July 26, 2015 by Stephen Bentley
She Had Blonde Hair And Long Legs and Another Was A Male Prostitute
Barristers come in all shapes and sizes. Some even have blonde hair and long legs. For those of you outside of the UK a barrister is a lawyer. The kind of lawyer who wears those grey wigs, funny collars and long black gowns. Lawyers who for many years frequently used Latin in the courts.
“romantic notion of the trial lawyer”
Many young people have grown up with a romantic notion of the trial lawyer who wins the day in court by virtue of a brilliant cross examination! Thus tearing the witness apart and destroying the case for the prosecution! I blame a diet of TV shows for fostering this notion. US shows such as LA Law and a British series called Kavanagh QC are prime examples of this kind of TV entertainment. They may be compelling viewing but fail to reflect the reality of a working life at the Bar of England and Wales. I much prefer Rumpole of the Bailey!
I ought to know as I spent 14 years practising as a barrister in London. I mainly specialised in crime and mostly defended people accused of crimes ranging from petty theft at the lower end of the scale to murder at the other end. My observations are limited to my own experience and not at all influenced by Horace Rumpole. Perhaps a little?
“the law graduate and non-law graduate must attend and pass the Bar Vocational Course (BVC)”
So I would guess that the typical young person “falls in love” with the notion of becoming a trial advocate or barrister some time during their teens. It spurs them on to achieve good grades and parents are left beaming as they proudly announce “ Francis/Frances is going to be a barrister you know”. Then on to college or university where our young hopeful (YH) studies for 3 years and graduates in Law or some other subject. If the latter, then YH must complete a post-graduate conversion course in law before they can apply for the one year vocational training course in order to qualify as a barrister (it is now possible to spread the vocational course over 2 years). In any event, both the law graduate and non-law graduate must attend and pass the Bar Vocational Course (BVC).
“They are ancient legal institutions”
The BVC used to be held at only one venue — the Inns of Court Law School (ICSL) at Grays Inn in London. Nowadays there are several accredited BVC courses held at various regional centers throughout England and Wales. The course is tough! Very tough and very intensive and teaches new skills such as advocacy, drafting and negotiation. Most students at the ICSL also complete their ‘dining requirements’ during their vocational training. Before an aspiring barrister can receive his or her Call to the Bar, he or she has to attend 12 dinners held in their respective Inn of Court. There are 4 Inns. They are ancient legal institutions and they comprise of Grays Inn, Lincolns Inn and Inner and Middle Temple. They used to fulfil the role of the training of a barrister before the inception of the more formalized BVC course. So the dining requirement is a “nod” to the history and traditions of the role of the Inns in the English legal system.
“Call to the Bar does not mean you can practise as a barrister”
Now, having passed the BVC and dined suitably, YH can now be Called to the Bar, typically in a ceremony at their respective Inn with the entourage of beaming parents and family. They usually rent the horsehair wig, gown, collar and bands for the occasion as it would be folly to spend a small fortune on all this kit at this premature juncture. You see, the Call to the Bar does not mean you can practise as a barrister as yet. It solely means you are legally entitled to call yourself a Barrister At Law!
“finding one [a pupillage] is when things really start to get tough!”
Our YH now needs to find a pupillage, a form of apprenticeship, and successfully complete it before being granted a Certificate To Practise. The BVC is very expensive running into £ several thousands. So our hopeful, or rather his/her family, have so far invested very heavily in order that they may use the nomenclature of barrister! Pupillage invariably lasts 12 months and finding one is when things really start to get tough! The new pupil is supervised by a senior barrister during pupillage. Most barristers are self-employed. They are individual contractors available for hire. Most work out of Chambers ( chambres in French meaning rooms ) occupied by other barristers, a Senior Clerk and clerking team and usually a few admin staff. A Head of Chambers is usually appointed, and with various committees, oversees the running of Chambers.
“If they are wise, they will only speak when spoken to”
Our hopeful so far has embarked upon a costly venture and has not yet received or earned a penny in income! That does not change during the first 6 months of pupillage! In that period a pupil barrister is not allowed to act in his or her own right. They are not allowed to appear in court as an advocate no matter how legally trivial the matter happens to be. In the main, they stay in Chambers looking, listening and learning. If they are wise, they will only speak when spoken to. They will read briefs (bundles of case papers) and written documents known as advices or opinions drafted by their pupil master. They must be prepared to discuss the contents of those wise words with their supervising barrister. Occasionally a pupil master may entrust the pupil with writing an advice, usually on some relatively minor matter. The pupil will also be at the beck and call of all in Chambers, not just their own pupil master, to conduct legal research either in Chambers’ own legal library or the library of one of the Inns. Invariably they will also continue imbibing alcohol. Something most became accustomed to at college and the ICSL. Alcohol will be drunk into the late evening hours at some local pub or wine bar frequented by members of Chambers. But don’t be fooled — even there the pupils are being assessed!
