‘The first thing we do, let’s kill all the lawyers’
Dick the Butcher, Henry VI, part 2 Act IV, Scene 2, Shakespeare
The common public reaction to that line is to laugh in sympathy with the sentiment. For a profession that relies on its skills to analyse and advance the cause of clients, why have barristers (historically) been so unable to explain to the press and the public what we do, and why it is important to society? When we scream in outrage at the decimation of legal aid, the exodus of women from the Bar at five years’ plus call, or the lack of diversity in our profession, why have our calls for action been met with derision or indifference?
Books such as Stories of the Law and How It’s Broken by The Secret Barrister and In Your Defence by Sarah Langford have started to push back the tide. Social media has given us a way to engage with the public outside an often hostile press. Former and serving senior judges have felt compelled to go into print to talk about the devastation brought by legal aid cuts (Letters to The Times: Baroness Hale of Richmond 9.4.19; Sir David Bodey 24.5.19; Sir Hugh Bennett 30.4.19).
When I googled ‘fat cat barristers’ for this article the attitudinal shift in press coverage was striking. Aside from an old Express headline from 2014 screaming ‘Legal Aid Fat Cats: SIX barristers each earned more than £500k from the taxpayer last year’ (the Ministry of Justice having released the figures as the criminal Bar was gearing up for a half-day of action over the proposed cuts to legal aid), the images were of barristers with placards saying ‘Save British Justice’ and ‘No Legal Aid Cuts’ and a well-researched piece by The Guardian: ‘Barristers in England and Wales “in grip of mental health crises”’ (6.5.18).
So, if we have succeeded in having a difficult dialogue with the press and public about the importance of the work we do, why is it that within our profession we have had such a difficult time in talking about the impact of the work we do on ourselves and our families? Stress, whether manifesting itself in physical or mental health problems, is a risk our profession exposes us to, due to its content, its pace, our workplace culture, or the personality type that is attracted to the Bar.
The work we do
Becky Owen, a barrister who reached her own crunch point in March 2018, had this to say to The Guardian on the pressures at the criminal Bar:
‘For me, it was the conditions, the sheer volume of work and the complete lack of respect for me as a human being. I got sick of arriving home dehydrated, starving and having not had time to go to the loo. It takes its toll. There aren’t many people who have to watch videos of two-year-old boys being raped before going home to sleep – and at times for less than the minimum wage. That’s what we are being asked to deal with, yet the profession attracts no sympathy because it is assumed we make a lot of money. I think in 20 years’ time we’ll look back and recognise this as the point when miscarriages of justices started happening.’ The Guardian 6.5.18
Becky spoke for a number of us. When you are working on cases that tap into the worst that human beings can experience or do to one another, you do so at risk to your own wellbeing. Images and stories once heard are difficult to wipe from your retina or memory.
I confess that I found the excellent interviews conducted by journalist and former lawyer Afua Hirsch for Radio 4’s Barristers on the Brink hard to listen to; ripping through the protective layers I had so carefully built up over the years. The discussion with criminal lawyer Laurence Lee, who represented Jon Venables in his trial for the murder of toddler Jamie Bulger, was profoundly affecting. Laurence explains how the trial left him with post-traumatic stress disorder (PTSD, which he – and his and our profession – did not recognise as such at the time). He still has nightmares in which he sees his own body beaten, left to be severed in two, on railway tracks.
Whether, as barristers, we work in human rights, immigration, crime, family, or any area that touches on the lives of those most in need in society, the common thread that runs through our work is the necessity, if we are to do our job well, not just to read what the case is about but to delve into and question it to try to get a evidential and tactical handle on the evidence and the case we have to fight for our client.
My field of specialist child abuse requires me, for example, to look at images of a baby’s inert and dead body. I track its photographic transition during pathological dissection from child to its component parts of brain, bones and organs until its humanity is lost and becomes a collection of ‘parts’ and slides. On occasions I have to look at images of child sex abuse, of rape and buggery of babies, barely a few months’ old, as well as young children. Under the watchful eyes of the anti-terrorism force, I read restricted ISIS material: photos, images of the dead and dying and tortured. In the course of my work with families during the Hillsborough Inquests I, and my colleagues, had to look at footage of the crowd, trying to pick out a loved one from the grim press images of the many fans suffering; zooming in on their faces to try to work out the moment of death, the point at which the crush overcame the bodies’ resistance to the pressure of the crowd. We watched as they died. Over and over again. A task made no easier with the passage of time since the tragedy.
