We set up a Public Defender by mistake…

For those of a certain age, and I suspect gender, the script of Withnail and I is engraved on their forever-a-student tender hearts.  The eponymous out of work actors stand on a Lake District* hillside in the pouring rain having escaped London for a few days.  They are without food or a plan, wretched in their own predicament.  “We’ve gone on holiday by mistake,” says Withnail, as he begs the farmer for help with food.  So it may prove that the Bar, in the pouring rain that is legal aid cuts, may be forced to reflect that they have helped set up a Public Defender advocacy service by mistake.

The President of the QBD, Sir Brian Leveson, handed down the court’s judgment on the Operation Cotton stay, reversing that decision and giving the first instance judge a bit of a ticking off in the process.  You can read the judgment here.  Reading between the lines a bit the judge was criticised for deciding the case on a basis not put, on a basis that was illogical, stating the importance of rising above the politics of industrial action by the Bar when he could be more accurately seen as supporting it and straying beyond the proper role of the judiciary.  Leveson could have been gentler if he’d chosen to. It is signifcant that he was not.

More significantly still is Leveson’s finding that if the PDS are the only suitable advocates willing to take the case then the defence are obliged to instruct them in time for trial. HHJ Leonard’s finessing of the choice arguments around Article 6 of the ECHR got short shrift (which do not require  a choice for those defendants being state funded).  A crucial passage is this:

Mr Cameron Q.C rightly did not argue that this court should make any qualitative distinction between advocates recruited to the PDS and advocates in private practice; neither did he demur from the proposition that Article 6(3)(c) of the ECHR does not
permit the legally aided respondents to hold out for independent counsel of their choice to become available. In relation to the QCs, the advocates concerned will have achieved that rank whilst in private practice, and the appointment to that rank is taken to carry with it the recognition that its holder is especially competent to take the lead in criminal cases of particular gravity and complexity. Further, it is a reasonable inference that, in recruiting advocates as a response to the impasse which had arisen between the Bar and the Lord Chancellor, the PDS was recruiting those of sufficient competence and experience properly to perform their roles in a VHCC case.

I thought a point about conflicts of interest might have some traction.  A PDS is one service, more like a solicitors firm than a barristers chambers.  Leveson appears to give this short shrift:

in any event, there was a concern about potential conflicts of interest. This last issue has since been resolved on the basis that the approach to be adopted by those employed by the PDS reflects the approach taken by independent members of chambers (who frequently act in the same case for those with conflicting interests): before us, Alexander Cameron Q.C. for the respondents accepted that the point had little value.

Little value, not no value – and I wonder if the issue of confidential information has been thought through – but one can easily see how a court would maintain Leveson’s line.  An interesting question, if it does, is what that means for conflicts of interest rules in solicitors practices in crime and elsewhere.

It may have been with Jeffreyian irony that the President issued a homily to the virtues of the private bar at the end of the judgment.  A more likely interpretation is that it is the grieving that accompanies his realism.  This judgment says pretty clearly (and subject to any appeal to the Supreme Court) that the PDS can take the Cotton cases.  It is still raining though.  There are other VHCC waiting in the wings: the likelihood is that the PDS will have to run to catch up; the Bar will back down; or, a fresh deal will be struck between the Bar and Grayling.  In the face of an expanding PDS, the senior bar now has a difficult decision to make, can it really take VHCCs after all?  If it starts accepting instructions then the PDS advocates may be starved of work, but the Bar’s claims not to have been able to take VHCCs as uneconomic will look a little opportunistic and – though no one will take the point – a breach of our old friend the Cab Rank Rule.

————–

*I have to confess to an earlier version of this post which placed the crucial action from Withnail in Wales.  Mea culpa, and thanks to David Allen Green for spotting the fatal error.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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6 Responses to We set up a Public Defender by mistake…

  1. The main problem with the whole PDS “solution” is that on any calculation, employing barristers on the usual public service terms is bound to be substantially more expensive than using self employed contractors and will lead to a reduction in output. Public servants will observe office hours, as is their right. In my experience, working out of hours is strenuously discouraged and unresourced. By contrast, the independent bar is renowned for doing the hours necessary to get the job completed on time regardless.

  2. Alan Paterson says:

    Your posting emphasises the importance of learning from history.
    Firstly, a refusal by lawyers in the West of Scotland to undertake certain legal aid defence work was rendered ineffectual by the Government’s ability to turn to the public defenders service. Since the Government was thought to be rather lukewarm about the service up until that point, and thereafter allowed it to expand, this looked suspiciously like an own goal. Nevertheless, the point about the duty of confidentiality and the PDS is an interesting one. The basis on which it is treated as more akin to chambers than a solicitor’s office seems not to be immediately obvious.

    Secondly, the disruption of trials because the lawyers feel that they are not being offered a sufficient fee may be new to the UK, however, it is not in Australia. There the notorious Ivan Milat ( backpacker murder case ) in 1995 was held up for nearly a year by negotiations ( allegedly unsuccessful ) by the defence team to be awarded more remuneration from the legal aid authorities. Another unhelpful precedent.

  3. Jack of Kent says:

    “The eponymous out of work actors stand on a Welsh hillside…”

    Well that certainly would have been a mistake, for they were supposed to be in the Lake District.

    (Always happy to help with incisive legal commentary!)

  4. There are two options – rely on PDS appointed advocates and have a mediocre system where the advocates work 9-5 and not a minute longer, stretching out cases and coming across more limitations; or make it viable for private advocates to do a proper job of delivering equal justice, regardless of hours put in.

    I for one want to live in a society where the latter is the common sense option.

    • Richard Moorhead says:

      Actually, whilst one might expect you to be right, the research suggests fairly consistently the quality is not mediocre and that PDOs are less likely to stretch out cases. It suggests quality really depends on things other than whether the person providing is public or private.

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