Taking both sides

Since it was founded in 2001 the Public Defender Service (PDS), which provides a salaried criminal defence service in England and Wales, has been controversial. It has remained a small and obscure part of the criminal defence landscape, providing representation from the police station through to court. At times of tension between the government and criminal defence lawyers over falling legal aid rates, ministers have used the threat of enlarging the PDS to help rein in or stave off protest action. The lack of information about the cost of the service has added to the profession’s hostility to the body. But for the first time since 2007, Ministry of Justice officials have partially lifted the lid on its funding, revealing at the same time the limited knowledge it has about the work of the PDS.

Criminal legal aid barristers take to the picket lines next week for the second time in their history, backed by some solicitors, in a dispute with the government over pay.

As they prepare to man the braziers outside London’s Old Bailey and other Crown courts, the question of how the government will respond remains unanswered.

With a backlog of Crown court cases that stubbornly remains around 60,000, against a backdrop of criminal law haemorrhaging defence lawyers, the government also has to address the long-term issue of ensuring a sustainable future for criminal legal aid.

Delivering the Slynn memorial lecture to the Solicitors’ Association of Higher Court Advocates last week, the lord chief justice Lord Burnett of Maldon stressed that the ‘two greatest constraints we have now in disposing of cases more quickly are a shortage of judicial resources and, increasingly, a shortage of lawyers to conduct the cases’.

Justice secretary Dominic Raab has not ruled out expanding the PDS. The option was included in the government’s response to the review of criminal legal aid conducted by retired judge Sir Christopher Bellamy QC, which was published last December.

A government spokeswoman tells the Gazette that officials are ‘seeking views on specific thematic and geographic areas of practice with specific sustainability challenges in the context of where the PDS may be able to help ensure provision’.

The consultation closed this month, on the day it was announced that Sir Christopher was to be made a life peer to enable him to take a place as justice minister in the House of Lords, replacing Lord Wolfson QC, who resigned over the prime minister’s response to ‘Partygate’. Officials say that the consultation responses are still being analysed, and that further detail on the next steps will be set out ‘in due course’.

The inclusion of the option to expand the service appears at odds with the recommendations made by Bellamy in his report. He noted that in his call for evidence no one who responded advocated expanding the current ‘small-scale’ PDS.

While Australia and New Zealand have a mix of public defender and private lawyers providing criminal legal aid, Bellamy stressed that the ‘historical and geographical circumstances’ of those countries are different from England and Wales.

He said that a public defence service provided by salaried public employees largely taking over from private providers – in effect the equivalent of the Crown Prosecution Service but on the defence side – would have ‘major constitutional, practical and cost consequences’ that his review was not able to consider within its timetable.

But he expressed ‘serious reservations’ about such an option, which would necessarily involve the state directly taking ‘both sides’ of the case, and questioned whether it could be more cost-effective and efficient than the private sector.

Bellamy added: ‘Had I considered the present system to be so fundamentally defective that some kind of nationalisation of the defence should be considered, I would have said so.’ However, his firm conclusion was that ‘the present system for assistance and advice in the police station and representation in the magistrates’ and Crown courts is sound in concept but suffering from severe underfunding’.

His central recommendation was that the government should increase legal aid fees for solicitors and barristers by £135m a year, or 15%, as the ‘minimum’ necessary to begin nursing the criminal legal aid sector back to health after years of neglect.

The fact that criminal barristers are striking, some solicitors are refusing to accept certain poorly paid work and the government is mulling expanding the PDS will give many a feeling of deja vu.

In 2014, when barristers refused to act in some trials because of legal aid cuts, the service opened a specialist in-house advocacy unit. Lord chancellor Chris Grayling hired head-hunters to poach senior barristers from the independent bar to join. That specialist unit is now staffed by a team of 19 barristers and higher-court advocates, including four QCs.