In a client conference I will have a junior with me to sit, listen and note. I may have a solicitor with me but more often than not a clerk (lost billing time can drill a Hatton Garden robbery size hole into a firm’s meagre profits). How well have they been prepared for this experience? When do we take the time in advance of the conference to make sure that they are going to be OK with what’s going to happen? ‘Not often enough,’ is probably the honest answer. And how can they ever be ‘OK’ with it, actually?
As a junior barrister I went to a police station to watch client evidence. I had not been told what I was to see. I have never forgotten watching the video of a child being buggered and the sadistic delight the camera person took in zooming into the child’s face as it contorted in terror and pain. It’s hard to feel clean and whole after these experiences. It is hard to go back home and to watch your own child innocently playing with his dad when all you can see is the difference in their size and what that can mean in terms of power and pain for an abused child.
This account is from a junior barrister who suffered PTSD as a result of work dealing with cases of torture and abuse:
‘It is part of my job to get details – the minute details of the abuse, such as, how and where someone was beaten, how it made them feel, how fearful they were of being raped and tortured by prison guards and inmates. The reason is that some asylum seekers do make things up, and so, in order to test their account, I have to listen to what happened, something that a counsellor or therapist does not have to do. The same can be said for those of us who have had to view child pornography. Something I have only had to do once and an experience that still haunts me 8 years later. The problem with this job is that there is no training on how to deal with these matters… I am fortunate in that I am reasonably aware of my frailties and am willing to discuss them. When on holiday I realised I was suffering and returned to chambers and met with my senior clerk and a QC who had more experience than I did of genocide and torture cases. They were very supportive. I took a couple of weeks off to try to recover and relax [...] but I realised I needed a specialist in PTSD. I tried a general counsellor but he was dreadful.Through the recommendation of a psychiatrist friend I found a specialist in PTSD [...] and have learned [how to cope and overcome] the issues... . I take significant breaks from practice and don’t deal with too many of these type of cases.[...] I recognise I am fortunate, I could afford to take time off, and I could afford the significant counselling fees. For many juniors that would be impossible’. www.wellbeingatthebar.org.uk/stories/vicarious-trauma/
I do not know of a single junior criminal barrister who could take time off to recover from the stress of the work they do. They operate at below minimum wage level. Far from taking time off, they have to double up on case preparation and work in back-to-back trials to keep any type of income going.
So why do this? The answer?
Legal aid lawyers do this work because it is a vocation. We had (have) a desire to make a difference in the job we do. Whether we choose to practise in family, crime, immigration, human rights, we are all barristers. To be a barrister requires an ability to work independently with intuition, imagination and drive. We are competitive. We are judged by our performance in court: our last case, our last cross examination. There is no ‘re-wind’ button if we ask one question too many that shatters a line of defence. We are self-employed: no work = no pay. We don’t get sick leave. I know of too many women who have come to court having had a miscarriage that night/morning; of many a colleague who has come to court in the immediate aftermath of a bereavement. We come to work because we feel we have to. Because we fear the client’s case will suffer if we don’t. Because we are programmed by our work culture to tough it out, stay calm, and carry on. I have fallen ill in court three times in my career and have not been able to continue. Afterwards I felt ashamed at my weakness and worried at the damage I may have done to my reputation. I still feel ‘small’, years later, when I think of those instances.
Those of us who follow the endeavours of the Criminal Bar Association (CBA) to bring the plight of the criminal justice system, and those that work in it, to public attention know that criminal barristers face distinct pressures that suck their wells of resilience dry: significant increases in the amount of digital evidence; long hours of work required to deal with last minute disclosure; they turn up at court (for a listed case) too often to discover systemic administrative court failures led to a last minute adjournment of the trial to a date the brief can’t do (though s/he has prepped the whole matter and won’t get paid for it) because the prisoner hasn’t been produced or because there’s no judge or no court room available; no money earnt means more pressure to fill the diary, taking last minute returns with less time to do the essential work for the client.
