Pilot public defender scheme falls foul of Scottish lawyers

Government proposals to pilot a public defender system in Scotland have been condemned by Scottish lawyers who say they will create “a clear and present danger” of miscarriages of justice.

In its response to a white paper by Scottish Secretary Michael Forsyth proposing a pilot public defender scheme, the Law Society of Scotland says it would be “against natural justice and the right of the accused to appoint the lawyer of his choice”.

The White Paper on criminal justice in Scotland, Crime and Punishment, was published in June. Under the proposed pilot scheme, the accused in some criminal cases would be advised and represented by a lawyer employed by the public sector. The pilot would run in one or two urban areas for at least a year and the Scots Legal Aid Board would probably have powers to require that clients use the public defender.

The scheme, which would require primary legislation to be set up, is suggested as a way of establishing benchmarks for the cost of legal aid in summary criminal cases.

Similar schemes operate in the US where, said the Law Society of Scotland, underfunding of the system was reaching crisis point with cases not being fully investigated or defended.

Society president, Grant McCulloch, said: “There is a clear and present danger of innocent people going to jail as public defenders are so overworked.”

The society fears most cases would be disposed of by a guilty plea without trial. It believes a public defender system would not be seen as independent and would not attract lawyers of the right calibre.

But Richard Scott, chief executive of the Scottish LAB, said the society was putting its members' interests ahead of the interests of the public. He said: “[It] is taking a very defensive attitude. It is protecting the interests of its own private practitioner members who are making considerable amounts of money out of the current system.”

Scott believes a public defender system would be more cost-effective. If implemented, he expects the system to deal with about 30 per cent of criminal cases and for the accused to have a choice of whether to use the public defender or not.

Roger Smith, director of the Legal Action Group, said: “A public defender system is beginning to be talked about in England and Wales as something to be considered.”