Crime just doesn't pay any more. Time to try human rights

Last weekend I went back to my (horsehair) roots to chair a sort of <i>Any Questions</i> at the annual conference of the Bar.
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For a couple of hours I became Jonathan Dimbleby as rank-and-file barristers quizzed a panel of bigwigs and experts on matters arising in the world of the law.

For a couple of hours I became Jonathan Dimbleby as rank-and-file barristers quizzed a panel of bigwigs and experts on matters arising in the world of the law.

As one of the bigwigs was Lord Falconer - once just plain Charlie Falconer QC, now minister of state in the Cabinet Office, at times it was less like Any Questions and more like Any Complaints. As a member of the Government, Lord Falconer was forced to defend policies which, to more or less all barristers present, were more or less indefensible. So he had to make the case for restricting trial by jury, lowering fees for criminal legal aid work, lowering fees for family law work, lumbering students with debts at the beginning of their legal career and introducing a public defender system. Although he was under attack from expert advocates throughout, I think he enjoyed it. Well, anything is better than having to talk about the Dome.

But for the barristers at the conference, there was real cause for concern. Like farmers, barristers are never happy, and like farmers it may be that for many of them the writing really is on the wall. And just as there are poor hill farmers and rich grain barons in agriculture, there are big differences in the harvest brought home by different sorts of barrister.

The journalist Simon Jenkins, another of our panellists, went for a different industrial analogy. He said taking part in the conference session felt like being at the Durham Miners' Gala. Barristers should stop whingeing, and get on with making an ever better living out of the ever-increasing volume of legislation produced by this and indeed every other government. (Refusing to court popularity, Jenkins also revealed that he had twice sat on a jury and based on that experience thought that jury trial should be abolished altogether. Some prosecutors from Colombia were attending the conference. I hope they were able to lend him some security staff to allow him to go home unmolested.)

So why was Simon Jenkins deaf to the barristers' complaints? And why do barristers' woes fail to get a sympathetic hearing with the public generally? If the health service underpays junior doctors it is regarded as a national disgrace. If the Legal Aid Board underpays junior counsel the nation shrugs its shoulders and thinks, "serves them right".

Well, apart from the fact that nobody loves a lawyer (New York joke: What do you call three lawyers at the bottom of the East River? A start), nobody seems to understand what a career as a barrister consists of. This is despite the fact that fictional barristers are on television more often than Carol Vorderman. Another TV series started last week with young, handsome counsel in North Square living life to the full, in and out of court and in and out of each other's briefs, beyond the dreams of Rumpole.

But the world at large seems to think that barristers spend their lives appearing for villains in the crown court while spending their money as though they appeared for multinationals in the companies court. Nobody wants to know that a barrister doing criminal work has no hope of earning the large fees of his learned friends at the Commercial or Tax Bar. The fat cats who appear sheepishly between the flaps of their full-bottom wigs when high earnings are under discussion in the papers are not the same legal eagles you turn to if you are on trial for shoplifting. Even a QC appearing in a vast City fraud trial, though he is cock of the walk at the Old Bailey, will earn a fraction of the money earned by counsel appearing in a similar civil case in the High Court.

Nobody seems to appreciate that most barristers spend years in practice before making any money at all. Very few wish to understand that the Bar, for good or ill, is different from other trades and professions. The other day a broadsheet newspaper's headline gleefully claimed that a particularly controversial case was being taken up by Cherie Booth's "law firm", as though Matrix Chambers were a partnership or a company and not the collection of self-employed barristers that it actually is. Practising barristers are all self-employed.

This tends to be forgotten when barristers' incomes are discussed. Even the most successful barrister has to pay for his clerk, secretarial work, chambers (ie, office space), textbooks, computers, pension and travel out of his income from fees. He gets no holiday pay, shares no profits and gets no golden handshakes. He builds up no capital in his practice and gets no sick pay when he cannot work. The least well-paid barrister has all that to bear as well, but can expect no sympathy if he ever complains.

In fact I sense the reader's heart is not bleeding. As Simon Jenkins might have put it, if you cannot make ends meet on legal aid in Snaresbrook, try Strasbourg on the Human Rights Act instead.

Perhaps the particular arrangements of the Bar are too idiosyncratic for the modern world. Barristers think it is terrifically important that there is an independent body of specialist advocates ready to argue anybody's case whenever called upon. But whenever they stick up for the structures that preserve this independence, their arguments are dismissed as special pleading in their own self-interest.

It may be that in years to come advocates in civil cases will be drawn directly from the ranks of solicitors and salaried lawyers. Alleged criminals will be represented in the few jury trials that remain by employees of the Government's Criminal Defence Service, battling it out as best they can with the Government's Crown Prosecution Service.

Simon Jenkins might be right that these days a gathering of barristers does sound like the Durham Miners' Gala of old. But where are the Durham Miners now?

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