A garda slouches on the bench beside me as the registrar rattles through the morning list in District Court 2 of the Criminal Courts of Justice at Parkgate Street in Dublin. The pace is brisk. A blonde woman wearing Spanx leggings and burgundy loafers is fined and gets a three-month suspended sentence for criminal damage to a property. A friend bundles her a wad of notes – €500 euro to help compensate the injured party. 

At the front of the court sit five solicitors while off to the side a male barrister wearing a gown and a respirator mask is leafing through a small stack of case files. Most matters get adjourned because gardaí are unavailable to give evidence or the defendant hasn’t turned up. Bench warrants are issued every few minutes. One lucky accused gets his case struck out when the garda can’t properly explain to the judge why a witness hasn’t shown.

In the legal profession, the District Court, where there is no trial by jury, is traditionally the domain of solicitors. But sometimes they’ll assign a barrister to stand in for them if they can’t handle the volume of work on a given day. 

On this occasion, the junior counsel, a man who looks to be in his thirties, is on his feet four times in the course of an hour. His first case is adjourned. In the second, a woman pleads guilty to stealing €14 worth of goods from Penneys in February 2020. She pleads not guilty to two further charges of giving a false name and address to a garda and a public order breach. She seems confused by a fourth charge of stealing €47 worth of clothes from Penneys on a separate date in April. She says she thought there was only one Penneys charge. The barrister prompts “not guilty” and she repeats it to the court.

Judge John Hughes notes that the woman has taken two bench warrants in the past for not showing up to court. She tells him she was in treatment at the time. He says he will sentence her later today on the first Penneys count and remand her on bail on the remaining charges which she intends to contest. 

The barrister sits down with the woman for a quick consultation in the body of the court which is far from full. He is back up addressing the judge a few minutes later to set dates in two further cases mentioned in the list. By this stage, the callover of cases is close to concluding. If the Penneys sentencing matter goes ahead in the afternoon, I calculate counsel will have earned around €125 for his work in court that day. 

Scraping by on close to minimum wage

Junior counsels who practice criminal law in the District Court are typically in the early stages of their careers. The pay they have to live on has been described as “pitiful”, “unsustainable” and “damaging the administration of justice” by members of the profession. The current fee rates paid by the state are €25.20 for a remand, €50.40 for a plea in mitigation at a sentence hearing and €67.50 for a full hearing of a contested trial. 

At a time of around seven per cent inflation, when senior public servants, including medical consultants, CEOs of state bodies and judges, can expect pay rises of up to 15 per cent as part of the final unwinding of cuts made during the financial crisis, fees paid to criminal barristers remain at 2002 levels. When it comes to pay restoration, prosecution and defence lawyers have been left out in the cold after successive governments introduced base cuts of 28.5 per cent between 2008 and 2011 and ceased indexing their fees to public sector pay. Barristers are the only group in the criminal justice sector who have not had any of their pay reinstated.

This is despite the Bar Council lobbying the state to increase criminal legal aid rates since 2016. The Bar says fee stagnation has caused a talent flight of barristers from criminal practice in their first years post-qualification to other areas of law or out of the profession altogether. Others who remain say they are scraping by, particularly as the reduced levels of activity in the courts during Covid-19 lockdowns stalled their careers. The typical five-year trek it used to take to break into the higher courts where pay is better has become more like a seven-year trawl.

Donncha Craddock started practicing as a barrister in 2016 and moved into criminal law in 2018. He loves the dynamic, fast-paced nature of the work and dealing with people. But with a five-month-old daughter and most of his practice at District Court level, he worries it is not sustainable. “I spoke to my accountant because I had to sort out my tax affairs. I said to him ‘God it seems like I’m on minimum wage’. He said ‘Yeah, you’re very, very close to it’.”

The current minimum wage is €10.50 an hour.

He says he feels lucky because he has a home in Meath and financial support from his partner who is a physiotherapist.  And he is finally reaching that transitional phase when he is beginning to get work in the Circuit Court. 

Brief rates for junior counsel on criminal legal aid at Circuit level are considerably higher at €1,144, which covers preparatory work for the trial and an appearance on the day. A refresher fee of €572 is paid for the second and subsequent days of a trial. Senior counsel get €1,716 in the Circuit and a €858 refresher. Murder trials at the Central Criminal Court pay the best with briefs and refreshers coming in at €7,127 and €1,562 for senior counsel and €4,752 and €1,041 for junior counsel.

