The case for the defence

Alex is right: think twice then think better of it

The point arising from the "Crime doesn't pay" piece is not that it's demeaning to compete for work, but that the competition these days is neither a true competition nor in the public interest. Defence firms and the CPS are increasingly likely to deal with trial preparation and advocacy in-house in order to save what little money now trickles in from the public purse; consequently, defendants and the state are represented more and more by in-house lawyers whose employment status may mean that they lack the independence, and perhaps professional incentives, to be effective officers of the court. Meanwhile, self-employed barristers cannot realistically compete in terms of lowering their fees, because they involve a disbursement whereas the cost of using an in-house lawyer is nothing over and above the annual salary he or she is paid anyway. It is short-termist cost-cutting, and not competition, that is squeezing the Bar. The practical result is that juniors increasingly pick up briefs that are too uninteresting, cost ineffective or badly prepared for solicitors to want to keep them for themselves.

The "moan" about the pupillage award may more fairly be characterised as a warning. Many talented people go to the criminal Bar accepting the £10k award on the basis that they may, in five years, earn the £90k that Mr Myerson quotes and which would be fair compensation for a job that is hugely demanding as well as honourable. But the £90k is (a) gross of overheads and expenses (as well as tax of course), and (b) applicable only to the top end of the criminal Bar - and there isn't room for everyone to be defending Jubilee line sub-contractors and premiership footballers' driving bans. More realistically, billings for a hard-working criminal barrister with a decent practice at 5 years' call could (I suggest) be estimated at around £45k before tax, though I'm happy to be put right. As argued in "Crime doesn't pay", £45k is fine for a second income, or for a professional in the public sector with key workers' benefits, but difficult for a young family to survive on in London without support from the state or an employer.

It is in nobody's interest for talented lawyers to enter the criminal Bar and leave after a few years because they (and their family) simply cannot afford to keep going. If country squires and bankers' spouses want to dress up and dabble in defending vulnerable people's civil rights, then good luck to them. But anyone else is likely to save themselves and their prospective chambers a lot of time and hassle if they fully appreciate the parlous financial state that the criminal Bar is in and go and do something else instead.

Another ex-crim barrister -26 Nov 2009 | 17:58

No money until 30?!

"But even for the almost terminally unfortunate pupil of 25, it would only mean that you wouldn't earn proper money until you were 30 - not really the stuff of despair."

Not the stuff of despair if you have a private income or don't mind sitting on the sidelines while all your peers buy their first flats etc etc...otherwise, a pretty raw deal.

Assistant X -27 Nov 2009 | 10:36

no private income

"The aim of the award... is to make up for you not having a private income, not to give you one." £10,000 a year does not nearly offer a living wage in central London if you have a taste for the finer things in life like food and heating. When compared to trainee solicitors, who are paid a regulated minimum of over £20,000 and often significantly more, despite being an equal strain on their supervisors' time, the Bar's position on pupillage remuneration is grossly out of touch with reality.

Anon -27 Nov 2009 | 16:31

Beyond All Reasonable Doubt

Whilst I express my view with the utmost respect for that of Simon Myerson QC, who one recognises bears the hallmark of an advocate skilled in the deployment of his argument, I must highlight that the proof is in the pudding.

The idea that this is a battle of talent (and therefore if you are good enough you'll be fine) is belied by the inequity of the fees model. Sent to Truro for a sentencing hearing, at a cost to me of something like £45 for the B&B (I could not travel down on the morning) and my train fare (the exact amount escapes me but around £30), I arrived to discover Probation had been overworked and had not prepared a report. The case was adjourned and I received £47.50. Whilst Barristers are not known for their arithmetical skills, the point is obvious. This was not an issue of talent. I was a hostage to fortune. I paid aroud £30 to be at work that day. This was not abnormal.

Of course not every day is like that, but the inequity of the fees system demonstrates that talent aside, your earning can be very negatively impacted by outside forces. Leave aside whether you can earn a good living, that problem alone is very despairing.

Moreover, its a myth that being talented leads to having a good practice, especially at the junior end where your professional clients do not come along to court to view your performance.

