“I’ll get €75.60, €100.80 if I’m lucky,” says Ann*, a second-year barrister, after dealing with five separate criminal legal aid cases over one day this week in the District Court.
It is one of her better days; some days she has no work at all. “That’s soul-destroying.”
For the 11 months from September 2022 to the end of July 2023, Ann hopes to be paid between €10,000 and €12,000 on foot of the fee notes or invoices she has sent to solicitors.
This week, after dozens of barristers took to the steps of the Criminal Courts of Justice in Dublin to protest about the Government’s failure to reverse cuts imposed more than a decade ago to criminal legal aid fees, which mean fees remain at 2002 levels, The Irish Times spent a day with Ann in the CCJ, where five district courts operate.
Several barristers, particularly younger barristers, who were also approached to be ‘shadowed’ while working for criminal legal aid were reluctant to, expressing concern that might impact on their ability to get work. Ann agreed to speak out on condition of anonymity.
When her day started about 10am, the round hall in the CCJ was a hive of activity, with solicitors, barristers, clients and gardaí mixing with school tour groups. Small groups of barristers and solicitors are huddled around the hall, having speedy consultations with clients, many of whom they are meeting for the first time.
Ann is one of several barristers wandering around the hall shouting out a new client’s name hoping they have turned up.
“The adrenalin, the stress, the hoping you get work and get things rights, it’s like the feeling you get before kick-off at a football match. The more senior barristers say that never goes,” she says.
At 10am, Ann had come to court with instructions in just one case for which she could expect a fee of €25.20 but, by 1pm, she has received hurried instructions in another four cases.
Just before 10am, a solicitor texts her to ask if she is available. She is not told who the client is or what the new case involves but immediately responds seeking details as it is listed among a raft of new cases before the judge in district court one from 10.30am.
Ten minutes later, she is running to a packed court four trying to get an update concerning the state of the proceedings involving her one instructed client, AB, who is charged with theft. AB has not turned up but his prosecution is based on CCTV the prosecution has yet to provide so it looks like an adjournment will be necessary for her to establish the strength of the case.
Minutes before 10.30am, Ann has obtained the CCTV disc from the prosecuting garda which she needs to watch before advising AB. The late production of the CCTV means it is likely the case will be put back to another date, she explains.
Just after 10.30am, Ann is on her feet in court one with no sign of her new client, CD. The case is put to second calling, meaning it may not be called again until the judge has worked his way through the long list, and Ann has to run between court one and court four where the case against AB is listed. “It’s much better when all your cases are in one court,” she sighs.
Ann pursued a law degree after years working in another area and says she survives at the Bar only because she does consultancy work at weekends and has no mortgage
By 11am, CD has turned up in court one and Ann has a quick consultation with him in the round hall, all the time hoping AB’s case in court four is not called until she gets back there. Luck is with her because, during her brief sprint into court four, AB’s case is called. Although he has failed to turn up, risking a bench warrant, Ann secures a reprieve due to late production of the CCTV evidence and the case is adjourned. Her fee for that is €25.20.
Back in court one, CD’s case is called but the prosecution garda asks for no order, with the effect CD is free to go and the case against him is not being pursued. That also means no legal aid and no payment for Ann or the solicitor.
While running between courts, Ann is approached by solicitors looking for counsel and ends up with three more clients. Two are disposed of within an hour because the clients have not turned up and bench warrants are issued for them. The total payment Ann can expect for those two is €50.40 or €25.20 each.
“Part of the job is trying to just keep some clients in court until their case is called,” she says. “Some have addiction issues and get very twitchy and just up and leave.” Others have English language issues and need interpreters, which makes consultations longer.
Her last case, which concerns a man in custody on a public order matter, is dealt with by 1pm and is adjourned for two weeks.
Ann has no paid work for the rest of the day but spends up to two hours preparing detailed memos, known as returns, for her instructing solicitors setting out the details of the cases she has dealt with and updating them on all relevant matters. She also attends a court as a favour for a colleague to deal with one of his cases because he has been held up in a different court.
At the end of the day, she can expect fees totalling €76.60 for three cases. There is a lack of clarity about whether there is legal aid for another case but, if there is, she can expect her fees to rise to a maximum €100.80.
“With crime, you need to be here at the courts every day,” she says. “Presenteeism is critical, it’s all about building up relationships with solicitors and gardaí. I could be here for days with no work, then I just sit in court to watch and learn. It’s kind of soul-destroying when you have no work but I’m fairly tough.”
In the Irish legal system, solicitors and barristers have different legal qualifications and clients deal directly with solicitors, not barristers. Solicitors generally instruct barristers, who specialise in court advocacy, to provide expert legal opinion and to present their cases in court.
Ann pursued a law degree after years working in another area and says she survives at the Bar only because she does consultancy work at weekends and has no mortgage. “Some of the younger ones have wealth to get them through these years but many are doing weekend jobs in bars and restaurants to get by. I know quite a few who are back living at home with their parents because they cannot pay rent on what they are earning.”
“The financial thing is bonkers, the fees are too low and there is so much administration, it takes its toll. I see a lot of stress, depression, in my colleagues.”
“When you get a certificate for counsel [court approval of payment of a fee for a barrister], that’s €500, it’s like a gold coin, I have only got about four or five.”
“I’m just surviving here, it’s high-wire stuff, very high stress. I love the work and the people but some days, because the money is so bad, you wake up and wonder, ‘What am I at?’.”
She has seen many colleagues leave the criminal Bar, an observation borne out by a survey carried out by consultants EY for the Bar of Ireland in 2021 which found a high attrition rate of junior members of the Law Library, rising rapidly after five years’ service. After 10 years, 53 per cent have quit.
The problems for barristers on the criminal legal aid panel are not just about the level of legal aid fees, according to other barristers who spoke to The Irish Times. Legal aid payments are made directly to solicitors, who then pay barristers.
Some solicitors are notorious for not paying barristers at all, or being very slow in paying. Some have been the subject of complaints to the legal services regulator.
In 2020, the Bar council set up a fee recovery unit which, by April last, had recovered some €1.1 million of unpaid fees with a similar amount outstanding.
In a message issued to barristers days before the protest, Bar council chair Sara Phelan SC said seven years had passed since it first raised the fees issue with the Office of the Director of Public Prosecutions (ODPP) and the Department of Justice and the Department of Public Expenditure and Reform (DPER). The latter has ignored the recommendations of the ODPP and the Department of Justice – who have indicated support for fee restoration – and has “refused to engage” with the council, she said.
The DPER’s position is “a direct threat to the maintenance of the highest standards in the administration of criminal justice”, she said. Meetings of barristers will be held in the coming weeks to discuss a response to that threat, she said.
Barrister Darren Lalor, one of the organisers of this week’s protest, left school at 14, returned to education aged 36 and studied for a law degree while working as a taxi driver. “I sat in my taxi outside the courts studying to get in there but I earned more when I was a taxi driver.”
Now aged 51, Lalor says he has survived because his wife, who works in the nursing profession, has subsidised his law career. “I’m not asking to be a millionaire, I just want a fair day’s pay. It’s not only about barristers. Victims of crime need to know their cases will be prosecuted properly, accused people – and remember there are many who are wrongly accused – need to be properly defended. The system is broken, we’re subsidising the legal aid system, it’s justice on the cheap and it has to stop. I would go on strike in a heartbeat.”
*Not her real name