A case for reform

Public defenders could save money and improve the system, argues Mike Dailly. Mike Dailly is a solicitor and editor of SCOLAG, the Scottish Legal Action Group journal.

Expenditure on criminal legal aid per capita in the UK is among the highest in the world. How long can this continue?

The Scottish Legal Aid Board (SLAB) has asked the Government to give the green light for its experimental public defender project. If this project is successful we could see a network of public defender offices throughout the UK, but only if the Government is prepared to resist opposition from a monopoly of criminal legal aid practitioners.

While the SLAB revealed that legal aid spending had risen by 7.3 per cent, the Law Society of Scotland reaffirmed its view that only private solicitors could undertake criminal defence work properly.

The society's access to justice convener Gerry Brown says: “We are constantly looking at ways to reduce the cost of legal aid. However, money is not the only price for justice. Members of the Law Society are there to serve those in need. Their training skills and abilities assist every citizen to get a fair trial. That is a fundamental right which must be protected.”

Yet much of criminal legal aid expenditure in the UK has little to do with defending an accused at a trial. In Scotland only £27m goes on trial work. A massive £50.5m is absorbed by case preparation which, for the most part, produces a guilty plea before trial.

Every time an accused in Scotland changes his plea to guilty at the last minute the taxpayer forks out between £790 and £1,187 in legal fees and outlays. In 1996/97 late guilty pleas earned Scottish solicitors almost £42m in the sheriff's court, and £4m in the district court. The experience in England is similar, with about a third of all jury trials not going ahead because of last-minute guilty pleas.

Is there a case for a state salaried lawyer? Savings could fund more hospital operations, school books or care services for the young and elderly. Savings could enable victims of domestic violence to obtain matrimonial interdicts without fear of cost, or allow citizens to fight evictions, unfair dismissals, challenge debt actions or social security adjudications.

If the Law Society of Scotland is to be believed the introduction of six salaried solicitors might upset the criminal justice applecart north of the border. Accused persons could be forced to accept a second-rate service; human rights could be breached as accused persons are used as human guinea pigs. Who is right?

Last month Edinburgh hosted a conference of world experts on legal aid. Against a backdrop of international experience, arguments against public defenders received a short shrift. Until now the Law society of Scotland has based its arguments on the negative experience of public defender offices in the US. But these examples focused on defenders starved of funding.

What the society omits to mention is that its US counterpart, the American Bar Association (ABA), fully supports public defenders. In 1992, the ABA said: “When adequately funded and staffed, defender organisations employing full-time personnel provide excellent defence services… By virtue of their experience, full-time defenders are able to work for changes in laws aimed at benefiting defendants and the criminal justice system.”

In 1987 the Canadian Bar Association also conceded: “In the criminal field… it appears that the staff model is capable of delivering the same outcomes for lower costs than the judicare [legal aid] model, or slightly better outcomes for the same cost.”

A young offenders project in Alberta showed that salaried lawyers were more likely to plead clients guilty before the trial day, while private lawyers pleaded guilty on the day to receive an extra half-day trial fee.

The Netherlands provides striking comparisons. While total criminal legal aid spending in England stands at £11.14 per capita and £16.94 in Scotland, the Netherlands operates on a remarkable £1.77 per person.

The Dutch criminal justice system is respected in the EC and has a comparable record to the UK in terms of compliance with the European Convention on Human Rights.

One reason why its expenditure is lower is that legal aid is not available in subdistrict courts because custodial sentences cannot be imposed.

In Scotland legal aid work in the sheriff and district courts costs £7.3m for road traffic offences; £11m for breach of the peace and vandalism offences; and £4.7m for drug offences. If an inquisitorial non-custodial court was introduced many of these people could be given advice and assistance only. Millions of pounds could be saved across the UK instantly.

The need to prioritise UK legal aid resources is essential. Arguments against reform will have to do a better than claiming that the private criminal legal aid monopoly is sacrosanct.