This isn’t a post about whether criminals are all stupid. (FYI, they’re not all stupid.)
This isn’t a post about whether I’m stupid to be a barrister with a criminal practice. (FYI, I’m not rich and my feet hurt)
No, this is a post about whether the suggestion (and perhaps implicit snobbery) that criminal counsel don’t cut it in the cerebral sense.
These days all barristers have to reach a minimum degree class of II.ii so I’m told to get on the BTPC. They’ve got to then pass that and they’re free to get a clump of horse hair on their head.
Other than that, it’s upto each chambers to set their minimum entry standards.
This has been bothering me for the last few days for two reasons:
1) There was a little unpleasantness on twitter about the intellectual prowess of criminal briefs.
2) Thinking about my own future
You see, most of the Bar these days is specialised. People focus on one main area of law and stick to it. Sort of makes sense, surgeons focus on particular body parts/processes, but they’re still doctors at the end of the day.
And, in writing this, I accept from the outset that I’m not 100% in crime. But, I would say I’m 100% in criminal justice.
To give you a flavour, first five books in front of me:
- Foreign National Prisoners Law & Practice
- Public Order Law & Practice
-Blackstones Magistrates’ Court Guide
- Police Misconduct
- Administrative Law
So that gives you an idea. If anyone asks me what I specalise in I say ‘criminal justice’ – it makes them crease their forehead. If I say criminal barrister they think I’m an actor, if I say public law they think I’m an academic.
The upset was, (I don’t think intentional) about the criminal bar and its entry levels. The basic premise being that you don’t have to be as clever to be a criminal barrister compared to a commercial barrister.
Hmm, I don’t think that’s right. What’s right is the commercial bar will demand first class degrees and often post graduate degrees.
The criminal bar on the other hand (although not a low entry standard) will expect a good class of degree and other things. The other things are advocacy skills, life experience and increasingly the ability to generate work.
The academics for the commercial bar and public law bar are high, but other aspects don’t get weighed in as much.
But, academics aren’t so divisive. I’ve got the same degree as a mate from Uni,he’s at a top civil set, his contemporaries are similarly qualified on paper as me.
Other classmates had firsts and work in chancery sets/commercial sets and before doing so worked at law commission or similar. Are they cleverer than their criminal counterparts? I think often they are, certainly when it comes to ‘the law’ , analysing it and de-constructing it.
But, what was apparent when we were all packed off together on our pupil advocacy course was that intelligence comes in different forms. Those of us with a criminal bent would cross examine off the cuff and think on our feet, the admiralty/chancery brigade weren’t so comfortable on their feet.
Being able to think on your feet is a crucial kind of intelligence that all barristers must possess but to different degrees.
And, emotional intelligence too, more client facing the barrister, more necessary to be able to read people and relate to them.
The best example I have to disprove the divide is this: there was a fellow in the year above me at uni, super brain, did a BCL, taught law to undergraduates at Oxford, on the rise at the chancery bar now. Much respect for him. We were talking about our comparative practices, he said how much he’d love to do a jury trial but realised that he wouldn’t be able to present a case to a jury and cross examine like a criminal barrister could.
So, in academics there’s no doubts that there’s parts of the bar which are academically demanding. But ‘academic’ intelligence, or application of the law are not the only indicators of intelligence. It takes a great deal of intelligence to duck and weave with witnesses.
But the pay packet
I do genuinely think there’s a bit of assumption as to ‘cleverness’ in our pay packets.
Stop, you might be saying. Stop, the reason commercial barristers or public law barristers receive more money is because they’re dealing with high financial value cases and are privately funded.
But, I return to my bookshelf. If I were doing a parole board, I’d be paid more to apply to release someone from prison then I would when defending them to stop them going in there in the first place.
The way legal aid works in criminal cases is that it presumes I never write anything. It doesn’t pay me to draft advices or skeleton arguments. Legal aid in civil areas does.
So perhaps the way legal aid funding is distributed reflects what the government thinks of the criminal bar, they think it’s simple, it’s easy. I certainly don’t get paid to research the law! Afterall, these days they’re content to send non-lawyers to the Magistrates’ Court to prosecute criminal cases.
And that was my worry, should I switch focus from the criminal part of my criminal justice practice to the justice bit. I really don’t want to. I love a good legal argument but there’s nothing like the buzz of cross examining a liar.
Crime don’t pay
Leveson is my pet hate at the moment. I wonder the rates the lawyers are on who are involved. The Government, no doubt, are paying those lawyers much more than those who are in the Old Bailey in murder cases, or in Southwark doing multi million pound frauds.
Leveson is easier than a criminal trial, there’s no doubting that, so why the inequity/inequality in pay?
I think it’s because the Government think that criminal law is simple.
I hope you’ll agree, criminal counsel are not stupid. All breeds of barrister are different types of clever. Different depending on what their client demands.
The difference is that Government after Government have acted like criminal law is something that is simple and that doesn’t deserve to be properly paid for.
But then, let’s face it, it’s not just briefs. Dumbing down criminal justice is systemic. Less resources for police. Less police officers, more civvies. Probation officers not allowed to use their brains but just tick boxes. Privatise this, privatise that.
You’re criminally stupid if you think that the Government care about crime. How can they care about crime when they fail to properly invest in the criminal justice system.