Chair of the Bar 2024: Sam Townend KC

Sam Townend KC must be the first Chair of the Bar who knows anything about dredging.

‘That’s the great thing about the modern Bar,’ he tells me. Barristers come from varied backgrounds and have a wide range of skills. Though he describes himself as a building construction and engineering practitioner – ‘everything from traditional construction, new-build residential through to ground-source heat pumps, solar arrays’ – he has done quite a few cases involving offshore construction work.

I resolve to dig as deeply as I can into the new Chair and his plans for 2024.

Townend’s own background would have been regarded as non-traditional until recently. Brought up in Hackney and educated at state schools, he had no lawyers among his family or friends. His father was an architectural salvage dealer and his mother was a painter of stained glass.

Having risen rapidly through the ranks of the Bar Council, Townend has two priorities for his year as Chair. The first is resources – not just for lawyers but for the justice system as a whole. ‘In some respects, certainly in crime and family, we are at the point of structural failure,’ he believes. Politicians are adding to the burdens faced by the system while not providing the means to pay for them.

The backlog in the criminal courts is the highest it has ever been, he says, and people are losing faith in the system. More resources are needed from the moment of arrest – there are not enough duty solicitors at police stations – to the end of a prison sentence, when the probation service faces the challenge of rehabilitating offenders.

And don’t we need more criminal specialists? Townend agrees, pointing out that the shortage of barristers is one reason why nearly three cases out of 10 are ineffective on the day of trial.

‘We need to try and get more barristers back into criminal work,’ he says. Some have drifted away to other areas of practice while others have left the Bar. Better rates of pay would help bring them back in. But they need specialist training in order to take on, for example, rape and serious sexual assault cases. That needs funding, both for trainers and those being trained.

Middle Temple has a returners’ initiative with coaching and advocacy refresher courses for those returning after a career break. He wants to see opportunities like these extended to the whole Bar.

Family work is another area where resources are particularly stretched. It takes an average of 44 weeks to resolve disputes between parents over the care of their children. And if that is the average, then hotly contested cases are going to take even longer. These tend to be most damaging for the young people involved as well as for their parents. The same is true of public law cases, where children may be taken into care.

Why does Townend regard this as a structural failure?

It’s not that there’s any limit on the number of days judges can sit, he explains. ‘The Judiciary introduced an additional 25% of sitting days in this sector. The problem is that the throughput is low. There are more hearings per case than there used to be. There are more expert reports required than there used to be. So there’s what HM Courts and Tribunals Service calls a 20% cut in productivity, in throughput, compared to the position pre-COVID. No matter what organisational changes are made, the demands are still there and the backlog is getting longer.’

Surely that’s not a problem the Bar can solve by itself?

No, but publicly funded legal advice, coupled with the offer of mediation, could help reduce it. Mediation in family cases has already had some success, he says. ‘I think you could really enhance that level of success if you provided a similar resource to each party to get legal advice in advance so that they know what their legal position is, they know what the issues are between them and they can make best use of mediation.’

Resources are always going to be a problem, I suggest, even if there is a change of government this year.

Townend agrees. But he recalls the Independent Review of Criminal Legal Aid, which reported in November 2021. Sir Christopher Bellamy – now Lord Bellamy, the justice minister – recommended additional funding of at least £135 million every year.

‘That simply isn’t forthcoming at the moment,’ he says. ‘But [Bellamy’s] own view was that it was the first step in trying to nurse the criminal justice system back into good health. If the politicians aren’t willing to commit to the additional spending, then at least we in the professions have to say so.’

And what does the barristers’ profession have to say to its regulator, the Bar Standards Board?

‘Unfortunately, the fees charged by the regulators have increased, I think, by 65% since 2018.’ The charges have increased in real terms over each of the past six years while the Bar Council’s own spending has kept pace with inflation.

‘A problem has been that our regulator, the Bar Standards Board, had not been performing well,’ Townend says. ‘They seem, fortunately, to have turned the corner now in terms of performance so far as complaints about the Bar are concerned – but they are still set on increasing the cost. And so what I’d like to see is better value for money this year.’

