and ability in advocacy conferred by the pupillage process.  In addition most advocates of the future will see the advice they give and their case management decisions strongly dictated by the financial exigencies of their employers.  These will not necessarily be congruent with the interests of justice. 

  1. The YBC strongly contends that the criminal Bar fundamentally underpins the fairness of the criminal justice system in England & Wales.    Appearing as an advocate in the criminal courts is a skilled and professional enterprise the value and meaning of which depends entirely on the professionalism of the advocate.  When the advocate ceases to be professional the advocacy ceases to have meaning.  A damaged and reduced Bar is, without question, inimical to the interests of justice. 

    Annex A to YBC submission to the Jeffrey Review 
    ‘At five years call I am a very junior criminal barrister.  I love my job.  I represent the most vulnerable in society and I am privileged to do so.  I have worked hard to be where I am and I do not want to quit because I cannot afford to keep going.  The majority of my cases are complex and require significant preparation.  I regularly work over 60 hours per week, most evenings and weekends.  I do so because I take pride in my work and I believe that every individual deserves a defence.  I travel all over the country, often operating at a loss because my brief fee does not cover my travel costs.  I cannot pick and choose my cases, and I cannot say no to a case because it requires me to travel further than I would like.    Many believe me to be a "fat cat", but in reality I earn little over the minimum wage.  I worry about paying my rent as I simply don't know when I will next be paid.  Solicitors do not pay me on time, sometimes they do not pay at all.  I do not take holidays as I cannot afford to.  I cannot take a day off when I have the flu.  I do not have a pension fund, or a deposit for a home.    The proposed cuts to legal aid will mean that I am forced out of the profession.  I simply cannot keep operating at a loss.  The morale of the junior Bar is at an all-time low.  We are at crisis point, but our voices are not being heard.  There will come a time when the brightest and best are forced into other careers in order to keep a roof over their heads and food on the table.  They will be replaced by individuals who are not dedicated, do not have their client's best interests in mind and do not have the time or inclination to prepare cases properly.  They will advise their clients to plead guilty in order to reduce their case load.  Innocent people will go to prison.  The effects will be disastrous.  The honest, hard-working, former-barristers will not be there to pick up the pieces of a broken criminal justice system.’  
    Female barrister, 5 years’ call 
    ‘The quality of training for junior barristers could not be better. Through the Inns of Court, chambers and high quality pupil supervisors, junior barristers will receive very high quality advocacy training before being on their feet and onwards during their first years of practice. This is on the assumption that they obtain pupillage. Most criminal sets can no longer afford pupils and those that do recruit pupils know that it is going to be difficult for those pupils to make a living. An income of £15,000 to £20,000 a year for the first three years, while not taking holiday or having any pension provision, and servicing up to £70,000 of debt is impossible. 
    One option would be for more pupils to do pupillage in house, but this would mean that they are outside the environment of chambers where they are exposed to the work of a high number of other advocates who are willing to discuss their experiences, and give advice to other advocates. This is a crucial part of a junior barrister’s education and is being lost in the current reforms. This environment simply does not exist in most corporate environments where there are a small number of advocates who either prosecute or defend, rather than having experience of both.  
    This leaves open the question of where the next generation of top advocates, for both the defence and the prosecution, and the judiciary will come from. It takes up to 20 years to train a high quality advocate and the same period before a lawyer is ready to go on the bench. If this career ladder is stopped now our justice system will feel the strain of it later, and so will our international reputation.’  
    Male barrister, 8 years’ call 

    ‘I am eight years’ call and since I started in this profession I have witnessed a number of changes.  When I started at the Bar, going over and above the call of duty, going the extra mile for the case or client even though the barrister would not be paid anything additional for so doing was considered part of the job.  Young barristers were exposed to varied work often establishing Crown Court practices early in their career.  It was not uncommon for barristers to do ‘back to back trials’, honing their expertise under a great deal of pressure and frequently exhausted but gaining experience nonetheless.   Junior briefs, when a younger barrister was led by a more senior barrister were more common even if they were not plentiful.  Having a barrister as a junior generally means that case preparation and the trial progresses more smoothly.  From our perspective, they were important opportunities to learn from more senior counsel and to gain experience.  It was accepted that being at the young Bar was badly paid – in my first year I earned £12,000 (I recall, a couple of years ago, finding out that a pupil regularly skipped lunch because he could not afford it).  However, it was generally felt that if you were good enough to establish a practice you would eventually be able to earn a respectable living even if you were never going to be rich or as well paid as peers who were bankers or city lawyers.  Nevertheless, it was felt that eventually the long hours (70-80 hours a week), anti-social hours (I work until around midnight every week night and at least one whole day at the weekend), lack of job security, paltry holiday and holidays that were not infrequently cancelled due to overrunning trials or work that had to be done, no pension, no maternity pay, no sick pay and no holiday pay would eventually be worth it.   The camaraderie of the Bar was palpable; the senior members of the Bar, in particular QCs, took it upon themselves both to teach the younger members of the profession in order to maintain high standards and were content to subsidise the more junior (and therefore poorly paid) members of the Bar because they too had been subsidised when they were junior members of the profession.  The senior bar did so contentedly and examples range from paying higher chambers rent, to paying higher practising certificate fees down to paying for lunch for their junior. 

