General Scheme of the Criminal Justice

The Joint Committee on Justice has invited the Council to make a written submission on the General Scheme of the Criminal Justice (Legal Aid) Bill (the “General Scheme”). The Council welcomes this opportunity and sets out its observations on a head by head basis.

Before commenting on the General Scheme, the Council would like to highlight from the outset, two general observations of importance:
1. The right to legal aid is an aspect of the fundamental rights of the citizen, necessary to ensure the protection and vindication of the right to a fair trial and of those rights, including the right to one’s good name and the right to liberty, which are always at stake in the criminal trial process. The current criminal legal aid system, while always capable of improvement, is both effective and economical in achieving these aims.
2. There is an important public interest in the efficient and timely operation of the criminal justice system. Delay of any sort is contrary to that public interest and invidious to the interests of justice and to the protection of the personal rights of all parties involved (whether victims, accused or witnesses). The operation of the current criminal legal aid system does not cause any significant delay in the criminal justice system.

As it currently stands, the criminal legal aid system is effective, economical and consistent with the efficient operation of the criminal justice system in a manner in line with interests of all parties involved. New legislation on the subject of criminal legal aid must take caution to avoid amending a system that is not broken which may lead to doing more harm than good in the process.

The Council made a submission to the Department of Justice in November 2022 that set out some preliminary observations in respect of a previous Draft General Scheme of the Criminal Justice (Legal Aid) Bill, following a meeting with the Department held on 21st October 2022. Many of the Council’s preliminary observations and recommendations persist, and it is clear from the current General Scheme there are areas of importance within the Scheme where legislative proposals remain to be finalised.

Finally, it is important to note barristers are being treated differently to other actors involved in the administration of criminal justice in relation to fee restoration. Since July 2018, the Council has been asking the Government to implement the outcome of a detailed review process led by the Office of the Director of Public Prosecutions in conjunction with the Department of Justice and sanctioned by the Department of Public Expenditure & Reform.

Unfortunately, despite repeated attempts by the Council, along with the support of the Minister for Justice and the Office of the DPP, over several years in our call for the restoration of professional fees, there has been no meaningful engagement on the issue and the Council can only conclude that the Government has no intention of responding to our request to be treated fairly and reasonably, consistent with the approach taken in relation to other groups of workers and independent contractors where the State is the paymaster. The Council has been left with no option but to recommend to our members an initial one-day withdrawal of their professional services in pursuit of a meaningful, independent mechanism to determine the fees payable to barristers by the Director of Public Prosecutions and under the Criminal Justice (Legal Aid) scheme. This withdrawal of services will occur on Tuesday, 3rd October 2023. The Council greatly regrets having to pursue this course of action and is acutely conscious that the disruption that will inevitably occur will impact on victims of crime, those accused of criminal offences, juries and other stakeholders involved in the administration of criminal justice. The flexibility delivered by barristers, and their cooperation with reform of the criminal justice system over the past decade, as acknowledged and accepted by both the Department of Justice and the Office of the DPP, have enabled a range of improvements and efficiencies to be implemented for the benefit of all stakeholders. The Bar has not been found wanting in that respect. It is now clear, regrettably, that the goodwill of our members is being taken for granted.