As a law student, witnessing the continuing deterioration of the Criminal Bar is deeply concerning. While there are several issues, what stands out prominently to me is the shortage of criminal barristers. The Crown Court’s outstanding caseload is the largest it has ever been at over 67,000 at the start of 2024. Last year, one in twenty Crown Court trials were abandoned due to Counsel being unavailable to represent either/or both the prosecution and defence[1]. The Criminal Bar is witnessing some of the lowest retention rates of all time.

By Hannah Jackson, Second Year LLB Law Student, University of Nottingham

Has criminal law lost its lustre?

Despite criminal law being a mandatory module on an LLB Law degree, engagement with the module is – in my personal opinion – declining significantly. Through my own experience, I see that much of my cohort is choosing to pass over a career at the Criminal Bar from the outset, enticed instead by the promise of a six-figure newly qualified salary at a top commercial law firm. Some of my peers were considering the Bar, but were discouraged within the first term once they realised how difficult it is to obtain pupillage, with odds of success at around 1 in 6, alongside the often-perceived poor financial prospects in criminal law, it no longer seems viable/attractive. Additionally, poor working conditions, a lack of education and early exposure to the profession were other reasons cited.

Legal Aid – a panacea?

Legal aid cuts have been catastrophic for barristers working on publicly-funded criminal cases. Many criminal case fees now fall below the minimum hourly wage, considering the expected preparation time and amount of cases to handle. Cases now require working more front-end hours as barristers are completing tasks such as collecting witness statements, traditionally done by solicitors and clerks. This additional workload means less time for preparing courtroom advocacy. “Half (51%) of pupils who work in crime say they do more than 50 hours per week, compared to 36% of those working in other areas of practice.”[2] Many young criminal barristers highlight the fear that their careers may not be sustainable due to the substantial hours and the lack of adequate remuneration. The significant front-end work comes with no up-front payment. A big issue raised by pupils and junior barristers is that legal aid is paid at the end of a case. Linking this back to the Bar’s future pupils, the levels of student debt and the cost-of-living crisis have left university students more focused than ever on the financial rewards of career choice, turning them away from the Criminal Bar. Ultimately, it is the Government that must increase legal aid funding to compensate the Criminal Bar, but more can, and should, be done.

Exposure deficit

Education and exposure stand out as another issue. Students are often actively discouraged from pursuing the Criminal Bar. Academics, family, friends, and some legal professionals advise me to stay away from the Criminal Bar. The resounding opinion is that there is little money in it and the working conditions are poor. Many universities no longer promote the Criminal Bar to their students as they feel it is no longer ‘viable’. Max Hill KC said: “When I ask university lecturers about what they say to students expressing interest in going to the publicly funded Criminal Bar, they say they advise them not to do so.”[3]There are external schemes and events aimed at fostering an interest in criminal law, but given the finite number, they are oversubscribed and some have strict diversity criteria, meaning there are simply not enough places.

There also isn’t enough emphasis placed on skills training through practical and experiential modules at some universities, these opportunities at undergraduate level often come from Mooting or Bar Societies which are extra-curricular options. Education should be transformed to encourage those students interested in criminal work, rather than put them off.

 Civic Duty – a moral ideal?

On a philosophical level, there’s been a decline in the sense of social justice and civic duty in younger people. Alison Park, Research Director at the National
Centre for Social Research states, “If you divide the population into age groups, sense of civic duty is much stronger in older generations.”[4] This is perhaps one of the reasons for the increased interest in lucrative commercial law careers. In 22/23 the mean salary for crime pupillages was £30,000 and £74,000 for commercial pupillages.[5] Fewer students wish to fulfil this sense of justice, the core message behind the Criminal Bar. There is a distinct need for universities and the Criminal Bar to highlight, to a greater extent, the benefits of upholding justice, contributing to a social and democratic society, while fostering and nurturing those with an initial interest in justice.

Arguably, the Government can make the largest impact at the Criminal Bar by investing in legal aid and the Criminal Justice System. Systemic change is needed to save our foundation. However, the Bar and its members can implement some smaller, key changes to make a difference.

Educating generations

One change which will have a generational impact is educating students at a younger age about the legal system while instilling the core values of social justice and civic duty. Early intervention enables foundations to be built. There are charities such as Young Citizens and Leducate, who work with high schools to educate students on the legal system and justice, reinforcing why it is a cornerstone of our society. These schemes require funding and support to further their work, something which chambers, firms, and legal organisations should invest in. Supporting such schemes is essential to inspire the next generation of criminal lawyers.