However much of Craddock’s bread and butter practice remains District Court defence work. One of the difficulties he, and other barristers in his position, experience is that their District Court work is not paid directly from the Criminal Legal Aid budget. As there is only a solicitors’ panel operating at District Court level, it is they who are assigned and paid by the state when a defendant makes their first court appearance. If a barrister handles the case, the fee is shared between the solicitor and the barrister in what is known as a split fee arrangement. 

As the barrister is dependent on the solicitor for payment, this can mean a substantial wait, or in extreme cases, no payment at all. Some solicitors pay every month, some every two months, others wait until the end of the year. There is no regularity. “I don’t wish to have a go at solicitors,” Craddock says. “It’s not really their fault. I think the mechanism of payments is really where the problem is. I mean €25.20 is a very low amount, but if you were doing four remands in a day and you got €100.80 euro a day – you could survive on that if you were getting paid that every two weeks. You could manage your circumstance, but the way the system works is just it’s very, very difficult to manage anything.”

The Bar Council estimates that currently there are around 30 barristers practicing criminal law in the District Courts around Ireland, mostly in Dublin at the Criminal Courts of Justice or in Tallaght or Blanchardstown. Typical cases would be road traffic-related, assault, public order, theft and domestic violence matters. Judges can impose a maximum sentence of up to two years in prison if a person is guilty of multiple summary offences. A single offence can result in up to 12 months in jail.

Spearheading a campaign

There were two short morning protests outside court buildings last March and April at what counsel say are untenably low District Court fees for running a vital service. Well-known senior counsel who practice in the higher courts showed up in solidarity; barristers like Eileen O’Leary, who has prosecuted in many sexual offence cases; Michael O’Higgins who at trial successfully defended the late Sean FitzPatrick, former chairman of Anglo Irish Bank;  Feargal Kavanagh who recently acted in defence of former solicitor Michael Lynn at his months-long trial; and Giollaíosa Ó Lideadha, a defence counsel in the trial of four men charged with falsely imprisoning and attacking Quinn Industrial Holdings executive Kevin Lunney.

Kavanagh said there was a “strong public interest in a properly funded criminal defence system”. O’Higgins said lawyers in the District Court were providing a “very important public service: this includes holding the authorities to account and upholding human and civil rights”. O’Leary said “damaging the administration of justice is bad for victims and the whole of society”.

Last month, a petition signed by 88 senior counsel and 182 junior counsel was hand-delivered to the Department of Justice complaining to Minister Helen McEntee about the “unacceptable state of the criminal justice system in District Courts throughout the state”. Signees included former justice minister Michael McDowell and former chair of the Bar Council Micheál P. O’Higgins. 

People coming into court being represented by the Criminal Legal Aid scheme could be earning as low as €400 per week and we’d be lucky to get something like that.

Darren Lalor BL

Last November, a separate petition was sent to EU Economy Commissioner Paolo Gentiloni calling for an inquiry into the failure of the Irish state to unwind austerity cuts, arguing that the rule of law requires member states to provide adequate funding for prosecution and defence legal services.

Spearheading the campaign is Darren Lalor, a junior counsel hitting 50 who left school at 14, worked as a roadie for the band Aslan and became a taxi driver while he studied law as a mature student in his forties. He qualified for the Bar in 2015. He describes his life and how he ended up in legal practice on a recent episode of the podcast Talking Bollox.

“I get paid €25.20 if you or your friend or your colleague or family member, or just anybody you don’t know, was taken into court today – if I was to make that bail application and maybe an application for legal aid. I have to have a consultation with the client. I have to talk with the guard. I could be waiting all day for the case to be called and it may be my only case that day. 

“If the client were to plead guilty, I’d have to talk to the guard, seek notes or letters from doctors, or maybe the client wants to make the court aware of their family circumstances,” he said.

If the charge is contested and goes to a hearing, he says that involves more work again – a consultation, maybe watching CCTV footage in advance of the court date, going through the memo of interview, reading all of the statements. “And then we have the full trial hearing where the client says ‘no, I didn’t do it’. And you have three or four guards giving evidence. It could last a couple of hours and the preparation for that would be most of the day before. You get €67 for that. It is unsustainable.”