“the money earned is a pittance!”
The first 6 months flies by and now YH, our young hopeful is ready to go to court and deliver that brilliant cross examination. What is more they can now earn money! Don’t get too excited as the money earned is a pittance!YH in most instances is there at the behest of a solicitor so effectively becoming the agent of a high street law firm. The requistioning solicitor knows he can get away with paying a pittance as he sends a lot of major work — heavy duty crime — into the same Chambers. The pupil barrister is started off on such matters as applications for bail; for adjournments and purely procedural hearings. Then they progress to pleas in mitigation — an accused has pleaded guilty and the court hears from the advocate before sentencing. Finally they progress to a full blown trial in the lower courts. They at last get to cross examine witnesses and call evidence of their own often in the form of the accused person. They also make a closing speech to the court. At this level of court it is delivered to either a single judge or a panel of three lay magistrates. A case is rarely won here. The witnesses are often hardened police officers and the court at this low level tends to accept the police evidence unreservedly!
“The debts begin to mount!”
This is a timely point for inserting the first caveat! Disillusionment with the system often starts to creep in at this stage. Our new hopeful has probably never before experienced such cynicism. Has never experienced such artful exponents of the lie. It dawns upon him or her that the court system is a factory! But the first money starts to come dripping in —£ 20 here and a £40 there and oh my! There’s a £100!! Drip is the operational word too. This kind of legal work is publicly funded and I know of no government that processes and pays out money in a speedy fashion! The debts begin to mount! Rent to pay on the new flat, loan instalments to meet, overdraft interest to be paid. This is just the beginning. But YH still believes they will make it and become a very successful advocate. Hope springs eternal!
“Decision day looms”
YH is constantly assessed but curiously no one from Chambers ever goes to court to check up on their proficiency! Decision day looms. “Congratulations” says the Head of Chambers to our hopeful, “you are now a fully fledged member of Chambers!” The full name of YH can now go up on the board displayed at the main door of Chambers. It can now be included in the Chambers marketing literature and on its web site. But the young hopeful YH is now known as a tenant and is a source of income to Chambers. For use of a room within Chambers, use of its facilities and the clerking services provided, YH now has to pay Chambers for that privilege. Sometimes it is a percentage of total earnings, but more often it is a flat fee called rent, then a percentage of all fees received.
“the inquirer will either like or dislike a particular barrister with the obvious consequences for being instructed!”
The Senior Clerk and his team are vital to the future success of any barrister. Barristers within a criminal set of Chambers are highly specialized trial and appellate advocates. It is a referral business. Solicitors in high street firms will often ask for a particular barrister by name. The clerks will inform the inquirer that he/she (the named barrister) is either available or not available for the case in question. If unavailable, the clerk will then suggest alternative barristers. Obviously, the alternatives usually reflect the seriousness of the case allied to that barrister’s level of competence, experience or reputation or a combination of these factors. Sometimes it is the case that the inquiring solicitor will either like or dislike a particular barrister with the obvious consequences for being instructed!
“the ‘alchemy’ of the clerks’ room!”
The newly appointed tenant to Chambers will never fully comprehend the ‘alchemy’ of the clerks’ room! Indeed barristers of many years experience either do not understand or do not want to understand the machinations of the clerking sorcery. The new tenant is delighted to firstly have a tenancy, a feeling of security, and clerks informing them that they have a brief (a bundle of case papers tied up with red ribbon) for their first Crown Court trial. The cautious among new tenants will only just have purchased their court attire — wig, gown, collar and bands. They cost a lot of money and are only now required as the full regalia is not worn in the lower courts. Excitement swells in the breast! This is what I have been working towards! The new tenant could be forgiven for exclaiming “I will wear my wig and gown; I will look like a barrister and act like one. I will destroy the prosecution case!”
“how can you defend people you know are guilty?”
It is often at this point that YH starts to really believe in the “romance” of being a member of such an old and (mainly) honourable profession. At dinner parties he or she is thrilled when introduced as “ Francis or Frances Bloggs. He/she is a barrister you know”. The mention of the word barrister in a social context certainly has kudos. Then comes the time worn question that is asked so many times — “how can you defend people you know are guilty?”
The simple answer is you can not defend a client that tells you he is guilty of the crime. It is a subject worthy of an article of its own. Essentially you are not allowed to run a defence you know to be false. The barrister who does so is in contravention of the Code of Conduct. Furthermore, that barrister would undoubtedly soon be found out and his/her reputation would be dirt. Most clients are savvy enough to give ‘instructions’ to their barrister consistent with their saintly innocence. The barrister, or at least the wise and experienced among them, will challenge that version of events and if necessary point out the weaknesses and inconsistencies contained within it. However if the client remains resolute in his instructions then the barrister is bound to ‘run that defence’ before a judge and jury. The advocate’s own thoughts and opinions become irrelevant. He is a professional and must conduct the case to the best of his ability.
