Guilty: How legal aid cuts and rising training costs are ruining our criminal justice system

With barristers coming from a narrower, richer socioeconomic background, so too will judges, who are already overwhelmingly white, male and privately educated

Guy Davies
Thursday 16 August 2018 16:36
Will the law become a profession only for the rich?
Will the law become a profession only for the rich?

In 1960, during the obscenity trial concerning DH Lawrence’s novel, Lady Chatterley’s Lover, prosecuting counsel Mervyn Griffith-Jones stunned the nation with an extraordinary line of inquiry. In his opening statement the prosecutor asked: "Would you approve of your young sons, young daughters – because girls can read as well as boys – reading this book? Is it a book that you would even wish your wife or your servants to read?"

The now infamous argument in R v Penguin Books revealed some of the absurdities of the British legal system, and the wider “establishment”. An elitist class – so often lagging behind contemporary moral values – was seen to be asserting paternalistic judgments on issues about which they had little understanding. Perhaps unsurprisingly, the Crown lost the case: and the book ended up in the laps of servants and wives throughout the land.

It has taken decades to demystify the legal profession by training and hiring barristers from a more representative spectrum of society. But now, due to years of cuts to legal aid, astronomical training fees and slashed pay rates, criminal barristers believe we are in danger of setting the clock back sixty years. The criminal bar is in a state of crisis. It is at risk once again of becoming exclusively a profession for men and women of means, which will have dire consequences for justice as a whole.

“The viability and sustainability of a career at the Criminal Bar is under threat,” wrote Angela Rafferty QC and Chris Henley QC in a joint letter to the chair of the House of Lords’ secondary legislation committee in March. “Those from less privileged backgrounds will be deterred from pursuing this line of work; the profession will become less diverse. This will impact on the future pool from which the judiciary are drawn.”

This stark warning came shortly before strike action in April, when criminal barristers voted to refuse all new legal aid cases in protest at the implementation of the Advocates’ Graduated Fee Scheme (AGFS), under which barristers would see their fees cut for many types of case. The industrial action was called off in June when the government offered a £15m fees boost, which the Criminal Bar Association (CBA) voted to accept by a Brexit style margin of 51 per cent.

The new fees scheme, which the Ministry of Justice argues will modernise barristers’ pay, is in the view of the legal profession just twisting the knife into an already decimated public service. “Justice isn’t done,” says barrister Grace Ong, the head of social mobility and diversity at the CBA, when “we don’t get paid for using a wide range of material, unused material, in order to satisfy ourselves there’s nothing in there that doesn’t help our case”. The much-publicised case of the falsely accused Liam Allan, who endured “two years of hell” after crucial evidence was overlooked at his rape trial, exemplifies a dangerous slide towards poor representation.

The trend towards lowering the legal budget began in 2012, when the coalition government introduced the now notorious Legal Aid, Sentencing and Punishment of Offenders Act (LASPO). Last year, legal aid spending was £950m less than in 2010. Barristers working under legal aid – the vital provision that is supposed to ensure everyone charged with a crime receives a defence – have seen their pay cut by an average of 40 per cent in the past decade. In July, the Commons Justice Committee warned the government that the cuts “risk eroding rights to legal advice and representation, tarnishing the reputation of our justice system, and undermining the rule of law”.

Barristers have been protesting against legal aid cuts for five years 

Ong says barristers are now regularly underresourced, battling against an antiquated system. To play videos and CCTV evidence in court, already overstretched lawyers often end up using their own electronic devices. And, if these do not work, they get the blame. “We regularly go to court where the temperature inside is 26 degrees Celsius without air conditioning. The judges often have to send juries home because they’re falling asleep or can’t concentrate. And so the court day shortens. We don’t have ushers or court clerks half the time because they have a shortage of staff."

And Rafferty believes the Ministry of Justice’s budget will be slashed by a further £600m in the next two years. “In 2016, the criminal justice system was close to breaking point. It is now broken,” she said in March.

Barristers are self-employed, and so pay rates are not determined by the chambers they work in. For lawyers in the public sector, salaries depend on the legal aid rates determined by the government. Though the average gross annual earnings of for a criminal barrister are estimated at £56,000, this number is misleading. After deducting chambers' fees and expenses, it will be closer to £28,000 and 62 per cent of criminal barristers work at least a day a week for which they are not paid.

Grace Ong believes they have been “swept under the carpet”.