Lalor, like Craddock, relies on his wife’s salary as an assistant director of nursing to stay at the criminal bar. “We were looking up two tickets to the cinema to see Top Gun and it was coming in around €30. And we were looking to get a taxi from Tyrrelstown at peak time into the city centre. You’re talking over €30 again.” 

Career-wise, he is also breaking into the Circuit Court but notes that if he were late for a District Court matter and had to take a taxi into town, the price of the cab might be more than the fee he earns for the work. “People coming into court being represented by the Criminal Legal Aid scheme could be earning as low as €400 per week and we’d be lucky to get something like that,” he says.

Barrister Eoghan Cole, who practices commercial and criminal law, tweeted last week: “I can remember telling criminal legal aid clients what I was being paid. First they’d laugh, as in ‘you’re joking’, then they’d refuse to believe me. You could see the cogs turning as they started to worry about how little financial reward I would get for defending them.” He added that sometimes he was offered a top-up payment “to make it worth your while”, which he never took. “I know of seriously talented barristers leaving the bar because they can’t earn a living,” he added.

For Lalor, the campaign is about securing higher fees for barristers in the District Court and reducing the administrative burden on solicitors by removing the current split fee system. Barristers want the government to introduce a pink sheet system, as operates in the Circuit Court, where they can fill out a form and get paid directly for their work by the state.

Up the chain

While the District Court is the sharp edge of the wedge, there is wider discontent among criminal barristers that nothing has been done to reverse the emergency FEMPI-era cuts imposed after the 2008 crash.

The public perception is that barristers are wealthy. Many are, including those at the top of their game in the criminal courts (although the civil courts are where the real money is). In 2021, the top earner from criminal legal aid payments was senior counsel Michael Bowman at €692,095 who worked on the Kevin Lunney abduction case and the “Mr Moonlight” Bobby Ryan murder trial appeal. The next highest were Patrick Dwyer SC who received €599,488 and Keith Spencer BL who received €550,001. All sums include Vat at 23 per cent.

Lalor compared the income of top-flight barristers to the pay packets of top media professionals like Pat Kenny or Claire Byrne. He says they are being compensated for their experience and professionalism – but their fees do not reflect that of the average practitioner. According to the Bar Council, 75 per cent of the criminal bar earns less than €49,000.

In a week when barristers in the UK went on strike claiming dire pay conditions had led to a shortfall in barristers that threatened to topple the criminal justice system, one of the barristers who took part in the Irish protest, the well-established junior counsel Luigi Rea, pointed to a report of the Department of Justice in 2018 which found the State’s funding of criminal legal aid per capita of the population in Ireland was €18.40, half that of England and Wales at €38.14; with Northern Ireland coming in at €73.53.  

“It’s just extraordinary the way we’ve fallen so far behind civil lawyers,” Rea said. “Mason Hayes & Curran, they are a big civil firm and there was an article about them in The Irish Times, how last year, they took in around €98 million in fees. I thought how the entire legal aid budget for the entire state for every solicitor, every barrister comes in around, I think, €80 million [€73.4 million last year]. That’s for every court appearance, every prison visit, every Garda station visit. I mean, people doing commercial law are laughing at us. They can’t believe that we’re doing the work we’re doing for the money we’re doing it for.” Like Cole, Rea said clients also laugh. A bag of drugs they may have bought is dearer than the barrister’s appearance fee.

Even at Circuit Court level, he points out that the courts only sit for nine months of the year. A junior counsel getting three briefs a month would come out with a base fee income, minus refreshers etc, of €30,888.

In 2018, Rea wrote a report on disclosure and the lack of resources available to criminal defence lawyers who have to review sometimes enormous data files of potentially exculpatory documents and materials on behalf of their clients on a basic brief fee.

He says this has been recognised as a major disaster area in the UK where people can be wrongfully convicted if their lawyers are not given the resources to read all the papers. Like in civil suits, the amount of data available for review in certain criminal actions has soared in the last two decades – think former bankers on trial.