“He is experiencing regular visits to the Crown Court”
YH is now in the first few years of his tenancy. He is experiencing regular visits to the Crown Court and conducting trials before a judge and jury. YH starts to appear at the Central Criminal Court (the Old Bailey) especially if based in London Chambers. The cash flow is improving somewhat as the Crown Court itself is the paymaster and tends to pay out quicker than the Legal Aid Board. However YH still encounters problems. From time to time he acts as a “junior” either to a Queens Counsel or a senior very experienced “junior “ barrister. This happens in very serious or complex cases. The case may involve many defendants (accused persons), many witnesses and many pages of the prosecution case or a combination of all those factors. The trial is likely to last many weeks if not months. The monetary rewards can be substantial. I received in excess of £30,000 for one such case. The downside is twofold — firstly that barrister is doing no other work whilst engaged on the trial — and there is a long delay in payment following the conclusion of the case because the claim for payment has to be assessed. By the time the large cheque is received the debts have doubled or tripled.
“This is the key to real success at the Bar!”
This is the key to real success at the Bar! Imagine a scenario of two to three fairly lengthy cases a year interspersed by regular trial work at the ‘coal face’. But it is so difficult to make it work out that way.
In fact you cannot make it work that way — there are too many vagaries involved. I stress this is in my own personal experience and this is what can happen:
You are receiving regular routine briefs for Crown Court work from say one or two solicitors. They like you. You are a safe pair of hands and you are reliable. Then you are away acting as a junior on your first really serious and lengthy trial. Someone else fills your shoes. You return to Chambers after that lengthy trial and there is no regular work for you. Income and cash flow becomes a real problem. Debts increase even more.
“blondes with long legs”
The clerks in Chambers are sympathetic to your problem or at least some are! You receive a phone call — “I am trying to fit you in as a junior to BC ( a senior member of Chambers). Long trial, sir. But it is several weeks away in Bolton ( a provincial town in Lancashire 200 miles away from London). Are you OK with that?” I say “ Yes I have no problem with that”. I am thinking “great! The cure for all my financial ills”. Weeks go by and no more is said about Bolton. I ask the clerk “What’s going on?”.
We hold a secretive conversation in the street outside Chambers. I am told that the new blonde tenant with the long legs is off to Bolton in my place. BC is rather partial to blondes with long legs so I did not stand a chance really!
“winning cases means absolutely nothing”
So I soldier on. Irregular briefs. Irregular frequency of cases. Irregular and infrequent income. I contact solicitors I believed were friends from university days. Begging bowl at the ready but no real progress. And one of the other things you learn as a relatively experienced barrister is that winning cases means absolutely nothing to many high street solicitors. I know that sounds strange but true! I will give you an example.
“At the trial before a judge and a jury”
I was briefed to represent a middle aged Irishman charged with burglary (breaking and entering). He was found exiting a four storey apartment block in Islington , north London by a police officer who had been called to the scene.
The apartments were void of tenants, as they were in the process of renovation but the refurbishment was not yet complete. The owner of the block was on the third storey when he saw the figure of a man crouched under a kitchen countertop. He caught a fleeting glimpse of the man but not enough to fully describe him. Understandably, and adopting the maxim of discretion is the better part of valour, the owner quietly made his way to the fourth storey and called the police from his cell phone.
The prosecution case was that my client, the Irishman, was the man crouching on the third storey and the same man arrested by the police officer as my client exited on the street. The man was a trespasser and could only be there with an intention to steal. Their case was based on the physical layout of the apartment block maintaining that it was not only incredulous, but also impossible, for there to have been more than two people in that building — my client and the owner. The owner would give evidence that no one was present or hiding on the fourth storey. The police would say that no person was found or hiding in the first three storeys.
My client’s instructions were that he was an out of work unskilled construction worker. He could see building materials and debris on the footpath outside the apartment block. He entered the building through the unlocked front door to check if there was a possibility of finding work. On making his way up the stairs of the building he heard noises. The Irishman could not determine the source of the noise so turned around and descended the stairs. On leaving the building he was arrested by the police officer and protested his innocence.
The Irishman had no explanation for the mystery man seen crouching under the kitchen countertop. At the trial before a judge and a jury, the prosecution invited the jury to be sure that it could only have been my client that was seen under the countertop. I then cross examined the police officer who not only arrested my client but had also conducted a thorough search of the building from top to bottom.
This officer had no idea that I was a former police officer having served in the force for some 14 years. Most of that time I had served as a detective. I knew police procedures and more importantly the terminology used by police officers.
