In my recent blog about the Brides in the Bath affair I described how the fee available to counsel in 1913 under the Poor Prisoners Defence Act 1903 was £3.5.6d.
Andrew Keogh has asked me:
“Given those statutory rates it would not appear to have been possible to have had a purely criminal practice at the turn of the last century. Is it the case that such trials were done as part of a mixed civil practice, for the public good?”
Before answering this question, I thought it would be useful to say a little more about the statutory (and other) background.
The Trials for Felony Act 1836
Until the Trials for Felony Act 1836 prisoners on trial for felony were not allowed representation of any kind except for the purpose of arguing points of law which the judge thought worth being argued by counsel and which related to the indictment. The 1836 Act gave all prisoners on trial for felony the right for the first time to make “full answere and defence thereto by counsel learned in the law”. Although witnesses might be called for the defence, prisoners could not, however, give evidence in their own defence until the Criminal Evidence Act 1898 was enacted.
Unless special arrangements were made to fund the defence privately, the only ways in which prisoners of limited means could be represented in late Victorian times were by a dock brief or by having counsel assigned by the court to undertake the defence gratuitously. Dock briefs were a custom of the Bar (finally ended in 1980) whereby anyone accused of a felony who could not afford to pay the normal fees was entitled, if he could produce £1.5.6d, to select any barrister who was gowned and robed in court to act for him (without the intervention of a solicitor).
The Poor Prisoners Defence Act 1903
The Poor Prisoners Defence Act 1903 empowered courts to grant legal aid to a prisoner of insufficient means where it appeared “desirable in the interest of justice” and “having regard to the defence set up”. This language was interpreted as limiting the grant of legal aid to cases where a defence was set up before the judge, thus excluding legal aid for pleas of guilty. Under this Act the expenses of the defence (including the cost of a copy of the depositions), the fees of solicitors and counsel, and the expenses of witnesses were to be paid and allowed “in the same way as the expenses of the prosecution”. The Act was carried into effect by means of rules which regulated those matters. When the Court of Criminal Appeal was created in 1907, comparable arrangements were made for the availability of legal aid to appellants of limited means.
The Poor Prisoners Defence Act 1930
The limitation on the availability of legal aid for guilty pleas was removed by the Poor Prisoners Defence Act 1930 which provided that any person committed for trial for an indictable offence might apply either to a Police Court or to the trial court for a defence certificate if “his means are insufficient” to enable him to obtain legal aid. The certificate was granted as of right if the charge was murder and was granted in other cases if it was considered “desirable in the interests of justice”.
That Act also gave a Police Court power to grant a legal aid certificate if the Court considered that by reason of the gravity of the charge or of exceptional circumstances it was “desirable in the interests of justice” that he should have legal aid before them. This language was apt to cover both summary trials and preliminary examinations by magistrates.
A defence certificate entitled the prisoner to a solicitor and counsel and a copy of the depositions (and reimbursement of the other expenses covered by the 1903 Act). Under a defence certificate (and an appeal aid certificate) fees were payable on the following scale, varying according to whether or not the case was of exceptional length or difficulty:
Solicitor: 4 guineas to 9 guineas.
Junior counsel: £3.5.6d to £11.0.0d.
Senior counsel: £5.10.0d to £16.5.0d.
Under a legal aid certificate, on the other hand, it was usual for a solicitor only to be assigned, but in murder cases counsel might also be assigned if the magistrates thought fit, and an allowance might also be made of “any other expenses properly incurred in carrying out the defence.” Under a legal aid certificate solicitors would receive 3 guineas and counsel (if instructed) £3.5.6d. The cost was borne by local funds.
The Legal Aid and Advice Act 1949
Section 18(4) and 18(5) of the Legal Aid and Advice Act 1949 made it clear that all the new criminal legal aid provisions were to apply equally to proceedings on the questions of sentence and of guilt. This provision encountered strong resistance from Lord Goddard CJ and other like-minded senior members of the judiciary, who considered this to be an unnecessary extravagance. In October 1949 the Government announced that the implementation of the whole of Part II of the 1949 Act (which covered criminal legal aid) was to be postponed. Lord Goddard’s successor, Lord Parker CJ, took an entirely different approach from 1958 onwards, and the provisions relating to criminal legal aid were gradually brought into force. Section 18(4) and 18(5) of the Act were finally implemented during 1963, just as I was starting at the Bar. The Widgery Committee’s Report in 1966 then led to liberalisation on the restrictions on criminal legal aid in magistrates’ courts.