One of his complaints is that staff at the board want to be paid as much as other regulators. ‘But of course regulators are a very mixed group, many of whom are economic and market regulators; whereas our own regulator has a relatively modest role in policing the conduct and approvals, authorisations and training of the Bar. I don’t think it’s appropriate that they should be pegging their salary expectations against other, much larger regulators.’

Another complaint is that the Bar Standards Board is straying too far from its core functions.

‘They have a consultation out in relation to the management of chambers and that includes things such as encouraging chambers to merge or to share back-office costs, and so on. I think these are areas which I think this regulator shouldn’t really be going into. The regulated entities are individual barristers. That’s where their focus should be, not on what might be characterised as interfering in the way in which we do business and how we’ve always done business.’

But surely the way barristers do business is relevant to the way they are regulated? A larger structure, with more checks and balances, may have a better chance of catching improper behaviour.

‘That comes down to the whole concept of what it is to be a barrister,’ Townend replies. ‘We are self-employed individuals, on the whole – there are 3,500 or so employed barristers – but we are fiercely independent. I don’t think that the same regulatory approach should be taken to the independent Bar as it is to employees in a large financial organisation.’

After resources, Townend’s second priority is what he calls a sustainable Bar. As he sees it, sustaining the profession involves diversification, both at home and abroad; wellbeing initiatives; and tackling inequity in earnings.

We begin with diversification. The skills of a barrister extend beyond the courtroom, he explains. Last year, the Ministry of Justice announced plans that would require most separating couples to try mediation as a way of resolving disputes over money and children. Townend thought this could provide opportunities for barristers, both as mediators and as mediation advocates. Advocacy and mediation involved similar skills, he said: ‘getting on top of the brief, analysing different individuals in the room – not for cross-examination purposes here but for the purposes of persuasion – and cajoling into an appropriate mediation settlement.’

A related area is family arbitration. Townend accepts that this is not suitable for every case. But ‘where there is a private family dispute about, potentially, custody and certainly financial matters – where it looks like it’s going to be 18 months before a trial will take place – the parties can, if they both agree, refer the matters to be determined by a senior family silk within two or three months. That would seem to be much better for the individuals involved and might even cost less too.’

Isn’t that like jumping the hospital waiting list?

Townend regards it as an indictment of the state system. ‘I think we don’t take our justice system seriously enough as a country,’ he says. ‘We need to invest in it properly.’

Senior judges agree. But how do you persuade ministers?

‘There are obvious priorities for other public services such as health, education and so on. But the amounts of money that would be required to get the justice system back into a workable system, away from the point of structural failure, are relatively modest in terms of overall public spending.’

How much? ‘I think we’re talking about £2.5 billion – not a modest sum, but in the scale of things it would bring the courts and criminal legal aid back to a position that they were at the end of the last government, which would at least be a start, a way of nursing it back into health.’

For that sort of spending, I suggest, you need the public on your side. ‘The public is concerned that the guilty should be put away and that the innocent should go free,’ he replies. ‘And the problem with the backlog at the moment is that neither thing is happening properly.’

Another aspect of sustainability is wellbeing. We’re much more aware of the need to support individuals in demanding jobs, rather than just expecting people to tough it out as an old-style barrister might have done.

Some prosecutors have an unremitting diet of rape, sexual abuse and murder, he acknowledges. But all self-employed practising barristers can call a confidential helpline to discuss emotional and practical problems. The assistance programme, as it’s called, is funded by their professional indemnity insurer, Bar Mutual – not entirely disinterestedly, you might think. Meanwhile the Bar Council is trying to persuade bodies such as the Crown Prosecution Service that minor administrative changes could make things run more smoothly for the lawyers they deal with.

Townend’s final concern struck me as both surprising and disturbing. The Bar Council’s latest earnings analysis suggests that men earn 17% more on average than women in the first three years of self-employed practice. Why might this be?

That’s initially a question for chambers, he believes, adding that Bar Council is offering to assist with an improved earnings monitoring toolkit. ‘We take it very seriously,’ he says, ‘and we intend to get under the skin of the discrepancy this year.’

But Townend hopes it won’t put anyone off. The Bar is a fantastic career, he says. He wouldn’t have done anything else – even dredging.