I originally started this blog before last weekend, but I kept getting interrupted by work. You see, we criminal barristers actually need to earn money. We have bills to pay like everyone else.
But sometimes a topic pops up on my Twitter timeline which seems to resonate, and it keeps coming back. Just lately, this has been the vexed topic of whether lawyers – and especially those of us who specialise in criminal and family law, which are largely publicly funded areas – should be expected to carry out pro bono work.
The reason for the flurry of interest in this was that the Bar Council had put out a press release and accompanying tweets calling upon barristers to engage in pro bono work: see the press announcement here. In case anyone reading this doesn’t know, the Bar Council is the representative body of barristers in England and Wales, and apparently is there to “represent the Bar community and promote its role at the heart of the justice system”. And pro bono work is work which the Bar Council wants to encourage the barristers it represents to do for free, voluntarily. That’s for nothing. Gratis. Zero. Nada.
So when I put out a tweet questioning whether the Bar Council should be encouraging pro bono recruitment, and asking whether it shouldn’t instead be supporting barristers whose specialisms have been and continue to be decimated by Government policy, I had expected some reaction from fellow barristers. But not quite the strength of feeling which was revealed. It seems I’m not the only one who questions why we should even consider offering our services free – still less why our own representative body should be repeatedly inviting us to do so.
When I get persistent emails from the Bar Council laying a guilt trip on me about how/why I should be offering my professional expertise for nothing, I feel about that the same way I feel about the Bar Council’s emails offering me ‘preferential finance’ to buy a £40k new BMW sports series. It is about as likely that I, a jobbing criminal barrister, would be in a position to be able to afford to buy a £40k new BMW sports series, even with ‘preferential finance’, as it is that the bloke who plays Uhtred in The Last Kingdom will offer me his hand in marriage. Oh well.
Get this, Bar Council: those of us whose work is wholly or largely in the publicly funded sectors ALREADY DO SUBSTANTIAL AMOUNTS OF FREE WORK. The current payment scheme for criminal work – which has been implemented by the Government which pays us, just in case members of the public still think we make up the figures ourselves then invoice the MOJ – is a system of fixed fees which now encompass so many hearings and elements which previously attracted separate payments that, on occasion, we are ACTUALLY WORKING FOR NOTHING.
I’ll give you an example. The one which first interrupted my writing of this blog a week or so ago.
Overnight, I had a trial returned to me. It was a case which had been in a warned list, a nefarious invention which is all about the convenience of the courts’ management and their statistics and about no one else (certainly not alleged victims, witnesses or Defendants), about which I have complained previously in my blogs (see Forewarned Is Forearmed here).
It wasn’t the most serious case in the world, about a bloke who’d been arrested by police for an unrelated matter and found with a lock knife hidden in his sock. He was apparently saying he’d had a good reason for having the knife about his person in a public place, because when arrested he’d been on his way to work, and the knife was a tool used in the course of his work. Now, this is a potential defence in law, the success or otherwise of which would depend on the Defendant’s evidence and credibility.
Until 6pm on the day before the trial, I had never set eyes on the papers and had no previous dealings with the case. So I had to spend the whole evening sorting the brief into some sort of order, working out what was missing, speaking to previously instructed counsel and trying to get hold of the solicitor. The trial was taking place in a court 1.5hrs drive away from where I live, so I had to get up pretty early after all the homework the night before. The trial was due to last two days and, in order not to have court time wasted, I would have to ensure that I completed all taking of instructions, preparation, etc outside the court sitting hours (usually 10am to 4pm) so I couldn’t be accused of wasting any court time during the sitting day.
This is what all criminal barristers do, and why we have to spend so many of our evenings and weekends working to keep trials and other hearings on track so judges and witnesses are not inconvenienced by being kept waiting around for us during the day.
When I was going through the papers on this case, I discovered two things: firstly, that the Defendant was going to have to be advised to plead guilty as a statement had been served from the Prosecution – subsequent to the hearing at which he had originally entered his plea of not guilty and indicated what his defence was – which fundamentally undermined his defence and meant that he could not rely on a witness whom he had been hoping to call to support his case. And I was going to have to point this out to him.
Secondly, this was an elected case.
For those not in the know, an elected case is one where the magistrates’ court – at which all cases originate – had decreed that they could hear the trial themselves. However, with certain offences, possession of a bladed article being one of them, the Defendant has the choice in law as to whether he wishes to be tried by a jury or by magistrates. In this case, my new client had ‘elected’ the former. Clearly, this was done at a hearing at which I had not been present, and was a decision over which I had had no control.
So the position I found myself in was fiscally disastrous.
For my client’s own good I was going to have to advise him that he should change his plea to guilty, and explain why his defence was no longer viable. However, this would mean that the brief fee on the case would be the princely sum of £194. For the whole case. Yes, that’s for all the preparation, any paperwork previously done, the time and expense of travelling to court, my time at court advising the client in conference, then dealing with the hearing, which would include him being sentenced, providing a full written note to the solicitors about what happened at the hearing, then advising the client in writing after the hearing that he had no grounds to appeal the sentence. Oh, and after deductions to account for tax, NI and my Chambers’ fees, I’d have to pay a proportion of that £194 (probably around £40) to whichever barrister had conducted the PTPH hearing a few months earlier, since this is also included in the ‘brief fee’!
