Cutting corners on criminal defence
12 August 1998
In the first part of our special report on public defenders, Chris Fogarty looks at the Government's plans and questions how the Bar Council can fight the proposals.
The Government took one of its bigger political gambles when it signalled the arrival of public defenders in England and Wales in the Queen's Speech last week.
The Lord Chancellor Lord Irvine has not only flown in the face of predictable opposition from the Bar, but has also provoked the deep seated concern of senior judiciary and members of his own department.
If Labour wins a second term, a public defender system the Bar claims is at risk of descending into a US-style shambles could prove a huge embarrassment for a government whose legal reforms have so far won press and public support.
So why is Lord Irvine launching a scheme that most of his former colleagues at the Bar believe will be a disaster?
The simple reason is cost. In 1997/98 criminal legal aid cost the taxpayer u733m.
In government speak this does not give "value for money for the taxpayer". In reality the Government is looking to cap, and hopefully cut, criminal defence costs and its solution is a Criminal Defence Service (CDS).
The CDS will contract all work for criminal services, fixing costs in advance and including "quality requirements" for appointed firms.
Contracts with solicitors firms will cover defence services from the police station to the courtroom. If a case requires a "specialist advocate" for more complex legal work, this will be dealt with by a separate contract.
For now, the Government defines "specialist advocates" as barristers, though in principle solicitor-advocates will not be barred from getting contracts.
The crux of the Government's proposal is that the CDS can employ lawyers in what is the basis of a full public defenders scheme.
But in January, research commissioned for the Lord Chancellor's Department by the previous government raised serious doubts about the feasibility of public defenders.
TPR Social and Legal Research partner Tamara Goriely, who was asked to examine the best way of delivering money in mass legal aid work, concluded that salaried lawyers do not always offer an adequate service.
"Staff lawyers generally wish to get through their caseload and get home at the end of the day, while judicare lawyers, whose fees depend on the hours expended on each case, may have incentives to carry out more work," wrote Goriely who studied public defenders schemes in Canada, the US and Australia.
The Lord Chancellor's Department sees it differently, believing that fixed prices create an incentive to avoid delay and reward efficient practice.
While Goriely was not against the idea of a mix of salaried and private defence solicitors, lawyers fear that Britain will end up with a criminal justice system dominated by public defenders.
During his annual press conference in 1997, the Lord Chief Justice Lord Bingham was guarded but distinctly cool about a public defender system.
"I think I would personally find it harder to motivate myself if I was paid a salary," said Lord Bingham.
The question now is, how does the Bar respond. The traditional antagonism bet-ween the Law Society and Bar Council means that solicitors are at best concerned about public defenders, but secretly pleased that the fat cats at the Inns are to get their comeuppance.
In fact the Law Society believes many hard pressed criminal solicitors will jump at the opportunity to get a guaranteed salary by joining a public defenders office.
So the Bar will have to lead its own campaign against public defenders, although this poses problems.
Its vociferous defence of its advocacy monopoly led to a suspicion that it is primarily motivated by monetary self-interest and not justice.
The CDS will herd barristers into a government holding pen, where their fees can be checked and managed, undermining the Bar's independence.
But Bar Council legal services committee vice-chairman Peter Lodder strenuously denies this is a battle of self-interest.
"What we are worried about is that there will be a two-tier system," says Lodder. He argues public defenders will be inexperienced lawyers yet to make it into private practice, while lawyers in the private sector will rake in the cash from those who can afford it.
Furthermore, he believes there will be a "culture of negotiated justice", as in many US states, where public defenders try to ease their workload and save costs by plea bargaining.
These views are supported by the Law Society of Scotland which has been a ferocious critic of the Public Defence Solicitors Office (PDSO) which opened its doors in Edinburgh last October.
A six-strong team, headed by criminal solicitor Alistair Watson will handle up to 1,500 cases a year in a five-year pilot.
Defendants born in January and February will have no choice but to use a PDSO solicitor in what Scottish Law Society president Philip Dry has dismissed as "justice by astrology".
Watson, though, says that with spiralling costs, justice systems have little choice but to change how they work.
"My personal view is that the experience of other countries strongly favours adopting a mixed system."
Watson cites the experience of Canada, where a mixed system of defence funding provision has aided the early resolution of some cases, meant fewer and shorter sentences for convicted defenders and, most importantly for the government, proved "cost-effective".
However, United States National Legal Aid and Defender Association senior attorney Bob Burke says there is a lack of funding for competent representation, forensic data and administrative back-up Stateside.
Burke told a Legal Action Group conference last year that the funding problem was exacerbated by the "politicisation" of criminal defence funding.
As Lodder is quick to point out, the Crown Prosecution Service (CPS) is a British exa-mple of this. The mass market tabloids have been particularly vehement in their criticism of the CPS. But the CPS is perhaps the Bar's best defence against repeating the experiment with a public defender system.
Lodder believes that as hardened criminals wise up to the use of public defenders, they will demand plea bargains and get less harsh sentences, which will ignite press and public fury.
Attacking the Government's proposals is problematic for the Bar. Lord Irvine can effectively use the Scotland pilot to spot weakness and tinker with the problems before they arise in England and Wales.
And by using a "mixed system" and gradually introducing public defenders, he can stave off any immediate criticism about their impact on the legal system.
It may be a political gamble for Irvine, but the wily old persecutor of the Bar has so far outflanked the defence.