“It’s being felt on a day to day basis,” she says. “Many chambers can’t retain their talented criminal barristers even after they’ve gone through the hurdle of paying for the BPTC (the Bar Professional Training Course), after they’ve gone through the hurdle of getting pupillage.”

67 per cent of the criminal bar don’t feel they are paid enough for the work they do. Every five years' additional experience as a barrister will result in only a 2 per cent increase in fees received. Meanwhile, leading City solicitors' firms will offer £100,000 salaries after just two years of work in the corporate, commercial or chancery fields of law.

All this comes after incurring astronomical debts in legal training. Having already incurred £27,000 of debt in tuition fees as an undergraduate, trainee barristers then have to spend £15,000 to £19,000 on further qualifications, for which only high interest loans are available. For those who did not study law at university, the foundational requirement GDL or LLB course will also cost £9,000 – so an extra £23,000 in total.

Then, in a barrister’s first year of criminal pupillage (the compulsory year of training after the BPTC), individuals will generally be awarded a grant of £12,000 to £16,000 for a year’s work – even in London. After all this, years of experience are usually required to become a moderately successful criminal barrister.

Because of the huge costs in becoming a barrister, the fact is that the profession is now unaffordable for the vast majority of people

Only the rich can afford to go down this path. In the future, the profession may inevitably therefore be dominated by a moneyed elite.

The plight of lawyers rarely garners much sympathy. After all, along with journalists and politicians, they are far up the list of our most publicly maligned professions. Perhaps this is why the government has been able to decimate the legal aid system unnoticed.

“The job is just not that attractive anymore,” says barrister Jo Cecil. “The Bar is contracting as a consequence. And with the barristers that do come through, you’re seeing an attrition rate later because individuals simply cannot afford to sustain themselves for the time that it takes to become moderately successful. Particularly with women who are choosing to have families, and the lack of maternity leave”. Over a third of criminal barristers are reported to be considering their career options.

Though the law has always had a reputation for elitism, the criminal bar has done much to improve this with diversity initiatives spearheaded by the likes of Ong, Cecil and barrister James Keeley. But much of this work is now being undone. “As a result of the cost of qualifying and the cuts in fees,” says Keeley, a social mobility advocate for the Bar Council, “there is a real danger of the criminal bar becoming a profession for the elite.”

The next generation of trainees are already being turned off by the state of affairs. Rebecca, 24, found “there was definitely an air of ‘old boys’ club” in the Crown court when she was conducting a mini-pupillage (legal speak for work experience). “Walking into the advocates’ robing room late in the day felt like overhearing the elites' equivalent of locker room chat.” She remembers speaking to a “well to do” male defence counsel who commented that it was “interesting” that people who take benefits “expect government funded legal aid”.

Later in the week, she found the common conception was that “a certain type of person goes into criminal law” – namely one with an independent income or inherited wealth. Another barrister she encountered started scrolling through her phone while her client was trying to talk to her about his concerns with his case. It was as if the barristers viewed their legal aid clients as “beneath them”.

Theo, 23, had this to say: “It sort of became a bit of a boy’s club vibe, just regaling anecdotes about previous or ongoing cases. There is obviously a darker sense of humour required as a coping mechanism but I don’t know how it might have been different with female barristers.”

Another trainee, Anna, observed during her time as a mini pupil that “a hierarchy still existed to the extreme. I wasn’t allowed to talk to most people unless I’d been introduced to someone more senior than me. So when I was given a biscuit by someone I hadn’t been introduced to, I didn’t know whether to say thank you or not.”

It may seem trivial, but in a world so dominated by pageant and ceremony, this can be extremely intimidating. When I put this to Grace Ong, she said in her chambers that sort of behaviour would not be tolerated. The criminal bar, however, does have the highest rates of bullying in the profession.

Ong says the “unspoken rituals” also pose a barrier to people from non-traditional backgrounds accessing the career. “The resources need to be handled and the stuffiness needs to go”. The likes of her and Keeley mentor their pupils to deal with high pressure, Oxbridge-style interviews and the often daunting events held by the Inns of Court.

The lawyers I have spoken to all believe that the criminal bar is a meritocracy – you are only as good as your last case, and are judged accordingly. But there is a serious danger of more elitist attitudes becoming the norm. Within the Bar individuals may be viewed on merit, but only after all the people who can’t afford to pay to get there have been weeded out.

