THE DEPARTMENT of Justice is proposing to end the decades old parity in payment between lawyers representing the prosecution and the defence in criminal trials, The Irish Times has learned.
This will lead to lawyers representing the accused being paid less than those representing the State in the same trial.
The announcement came in a letter to the director general of the Law Society, Ken Murphy, from the secretary general of the department, Sean Aylward, in which he pointed out that the National Recovery Plan 2011-2014 included a commitment to reduce expenditure on criminal legal aid to yield savings of €5 million in 2011 and €10 million in a full year.
He said this led to decisions to introduce a rate reduction of 10 per cent on all fees across all areas of criminal legal aid in all court jurisdictions; the restructuring of District Court fees; and a reduction of 50 per cent both in travel and subsistence payments and in the payment for adjourned sentence hearings.
The fee reductions “will mean a break in the existing parity arrangements”, the letter states, and a new regulation to give effect to the reduction will be introduced shortly.
The break in parity will arise because the office of the Director of Public Prosecutions is outside the Department of Justice and operates its own budget. Fees for both prosecuting and defence counsel have been reduced by 22 per cent over the past two years, and allowances have been cut. However, it is not expected the DPP will follow the department in cutting fees further.
The move to break the parity is likely to be controversial as it will be seen as an attack on the principle of “equality of arms” between prosecution and defence, and opening the door to a reduction in the pay and status of defence lawyers generally, so that this work will be less attractive to good barristers and to solicitors who provide an expert and comprehensive service to legal aid clients.
One legal source said that savings could be achieved in other ways, pointing out that there was already an “inequality of arms” in some criminal cases where the DPP was represented by one junior counsel and the accused was represented by both a senior and a junior. Reform of the system of representation, without breaking the parity in payment, could produce the same result, according to this source.
The proposed break in parity is likely to feature in meetings between Minister for Justice Alan Shatter and the two lawyers’ professional bodies due to take place on Monday.