I opened the relevant part of my cross examination asking “Officer, are you familiar with the term ‘a climber’?”
“Yes” he replied.
“For the benefit of the jury officer would you agree with this proposition?” I paused.
“A climber is a term used by police officers to categorise a certain kind of burglary modus operandi?”
[ this was a question — more to do with intonation than the actual form of words] [you will also note the Latin term modus operandi]
“Yes it is” came the reply. So far so good.
“And that modus operandi or MO for short, is that the offender is an excellent, fearless, agile skilled climber of drain pipes, stack pipes and any other such fitting seen on the outside of all buildings?”
“Exactly” replied the officer.
“Thank you officer. No more questions”.
No more questions because I did not want him to quickly realise the damage I had inflicted upon the prosecution case. He could not recover from his evidence. And I had enough now to make my point to the jury in my closing speech.
The obvious points were made of course:
- there was a third person inside the building
- this was the man seen crouching under the kitchen countertop
- and he had entered and exited the building expertly and skilfully shinning up the drain pipe system and down again
The police had the wrong man! The jury deliberated for 20 minutes or so and returned a unanimous verdict of “Not Guilty”! The Irishman was ecstatic! He hurried off to thank his solicitor for instructing me and to tell her that I was the greatest barrister ever known in the annals of the Bar in England and Wales.
‘an open and shut case’
That solicitor in question was, and still is, a friend of mine from university days. I did not receive any more work from her after the Irishman case. I later heard that she had been embarrassed by my success as she had told our Irishman client that it was ‘an open and shut case’ and he ought to plead guilty as charged!
“a former police officer”
Paranoia is present in all forms of working life. Some, but not many, clients did not like to learn I was a former police officer. They thought I was still tied in somewhat to my old police connections. I can understand that. But I could never understand well educated lawyers having a similar distrusting attitude toward me. It was an undoubted factor in certain solicitors not farming out work to me.
“a male prostitute”
So back to our young hopeful YH. It becomes a lottery as to whether he makes a very successful career at the Bar. It is better if they have something to fall back on if they hit the lean times. I have known barristers who have had all kinds of ways of supplementing their income. One young handsome barrister supplemented his income by being a gigolo, okay a male prostitute, preying on older ladies he found dining alone in the most expensive hotels in London. More mundanely, others teach law on a part time basis: some even play instruments or sing in a band; others have a timeshare business and another I knew had a successful construction company. All methods employed in order to get through the lean times. Yet others still have the silver spoon in their mouth and can rely on wealthy families to bail them out of any financial difficulties.
“Cash flow and income can fizzle out”
I remind my reader that the majority of barristers are self employed. They are responsible for paying their taxes. Cash flow and income can fizzle out to virtually next to nothing for months at a time. Lucky are those that work in a leading, busy criminal set who do not experience these problems to the same degree. Lucky are those who have ethical, understanding clerks who allocate work fairly and not just on the colour of hair or the length of legs. Lucky are those who gain and maintain solicitors based on mutual professional rspect. It is not unknown for barristers to marry a solicitor in order to ensure a rich vein of work! Is that mutual professional respect? I do not know — what do you think?
“Failure to pay that will undoubtedly result in bankruptcy!”
During the lean times our young hopeful YH needs to maintain payments of rent and clerks fees. A substantial amount of money needs to be found every month. In addition he must spend money on all the necessities at home. The rent or mortgage, utilities and food. The wise will put away money in a separate bank account in order to satisfy the annual return of taxes and payment to Her Majesty’s Revenue and Customs (HMRC) — the UK equivalent of the IRS in the United Sates. But what if there is insufficient income to keep this money in the “tax” account? The ultimate answer to that is Statutory demand from HMRC. Failure to pay that will undoubtedly result in bankruptcy!
In the course of let us say just 10 years, the romantic notion of life as a successful trial lawyer can become very tarnished. The young hopefuls have to realise at the outset that their future cannot be controlled solely by themselves. They are at the mercy of all kinds of rolls of the dice. I wish them more luck than I ever encountered. I also hope this article makes you engage your brain and not your emotions if you are an aspiring YH. I no longer live in the UK and no longer closely follow what is going on in the legal profession. However I am aware that the process of cutting budgets for publicly funded legal work continues at a pace.
Do I miss any part of my life at the Bar? Advocacy in a court room is like a drug. It can be a powerful ‘high’. It is a very satisfying sensation to see the rapt faces of 12 men and women in the jury box. Listening to your voice. Hanging on to your every word. Even nodding in agreement as you make your most telling points. If you are a good trial advocate it is like holding putty in your hands when you connect with that jury! I miss that — but not the financial shenanigans.
Make no mistake, you are buying your right to be called a barrister — so buyer beware! After that, it is a matter of your merits and a huge amount of luck. I wish you all well.