Within higher education, the adoption and promotion of criminal law schemes should be increased. Harvesting an initial interest could ensure fewer students are discouraged from the Criminal Bar.

University of Kent Law lecturer, Darren Weir and colleague Trevor Linn, set up the ‘Student Outdoor Clerking Scheme’ (SOCS) to inspire law students to get involved in criminal law. Both experienced working at the Criminal Bar first-hand and see the growing disparity between those students interested in criminal law and the available practical experience opportunities in court. SOCS addresses this disparity by providing students with hands-on exposure to advocacy and the court process. The scheme has been a success and Weir is hoping for a national roll-out by recruiting other universities. Without schemes like this, many students will not get to experience the art of criminal law advocacy first-hand, and students will instead get swept up in the wave of six-figure salaries at commercial law firms and chambers.

Most universities with law courses have a Bar Society or a Law Society. As a Bar Society committee member for two years, I have experienced first-hand the difficulty of ensuring their viability due to lack of funds and low levels of general support in organising events. Bar societies are an influential stimulus to a student aspiring to a career at the Bar. Some local sets of chambers are very supportive, but more could be done to help with sponsorship and hands-on advocacy development events such as mock trial competitions. I am keen to ensure our members hear about the Criminal Bar, but we’ve found it difficult to obtain valuable opportunities. Promoting criminal practice could mean the difference between inspiring a student to choose the Criminal Bar or pursuing another practice area at the Bar. If you are a criminal barrister, please do contact your local Bar Society to ask if they would be interested in your help, they should be receptive to your offer!

Funding more criminal pupillages

More criminal pupillages create more criminal barristers. However, pupils cost sets of chambers money and many criminal sets may already be struggling. More external support is required to contribute financially towards pupillages. The Inns offer the COIC Pupillage Matched Funding scheme, where chambers can apply for funds to cover the first six months of a ‘matched’ pupillage place each year. For example, in 2022, COIC supported over 30 pupillages. With further aid, the scheme could fund more. The government, large solicitor firms and Bar Course providers are examples of organisations that are affected by the Criminal Justice System, so their financial contribution to this scheme could help.

Service obligations and remittance terms

Some barristers chose not to stay in criminal law post-pupillage. The Bar could consider copying the minimum service requirements that law firms make on trainees, to ensure those who have received funded places are retained in crime for at least 3-5 years. This could help increase retention at the Criminal Bar.

It is unlikely that the Government will increase legal aid right now. However, fee remittance could be reviewed. Fees are paid after completing the case, meaning if a barrister cannot make court, they lose fees spent on preparation. Half of the payment could be received in the middle of the case, the second half paid post-case completion. This would help support criminal barristers who are struggling financially, particularly pupils and barristers of new call.

To conclude, the Criminal Bar needs significant reform to reverse its decline. The Government can make the largest impact by investing in legal aid and the justice system. However, one cannot solely rely on increases from the public purse given the current climate. The Bar must tackle the areas they can address themselves now. They must also engage with other professionals and stakeholders such as universities and law firms, for financial, educational and political support to reverse the decline and ensure a healthy and prosperous future for the next generation of criminal barristers.

Hannah Jackson

Second Year LLB Law Student, University of Nottingham

Appendix

[1] Sam Townend KC (2024). How to fix the criminal justice system. [online] Thetimes.com. Available at: https://www.thetimes.com/uk/law/article/law-comment-how-to-fix-the-criminal-justice-system-sam-townend-kc-8sndfzdcb [Accessed 26 Sep. 2024].

[2] The Bar Council Pupil Survey 2024

[3] Ames, J. (2014). The Criminal Bar: will cuts spell the end for young Rumpoles? [online] Thetimes.com. Available at: https://www.thetimes.com/article/the-criminal-bar-will-cuts-spell-the-end-for-young-rumpoles-d2xnlcz5d36 [Accessed 13 Sep. 2024].

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[4] King, V ‘Is there such a thing as civic duty? And do we feel it?’ (2011). BBC News. [online] 24 Nov. Available at: https://www.bbc.co.uk/news/uk-politics-15763388.

[5] The Bar Council Pupil Survey 2024