CBA to Escalate Service Withdrawal as Access to Justice Crisis Deepens

During a meeting of the Criminal Bar Association (CBA) last week (Wednesday 11 December), a majority of members indicated their support for an extended withdrawal of services, expressing a view that such action is a necessary and proportionate response to the relentless expectation for criminal barristers to do significantly more while earning significantly less.

This means that CBA members will withdraw from appearing in all legally aided Crown Court cases listed between 6th and 31st January 2025. This action will take place in addition to a continuing withdrawal of services in certain categories of
criminal cases, which commenced in November 2024.

The CBA met in response to a Ministerial Statement from Naomi Long MLA (Monday 02 December) which launched an ‘Enabling Access to Justice Reform Programme’. The Department of Justice also, last week, after months of rejecting calls from across the criminal justice sector to do so, published the Burgess Review, an independent and fundamental review of Criminal Legal Aid as undertaken by His Honour Judge Tom Burgess and completed in August 2024.

Donal Lunny KC, Chair of the Bar Council, commented on the CBA action:

“The withdrawal of services on the part of the Criminal Bar Association (CBA) is regrettable, but the Department of Justice’s approach in reviewing the operation of our system of Criminal Legal Aid has made it inevitable.

“Fees for legally aided criminal work have not been increased since 2005 and are worth just 50% of their original value. Additionally, barristers are subject to crippling payment delays, under a policy imposed by the DoJ on the basis of balancing its budget.

“Criminal barristers have indicated that the levels of remuneration in the most serious and complex of cases do not allow Counsel to provide the expert advocacy that these cases demand and that the public deserves. These cases are the most serious in the legal order. The consequences of conviction are gravely serious, and the factual and legal issues involved are vastly complex. These cases are not funded to a level which allows for proper representation at present.

“The Burgess Review, an independent review of Criminal Legal Aid, acknowledged the extent of the current crisis and the need for DoJ to act with urgency. Judge Burgess recommended an immediate uplift to fees for criminal legally aided work and the establishment of a working group with an independent chair to establish a new fee structure capable of sustaining a modern criminal justice system.

“However, the DoJ has been selective in its response to the Burgess Review. Rather than implementing the recommendations in full, it has chosen to act against many of these evidence-based independent findings.

“Although the Burgess Review did not meet all the Bar’s Council requirements, it represented a potential starting point where less favourable elements were offset by some associated positive increases and with the promise of a further independent review to follow. Regrettably, the DoJ has severed those connections and has cherry-picked the findings in order to give itself maximum control for the minimum possible spend, supplementing its chosen recommendations with recommendations from Reviews completed many years ago or in areas unrelated to the current realities of Criminal Legal Aid.

“For example, the Department has indicated its intention to legislate to overturn a judgment of the High Court in the Tiernan case. An important effect of the Tiernan decision was to ensure that more cases are settled before trial than would otherwise be the case, bringing a huge benefit to the Court system and victims of crime.

“In adopting such a crude and incoherent approach the DoJ has compromised the balanced and careful work that was reflected in the recommendations from an independent expert, Judge Burgess, and in doing so has damaged both the trust of the profession and the credibility of the basis of the proposed Reforms.

“The DoJ is disingenuously citing that an immediate uplift in Legal Aid fees will represent a response to the access to justice crisis. Not only is any such increase not guaranteed, as it is subject to a consultation and budgetary approval, but it comes nowhere close to restoring previous cuts.

“Furthermore, the proposed uplift will immediately be eroded by other proposals that the Department has chosen to try to implement, acting against an established court decision (in Tiernan) and Judge Burgess’ independent advice.”

Donal Lunny KC concluded:

“The CBA has sounded a warning that the DoJ’s approach to Legal Aid reform takes us closer to a two-tier system whereby only individuals who can fund their own cases will have the best available representation. Younger, skilled professionals are leaving practice due to the financial pressures associated with legally aided work. A drain of talented, younger professionals is bad news for victims, defendants, and society.

“We call on the Department, even at this late stage, to re-engage to prevent further escalation on the part of the CBA. We call on the Department to re-evaluate the overall direction and proportionality of its Legal Aid reform programme.”

ENDS

Media Contact

Sinead McIvor – 07701 302 498