    Since then, the amount of available work has significantly reduced, gaps appear in diaries at all levels where before there were none, but QCs have been particularly affected by the changes that have taken place over the years.  So far as trial experience is concerned, a young barrister may be fortunate to conduct an effective trial a month and junior briefs have all but disappeared as they are conducted by in-house solicitors and counsel both on the CPS and defence side.  It is regularly the case (although of course not always) that a case prepared by a ‘straw junior’ (considered to be someone without sufficient experience or expertise to do the case but who has been instructed by the CPS or the defence for cost saving reasons) is generally less well prepared.  This puts more pressure on the QC as a result and diverts his or her attention from those matters which she or he ought to be dealing with.  It also means that they are expected to do more work for less money and nowhere is this more acutely seen than when a silk is instructed alone.  The pressure put on QCs in terms of work and reduction in pay means that they are less willing to subsidise the young / junior bar.  This has led to a gradual dissipation of the camaraderie at the Bar.  The senior members feel hard done by; the younger ones less supported. 

    Successive rounds of cuts have reduced morale to the bare bones.  On top of this, we feel that the Ministry of Justice neither listens to well reasoned arguments nor treats the profession with courtesy and respect.  Each year the MoJ resorts to making unconstructive comments to the press and releases misleading figures about the profession’s earnings to the press.  The Bar has learned to regard politicians and civil servants at the Ministry of Justice with mistrust.  This is not the behaviour we expect of a government acting in the best interest of the public, it is political football.  As a result, good will has drained from the profession.  Barristers cannot see why, given the way we are treated, we should go the extra (unpaid) mile to fix problems with a case that we have not caused.  

    I have seen talent leave the Bar.  Barely a month goes by without someone I know, or am acquainted with, moving to a different part of the profession or leaving entirely.  A common complaint from young mothers is that their earnings are insufficient to pay for child care and so they are better off not working at all.  Part time work does not truly exist at the Bar, the hours are too erratic, trials frequently start with less than 24 hours’ notice (the warned list system) and it is not possible to conduct a trial for only, say, three days a week.  I am expecting my first child, my husband cannot subsidise me, we have no family in this country and I do not know how we will possibly  be able to afford the cost of child care.  I have been moving away from legal aid for a few years.  I do not see how, in reality, I can afford to remain doing legally aided work. 

    Talent and experience are draining away from the Bar and while the young Bar are certainly suffering, ultimately it will be the public and the criminal justice system that suffers most.’ 

    Female barrister, 8 years’ call 

    'I am a 28 year old junior barrister and I live at home with my mother. After a degree and a postgraduate law conversion course, I was fortunate to begin pupillage owing only £24,000. I work long hours and have little financial security. I am not alone.  The government seems determined to create a system in which only the wealthy can afford legal representation. Those who are unable to pay will be forced to represent themselves; they will be unfamiliar with the judicial system and disadvantaged by its complexity. 
     I am worried about the accessibility of the Bar to those from ‘unconventional’ backgrounds. The government’s proposals, if implemented, would create an unfair and economically divisive system in which only those able to rely on private income could afford to undertake publicly funded defence work. Junior barristers routinely appear in the magistrates’ court earning between £35 and 80 a day - fat cat lawyers we are not. 
    The high standards and ethics to which barristers work ensure that cases are properly prepared irrespective of income. This requires a commitment which will not survive if the proposed cuts to legal aid are introduced.  
    The victims of crime will be denied justice as the innocent are convicted and the guilty walk free. The government will have to answer for the destruction of a system which was once admired throughout the world.'
    Female barrister, 3 years’ call


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