Monday, 11 June 2012

Our progressive regressive Bar

For all the advances made by the Bar in the last couple of years, there is one facet of life as a criminal barrister that has certainly rolled back to the days of Marshall Hall and Norman Birkett. As cases have become more demanding and more complicated; as barristers are required to master professions other than their own - medicine, DNA, accountancy, blood analysis, fingerprint analysis, psychiatriatry, psychology - in the preparation and presentation of cases. In the face of these advances washing over criminal practitioners with the force of a Tsunami, carrying them on a wave of relentless change and development in the presentational aspects of criminal trials, one issue manages to swim against the current. And to do so with the determined obstinancy of a salmon heading for its spawning grounds. This issue? This matter resolutely marching back in time to the days of those old legends of our profession? This issue is that of fees. Our fees for practising as barristers. Our income. Our livelihood. The Bar is once again truely 'a calling'. A calling, in the purest sense, of course, is an irresistable urge to a vocation that is without consideration of livelihood. Those called to the priesthood, for example, follow that calling without consideration for matters such as income, standard of living or any of the other banal and base financial considerations of our modern age. In days gone by - long gone by - the Bar was a calling of the highest order, unconcerned with the taint of financial consideration or the requirement of regular and appropriate income. In those halcyon days, those who came to the Bar were, without exception, those who could afford this lofty calling. Those who had an independent income, or family money; certainly those who did not need 'a job'. If you needed a job, er...well, go get one. And if you wanted a job in the law, well, you could always become a solicitor. In these winsome days of the Bar, entrants to the profession were without exception from those in society who could afford a 'calling'. It seems that 'callings' in those days were the privilege of the elite, the establishment and the Old School Tie. Happily those days, and those views were discarded like yesterday's news with the progressive reforms the Bar has until now imposed upon itself. Today we like to think that the Bar is no longer the exclusive privilege of the exclusive privileged. We like to think that a career at the Bar is now open and attainable for all who are called to the profession. We, at the Bar, like to think a lot of things. Indeed, some may say that thinkers are all we have become as a profession; that we are paralysed by thought, by discussion and discourse. Some are concerned we are thinking and discussing our beloved profession to death. There has been much talk, much thought and endless discussion about the devestating decimation of earnings at the criminal Bar. Indeed the only thing worse to a criminal practitioner than contemplating his bleak financial future is to have to read or talk about it a moment more. We have been talked, lectured, analysed and bombarded into weary submission. Into paralysis actually. And with our profession thus in this morbid state, our representatives can go about doing nothing and pronouncing everything. It is a matter of intense curiosity to me that the income of criminal barristers can have been so dramatically slashed without a whisper of 'active' (as opposed to prosaic) protest, whilst in every other field of industry and commerce such a situation would be simply incomprehensible, an impossibility as immutable as a pro bono banker. And so I say again, the Bar is once again truely 'a calling'. Not a career. Not a job. How many of us at the criminal bar would advise university graduates to flock to the profession? How many would say that it was a vocation that provided security of income, let alone any income justifying the enormous demands the profession makes of us? I know anecdotally the views of my colleagues about the state of the criminal bar at present - I hear the same woeful notes played out in every robing room in every Crown Court up and down the country. It is a mournful tune, and one which has made me feel so truely sad about the morale of those esteemed colleagues with whom I practice. I remember the same robing rooms ten years ago, vibrant upbeat coldruns of legal testosterone. Talk was of cases, of cross examinations, of derring do; never then was a word said about fees. About income. Indeed surely those of us old enough to remember will recall how distasteful it was for a barrister to mention 'money' at all? It seems desperation and disillusionment trump distaste, and the extremity of the position faced by the criminal bar has forever, for me at least, changed the very essence of the robing room aura. I believe there is no other single issue that has changed the very character of what we so loved about the sanctity of robing room comradary and culture than our financial humiliation. For my part and from a personal perspective, I have for the first time found myself struggling financially. My commitments, predicated upon my income five or six years ago, have become increasingly difficult to meet. I know many at the criminal bar are experiencing the same distressing problems. Indeed, due to inexplicable bureaucracy and mind numbing accountability, barristers are having to wait ever longer to receive ever smaller fees for the cases they have conducted. Managing personal and family financial commitments is now completely impossible. Against this, the criminal barrister faces in the current economic climate an increasingly unsympathetic and unflexible financial environment - gone are the days of the large overdrafts afforded barristers by understanding bankers, getting a self - employed mortgage is an Herculean struggle and what were seen by lenders as being the benefits of practise at the Bar are now acknowledged as being detriments. Our financial standing has been ruined. This is an undoubted fact. Want financial standing? Want to be a good credit risk? Want a mortgage? Need I say it?.....don't come to the Bar. Why? Because a 'calling' to a financial instition (if not remunerated in accordance with its status) means 'don't call us, we'll (not) call you'. The objective observer might opine that 'if you can't afford to be at the Bar, you should not be at the Bar'. That may be harsh, but it certainly is true today. The problem is that I have devoted my life to my calling. After some 19 years at the criminal Bar I am as proud today of my achievements as I have always been. I could not contemplate doing anything else even were I qualified or capable of doing so. I feel let down. I have to say that I feel really let down. By whom? I am not sure as the buck is passed quicker than the flu. But I cannot escape the conclusion that we, the Bar, have been in some way the authors of our own biography. And our moments of paralysis have allowed others to write chapters of our story that were not part of the plot we envisiged for ourselves. Most of all, we have been writers ourselves. Talkers, discussers, robing room complainers. We need now to jump out of the pages of our profession and 'do' what is required to save not only ourselves but the future of the profession we have loved and devoted ourselves to. I don't want to read another word about what we may be planning or what we think...indeed this, my own written contribution to this inestimable volume of drivel I would happily see burned by those who wake up to what is infecting our profession under our very noses; on our watch. Do I have a solution? Well, I concede that 10 years ago those at the top of the criminal bar were earning very considerable sums of money. Ironically I was one of those lucky individuals who unluckily had his divorce settlement based upon those lucrative years - the Lord giveth and the Lord taketh away, I guess. But back to the issue, I agree that a measure of diminution in the income of those earning the highest fees (and therefore involved in the largest cases) is justified. Indeed according to all the statistical data I have read (and we have been deluged with more than enough of it) the largest criminal trials representing a tiny percentage of the total trials annually consume a significant percentage of the legal aid budget. I had thought originally the plan had been to curb the fees paid out in these cases without prejudice to the income earned by barristers seeking a living from the rest of the available pie? Would that were so. Instead, fees paid to criminal barristers have been dramatically and unsustainably slashed right accross the criminal spectrum. Everyone has been financially crippled. As a result, seniority of practice is no protection because the loss of income has, for every barrister, been proportional to his outgoings and commitments at that stage in his or her life. I have spoken to or heard of as many Queen's Counsel in dire financial difficulty as junior's starting out at the Bar. Surely it is uncontroversial that this is a deeply sad and very distressing state of affairs? In my view, the pendulum has swung too far against the financial interests of the Bar, and to the detriment of the community as a whole. It is my hope that if sense prevails it will swing the other way, at least to the extent that the progressive accomplishments that the Bar should rightly be proud of are not regressively consigned to paper - more discussion, discourse and diatribe. Every nation is measured by its legal system. Law pervades every aspect of the management and conduct of our lives. Law is the very basis upon which the legitimacy and authority of a community rests. The unrivalled regard in which our legal system has been held by the world has in large measure supported our authority in global issues, an authority far exceeding our small island status. Our legal system has allowed for our past glories as an Empire, but of more relevance, our present influence in global events. War crimes tribunals operate on our legal principles, financial commerce conducted upon our rules and regulations, democracies founded upon our example. When I was called to the Bar I will never forget the proud moment I first donned my wig and gown. But in any field of endeavour, remuneration is afforded according to the value of that enterprise - costs following the cause, as it were. We may like to be contemptuous of American lawyers. But why? They value our legal system and have adopted it, some may say improved upon it. But they value their lawyers too. In other Commonwealth jurisdictions such as Australia and Canada lawyers are as respected as they are here in our country, but remunerated in accordance with that value. Here in the UK we have now engineered a gaping disparity between the value we place on the criminal Bar and the remuneration we afford it. We are in a situation diametrically opposed to the value we have placed on city bankers and the income they have been given. One extreme is as bad as the other, and both likely to lead to catastrophe. The quality of our criminal Bar is essential in the administration and protection of the quality of our lives. Justice, and seeing justice being done is in some primal way important to all of us. That is why all of us find ourselves interested in such news. It is more than morbid curiosity, and such an explanation for the desire of the community to read or see news of trials is facile. We are interested in the Leveson inquiry, in the important cases of our time because these things positively re - affirm ourselves as a community. The law is the great leveller. It is my deepest desire that the community as a whole realise that an investment in our legal system and those that practise within it is, in fact, an investment in themselves and in their national identity. The public at large will not, of course, know of the malaise infecting criminal barristers up and down the country; but those who do know of this concerning state of affairs - our representatives at the Bar, our politicians - owe a duty to our public and to our community. Our legal system is the most valuable asset we have. Never before have I heard such negativity amongst those answering their 'calling'. This paradox - to be called and to complain about it - surely is, if you think about it, a contradiction of gargantuum proportions. It can be fixed. But only just. And if left too late, I fear no amount of money will paper over the damage caused to an old and noble profession by one arrogant, impulsive and avaricious generation.