Sarah Vine, the CBA’s first Wellbeing Director interviewed for The Guardian article said:
‘There is a mental health crisis in the profession and it is so insidious... I spoke to someone the other day who said in the last fortnight she’d done two all-nighters. That is two nights without any sleep at all and nobody bats an eyelid […] that’s incredibly dangerous for your mental health. It’s absurd and mistakes are bound to happen as a result.
‘At the Bar there is this fetishisation of overwork and the government exploits that. They must think: “Brilliant, here are a bunch of people who get their self-worth not from how much money they earn, but from how busy and close to a nervous breakdown they are.”’
Sarah’s contribution to Barristers on the Brink made plain that this problem had got worse, not better. Her stark warning was all the more powerful for the measured way in which she explained why this was the case. Criminal barristers are not ‘crying wolf’: the profession is in crisis and haemorrhaging talent.
In my own working world, the decline in funding for the court service and lack of legal aid for civil and private family justice has led to very public judicial acknowledgements that lawyers can’t plug the gaps any longer.
It is significant that our Head of Division, Lord Justice Andrew McFarlane when giving his first View From the President’s Chambers in January 2019, singled out as his highest priority the unprecedented and unsustainable volume of cases and impact on working conditions for professionals. That much was not news to us: we see the consequences every day in every court. What was new, however, was the official utterance that it is neither necessary nor healthy for the courts and the professionals to attempt to undertake ‘business as usual’. He said:
‘For the time being, some corners may have to be cut and some time-limits exceeded; to attempt to do otherwise in a situation where the pressure is sustained, remorseless and relentless, is to risk the burn-out of key and valued individuals in a system which is already sparely manned.’
He encouraged local dialogue between the legal profession and each court to identify acceptable parameters for working practices, such as the earliest and latest time of day when the court can reasonably be expected to sit and when it is acceptable to send an email to another lawyer in a case or to the court.
Tyranny of emails and the courts
McFarlane P was right to point out the impact of emails. I receive emails 24/ 7 with only a slight diminution at weekends. I send emails at 3 to 4am because that’s when I am thinking and working. I now send them with a message that I don’t expect them to be read: my way of working should not impose the strain of a reply at an ungodly hour.
Emails, once a secondary route to passing on information, have now become the singular route for material to be shared, wherever it be an aside about a case or, more importantly, the only way that counsel are provided with case evidence by their solicitors. Yesterday, for example, I received an email with the heading ’FYI’ and just the client’s name. No text in the email, just a composite PDF attachment of a hundred pages or so containing critical (and time sensitive) information such as an opposing parties application to instruct a psychologist to conduct a risk assessment of our client, a controversial ‘support’ plan, statements of evidence: all mixed up with pretty irrelevant correspondence. One only knew what was contained by opening up this blind attachment and ploughing through it. There were no instructions, not even a resume of the content. That is not acceptable. It risks the client’s case. It terrifies me that I might miss something or a deadline.
To receive a ‘Counsel’s Brief’ informing us what the client’s instructions are on the evidence, is now a rarity. I try to insist on it because I have the seniority to do so. Junior members of the Bar often simply have evidence, served on the solicitor, passed on to them by email akin to a post box service.
We know solicitors have so much to do to keep a legal aid practice going and have to process a high volume of work just to create a viable profit margin. All sides of the family justice system are having to cut corners given the pressures they are under. This is not sustainable without risking miscarriages of justice, let alone retaining valued members of each profession.
Our immediate past President, Sir James Munby described the family justice system as ‘working flat out’ in 2016. That, pointed out McFarlane P, ‘was before the 2016/ 17 increase of 25% in workload’. He gave each of us, ‘as the psychologists would say, “permission”, to have a sensible discussion with each other and establish a dialogue between local professionals and the local judiciary in order to develop sensible parameters and guidelines on what can, and what should not, be expected...’
