Criminal law: Financial crisis for junior barristers

The criminal bar is traditionally known to be dominated by wealthy, white, old men. Shrouded in elitism, it has always been difficult for those from low-income and BAME backgrounds to break into the sector. And now, once they’ve overcome the barriers placed in front of them, junior barristers are being forced out.

From cuts to legal aid funding to financial struggles caused by the Coronavirus pandemic, many have been left with no other option, than to quit. Commenting on the current precarious situation, Matthew Turner of Crown Office Chambers, said: “We have the lowest earnings, least savings and most debt”.

Consequently there are growing fears over how this will impact the future of law. Instead of opening up and expanding its inclusivity, current trends indicate that the criminal bar is regressing.

Concerning trends

Criminal law is already a difficult and competitive sector to crack before one even considers the astronomical training fees that follow a law degree. Post-degree courses, such as the Bar Practice Course set aspiring lawyers back by at least £11,000. Meanwhile,  those who transition into law, after studying a different degree at university will pay over £9,000 for the foundational requirement GDL or LLB course.

After successfully completing these courses and incurring masses of debt, there is little financial relief. Even back in 2018, Angela Rafferty QC, Chair of the Criminal Bar Association (CBA), warned that the lack of financial certainty within criminal law was causing talented junior barristers to leave “in droves”. She argued that without significant investment in criminal legal aid, numbers would continue to “haemorrhage,” and they are.

Elsewhere, those who have worked in the sector share the same sentiments. Former High Court Judge, and retired criminal specialist Sir Richard Henreiques commented back in June that legal aid fees have been reduced to the point that a career in criminal law is “no longer attracting young people of the highest calibre”. In 2013, he forewarned that the legal aid cuts introduced under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) would have a devastating outcome, and dissuade many from choosing to become a criminal barrister.

The instability of criminal solicitors’ firms’ finances was also recognised in the 2014 Otterburn report, which highlighted their “precarious” nature, with profit margins of only 4%. The Solicitors Regulation Authority (SRA), also highlighted that much of its precarious nature was due to an over reliance on legal aid. Yet, in the year after the Otterburn report, the Ministry of Justice (MoJ) dealt another significant blow to criminal law by cutting legal aid fees by 8.75%.

More recently, in 2019, Chris Henley QC said that the fees for prosecuting produce hourly rates that are “worse than wages McDonald’s”. This is due to a full night of court preparation and one day in court, resulting in a barrister being paid only £46.50, which translates roughly into £5 an hour, far below the National Minimum Wage (NMW).

Covid-19 widens the gap

Unfortunately, the Coronavirus pandemic has only made the situation worse. The majority of junior barristers within criminal law are reliant on court hearings and tribunals for their income. However, in March, criminal trials lasting more than three days were suspended to prevent the spread of the virus. Barristers are classified as self-employed, and as a result have not been eligible for the Coronavirus Job Retention Scheme (CJRS).

The Self Employment Income Support Scheme (SEISS) was created with the intention to fill this gap, however it has failed to lift many out of financial turmoil. The primary reason for this, is due to the SEISS not covering newly qualified barristers, whose 2018/19 self-employed tax returns did not reflect their current salary. Outlining the inadequate nature of the grant, back in March over 100 junior barristers wrote an open letter to the Chair of the Bar Council outlining this, but to no avail.

The consequences of this inaction have been dire, and are likely to only get worse. A study by the Young Legal Aid Lawyers group, found that during the time period of March-April alone,  45% of its members were either “quite” or “extremely” worried about their job security. Shockingly, 80% of junior legal barristers also reported that their workloads had “significantly decreased” or had been “decimated”.

Further to this, according to the Bar Survey Summary Findings from July 2020, 67% of young barristers saw an income drop of over 50%. For 43%, this drop was over 70%. Of those who have been in practice for zero to two years, 75% saw an income drop of over 50%, and 46% saw a drop of over 70%. As a result, 69% of barristers who have up to seven years in practice said they will not survive at the Bar for a year without financial help. On top of this, only 22% of those with zero to two years in practice said they will survive more than a year.

Commenting on the unsustainable nature of this situation, The Secret Barrister, a junior barrister specialising in criminal law, with an award-winning blog, said: “What I am hearing from junior barristers is they can’t afford to remain in the profession. Trials are the only way you can earn anything at the criminal bar but because the courts closed and the government is not offering financial support to the legal profession, these people have been left high and dry”.

The future of law

Of course, the consequences of pushing out those from lower-income backgrounds, and reducing the pool of talented criminal barristers, are incredibly dangerous. And at present, it unfortunately appears that social mobility and diversity within criminal law is likely to decline.

Speaking about the impact this will have on the future of law, the Secret Barrister explained: “Those most affected won’t be people from well-heeled backgrounds with family money to fall back on. Instead it will be those who have come from lower income backgrounds which is more likely to include those from black and minority ethnic groups who are vital for the diversity of the bar”.

Already, representation of those from BAME backgrounds is poor. According to the Lammy report, while black people constitute 3% of the population, in 2018 they made up 11% of prosecutions. Despite this, in England and Wales only 1.1% of QCs  and only 1% of court judges are black.

Moreover, 55% of barristers from BAME earn more than half their income from legal aid work, and a shocking 84% of BAME barristers said they would be unable to go on without financial aid.

Clearly criminal law is at a crossroads, and it is unclear what will be done to ensure that more junior barristers from low-income and BAME backgrounds aren’t forced to quit. Ultimately, the financial aid offered to those struggling to survive has been inadequate and ineffective, and has effectively jeopardised the future careers of many junior barristers. However, one thing is certain, the landscape of criminal law will look very different in the wake of the pandemic.