In 2007, the Legal Services Commission, forerunner of the LAA, commissioned an independent evaluation of the PDS over its first three years. The report showed that in the first year it cost around £1.8m. This rose to just under £3m in the second year and £3.3m in the third year. The comprehensive analysis showed that for the first three years, the service provided equal quality to private practice, but at a cost that was 40-90% higher, depending on the case.

Ed Cape, a criminal law professor at the University of the West of England, Bristol, who was part of the research team, suggests that the findings were misrepresented. He argues that it did not establish that the PDS was more expensive than private practice, pointing out that the research was carried out shortly after the service was launched, when it was not working at full capacity.

Richard Moorhead, a professor at Exeter University’s law school and another of the researchers, agrees, claiming that their work demonstrated that it was possible to set up and run a good-quality, cost-effective PDS.

No similar evaluation has been done since. Gauging taxpayer value for money has been impossible due to the absence of published data about the work or costs of the service.

In 2014, the Liberal Democrat peer Lord Carlile branded the service a ‘total waste of public money’ and called on the lord chancellor to abolish it.

Responding to a Gazette freedom of information request, officials for the first time provided some data – but the limited nature of the statistics makes them hard to interpret. The LAA, which funds the service, does not break down the cost separately in its annual accounts. So data is only available from 2016, when the systems were migrated to a single operating platform, which enabled the cost to be collated.

It reveals that the cost of the service has doubled in the last 20 years, to £6m in 2021/22. That figure is slightly down on the two previous years, £6.2m in 2020/21 and £6.3m the previous year, but more than £500,000 higher than in 2017/18 (£5.4m) and 2018/19 (£5.4m). Officials note that the casework undertaken by PDS partially offsets its costs by savings made against legal aid fund spend.

Stephen Davies, a criminal law solicitor at Tuckers, suggests that annual cost is not the best figure on which to judge the value of the service, without knowing what it is billing and whether it operates at a profit, loss or is cost neutral.

Officials also provided figures for the volume of work dealt with in the financial years from 2017/18 to 2021/22. It shows that in the past year, 2021/22, it dealt with 3,133 cases, up from 2,931 the previous year. The dip in 2020/21 is attributed to the pandemic.

In the three years from 2017/18, the number of cases dealt with per year grew, from 2,916 to 3,446 in 2018/19, rising to a high of 3,526 in 2019/20.

The FoI response explains that the case management system used by the PDS advocacy team does not centrally record how many of the cases progressed to trial. So officials were unable to ascertain the volume of the trials dealt with without manually viewing the electronic records, which they said would be too financially burdensome.

An MoJ spokeswoman tells the Gazette that the value of the PDS is ‘made up of many factors, not just providing representation at trial’. In consequence, she says, the service ‘has no business need to centrally record number of cases which proceed to trial’.

Cape and Moorhead are both surprised by the lack of data on the case mix and number of matters taken to trial. ‘They collect this information in respect of legal aid claims for legal aid lawyers in private practice, and one would have thought it obvious they should do so for the PDS,’ says Cape. ‘Otherwise, they cannot make a cost comparison. Perhaps that’s the point.’

A crude analysis – dividing the cost by the number of cases – shows that the average case cost in the most recent year was almost £2,000. But, as Cape notes, without case mix breakdown, that figure is almost meaningless. ‘Basic data on case trajectories is something I would expect a public policy-oriented public defender to have,’ says Moorhead. Its absence fuels his scepticism over whether ministers knew what they wanted the service for in the first place.

With such limited data, it is impossible to make any meaningful cost comparison with private practice.

But a glance at the salaries on offer in recruitment ads for the service suggests that most lawyers would be better off working for the PDS than in private practice, whether as a solicitor or at the bar.

When QCs and junior advocates were being recruited in 2014, salaries were between £46,000 and £125,000, with ‘generous’ perks. A current post for a solicitor in the PDS Cheltenham office offers a salary of £36,049-£41,095, with ‘generous pension contributions and other civil service benefits’.