A new system was introduced in Ireland last September. Now defence teams can get paid from €72 to €225 per hour (depending on their level of expertise) specifically for disclosure work if sanctioned by the Criminal Legal Aid Unit in the Department of Justice. Approval requires lawyers to set out the volume and type of material to be reviewed, the hours required to do it and whether technical experts are required. 

Rea says he is now worse off than before as he has had to trawl through bankers’ boxes of paperwork to prepare disclosure fee applications for the Justice Department, all of which have been refused to date. After one such recent refusal, he says he is preparing a High Court judicial review challenging the continued prosecution of his client on grounds that they cannot get a fair trial if the defence team is not paid to do its job properly.

Six years of lobbying

So why won’t the government restore criminal barristers’ fees and what has their representative body, the Bar Council, done about it?

At the onset of the financial crash, fees paid to barristers for criminal legal work were slashed by the state in line with public service pay cuts. Two 8 per cent cuts were imposed in 2009 and 2010, followed by a further 10 per cent cut in 2011.

The latter cut was unique to lawyers as the then minister for justice, Alan Shatter, sought to reduce the cost of the Legal Aid scheme which covers criminal defence work. However, the cuts were matched on the prosecution side by the DPP as barristers doing criminal work in the public sphere enjoy parity of pay regardless of which side they represent.

When the economy finally got back on track, pressure grew on the government to reverse the cuts of the austerity years across the public service and for professional services provided by doctors and lawyers. In 2016, the Bar Council engaged with the DPP to restore prosecution fees, arguing that barristers had cooperated with state agencies in delivering cost efficiencies in the criminal justice system. These included more widespread use of video links for some court appearances, the operation of practice directions to streamline criminal trials and consensual editing of witness lists.

The engagement process moved along – but slowly. Ultimately, the decision on pay restoration fell to the Department of Public Expenditure and Reform as the DPP is funded by the Department of the Taoiseach with DPER sanctioning any budgetary increases. But much to the chagrin of the Bar Council, DPER eschewed direct dialogue insisting, in 2018, that the pay review should be led by the Department of Justice, which has no role in setting counsels’ fees. 

What was particularly irksome to the Bar Council was that the Department of Finance, prior to DPER being set up, had played an active role in discussions the last time barristers had renegotiated remuneration in 1999. This time the Bar was fobbed off. In correspondence to DPER in July 2018, CEO of the Bar Council Ciara Murphy questioned whether the process hadn’t been established as a “mechanism to facilitate further delays”. 

By this stage, state solicitors had already had pay restoration of 5.5 per cent.

In the end, the DPP took the lead in talks, concluding that barristers had shown flexibility in their work practices and deserved austerity cuts to be reversed.

“Shifting the goalposts”

It wasn’t enough. Brian O’Malley, a senior DPER official, wrote to the DPP’s office noting in response to the review that:

  • counsel are independent contractors not public servants;
  • there didn’t appear to be any particular difficulty in recruiting or retaining counsels that would affect the state’s ability to effectively prosecute;
  • increasing fees would have significant Exchequer implications and was not in line with broader government policy.

After years of engagement, members of the Bar were taken aback by the government’s refusal to budge on fees. Looking back, Ciara Murphy said from the Council’s perspective it felt like DPER kept shifting the goalposts. Having initially been asked to engage with the DPP and the Department of Justice to assess whether or not barristers had created efficiencies in keeping with other professions and the public service, they were now being asked to demonstrate there was a manpower issue at the criminal bar. “We were told we would have to wait and see what happened with GPs. From recollection, that was April 2019 when GPs got a deal over the line with their contracts. A lot of that, if you remember at the time, was born out of medical GPs saying there was a manpower crisis emerging in the system,” she said.

In a follow-up letter to Finance Minister Paschal Donohoe, the Bar Council took issue with the government’s stance, noting that while barristers were independent contractors, the state had a monopoly on setting fee levels. It also pointed out that state solicitors were independent contractors and that had not stopped them getting a pay rise.

The letter said there was growing evidence of a decline in junior barristers opting to pursue a career in criminal law that saw new entrants fall from 27 in 2013 to under 10 in 2018. This was followed up with the supply of statistics to DPER from the years 2013 to 2019 that showed 70 per cent of barristers who had started practicing at the criminal bar had dropped out by years six to eight. “We were able to demonstrate the difference between somebody that might stay at the bar in crime versus civil – that by the time you got to year six, two thirds of those who commenced practicing crime had dropped out. Either they had left the bar altogether, or they had gone to work on the civil side only, and that the attrition rate on the civil side, by comparison, is a third,” Murphy said.

