System under ‘real threat’ as barristers leave criminal work – Bar Council

The criminal justice system is under "a real threat" because many barristers are leaving the criminal Bar following the failure to restore their professional fees after "draconian" cuts were applied several years ago, the Bar of Ireland has said.

Maura McNally, chair of the Council of the Bar of Ireland, has written to the Minister for Public Expenditure and Reform, Michael McGrath, seeking urgent action on the issue.

The continued failure to act “now presents a real threat to the criminal justice system from which it will take at least 10 years for the system to recover, that being the average period of time it takes for a barrister to develop a sufficient level of skill in order to prosecute matters on behalf of the State”, she wrote to the Minister last week.*

As a number of barristers at the Courts of Criminal Justice stopped work for a time on Tuesday and protested outside to highlight the issue, Ms McNally told the Minister the Bar’s predictions six years ago of “an impending manpower shortage” has “now started to emerge in the criminal courts”.

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Statistics provided to the Minister’s office “some time ago” showed a career at the Bar in criminal practice “has diminished significantly since the draconian cuts ranging between 28.5 per cent and 69 per cent were applied to the professional fees of those who prosecute criminal cases on behalf of the State during the period 2008-2011”, Ms McNally wrote.

High inflation is compounding the situation and devaluing the professional fees paid to barristers, she said.

The shortage of counsel is manifesting itself most prominently at Senior Counsel level, the letter stated. Almost one third of the cases where the State had sought to prosecute a criminal matter were impeded “owing to Counsel being unavailable”.

‘Problems emerging’

Evidence of this situation first began to emerge in July 2021 and the situation unfortunately continued to deteriorate until the end of December last, it was stated. There was also “evidence of problems emerging on Circuit and a difficulty identifying Junior Counsel to take a handover brief”.

Ms McNally noted the last official correspondence from the Minister in April 2021 on the issue had indicated his Department was liaising with the DPP’s office to consider it.

At “a minimum, and as a matter of great urgency”, she urged the Minister to arrange for the immediate restoration of the link between fees paid to barristers and those applied under public sector pay agreements.

She also urged the Minister to confirm the approach of the State in addressing the restoration of the cuts applied to the fees of criminal barristers.

"Such minimum measures would be a useful signal to the market of the intention by the State to address the issue, thereby aiding retention of practitioners in criminal practice." She and other Bar Council representatives are available to meet with the Minister, Ms McNally added.

Separately, Ms McNally told The Irish Times that the majority of criminal cases are in the District Court with the next largest number in the Circuit Court. Most of the work is done by junior counsel “and they are just not doing it”.

In the District Court, barristers dealing with criminal matters are paid indirectly for their work by solicitors and a barrister might be paid as little as €20-€30 for one matter, she said. “That might be okay if you have a volume of cases but many don’t.”

“There is a huge drop off in practitioners in criminal law, in the years one to seven, we have lost over one third,” she said. “Some may say that’s fine, there’s enough of them there but, no, there is a natural progression, people get older, move on or retire, there will be nobody to fill that middle gap, the gap that’s needed for the Circuit Court, for the prosecution and defence of cases.”

“Barristers have to earn a living, if they don’t, they will leave, they will look for jobs in industry, banking, the State sector and elsewhere,” she said. “It’s not too much to say there is a crisis.”

*Article amended at 12.20pm on March 2nd, 2022