Despite their endeavours, the Bar is fighting a losing battle against the ever present cuts. The Criminal Bar Association’s Diversity Report of 2017 revealed that, of those where schooling information was provided, 47 per cent of the Bar – including pupils – went to private school, compared to 7 per cent of the general population. And for QCs, the pinnacle of the profession, the proportion educated at fee-paying schools rose to 59 per cent.

The obscenity trial concerning 'Lady Chatterley's Lover' shone a spotlight on attitudes within the legal profession

Jo Cecil believes “the difficulty is the profession once was the preserve of the very, very wealthy. The Bar has done internally quite a lot – certainly in the publicly funded Bar – to open itself up. I wouldn’t say it’s been completely successfully, but it’s made a lot of progress.” While still exceptionally high, those numbers are much improved from what criminal law would have looked like in the time of Lady Chatterley’s Lover.

Without proper remuneration, however, the profession may well slip back to being a hobby for the rich and powerful, just like politics was in the 19th century before the introduction of paid MPs. “That’s precisely what this will create,” warns Grace Ong, “if the criminal legal aid cuts continue and we are not given an adequate remuneration. We are not asking for much. We’re just asking for it to relate to the importance of what we do, much of which is unpaid.”

Though all criminal barristers speak of incredible pride in their work, the fact is that the profession is now unaffordable for the vast majority of people. And if you think this doesn’t matter to you, you’re wrong. “The rule of law is so important,” says Ong. “Anyone can find themselves accused of a crime they did not commit. And the idea that you would only have representation by someone that doesn’t need to work for a living... Would you be comfortable with that?”

The greatest danger lies in the future of the judiciary. With barristers coming from a narrower, richer socioeconomic background, so too will judges, who are already overwhelmingly white, male and privately educated. “Social mobility and diversity are incredibly important,” says Cecil, otherwise criminal justice will “become some kind of ‘other’ imposing its will on you”.

All the current judges of the UK's Supreme Court are white 

The racial bias in the criminal justice system makes for even worse reading, and shows that the need for a representative system is more pressing than ever. Between 2014 and 2017 the percentage of BAME judges only increased from 6 to 7 per cent. David Lammy’s review into the criminal justice system last year, meanwhile, revealed that 41 per cent of young prisoners are from minority backgrounds, compared to just 25 per cent ten years ago.

The effect is to undermine faith in the system and the rule of law. “They [BAME defendants] see the system in terms of ‘them and us’” concluded Lammy. “Many do not trust the promises made to them by their own solicitors, let alone officers in a police station warning them to admit guilt. What begins as a ‘no comment’ interview can quickly become a crown court trial.”

There have been a number of high-profile cases over the years which show the damage that can be done by an out of touch judiciary.

In 1994 a group of homosexual men had their conviction for Actual Bodily Harm (ABH) upheld by a bench of five straight, male judges in the House of Lords for taking part in consensual BDSM sex. The men had been arrested after videos of their activity were discovered in an unrelated police investigation, despite no complaint having been made to the authorities. Lord Templeman, the lead judge, said: “Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.” Eight years earlier he ruled that girls under the age of 16 could not legally consent to being prescribed contraceptives, as they should not be having sex in the first place.

As recently as 2010, Baroness Hale felt compelled to write a separate, dissenting judgement in a high-profile divorce law case. “In short,” she wrote, “there is a gender dimension to the issue which some may think ill-suited to a decision by a court consisting of eight men and one woman.”

Not only was she the sole dissenting judge, but the only one with a background in family law presiding over the case. It concerned Nicolas Granatino’s appeal after his prenuptial agreement with an heiress was slashed by four fifths. The punitive impact this will have on married women in the future mean it has been widely criticised by feminists. All these judgements are still binding in English law.

The inequalities in an already two tier (private and public) justice system are set to be further exposed in the future. The institution of the Bar may yet survive – but with an entirely different composition and outlook. “It will”, says Cecil, “either become the preserve of the rich, or you are going to have a race to the bottom.”

The government’s response has so far been to revert to newspeak. After the Justice Committee’s findings this year, a Ministry of Justice spokesperson claimed that “the reforms under LASPO did not significantly change the availability of legal aid”.

On the ground, that couldn’t be further from the truth. Today’s criminal barrister is tomorrow’s judge, and if we end up with a homogenous judiciary – even richer, whiter and male – that would be a disaster. Justice for the elites, by the elites – and none for the rest of us. As surely everyone will agree, it is a frightening prospect.

Some names have been changed to protect the identity of the trainees quoted in this piece

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