Other figures disclosed to the Gazette, in relation to the days spent in court by the four QCs in the advocacy unit, suggest that their skills are not being put to best use. In 2021/22 the QCs spent just 378 days in court – an average of 94.5 days each.

This is more than the 244 days spent in court in 2017/18 and slightly higher than the 363 days in 2018/19. Between them the four QCs were in court for 154 days in 2019/20 and 229 days in 2020/21 – years affected by Covid.

More widely, the pay disparity, suggests Law Society president I. Stephanie Boyce, creates a ‘risk of a two-tier system’. If the PDS were to be expanded, she says, there could be a ‘further talent drain from private practice’, as has been seen with solicitors ‘crossing the courtroom for the better pay and conditions on offer with the Crown Prosecution Service’.

Tony Edwards, former senior partner at London firm TV Edwards, insists that the PDS is ‘so small that it does not represent a threat to private practice’. Echoing Boyce, he suggests that the greater threat comes from the CPS. But, he adds: ‘The real, and very worrying, dichotomy is between publicly and privately financed practice’.

Although legal aid lawyers do their best with the limited funds available, he says the ‘difference in the quality of service that can be offered is frightening’.

While Chancery Lane has no objection in principle to the PDS, Boyce does not believe that the service represents good value and consequently opposes its expansion. In contrast, she highlights: ‘Criminal defence firms have to run on sustainable business models and so are highly motivated to provide an expert service that represents good value for money.’

Likewise, Bar Council chairman Mark Fenhalls QC extols the ‘huge benefits for the public’ of the self-employed chambers model that ‘fosters excellence through an intensely competitive market and is highly flexible’.

'The PDS has become a stick to beat lawyers with which gets trotted out every time the profession stands up for itself'

Hesham Puri, London Criminal Courts Solicitors’ Association

Unlike with a salaried in-house service, Fenhalls argues, the independent bar ‘spares the state the need to cover the costs associated with employment including taxation, National Insurance, pension provision, sickness, maternity leave and holiday pay’.

As an aside, Boyce points out that the PDS is ‘unlikely to be an answer to the bar’s protest action because it is not increasing the pool of advocates’. It would, she says, simply be ‘reorganising the same people’.

Cape is also against PDS expansion, which he says has been used by the government for ‘political purposes – to threaten the private profession’ when action is taken over fees.

His point is echoed by Hesham Puri, president of the London Criminal Courts Solicitors’ Association. The PDS, he says, ‘has become a stick to beat lawyers with’ which ‘gets trotted out every time the profession stands up for itself’. Puri’s opposition to the service is based not only on what he sees as a lack of efficiency and value for money, but also on principles of fairness. He argues that a criminal defence service must be independent of the state.

Moorhead is more prepared to accept the possibility of a larger role, if the service can ‘attract good lawyers and provide services that are not provided elsewhere or as an alternative to existing provision at reasonable cost’.

Well-funded public defender operations, he argues, can ‘work in tandem with private practice’, citing the former Canadian model.

But, says Moorhead, expanding the PDS to break strikes is ‘not sensible public policy even if it appeals to a more brutal politics’. A system under severe stress, he says, ‘is not the most propitious place to see [public defenders] as a solution’. And, as Cape notes, ministers are no more likely to fund an expanded PDS properly.

In seeking a sustainable system, Moorhead suggests that ‘a well-run public defender service can be one of the canaries in this coalmine’. But he stresses: ‘You’d need a good grasp of what it costs and how it compares with private practice to know whether the PDS canary is singing or not.’ He argues that the government’s FoI response suggests ministers might not know.

Edwards believes the question of expansion is purely political: ‘For a government that seems determined to destroy the defence professions, it may be forced to rely on the PDS; even though it will be far more expensive in the long term.’

An MoJ spokesperson insists: ‘The PDS maintains vital access to justice for defendants receiving legal aid in all types of criminal cases.’

 

Catherine Baksi is a freelance journalist