A judge, HHJ Roberts, issued a wellbeing practice note in Essex and Suffolk (26.2.19). HHJ Tolson QC recently indicated in a draft wellbeing directive for the Central Family Court that listings should not take place before 10am or after 4.30pm, courts should rise between 1pm and 2pm and barristers would not be obliged to reply to emails after 6pm (15.8.19). Most welcome as these efforts are, they are an exception. We have not seen similar, let alone coordinated, initiatives across the UK of courts taking up the President’s invitation. Indeed, one senior barrister recently tweeted this account of case conduct by a serving judge:
‘4 day public law children case. At 4pm on day 3, Judge gives everyone 5 minute break before expecting a parent and his partner to be cross examined until 6.30pm on hottest day of year, switches off aircon, refuses to open any windows. Not acceptable for anyone.’
The impact on the quality of evidence the parents could give in those circumstances, on one of the most important days in their and their child’s lives, is obvious. The collateral impact on the court staff and lawyers who are expected to facilitate this may be less obvious. None of us who do this job want to do anything other than deliver the fairest of trials to those we represent. But it is a job. We do have lives to lead outside of court; often with child care responsibilities. What if you are a single parent? Or if your co-parent is unavailable to collect your child from child care? How can safe arrangements be re-made in just five minutes? Our own families too often come second to the ones we represent. HMCTS’s Flexible Operating Hours Pilot represents another assault on our capacity to have a private life alongside our working one and will have a disproportionately negative impact on barristers with caring responsibilities.
What your profession is doing for you
Rachel Spearing, a practising barrister, headlined important work on this issue after a colleague at the Bar committed suicide. She co-founded and chaired the Bar Wellbeing Project to address the challenges of the legal profession and support barristers in facing them. The Bar Council’s seminal wellbeing survey, published in 2015 (Wellbeing at the Bar: A Resilience Framework Assessment (RFA) by Positive’) laid the pressures bare (see box, p 35). The Bar Council proposes to run the survey again later this year in order to assess the current wellbeing of the Bar. Rachel stood down as chair at the end of 2018, keen to ensure others had an opportunity to lead this work, and the current chair is Nick Peacock.
The work undertaken by the Bar Council has been immense. It secured funding from the BMIF (Bar Mutual Indemnity Fund) to deliver an Assistance Programme which offers access to counselling 24/ 7 for all self-employed barristers, members of the Institute of Barristers’ Clerks (IBC) and the Legal Practice Managers Association (LPMA). Ring 0800 169 204. It is confidential. The Bar Council’s website, www.wellbeingatthebar.org.uk has had 242,440 hits since its launch, with 75,626 in the last 12 months. There’s nothing to be ashamed of.
The work that my colleagues at the Bar – and this includes, in the words of Sam Mercer, Head of Equality, Diversity and CSR at the Bar Council, ‘every individual representative of over 30 Bar-based organisations (Circuits, the Inns of Court and Specialist Bar Associations), and the support of every Bar leader, for over five years, in working together with Bar Council to ensure the resources are fit for purpose and work for everyone’ – to try to address wellbeing since 2015 is truly impressive. They may feel like King Canute in the face of a tide of systemic funding failures they don’t have the power to turn back – for that we require action from the government and the Ministry of Justice – but they have sought to do what they can to help practitioners who can’t wait for change and have to cope with the system as it is.
Our own duty to nurture and protect
The Bar’s increasing willingness to talk about problems within the profession, such as sexual harassment and judicial bullying, has brought wellbeing out of the shadows. But the stigma is still there. It requires a good support network amongst family and colleagues – and faith in your clerk’s room – to say that you need time out. That is easier for more senior members of the Bar than the most junior.
We have a duty to nurture and protect our junior colleagues. Those of us who have the position and confidence to speak out about the things that need correcting in our profession should do so. Not because we want to discourage the young from entering the profession, but because we must start to change our culture so as to be able to actively encourage them to join us here. Being a barrister, and making a difference to people’s lives, is one of the most rewarding, dynamic, fulfilling careers one can ever have.
