A legal system designed to fail offends both the Rule of Law and the rule of common sense

By Darren Lalor BL

I started studying law in 2009 at age 36. 

I left school at age 14 with no qualifications.

Over the years I worked as a general machine operative, Managing Director of a freight organisation, Backline & Production Manager for artists such as Aslan, a taxi driver, and a health care assistant.

My wife Fiona, the mother of our two pre-teenage daughters encouraged me to study law.

I worked my way through my single life and continued working while I helped raise my girls.

I studied in Dublin Business School for a law degree and then in the King’s Inns for the professional qualification of barrister.

I was called to the Bar of Ireland in 2015 and have been practicing as a criminal defence barrister since.

I wanted to work in criminal practice for many reasons.

I longed to make a positive difference.  People accused of criminal offences have often little or nothing and need skilled and committed lawyers to stand up for them.

What happens in the criminal process matters a lot to the whole community.

In the background are causes of crime, the offender, the victim, and sometimes the use and abuse of power by some gardaí.

Insofar as I can, I seek to ensure fairness in court proceedings and that judges do the right thing.

I am however being pushed out of practice by very low payments under the criminal legal aid scheme.

I am 100% committed to my work as a barrister which is mainly in the District Court, but the rates of pay are so low I struggle to make a living.

I depend on my wife to subsidise my practice.

The following rates are paid to barristers for District Court defence work – €25.20 for a remand, €50.40 for a plea in mitigation and €67.50 for a full trial hearing and all preparation.

These fees are truly pitiful.

No other profession would accept these low rates for such critical work.

No citizen of any European Member State accused of a criminal offence could be expected to have confidence in a service given for such low remuneration.

If briefed, a barrister gets one or more files from solicitors for one or more accused on any given day.

The choice of a trial or a plea of guilty must be made.

In the event of a trial, preparation is everything.

Decisions must be made as to what if any defence witnesses are required and what reports are necessary.

Time must be spent examining disclosed materials such as CCTV footage, digital, and other materials.  The relevant law must be researched.

In the vast majority of cases accuseds enter guilty pleas.

Pleas in mitigation must be prepared and documentation dealing with social, domestic, health and addiction circumstances of each accused must be secured.

A sentence hearing might involve cross-examining the garda on the facts of the case, the effect on the victim, the background, and circumstances of the accused.

At this stage reports and other materials are submitted to the judge.

Having prepared for a trial or sentence hearing which may be adjourned without notice by the Court to another date a fee of €25.20 only is payable.

District Court prosecutions are very serious.

An accused can be imprisoned for up 24 months for multiple offences.

Very often there are victims who have suffered as a result of a crime.

The process, from original victimisation, to sentence hearing can be extremely difficult for them.

They deserve a fair and efficient system.  Defence lawyers make an important contribution to that system.

The rates of payment are miserable given the time, work and skill required.

Despite this, lawyers work extremely hard.  Lawyers are under pressure to provide services of the highest standards to accused persons.

Those accused of a criminal offence can fire their legal representatives in any case or get different lawyers if there is a “next time”.

Lawyers who do their job properly are quickly recognised.

Court reporters are ever present.

Fees for barristers in the District Court are generally paid out of payments made to solicitors who engage barristers on a case by case basis.

When acting in the higher courts separate fees are paid directly to barristers.

Fees at all levels of the criminal legal aid system are very low compared to fees payable in other areas of law.

Very substantial FEMPI cuts in 2011 to criminal legal aid rates have not been reversed.

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 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.  New entrants are the lifeblood of the profession.

The Criminal Bar should be there for all entrants, not just those who can afford to be there for €25.20.  Rich and poor alike can have ability and both deserve their chances.

The past informs the present that ability is nothing without equal opportunity and fair play.

In any profession, all must begin at the beginning.

When the starting point becomes the finishing line for many, changes must be made.

The State must provide a fair and level playing pitch for all new entrants to the Bar.

A legal system designed to fail not only offends the Rule of Law but also the rule of common sense.

A State that wants a functioning criminal justice system for the price of a haircut or a perm is deluding itself.

On 3rd June 2022 a petition signed by 88 Senior Counsel and 182 Junior Counsel was hand-delivered to the Department of Justice alerting the Minister to the unacceptable state of the criminal justice system in District Courts throughout the State.

We live in a democracy.

The right to a fair trial was hard fought for.

We need to be careful