Obviously, I did give the client the appropriate advice and acted accordingly. It was too late to do anything else by the time I discovered that this was an elected case. My accountant was not at all happy with me, and has now upped his Valium prescription.
The courts rely on barristers accepting late returns such as this, in order to keep the courts functioning and allow them to continue to ignore the availability of instructed counsel when carrying out their listing functions. Frankly, had I known that this was an ‘elected’ case when my clerks rang me and asked me to take it over, I would have said no. The risk of being stiffed for £194 if your client decides to change their plea to guilty, or if you have to advise them to do so, is too high. Imagine if everyone refused to take such a case on the same basis…
The Government has long since ceased to treat us as professionals. Rather to them, we are tradespeople, measured in units as creators of widgets and regarded as an industry. So why should we continue to act in the way expected of ‘professionals’ when it comes to being expected to offer our services in the noble tradition of pro bono?
The thing is, giving professional services without getting paid is something of a sore point for those of us who undertake publicly funded work – criminal or family work in particular. These are areas in which, over the past 10 years or more, the fees paid to lawyers acting in these areas have either been slashed exponentially, or legal aid has been removed altogether.
(Just in case you’re still unsure about how this works, remember this: lawyers working in the fields of, say, commercial law or tax law don’t get paid out of legal aid funds. Their clients pay them direct, and the fees are not at rates set by the Government or by any professional body but by negotiation between the lawyers and the party seeking to make use of their services. The sort of ‘fat cat fees’ you see bandied about in the Daily Fail as being charged by “lawyers” usually, in fact, relate to this sort of work.)
Indeed, why SHOULD we be expected to offer our services for nothing at all? When I had my car serviced a couple of days ago, I didn’t dream of asking the garage if they wouldn’t mind awfully doing it for nothing as it was a bit pricey and I had some other bills to pay.
At the criminal Bar we have had nothing but cuts to our fees in the last decade. The payments made to us for cases are now at around 30% less than people were getting paid for the same work 20 years ago – possibly even less than that.
Now, I expect the Bar Council will turn around and say, well, the advocates’ graduated fee system is a ‘swings and roundabouts’ one, whereby you will be paid more for some cases than for others. These days, it seems to me that there are far too many roundabouts and not nearly enough swings. And I know I am not alone.
So you’ll forgive me if, when I receive those Bar Council emails exhorting me to give away even more of my professional time and expertise FOR FREE, I find myself morphing into Angry Frank, the Harry Enfield red-faced shouty bloke in the pub.
(Me, receiving another email about pro bono from the Bar Council. Pic: BBC)
And when I read said emails, I find myself shouting, “OI, BAR COUNCIL, NO! I WILL NOT GIVE UP EVEN MORE OF MY VALUABLE PROFESSIONAL AND PERSONAL TIME TO LEND MY HARD-WON EXPERTISE IN THE FIELD OF CRIMINAL LAW TO ONE OF YOUR FREE LEGAL PROJECTS IN ORDER TO ACT AS A SOP FOR YOUR COLLECTIVE SOCIAL CONSCIENCE!
“AND IF YOU THINK IT’S WRONG THAT PEOPLE CANNOT ACCESS LEGAL ASSISTANCE DUE TO THE CURRENT AND PREVIOUS GOVERNMENTS SLASHING CRIMINAL LEGAL AID TO THE POINT WHERE IT BECOMES UNECONOMIC FOR PRACTITIONERS TO CONTINUE, AND REDUCING CIVIL LEGAL AID TO ALMOST NOTHING, THEN UP THE ANTE IN CAMPAIGNING AGAINST IT ON BEHALF OF YOUR MEMBERS, INSTEAD OF ENCOURAGING THEM TO BASICALLY BE COMPLICIT IN THE CUTS BY CARRYING OUT FOR FREE WORK WHICH THEY WOULD PREVIOUSLY HAVE BEEN PAID AS PROFESSIONALS TO DO! CAN’T YOU SEE THAT THIS JUST ENCOURAGES THE MOJ TO THINK THEY CAN CONTINUE ON THEIR MERRY WAY WITH MORE CUTS?!
“AND WHILE YOU’RE ABOUT IT, WHY DON’T YOU SUGGEST TO SOME OF THOSE BIG FAT CAT CITY LAW FIRMS – WHO HAVE SET UP ENTIRE PRO BONO DEPARTMENTS COSTING HUNDREDS OF THOUSANDS OF POUNDS – TO SALVE THEIR SOCIAL CONSCIENCES BY USING THAT MONEY TO INSTRUCT AND PAY BARRISTERS WHO ACTUALLY HAVE PROFESSIONAL EXPERIENCE AND EXPERTISE IN THE AREAS OF LAW THE PRO BONO DEPARTMENTS WANT TO DEAL WITH, SO THOSE BARRISTERS CAN CARRY OUT THE SAID WORK WHICH THE CITY FIRMS DON’T HAVE THE PROFESSIONAL KNOWLEDGE FOR, AND THE CITY FIRMS CAN STILL CALL IT PRO BONO!
“MEANTIME, IN THE WORDS OF THAT ICONIC BBC TV PERSONALITY JOHN INMAN, I’M NOT FREE!”
Phew. And the classic Angry Frank Jim Davidson rant can be enjoyed here.
Swings and roundabouts, my arse.
(Pic from @SkintSolicitor)