MOST READ (2023): A Kilkenny barrister explains why he is withdrawing his services next Tuesday

Barristers who practice in criminal law whether prosecuting or defending legally aided persons are paid fees below 2002 levels as a result of cuts to rates of pay of between 28.5% and 60% imposed by government between 2008 and 2011. 

These cuts were in line with similar cuts, commonly referred to as FEMPI measures, applied by the government across all sectors following the economic collapse in 2008 and everybody in the criminal justice sector from Judges to gardaí saw their pay reduced.  

As our economy recovered from the crash, the government gradually restored the pay of every actor in the criminal justice system to pre FEMPI levels except for barristers and defence solicitors.  Judges, prison officers, gardaí, state solicitors and courts service staff have experienced pay restoration however the government refuses to restore the pay of barristers.  

Following calls by the Bar of Ireland to reverse the cuts, a review process was established led by the Office of the Director of Public Prosecutions in conjunction with the Department of Justice.  That process concluded in July 2018 noting that reforms made by barristers including work flexibility, electronic briefing, and additional work burdens justified the reversing of cuts imposed during the financial emergency.  The Director of Public Prosecutions, an independent statutory body responsible for prosecuting crime in the State on behalf of the people of Ireland, has called on government to restore pay rates for barristers in line with every other sector working in the criminal justice sector.  Furthermore, the Minister for Justice recently stated that she saw “no good reason why those in the legal profession are left waiting for crisis-era reductions to be restored, while public and civil servants have had their pay restored”. 

The Minister is correct.  There is no good reason.  Not only are criminal barristers being paid at rates 40% lower in real terms than what they were paid in 2002, the complexity of criminal work has increased significantly in the past two decades.  The ubiquitous presence of smart phones and the widespread use of social media often results in their being hundreds of thousands of pages of disclosure in a case which must be carefully reviewed.  Pre-Trial procedures including preliminary hearings are changing how criminal cases are run, and continuous government legislative reform and innovation in the area of criminal law makes this area of practice challenging and demanding.  

There is clear evidence that the cuts have significantly impacted the criminal bar and practising in criminal law is often simply not economically justifiable for many barristers.  Research conducted by the Bar of Ireland found that two thirds of criminal barristers leave after just six years of practice.  I know from my own experience that pay disparity between barristers practicing in civil law and criminal law is a significant factor in the increasing numbers of barristers refusing to practice in criminal law.  This disparity is now starting to be felt in the criminal justice system.  

By way of example, it can be difficult to secure senior counsel in legally aided circuit court criminal trials outside Dublin due to the lower rates of pay vis-á-vis other areas of practice and because the numbers practising in criminal law aren’t providing sufficient throughput to the inner criminal bar.  Last year the Director of Public Prosecutions was forced to run a number of cases, where Senior Counsel would ordinarily act without the services of senior counsel because there were none available.  When this happens, victims are being let down.  In as much as accused persons have the right to the best representation possible, victims of crime and society in general have a right to see that allegations of wrongdoing are prosecuted with care and diligence by experienced and suitably qualified counsel.  

I fear that if the government doesn’t take action to treat barristers fairly and in line with other workers in the criminal justice system, attrition rates will continue to remain high, standards will inevitably fall and everybody will suffer.  Comic caricatures of rich barristers are easily painted however it is my experience that most of my colleagues at the criminal bar are motivated by quiet but deeply held conviction that what they do is fundamental to the administration of justice and the rule of law within this State.  

It is for these reasons that I will be withdrawing my services on October 3 to call on the government to implement a meaningful, independent and time limited mechanism to determine the fees payable to barristers by the Director of Public Prosecutions and under the Criminal Justice (Legal Aid) Scheme.