Bar associations and Inns: wellbeing help
FLBA: flba.co.uk/wellbeing/ (new website soon to be launched)
Chancery Bar Association: www.chba.org.uk/for-members/wellbeing
Young Bar Association: https://youngbarhub.com/category/young-bar-toolkit/wellbeing-and-work-life-balance/page/2/; https://youngbarhub.com/2018/12/06/wellbeing-at-the-young-bar/
Middle Temple: www.middletemple.org.uk/members/wellbeing/middle-temple-wellbeing-policy; www.middletemple.org.uk/members/wellbeing/survive-and-thrive-programme
Gray’s Inn: www.graysinn.org.uk/members/support-and-wellbeing-the-bar
Lincoln’s Inn: www.lincolnsinn.org.uk/members/bar-representation/social-wellbeing-group/
Learn more about vicarious trauma and how it can affect lawyers:
Wellbeing at the Bar Survey 2015: summary of findings
Worry and Perfectionism
1 in 3 find it difficult to control and stop worrying
59% are very self-critical most or all of the time
1 in 6 tend to feel down or in low spirits most or all of the time
1 in 4 tend to feel nervous, anxious or ‘on edge’
1 in 6 worry about their health most or all of the time
54% enjoy refreshing good quality sleep only some of the time
64% are not able to take breaks most or all of the time
2 in 3 feel that showing signs of stress at work indicates weakness
47% report work pressure as 8 or above
62% are unable to integrate work and outside of work most or all of the time
Engagement and Advocacy
39% of the employed Bar would recommend the Bar as a place to work ‘not at all’ or only ‘some of the time’
57% of the self-employed Bar would recommend the Bar as a place to work ‘not at all’ or only ‘some of the time’
64% see role models at leadership levels ‘not at all’ or only ‘some of the time’
For 3 in 4 within the environment in which they work, genuine mistakes are seen as opportunities for learning only ‘some of the time’ or ‘not at all’
The Bar Council proposes to run the survey again later this year in order to assess the current wellbeing of the Bar.
What we can do: spot the potential for anxiety
In co-case workers/juniors:
- Take the time to explain how the case might impact on co-case workers in terms of content and the way you intend to work it with them.
- If your work pattern is one that fits with your routine but may not fit with others, set out ground rules for how you can co-work the case at the outset.
- Check on how they are dealing with the work load as you get into the case.
- Be conscious that your work volume may intimidate a co-case worker. If you are leading be clear that you have different roles: you bear the weight of responsibility for the case and they are not to try to emulate you. Be nice.
- If you see a shift in behaviour in a colleague don’t be too busy to check out how they are. Just saying ‘you are having a rough day’ can make it less of one.
- Be civil to your opponents. Treat others as you would have wanted to be treated. It’s not rocket science.
- Talk to a friend or family member you trust. Sharing helps.
- Take time out by going to places of calm that we have access to as barristers in London: such as Temple Church, Lincoln’s Inn Chapel, and Gray’s Inn Chapel: and similar places throughout the country. Religion isn’t an entry requirement, feeling the need for solitude is the only passport you need to access these spaces. See: www.counselmagazine.co.uk/articles/calm-the-centre
- Visit www.wellbeingatthebar.org.uk – 242,440 hits since its launch, with 75,626 in last 12 months. The Bar is using this resource: so can you. The support page has names and numbers to contact: www.wellbeingatthebar.org.uk/barristers-support. Resources include information on alcohol addiction, bereavement, eating disorders, financial stress, lack of sleep, stress, perfectionism, bullying, drug addition, excessive work load, gambling, panicking in court, possible professional error, self-harm and vicarious trauma. The very fact that these appear under the heading ‘Common problems’ tells you that you are not alone, nor the first to need help.
- The Bar Council also secured funding from BMIF to deliver an Assistance Programme which offers confidential counselling 24/7 for all self-employed barristers, members of the Institute of Barristers’ Clerks and the Legal Practice Managers Association. Ring 0800 169 2040 and spread the word. It is particularly important that this resource is there for clerks and staff too – we need to engage everyone in this.
- Mental health charity LawCare explains what I cannot about vicarious trauma: www.lawcare.org.uk/information-and-support/vicarious-trauma. See also its factsheet: www.lawcare.org.uk/files/Vicarious-Trauma-UK.pdf.
Professor Jo Delahunty QC