Recent reports in this newspaper about the Government review of expenditure have focused attention on the fees paid to barristers by state agencies. The Department of Public Expenditure and Reform has suggested a review of the rates paid to lawyers under the criminal legal aid scheme and a further 10 per cent cut in rates was referenced.
Barristers provide a high quality service to state agencies such as the Attorney General, the Director of Public Prosecutions and in legally aided cases at below open market rates. Severe cuts have been imposed on payment rates in all these areas since 2008. The rates paid by the Director of Public Prosecutions and under the Criminal Justice Legal Aid Scheme have been reduced by 33 per cent since 2008.
Likewise, severe cuts have been imposed on barristers providing services to the Legal Aid Board covering family law, childcare and asylum cases. The rates paid by the Attorney General's Office have been cut by at least 50 per cent.
The DPP’s Office informed the recent review that they could not cut their payment rates any further without risking the quality of service provided and stated that such fee rates were already significantly lower than those paid in the open market.
Indeed, the DPP has sought an increase in funding for her office in 2015 to process cases through the Court of Appeal and for upcoming high-profile banking trials. The Department of Justice also saw no scope for further cuts in its response.
The increasing demands placed on barristers to provide a quality service in such cases is often overlooked. Little regard is paid to the expertise and preparation required to present a case properly to ensure that the common good in the proper administration of justice is vindicated. Skilled advocacy and representation comes from careful preparation and attention to all relevant materials and is not suddenly dreamt up as the witness takes to the stand.
To illustrate this a barrister in a criminal case must fully prepare their brief before the trial. That includes watching videos of interview (up to 20 such videos in some cases) and they are not paid a separate fee for this work. It also involves viewing CCTV footage, analysing voluminous documentation disclosed by the prosecution but which is not intended for use at the trial, attending at Garda stations to assess job books, inspection of exhibits or the scene of a crime and consideration of forensic expert reports in areas such as DNA or telephone evidence along with researching relevant legal texts and case law.
Similar examples can be provided for work done by barristers under the civil legal aid scheme. Complex and often lengthy applications in childcare and family law proceedings involving consideration of social worker and psychologist reports attract little and often no payment for barristers from the Legal Aid Board under new terms imposed in 2012.
Barristers have not been and do not claim to be immune from the spending restraints imposed by the State due to the economic crash. Spending cuts had to be imposed in many areas and that included barristers’ fees.
The Bar has pro-actively worked with relevant state agencies to secure cost-efficiencies in the justice system, including the more widespread use of video-link evidence and co-operating with practice directions to streamline criminal trials. No payments were made to barristers for the extra work involved.
I understand that video-links for some applications in the Special Criminal Court now save approximately €25,000 in army escort costs on some days in that court and other changes have also secured efficiencies.
The recent report of the European Commission for the Efficiency of Justice shows that the State’s expenditure on legal aid is less than half of that of neighbouring jurisdictions whose common law legal systems are similar to our own. The report found that each person in the State contributes €18.11 towards the provision of civil and criminal legal aid services. In Northern Ireland the spend is €50.59 per person, in England in Wales it is €41.55 per person and in Scotland it is €33.69 per person.
I believe that the high quality of service provided cannot indefinitely be maintained at the current rates of payment given the ever increasing workloads being placed on barristers in these areas, still less so if rates are reduced further. Many younger barristers are finding it impossible to maintain a practice in these areas and find themselves leaving the Bar altogether.
The Bar has shown itself to be willing to engage constructively with government and state agencies to ensure cost-effectiveness in the justice system generally over recent years and remains committed to doing so in a positive fashion.
But further proposals for cuts in fees may damage the goodwill shown by the Bar in this area.
Instead, steps to acknowledge the increased contribution and complexity involved in such work should be considered by the Government. Tony McGillicuddy is a practising barrister and a member of the Bar Council