One would not expect a newly qualified surgeon to undertake complex brain surgery simply on foot of gaining their professional qualification and completing one or two years of practice.

Maura McNally, Chair of the Bar Council

In conversation, she agrees that the opening of the Criminal Courts of Justice in 2010 has had a knock-on effect on criminal practitioners. Previously when both civil and criminal courts were centred on the Four Courts, barristers could straddle both sides of the divide. Given the physical distance between the two buildings, keeping up a dual civil and criminal practice has become much more difficult. There is pressure to pick a side earlier.

As part of the fee negotiations, the government was warned of an emerging dearth of experienced junior counsel which, if left unaddressed, might have a profound effect on the administration of criminal justice and the public good.

The Bar Council also argued in correspondence that public servants who had achieved pay rises had done so by resorting to disruption or industrial action. They felt after their good faith engagement, it was inappropriate that barristers should be penalised for not withdrawing their services.

Again, the Bar Council’s pleas fell on deaf ears. DPER replied that the statistics suggested fewer devils in years one and two of practice were dropping out in 2018 and 2019 than previously and that there was no “compelling empirical evidence” of a deteriorating recruitment/retention situation in respect of criminal barristers. In fact, it said intake appeared “stable”.

The argument didn’t end there. It was pointed out to the Department that barristers just starting out did not have the appropriate level of experience to conduct certain professional services and that the figures were actually showing valuable professional experience was being lost to the profession around the five- to six-year mark because barristers couldn’t make a living. “One would not expect a newly qualified surgeon to undertake complex brain surgery simply on foot of gaining their professional qualification and completing one or two years of practice,” Maura McNally, Chair of the Bar Council, wrote in a letter to the Department last April.

Maura McNally, chair of the council of the Bar of Ireland. Photo: Bryan Meade

For its part, DPER sought longer-term data on entry and exit rates of criminal practitioners but the Bar Council said information from before 2010 was not available. The Department also said quantitative evidence of recruitment and retention issues impacting negatively on criminal cases had been sought but not provided and stressed, in correspondence, the importance of “evidence-based policy making in delivering fiscal sustainability”.

Repeat requests by the Bar Council to meet with DPER have been turned down or gone unanswered.

“Ultimately, how decisions like that need to be made is in circumstances where the state may be hurting and the state, it would appear to me at the moment, is not sufficiently hurting to feel that they need to move and address this issue,” Murphy told The Currency. In the meantime, the Bar Council has tried to keep the issue on the agenda with politicians and specifically in meetings with the Department of Justice.

The December meeting

In a briefing note prepared ahead of a recent encounter, last December 21, Justice Minister Helen McEntee espoused support for the reversal of the FEMPI-era cuts for the legal profession and said she has set out her position to Paschal Donohoe. “In doing so, I was clear that it is difficult to justify the continuation of the FEMPI cuts for the legal profession, when others have had restoration,” the document states. She said she had also highlighted the impact of the pandemic on the profession. 

Under the heading “speaking points”, the Minister goes on to say that she is conscious criminal legal aid is a demand-led scheme, expenditure on which continues to grow year on year with 2021 seeing the highest budget allocation to date of €69 million. End-of-year figures show that allocation was exceeded with funding coming in at €73.4 million. (It was €56 million in 2010, €65.1 million in 2019 and €62.2 million in 2020.)

The briefing document, redacted in parts when released under a Freedom of Information request, continues: “I appreciate that drivers of these costs are increases in the number of certificates for legal aid being granted as well as the increased complexity of cases and length of trials. While I support the restoration of the FEMPI cuts, I welcome the support and assistance of the Council, within its ability, to drive efficiencies to reduce costs.”

Asked about the use of this phrase in the briefing document, Ciara Murphy of the Bar Council said no request for further efficiencies had been made at the December meeting.

