Spotlight on access to justice in Northern Ireland

This blog article focuses on legal aid available for criminal matters, highlighting ongoing challenges like industrial action by criminal barristers in the Crown Court. It also considers the recommendations made by the Burgess Review into criminal legal aid and the Justice Minister’s wider ‘Enabling Access to Justice Reform Programme’.

How much does Legal Aid Cost?

Legal aid is a demand-led service which is related directly to the volume of eligible applications received; the Department of Justice has historically relied on additional in-year funding to allocate sufficient resources to meet necessary requirements. In 2023-24, a total of 63,881 cases were granted legal aid in Northern Ireland. Of these, over two thirds (69%) were criminal cases with 31% representing civil cases. A total legal aid expenditure of £114 million was authorised in 2023-24 with criminal authorisations accounting for 46% of total expenditure at £52.9 million. The table below covers expenditure on criminal legal aid both within the courts and through the Criminal Advice and Assistance (PACE NI) scheme.

Expenditure on Criminal Legal Aid 2020-21 to 2023-24 (Source: Legal Services Agency, Table A4)

The expenditure figures have seen a steady increase since 2020-21 in most areas, following a decline as a result of the global COVID-19 pandemic.

Note: Comparisons are made from 2020-21 onwards, following the launch of the LSA’s digital case management system (LAMS). Before this, legal aid was paper-based, and the previous system has since been decommissioned, so earlier data is not provided.

Criminal Legal Aid in crisis?

The Criminal Bar Association represents criminal barristers within the Bar of Northern Ireland. In November 2024, they announced a withdrawal of services with members refusing new instructions in ‘Category A’ Crown Court cases – this includes the offences of murder and manslaughter. This has since escalated with a withdrawal from all legally aided Crown court cases listed since 6 January until the end of February 2025. Solicitors also joined barristers in withdrawing from criminal cases for a day of action across Northern Ireland in November 2024.

Payments to legal representatives for Crown Court legal aid cases are set by the Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005, as amended. The Rules use standard fees operating on a ‘swings and roundabouts’ basis whereby the fixed fees for simple and complex cases are expected to balance each other out. These standard fees are based principally on the seriousness of the offence and the way the case is disposed of by the court. They prescribe the amount to be paid to solicitors, junior counsel and senior counsel set out in Schedule 1. There have been various amendments to the Rules, including new levels of standard fees for counsel for guilty pleas/trials and additional remuneration for exceptional cases in 2016. However, the core framework remains largely unchanged.

The Department has a statutory obligation to carry out a formal review of the Rules at least every three years. In determining the levels of remuneration, the Department is required to have regard to the criteria in Article 37 of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 as follows:

• The time and skill which work of the description to which the Rules relate requires;
• The number and general competence of persons undertaking work of that description;
• The cost to public funds of any provision made by the Rules; and
• The need to secure value for money.

The third review of the 2005 Rules began in 2020 but faced delays, leading to a narrower focus. Following criticism, it was ultimately merged into a broader criminal legal aid review led by His Honour Tom Burgess, published in August 2024.

Every £1 invested in criminal legal aid, generates £12.71 in social value.[1]

The legal professions take the view that increasingly complex cases, unfair remuneration and payment delays have coalesced to create a crisis point within the criminal justice system. An increasing number of legal professionals, particularly younger self-employed barristers and those within small solicitor practices, are finding legal aid work financially unviable. The Bar of Northern Ireland indicates that the current fees ‘have not been increased since 2005 and are worth 50% of their original value’. The Burgess Review reflected on this, noting that ‘there is no doubt that the legal aid fees have decreased significantly since 2005, both in actual terms and in real terms, after inflation. On this basis, with cumulative inflation of 70% since March 2005 to December 2023, in real terms, after adjusting for that inflation, most fees since 2005 are reduced by between 53% and 63%’.

Further concerns within the legal profession relate to payment times by the LSA for work carried out under criminal legal aid certificates. In January 2025, the High Court noted that the gap between submission of bills and payment was approximately 12 weeks. The LSA stated it must manage payments within its initial budgetary allocation, adjusting monthly spending while hoping for additional funding through in-year monitoring in June, October and January. The Court went on to grant a declaration to the applicants, the Bar of Northern Ireland and the Law Society, that the strategies employed by the Department of Justice and LSA ‘constitute non-compliance with the statutory duty to pay properly presented legal aid bills’.

