Inverted snobbery behind impasse on barristers’ fees

Criminal barristers will withdraw their professional services across all criminal court jurisdictions throughout the State for one day next Tuesday, October 3rd, the first full day of the new legal year. They will be on the steps of courthouses in towns and cities around the country, in protest as part of the ongoing campaign for fairness with respect to fees paid by the State.

During the economic crash of 2008, criminal barristers, similar to other groups of workers paid by the State, absorbed fee cuts of more than 30 per cent and uniquely had an additional 10 per cent cut imposed over and above any other group of workers. The link to public sector pay increases was severed and has not yet been restored – which is of particular importance in inflationary times. Put simply, in real terms, the fees paid to criminal barristers are now well below the fees paid in 2002.

Since 2017, other professionals working throughout the criminal justice system, including the judiciary, Office of the Director of Public Prosecutions (DPP), State solicitors, gardaí, Prison Service and Courts Service staff have all had their pay cuts reversed.

In 2018, a review of professional fees for criminal barristers, led by the DPP in conjunction with the Department of Justice, concluded that the ongoing flexibility being delivered by prosecuting counsel was considered comparable to the flexibility delivered by other groups who had pay restored, and that the reversing of cuts imposed on criminal barristers during the financial emergency was justified. Despite repeated requests to Government to have the outcome of this review implemented, the Department of Public Expenditure and Reform has failed, without justification, to implement a process of pay restoration. No rational justification exists, and a new review mechanism is now required.

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Readers may wonder why they should care about the plight of the criminal bar. Barristers are frequently characterised as high earners, but this characterisation is simply not reflective of the vast majority of barristers practising in the criminal courts. For example, barristers are paid a trial fee of €1,144, before tax, for a criminal case in the circuit court. This includes preparation for trial which can take several days. That some sort of inverted snobbery seems to be the cause of this impasse, which is already affecting the quality of our criminal justice system, is an indictment on the political system, and short-sighted in the extreme.

Everyone living in Ireland should be concerned for the reasons set out below.

Threats and stresses to our democracy – alarmingly evident in recent years, months, and days – should surely cause us all to examine the resilience of our justice system. Just this week the Central Statistics Office reported a significant increase in violent crime, robbery and thefts. Homicide offences have increased by almost a third, robberies by more than 20 per cent. Regrettably, physical threats to our society, be it in households, in our communities or against our institutions, materialise as criminal matters before the courts. Access for all to skilled and experienced criminal barristers ensures a just and fair outcome and guarantees that the fundamental human right of access to justice is upheld.

In May of this year, it was widely reported that the DPP was unable to find senior barristers to run criminal trials. The emerging manpower crisis at the criminal bar is already impacting on the ability of the State to prosecute serious criminal offences on behalf of the people of Ireland and the situation will undoubtedly worsen if not addressed. The expertise and skills required to advocate in criminal trials is of a specialised nature so there is a strong public interest in avoiding a brain drain.

Practice at the criminal bar is no longer sustainable given the current level of professional fees and the goodwill of criminal barristers can no longer be taken for granted by this Government

As far back as 2019, the Bar of Ireland warned Government that emerging evidence indicated that two-thirds of early career barristers who began practice at the criminal bar were leaving criminal practice after only six years and the Bar expressed concern about an impending manpower crisis. Why are early career barristers leaving? For no reason other than they cannot sustain the early years of poor income from fees set and imposed unilaterally by the State, and at the same time survive long enough to maintain a career at the criminal bar.

As it looks to allocate funding in Budget 2024, this Government has a choice – commit to a criminal justice system that we all deserve, by addressing the emerging manpower crisis at the criminal bar, or face the consequences, which will impact on everyone who has cause to engage with the criminal justice system. That includes victims of crime, as well as those who stand accused.

[ Why criminal barristers could be on the verge of unprecedented industrial action ]

What is our ask? The Bar of Ireland is simply asking that the profession is treated fairly and reasonably, consistent with the approach taken in relation to other groups of workers where the State is the paymaster. The flexibility delivered by barristers, and their co-operation with reform of the criminal justice system over the past decade, has enabled a range of improvements and efficiencies to be implemented for the benefit of the justice system. The Bar has not been found wanting in that respect.

The Government’s own 2018 Spending Review report on Criminal Legal Aid recognised that our cost-effective and robust Criminal Legal Aid system facilitates a high standard but low-cost representation of defendants through skilled barristers engaged by the State.

Practice at the criminal bar is no longer sustainable given the current level of professional fees and the goodwill of criminal barristers can no longer be taken for granted by this Government. Withdrawing service next Tuesday, the first full day of the new legal year, is not something that the members of the criminal bar want to do, and I must stress how rare this is for our profession. But we have been left with no choice given the, heretofore, lack of action shown by successive governments on this issue. Fair is fair.

Sara Phelan SC is chair of the council of the Bar of Ireland