As to the Bar Council official figures, they should be viewed with great scepticism. I was one of the lucky few on the Western Circuit who very swiftly gained a defence practice and picked up some lucrative cases. My first year earnings were around £10k, and my second £24k. Perhaps not breadline amounts but when you consider I am funding a £20k postgraduate loan and a £13k undergraduate loan the figures are significantly more bleak. It is again despairing to know that I would be financially better off had I not done a degree and taken unskilled work. The only small mercy was that the government considered I was not earning enough to make any real repayments on my undergraduate loan.

The argument that you can make a decent living after a few years is also, with respect an empty point. When one starts any sort of decent career one is making a personal investment. So consider normal investment advice. Bigger risk, bigger prospective payout. Smaller risk, more modest payout. That's obvious. With criminal law you are plumping for a more modest investment (lower comparable earnings) but the uncertainty of the profession's future means you are taking on a much much greater risk. You wouldn't invest in a fund which had below average returns when there was a higher earner with much lower risk. Why do so with your career?

Do not kid yourself. I am not advocating eschewing a criminal practice. But make sure you are getting into it for all the right reasons. You must love criminal law and not like money very much.

Ok, perhaps a little flippant in that final comment, but the point is still well made. The glitz and glamour is also overrated. Do not get me wrong, I enjoyed it immensely, but the glamour of waiting around court or the Friday Plea and sentencing hearings are far from courtroom drama. So again, make sure you are fully aware of what life is like at the criminal Bar before even beginning to consider it.

One final reminder of the (anecdotal) proof being in the proverbial pudding, but criminal pupillages are dwindling as sets become more cautiously pessimistic about the future. If the risks weren't high enough before, they are certainly high now.

The head of our criminal department tried to persuade me not to give up crime. He highlighted that the changes would cull a great many but would allow the talented few who survived to make a good living.

Every other barrister advised against it.

There is, in my view, just too much luck for talent to protect against the risk. The risk will always be present because the criminal Bar is funded by the government who score no votes for it.

Good luck to those of you who don't heed the warning.

Allan Roberts -27 Nov 2009 | 17:40

Alex is right, QC is wrong

I am a criminal barrister at a good set, and I've been earning good money. I often enjoy the job. However, Alex is basically right, and the QC is wrong. No senior barrister can really have the faintest idea how bad things are for the junior end. His implication that it's all about merit is utter nonsense. (He would say that: he's a silk). Alex Deane is extremely clever and superb on his feet: one of the most impressive barristers I've seen. He is made for better things, and has sensibly gone off and done them.

The contempt with which criminal barristers are now treated - by the CPS, LSC, solicitors' firms, court staff and above all the government - takes a lot of the fun out of the job. The system used to work quite well. Not any more.

Do something else.

sixyearscall -02 Dec 2009 | 20:01

Simon should take up a job with the Legal Services Board.

It is a shame that Simon has written a puff piece without responding to the very real concerns raised in Alex Deane´s article.

As long as the leaders of the Criminal Bar are content to continue defending the abyssmal situation, things will get worse.

P. Cooke -13 Dec 2009 | 06:36

Just briefly

I have only just come across the responses and thought I ought to say something.

I didn't remotely say that all was well and attempting to characterise my remarks in that way is foolish. But I do think that the sense of entitlement which I picked up in Alex Deane's article (and which was echoed on is behalf by sixyearscall) is simply unjustified.

This is a self-employed profession. No one would dispute an element of luck, but I have not heard anyone seriously suggest an alternative way to success than simply being good at it. The corollary of that is that a lack of success may be down to you. Everyone can make excuses, but what is the better answer? I cannot discern one.

Similarly, I relied upon the Bar Council's figures. With the best will in the world, a couple of anecdotal assurances that these are wrong are not exactly persuasive. This is not about puff pieces - it is about reality.

Finally, I actually said that you should not go to the criminal Bar for the money. But I don't think you should go to the Bar for the money at all. This isn't about investment - it's a vocation for Pete's sake.

I know that it is all too easy to confront anyone who says something you don't like with the accusation that they are out of touch. So let me throw down the challenge I habitually pose in such circumstances. Write me an article about why it is different - a proper article with real facts and identifiable sources. Send me your real name so I can confirm that you are who you say you are, and I will publish you on the blog - anonymised if you wish - without editing. So far, no one has done this, but I live in hope.

Simon Myerson -10 Jan 2010 | 18:55