The news that the Legal Aid Agency has appointed two QCs as public defenders has raised hackles and had people blowing the dust off old press releases about the research on public defenders. Members of the Criminal Bar Association (aka the Wild Boys) are particularly incensed that one of them is a former circuit leader. You can see their point.
I was part of the team that scrutinised Public Defender’s when they were created. The line taken in the press at the moment is that public defenders are significantly more expensive. There’s a canny silence on quality. It may be worth a quick comment. The Gazette in particular says this:
“The PDS, which was set up in 2001, has four offices – in Cheltenham, Darlington, Pontypridd and Swansea. Academic research in 2007 suggested the service is one and a half to two times as expensive as private practice.”
Notice, please, the change of tense. The research says what was, not what is. The research did indeed find that the PDOs when set up were significantly more expensive. The reasons for that are worth thinking about. Chief amongst them was the decision to set up a fully staffed, well located and resourced office which was bound to be expensive. It then struggled to recruit enough clients (which may or may not have been inevitable). Expensiveness divided by fewer cases = [you get the picture].
What the PDOs did not do was provide the kind of advocacy that the two new recruits would be able to do. It was a public defence service modeled on a solicitors firm; it was not a public defender advocacy service. There is limited value in comparing the two.
That’s not to say a public defender is a good or a bad idea; or that it will or won’t be cheaper/more expensive. A lot will depend on the overheads, the salary costs, the volume of work which is done, and the qualities of the recruits. Public defenders did well on the research quality assessments, but that also have been influenced by the resources and time available to work on cases.
Once (if) the dust settles on this round of legal aid cuts, there is the risk of a Faustian pact where criminal defence lawyers in private practice or in public defenders have an interest in being silent about quality problems which may be driven by incentives to take too many cases to improve ‘efficiency’ (PDOs) or ‘profitability’ (Private Practice) (however meagre that may be) or simply to survive. It’s an important reason – in my view – for supporting QASA even though I have significant reservations about it (and seeking to improve it significantly not reject it).
There are other issues about public defenders. The claim that the ‘independent’ bar is independent but salaried providers are not is generally overplayed. But there is an issue about independence (the PDO had, I presume still has, a code of conduct); but it would also be interesting to know how this has been revisited in the light of its movement from the LSC managed body to a LAA managed body. I believe, occasionally, Ministers are not above trying to influence legal aid administrators imprudently in seeking to exercise political oversight. I am less comfortable with a PDO managed by the LAA than one managed by a more arms length body.
The research tends to suggest that public defenders can – appropriately managed – provide good value for money: quality as good or better than private practice. An awful lot, though, depends on context. Public defenders also provide different outcomes. Studies in the North America tend to show well resourced PDOs provide better outcomes for clients (though the results are often bound up in how well funded they are; sometimes private practice is very poorly funded indeed). Sometimes there is a trade off: shorter sentences but higher conviction rates. The policy makers sometimes regard this as a better ‘public interest outcome’ on the basis that the marginals extra cases that plead under a PDO are cases where the defence is very weak or non-existent. In Scotland this was about 1 in 20 cases. One side of the debate saw this as 1 in 20 potentially unsafe convictions and the other saw it as 1 in 20 defendants who would have otherwise ‘gotten off’.
Interestingly, public defenders in Scotland tended to plead earlier and more aggressively but did not get significant sentence benefits (on some measures at least) because there was (is?) no practice of giving a sentence discount for a guilty pleas. There’s still an argument that it is a better outcome in public policy terms, but it is not an argument many lawyers would support, at least without discomfort.
A second issue is how these posts were advertised and recruited. One for the procurement/employment lawyers out there. I simply do not know how the QCs were recruited.
So the research on public defenders is interesting and informative (all of it, not just our stuff) but one has to pay careful attention to the context. It was in fact a significantly different service being provided then, comparison is of limited value. The world has changed; not least sensible commentators are now asking what is the least worst of usually rather terrible policy options which must be contemplated. In the immortal *cough* words of Mr le Bon:
Oh, it’ll take a little time,
Might take a little crime
To come undone now…