PARITY IN pay between defending and prosecuting barristers in criminal trials will be restored by a decision of the Director of Public Prosecutions to cut the rates paid to State counsel by 10 per cent.
This follows a decision in July by the Department of Justice to end the decades-old parity between the two sides, which meant that barristers often acted both for prosecution and defence, in different cases, while those accused of crimes had the same level of expertise available to them as the prosecution.
In the 1970s a strike of defence lawyers took place which led to the enactment of a statutory instrument in 1976 introducing parity between barristers acting for the prosecution and the defence.
This meant it would be illegal to reduce defence fees without a new statutory instrument.
The then secretary general of the department, Seán Aylward, wrote to the Law Society and the Bar Council in July stating that the need to reduce expenditure on legal aid meant fees had to be reduced and would be reduced by 10 per cent from October.
Because the budget of the DPP is independent and the director did not impose a similar cut, parity would be broken, Mr Aylward said. “A new regulation to give effect to the reduction will be introduced shortly.”
Before this latest cut, fees for both prosecuting and defence counsel had already been reduced by 22 per cent over the past two years and allowances have also been cut.
Both the Law Society and the Bar Council expressed their concern about the break in parity and sought meetings with the Minister to discuss alternative ways of saving money.
The parity system “is regarded by the Bar Council as a fundamental cornerstone of a person’s constitutional right to legal representation in a criminal trial”, the director of the Bar Council, Jerry Carroll, said in his letter to the Minister.
“The unilateral uncoupling of the defence level of remuneration from that of the prosecution will distort and damage this equal representation.”
Last Friday, the deputy director of the Office of the Director of Public Prosecutions, Barry Donoghue, wrote to the Bar Council saying that following recent discussions with the Department of Public Expenditure and Reform, the rates paid by the DPP’s office would be reduced by 10 per cent in order to ensure that parity of fees was maintained.
The cuts would come into force from October 1st.
“This decision [of the Minister] and the fact that this office had not decided to introduce a similar reduction has been the subject of debate in both the media and at Government level,” Mr Donoghue said.
One senior counsel who does a lot of work for the DPP, Mary Rose Gearty, told The Irish Times last week that every practitioner to whom she had spoken, who did prosecution work, would take a cut in fees to preserve the parity between the defence and the prosecution. “The principle is terribly important to us,” she said.
Responding to the DPP’s decision yesterday, Mr Carroll said: “This is something we have sought. Bar Council is happy that the principle of parity is being maintained. This is an essential principle of the bar and the criminal justice system.
“The criminal bar has already taken a 32 per cent reduction in fees but considers it important that equality of arms is maintained.”
It was not possible last night to ascertain whether the proposed new regulation ending parity between prosecution and defence counsel would now be dropped.
The new regulation is due to come into force next month.