Justice delayed across the System

Meanwhile the wider issue of systemic delay persists with successive reports by a number of bodies, including Criminal Justice Inspection, the Northern Ireland Audit Office and the Public Accounts Committee. They advise most delays happen during the investigation and case preparation stages, though some progress has been made through innovations such as the Indictable Cases Pilot, promoting early engagement, and a judge-led initiative to fast-track serious sexual offence cases involving witnesses under 13.

Statistics for 2023-24 show that the average time taken for a charge case to be dealt with at Crown Court was 551 days, a reduction of 10 days from 561 days in 2022-23. There was an average time of 1,199 days for a summons case, an increase from 1,150 days in 2022-23. However, the median time taken for cases where the main offence was sexual was 675 days, the longest for any of the offence categories. This is 82 days less compared to 2022-23, when the median time was 757 days, so a decrease of 11%. The Commissioner Designate for Victims of Crime has stated that:

We must remember that behind every postponed case is a person seeking justice

The Commissioner Designate for Victims of Crime has expressed concern at the ongoing industrial action given the impact of further delays across the system. She noted that it not only has ‘the potential to be traumatic for victims and witnesses whose cases are impacted in January and February, but will have a ripple effect on cases that could be felt for years to come. We must remember that behind every postponed case is a person seeking justice’. The Justice Minister has also highlighted that the action will ‘impact most acutely on the victims and witnesses who are waiting to give evidence and receive justice’.

Burgess Review Recommendations

 His Honour Judge Burgess undertook an independent review of the criminal legal aid system from October 2023 until August 2024. The report makes 27 recommendations covering four broad areas of remuneration, processes, oversight and wider system issues. On remuneration, the Review recommended that the Department should immediately appoint a Working Party under an independent chair to carry out a full review of remuneration under the 2005 Crown Court Rules and subsequent amendments. In the interim, there is a recommendation that Crown Court fees should be increased by 16 per cent as soon as possible.

In terms of oversight, the review recommends the establishment of a Legal Aid Advisory Board. Annex A of the Department’s Summary Report contains analysis of the various recommendations in full which highlights that a number have been accepted in principle. However, several have not currently been accepted in the form proposed in the Review.

Following publication in December 2024, the Bar of Northern Ireland responded that the Department ‘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… 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’.

Shaping the Future of Legal Aid and Justice Reform

The Burgess Review forms part of the evidence underpinning the Justice Minister’s wider ‘Enabling Access to Justice Reform Programme’, covering both criminal and civil legal aid. In January 2025, this was supplemented with a Delivery Plan consultation and a further consultation on a proposed 16% interim uplift in legal aid fees. The Delivery Plan is wide ranging in nature with plans across a number of interconnected areas, including:

• amending financial eligibility rules for legal aid;
• a root and branch review of the fee structure for public legal services, including in the Crown Court and Magistrates’ Court;
• establishing a reference group to identify, collate and validate data to inform current and future remuneration reform proposals;
• reviewing oversight arrangements for the provision of public legal services, including the merits of an independently chaired advisory board;
• developing a Strategy for Access to Justice to aid decisions on resourcing;
• bringing all publicly funded legal services within the remit of the Departmental Accounting Officer through removing the role of the Taxing Master. Legislative provision for this can be found in Clause 28 of the Justice Bill.

Opportunities and challenges ahead

In summary, this multi-year plan sets out a significant programme of change for the justice system. Collaboration and cooperation across Government bodies, the community and voluntary sector and the legal profession will be required to allow for the realisation of the Minister’s vision for a ‘fairer, more accessible proportionate, responsive and cost-effective system which places the citizen at its heart’. However, the ongoing industrial action in relation to legal aid in the Crown Court highlights the difficulties in this complex policy area where delivery in the years ahead will remain contingent on detailed engagement and consultation.

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[1] Law Society of Northern Ireland, The Value of Legal Aid in Northern Ireland (June 2024)