The effect of these provisions on practice at the Bar
It has to be remembered that the value of money has taken a violent turn for the worse over the last half-century. In her life of Sir Edward Marshal Hall, Sally Smith says that the 1913 fee of £3.5.6d would be worth £300 today, and although Sir Edward always inveighed against the niggardliness of the statutory provisions, the fee was not unduly low when it was introduced – and the value of money changed very little in the first half of the last century. Tables reproduced by Mr Robert Megarry QC in his final Hamlyn Lecture in 1962 give a vivid picture of a barrister’s annual net earnings in 1955:
In The Family Story Lord Denning describes how his annual earnings at the Bar in the 1920s did not reach £1,000 until he had been in practice for six or seven years.
The answer to Andrew Keogh’s question is that practice at the Bar in London was not as specialised 100 years ago as it is now. Barristers at the common law Bar were maids of all work, although as one’s practice developed, one might be drawn increasingly into a particular corner of the market in which one had developed a reputation. Marshall Hall himself often appeared in what would now be described as civil or family litigation. In the 1880s Edward Marjoribanks’s biography shows him appearing in all sorts of courts, much as I did when I started to practise at the London common law Bar in the 1960s. I pick out some references to trace the increase in his fees and the diversification of his practice as recorded in that book:
- He started as a pupil in common law chambers in Dr Johnson’s Building in early 1883 (the year he was called to the Bar);
- His first brief (in the Chancery Division) was to assent to a motion for an injunction for which his fee was “a few guineas”;
- In his first two years (as a pupil) he only received two briefs (by chance, for the same day), each marked with a fee of one guinea, to appear in county courts. At the second court he also picked up a returned 8 guinea brief, and took his wife out to a restaurant and a theatre on the proceeds;
- His first criminal brief was a dock brief at Lewes Assizes, for which, unprofessionally, he was willing to accept all the prisoner possessed, namely 15 shillings. He was acquitted;
- A local deputy chairman of quarter sessions then invited a solicitor to prepare a brief at his own expense for “young Marshall Hall” (who sometimes shot on his land) when the son of one of his outdoor servants was indicted for the murder of his wife;
- When he was invited in October 1883 to spend time as a pupil in criminal chambers in the newly constructed Fountain Court he devilled assiduously, and occasionally had a divorce brief, as well as work at London Sessions and on circuit. His fee-book in 1885 showed he would devil in any court and for all manner of people. His diary shows he worked at the Old Bailey, on circuit and at county courts.
- He was soon busy in county courts, and at the end of 1886 he was beginning to refuse briefs there. He started to command special fees in county courts – a 20 guinea fee is mentioned.
- He then began to get a reputation in Sussex criminal courts as a defender, and he also began to be briefed by the prosecution (although he never took to this role);
- He moved to divorce chambers in King’s Bench Walk as a pupil in February 1887, in order to broaden his experience;
- In 1888 he appeared in a case in which readers of a local newspaper had subscribed to a defence fund for a defendant called Sabrina Tilley;
- In November 1888 he was accepted as a tenant at 3 Temple Gardens, a set of general common law chambers, where he spent the rest of his professional life. His annual earnings at this time were not more than £700-£800. He soon attracted quite a lot of High Court work in addition to his work in the criminal courts. He took silk in 1898;
- In early 1900 he received a brief for 50 guineas to appear for the defence in the Yarmouth murder. His friend Charles Gill QC was retained by the prosecution at a fee of 100 guineas, which was almost unprecedented at that time;
- Although he was paid a total of 4,420 guineas in 1901, his practice suffered following the strong criticisms he attracted from the Court of Appeal, and he thereafter received £2,099 guineas in 1902, 1,990 guineas in 1904 and 1,743 guineas in 1905 before things started to improve again, particularly following his successful defence of Robert Wood in the Camden Town murder case.
It follows from all this that a practice at the common law Bar in those days was a mix of work. Until the 1903 Act was enacted, dock briefs were all that was available for the defence of indigent defendants (unless special arrangements were made, as in two of the cases above). Prosecution work, however, was also readily available, although probably underpaid by today’s standards.
It will have been seen that Marshall Hall spent only a short time at the start of his career in specialist criminal chambers, and he clearly did quite a lot of county court work when he was there. I do not know how common these were at that time or what level of earnings a practice there attracted in those days. Perhaps readers of this blog may be able to enlighten me.
 The Family Story, Lord Denning, Butterworths 1981, p 85.
 Presumably the central, Victorian, building of the three adjacent buildings which were converted in 1974-75 into the modern Fountain Court Chambers, from which I practised during my last ten years at the Bar.
 R.E.Megarry QC, Lawyer and Litigant in England, Stevens, 1962, pp 184-186. The figures were derived from a survey of net earnings in different professions, which was conducted in 1955 on behalf of the Royal Commission on Doctors’ and Dentists’ Remuneration. More barristers left the Bar than started to practise at the Bar in England throughout the 1950s (ibid, pp 180-181).