A man convicted of imprisoning and wounding his victim could avoid jail because no barrister in Northern Ireland will represent him for the new legal aid payment rates on offer, a High Court judge warned today.
Mr Justice Treacy raised the possibility of criminal proceedings against Raymond Brownlee being halted when he comes to be sentenced due to the ongoing "stalemate".
Last month he ruled that the revised scheme on fixed fees available for defence lawyers lacked any provision for exceptional circumstances in the case.
He is now being urged to strike down the Crown Court Proceedings Amendment Rules introduced in 2011 following a stand-off between defence lawyers and Justice Minister David Ford.
One source claimed the criminal justice system could be thrown into chaos if such an outcome were achieved.
Lawyers appearing separately for Brownlee in his civil challenge further argued that the Department of Justice should be ordered to authorise an appropriate criminal legal aid certificate within 72 hours.
The Belfast man, currently being held in HMP Maghaberry, was found guilty of false imprisonment, threats to kill and wounding with intent at Belfast Crown Court last year.
Towards the end of the trial he was left with no legal representation when his lawyers came off record following a breakdown in their relationship with him.
He brought judicial review proceedings over the amended fees rate which would see senior and junior counsel paid £240 and £120 for representing him at next month's sentencing hearing.
Every barrister approached has turned down the work, citing its size, complexity and gravity compared to the "meagre fee" on offer.
Mr Justice Treacy held that the problem was due to the alleged failure of the 2011 Rules to make provision for exceptional or unusual circumstances.
He found that Brownlee's legal aid rights were being denied by an inflexible fees regime.
Returning to the case today to deal with the question of remedies, the judge was told no resolution has been found.
Ronan Lavery QC, for Brownlee, said: "We had hoped in the month since judgment that there could be some pragmatic proposal, but we have been met with a brick wall."
Suggesting an order for a payment certificate within 72 hours, he argued that the case was now urgent due to the planned May 17 sentencing hearing.
David Scoffield QC, for the Department of Justice, contended that it does not have the power to simply produce a sum of money.
With the Department set to appeal the judgment, he stressed there was nothing wrong with the rules in general.
But during arguments Mr Justice Treacy pointed to the possibility of the criminal case against Brownlee being stayed "because through the absence of legal aid he wasn't able to obtain the services of any lawyer in Northern Ireland to represent him".
He added: "There's a real risk if this stalemate persists it could have the consequence that a person who was convicted of very serious crimes by a jury could end up getting a successful abuse of process application and that's certainly not in the wider public's interest if that were to happen."
A ruling on remedies in the case is expected to be given later this week.
Outside the court Brownlee's solicitor, Louise Moley of McGuigan Malone, claimed other defendants will find themselves in the same situation due to the payment rules.
She added: "We have given the Department an opportunity to make something available to remedy this situation and they haven't done it.
"We have been left with no alternative but to ask the court to strike down the rules."