Also attending that meeting on behalf of the Bar Council were chair Maura McNally SC, Seamus Clarke SC, Seán O hUallacháin SC and Sara Phelan SC. With McEntee, the civil servants from the Justice Department were Jim Boyle, head of Civil Governance, Liam Coen (recently appointed to the civil legal aid review group chaired by former chief justice Frank Clarke) and Yvonne Furey, head of Service Delivery.

Nine discussion topics were on the agenda, from the impact of Covid-19 on access to justice and the backlog of cases to the implementation of civil law reforms, judicial resources and the building of a new family law courts complex at Hammond Lane. Criminal barristers’ fees were down the order of the list.

In material terms, the only action promised by the justice minister in respect of criminal law fees, on paper at least, was continued engagement with Minister Donohoe by her and her department officials. The briefing paper set out that the Department of Public Expenditure had requested advice from the Attorney General on restoring fees to counsel outside of the FEMPI acts and was still considering the matter in the context of wider public pay policy and the implications for the exchequer.

Last May, Minister for State at DPER Ossian Smyth was questioned about pay restoration for criminal practitioners by Fine Gael senator Barry Ward, who is a barrister. The junior minister’s reply suggested DPER has no intention of changing its position. “The Government fully acknowledges and appreciates the very important work undertaken by barristers who prosecute criminal work on behalf of the State. My department has engaged constructively with key stakeholders, including the Bar Council of Ireland, the Office of the Director of Public Prosecutions and the Department of Justice on this matter. In particular, my department has sought evidence to support any claims that the reductions imposed are linked to significant recruitment and retention issues thereby potentially adversely affecting the administration of justice,” he said.

It’s a stalemate. DPER was asked to comment on its current approach to the issue of criminal legal fees but did not respond to The Currency ahead of publication. But with the economy looking uncertain, it is hard to see barristers’ fees hitting the cabinet agenda. There has been some talk of strike action or of barristers removing their names from the criminal legal aid panel, but nothing definite has been announced. Some form of further action is likely.

In the meantime, The Bar Council’s CEO says barristers independently going out and protesting over criminal legal aid fees has helped to keep the issue alive and in the public eye.

Above the parapet

Not that everyone has been wowed by the Bar Council’s performance in fighting for fee restoration. In early June, Irish Legal News published a letter from junior counsel William Morrin who says he will not renew his Law Library membership after he was refused a reduction to his subscription as he does not use the DX service which he says costs him around €1,000 per year. Morrin practices criminal law, mostly in the District Court. In the letter, he said the fees are too expensive and that it does not make business sense to pay them, for little in return.

“The Bar of Ireland were unable to negotiate an increase in legal aid fees, so it took a group of independent barristers to campaign on behalf of all barristers. The Bar of Ireland have not impressed with their negotiation skills and still expect members to pay expensive fees. I will not be doing so” he wrote. (The Bar Council has defended its membership fee structure which rises in accordance with years spent practicing at the Law Library.)

Asked to elaborate, he said basic things like the provision of seating and desk space are an issue and when it comes to low criminal legal aid fees there can be an attitude among barristers elected to the Bar Council of “I had to do that. What’s your problem?” He believes those who have succeeded in the profession are comfortable with the status quo.

“Remember, when you stand up and put your head above the parapet you’re going to be shot. And the vast majority of people are afraid to say anything. The mantra of the King’s Inns is ‘we shall not change’ and it’s that old tradition, the gowns, the wigs. It’s about maintaining something that everyone is very comfortable with. And so people are afraid. I found this all through my life. You will get one person or two people to stand up and people will follow you to a point. But not if they think they’re going to be penalised for what they do. Most of the younger barristers in the District Court were afraid to put their names to the petition [to the government] because they didn’t know what repercussions it would have from solicitors. Would the solicitors stop briefing them?” he said.

But for Morrin, who came to the Bar later in life on the back of a pension from his previous job as a departmental health and safety manager at Irish Rail, the District Courts are like triage, everyone has to go through it and the fees need to change. “If I stay at the bar it will only be for a few more years. But I see my younger colleagues. They are so good. I can see how dedicated and good they are and they want to practice law. They have this grá for it. It’s beautiful to see. And they’re not going to get a chance. Anyone who has left the bar recently has regretted it but said ‘I can now get a mortgage. I can now settle down. I can plan my life. I can make provisions for a pension. When you’re at the bar, you can’t see that,” he said.