Courts backlog worsens as junior barristers quit over pay

As a newly qualified barrister Alejandra Llorente Tascon, 29, once found herself struggling to afford travel to get to her cases. Now a barrister for six years, she estimates she still has about £60,000 in student debt.

“A couple of years ago I had to go into the clerks’ room in my old chambers and say I did not have the money to go to court. What do I do?” said Tascon, who grew up on a Battersea council estate with her mother, a single parent who works as a cleaner.

Tascon is one of thousands of barristers in England and Wales who have gone on strike over cuts to their pay, with a second wave of walkouts starting this week. Criminal barristers are lawyers who represent criminal cases in the highest courts of law.

Her plight is not unusual for junior criminal advocates, who represent defendants and operate out of shared offices — known as chambers — earning as little as £12,200 a year.

Barristers staged protests outside courts including London’s Royal Courts of Justice on Monday causing further disruption to those awaiting justice. Three days of action are planned this week, rising to four days the following week and all five days in the week beginning July 18.

The Criminal Bar Association, which represents 2,400 criminal barristers, said advocates have seen a 28 per cent fall in real terms in their income over the past 20 years as the criminal justice system has suffered sustained government cuts.

Their action comes as the government is trying to clear a backlog of crown court trials which rose from 40,000 in March 2020 to 58,271 in April 2022.

The precarious position of junior barristers is a key reason why the Criminal Bar began a series of walkouts last week over government reform of legal aid fees.

Most barristers are self-employed and have to pay upfront for train travel to court in addition to expenses such as chambers’ rent, VAT, professional insurance and tax. They do not receive sick pay, holiday or maternity pay.

Criminal barristers have the additional challenge of waiting for long periods to get paid. Government-funded legal aid fees — which allow defendants to be legally represented — are only paid once a crown court trial is concluded, which can take years.

This system is particularly tough on junior barristers when they are just starting out. Tascon said she had not yet been paid for a trial she has worked on since February that only finished in late June.

Jo Sidhu QC, chair of the CBA, said 300 young barristers left criminal practice last year “because they could not do this job any more on what they were being paid and the hours they were toiling”.

Scott Smith, formerly a barrister at 9 Bedford Row chambers, is among those heading for the exit. The 30-year-old is going to work at a regulator offering a better work-life balance as well as staff benefits like a pension and sick pay.

“Leaving the Criminal Bar was an extremely difficult decision and not one I took lightly,” he said, adding that “there is no work-life balance at the Criminal Bar at present”.

“The fees are not representative of the hours of work it takes to properly and comprehensively prepare cases,” he added. “Often at the junior end we are left out of pocket after completing cases, and when we are paid it can take years.”

According to Smith, junior barristers are often taking on two or three cases a week to keep afloat. They finish one trial and then prepare all night for a case the next day “which is exhausting and leads to burn out”, he said.

Most pre-trial hearings attract flat fees rather than hourly rates. The fee for a plea and trial preparation hearing is £126; for a pre-trial mention hearing it is £91, even though both entail hours with a client and reading hundreds of pages beforehand.

Tascon says a £126 fee can sometimes represent two days of work. “After tax and VAT it leaves around £50 or £60. Once travel is paid for and lunch and a coffee there is nothing left.” she said.

Many peers are moving to civil law where junior barristers can earn £70,000 or for City law firms where some newly qualified solicitors earn up to £160,000.

Lord John Thomas, a former Lord Chief Justice of England and Wales, said in May that his own grandson was shunning criminal law to become a commercial barrister: “Nobody could advise a youngster to go to the Criminal Bar,” he said.

The government estimated that 700 court hearings, equal to about a fifth, were disrupted in the first week of the barristers’ action starting on June 27. The strikes will increase this month.

Claire Waxman, London’s independent victims’ commissioner, is concerned. “We now have victims in the system who have been waiting three to five years from the time of report until their day in court, extending and exacerbating their trauma.” she said.

The government has promised a 15 per cent uplift in fees from the end of September which will see a typical criminal barrister receive £7,000 a year extra. It has accepted most findings from an independent report by retired judge Sir Christopher Bellamy last year which said the criminal justice system needed an extra £135mn.

The study said that after four to seven years junior barristers take home £45,500 to £52,000 fee income after expenses, and the median fee of a barrister in 2019-20 was £79,800 before expenses.

However, the report noted that many have “significant educational debt”, and that the figures suggested “very low fee incomes” in the first two years rising to £30,000 after three years.

However, barristers want a 25 per cent fee uplift and say improved fees will only kick in for new cases coming into the system from late September.

James Cartlidge, justice minister, said: “Our energetic efforts to tackle the courts backlog are working but the strike action by criminal barristers threatens all that progress despite the very generous pay offer on the table”.

Barristers said the current system fails to compensate properly the job they do. “This may sound dramatic, but every day we hold someone’s life in our hands,” said Smith. “Everything we do has a colossal impact upon someone’s life, so the pressure to get that right is immense . . . ”