I BEGAN STUDYING law in 2009 at the age of 36. I have been working in criminal defence as a barrister since 2015.
I left school aged 14 with no qualifications. I worked in various jobs over the years including General Machine Operative, Managing Director of a freight organisation, and Backline/Production Manager for artists and bands such as Aslan; taxi driver and health care assistant. My wife Fiona – the mother of our two pre-teenage daughters – encouraged me to study law.
I wanted to work in criminal practice for many reasons, to make a positive difference in people’s lives; because people who are accused of criminal offences often have little or nothing and need skilled and committed lawyers to stand up for them.
I believe that what happens in the criminal process – from the causes of the crime; the who did it; the why; the use or abuse of power by gardaí; fairness in trial courts and judges doing the right thing; and what happens to the convicted and the victims – all matter, a lot, to the whole community. I wanted to make a contribution to that. I still do. But I am being pushed out of the business by very low payments under the legal aid scheme.
Diversity in the courts
I believe that it is good for the administration of justice to allow people from different backgrounds to work as barristers in the criminal justice system.
And it is bad for the administration of justice to create an environment where only people with independent resources can survive in the profession.
I worked my way through my single life and continued working while I helped raise my kids, studied for a law degree and then the professional qualification as a barrister in King’s Inns. I am 100% committed to my work as a barrister – which is mainly in the District Court since 2015.
But the rates of pay are so low that I cannot make a living from that work: I must depend on my wife to subsidise my career.
Barristers are getting paid €25.20 for a remand, €50.40 for a plea in mitigation at a sentence hearing and €67.50 for a full hearing of a contested trial. The practical reality is that a barrister gets one or more files for one or more clients on any given day.
The barrister must often be ready for a sentence hearing – that might involve cross-examining the garda on the facts of the case, as to the effects on the victim and the background and circumstances of the client; then putting forward letters for the client and making submissions to the judge.
Having prepared to do the sentence hearing – it may simply be adjourned to another date. In which case the payment is €25.20. The same applies for a contested trial date – except for all the extra potential legal submissions; cross-examination of witnesses and submissions on the facts must also be prepared.
It is often necessary to consult with the garda before and with the client before and after the case: whether the sentence or contested hearing does proceed, the client is entitled to understand what has happened and what is happening next.
Affected clients
The cases can be very important, despite the fact that they are dealt with in the District Court: a client can be imprisoned for 12 months for an individual offence, and for 24 months for multiple offences.
Very often there are victims who have suffered as a result of the crime – the whole process from original victimisation to sentence hearing can be extremely difficult for victims. They deserve a fair and efficient system.
Defence lawyers make an important contribution to that. In the vast majority of cases – the client enters a guilty plea and the work we do involves getting the client to understand why the crime was committed; the effects on the victim; what the client must do to rehabilitate and express remorse.
The rates of payment are miserable compared to the time, work and skill required. Despite this, lawyers work extremely hard and the criminal defence legal aid system is highly competitive: solicitors and barristers are under pressure to provide services of the highest standards to clients because the clients can fire their legal representatives in any case – or get different lawyers if there is a “next time”.
According to a report for the Department of Justice in 2018, the State’s funding of legal aid per capita of the population in Ireland was €18.40. This compared to England and Wales €38.14, and Northern Ireland €73.53.
The fees for barristers in the District Court are generally paid from payments made to solicitors who engage barristers on a case by case basis. When acting in the higher courts – such as the Circuit Court where more serious cases are tried before a judge and jury, separate fees are paid to barristers.
But fees at all levels of the criminal legal aid system are very low in comparison to fees payable to barristers in areas of law other than criminal law. Very substantial cuts in rates of payment have not been reversed despite the economic recovery.
The administration of justice benefits from the fact that people of all ages and with different experiences and backgrounds can become barristers and work in criminal law. But young people are the lifeblood of the profession. The rates of payment in the District Court – and the very low rates at all levels as compared to other areas of practice for barristers – are pushing good lawyers away.
I will continue to fight for proper payment – so I can stay in the profession, doing the work I love; so others are encouraged to do this work and stick at it; and so that the public interest in a strong criminal justice system can be upheld.
No professional fee of €25.20 can be compliant with Rule of Law requirements in any properly funded criminal legal aid system in a European Union member state.
Darren Lalor is a junior counsel.
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