A third high profile QC has been recruited by the Public Defender Service (PDS), a development which seems to signal the government’s determination to break the boycott by the Bar of very high cost cases (VHCCs). LAG finds it ironic though, that a Conservative led administration should decide to pour money into a public service, which is likely to be more expensive than relying on the private sector. We fear this move is being driven by short-term political considerations rather than what is in the best interests of the criminal justice system.

 

An advert appeared last week on the Ministry of Justice (MoJ) website giving details of vacancies for Higher Court Advocates and QCs in the PDS. Gregory Bull QC and Alun Jenkins QC were announced as having joined the service and a third, David Aubrey QC, was announced this week. We have asked the government how many advocates and at what level they are seeking to recruit, but no reply has been forthcoming.

 

The purpose of the PDS has always been primarily political. It was originally established, amongst great controversy in 2001 to provide an alternative to private practice solicitors for criminal defence services. At that time the then Labour government wanted to impose new contracts on firms and despite protests, solicitors eventually climbed down and accepted these- the threat of the PDS played its part in this.

 

Currently the PDS consists of four offices in Cheltenham, Darlington, Pontypridd and Swansea. Due to lack of work and costs two other offices were closed. Both for the PDS and its equivalent in Scotland, academic studies have shown that these salaried services are more expensive to run compared to using private practice solicitors. The PDS was found to be between 41-91% more expensive than the private sector. Part of the explanation for these findings is the difficulty the service had in attracting clients from a standing start, as most firms build-up their client base over a number of years. This is probably not a problem the PDS for high end cases will have.

 

From December last year the government cut the fees in VHCCs by 30%. Solicitors have reported difficulties in obtaining sufficiently experienced counsel to provide representation in VHCCs, due to the Bar boycotting them- they avoid using the word strike as they do not want to fall foul of competition law. After the recruitment of the three strike breaking QCs, solicitors now have the option of going to the PDS. Many will do so reluctantly, as they are dependent on the VHCC boycott as part of the wider struggle against criminal fee cuts, but this will be superseded by their professional duty to their client.

 

Advocates spend many long hours preparing cases for trial. Much of this work is unpaid. If the case does not proceed to a hearing some of the costs of preparation are lost. In the PDS the lawyer’s salary will be paid whether the case goes to trial or not. It will be interesting to see if the salaried counsel in the PDS will put in the same amount of time, or demand more assistance from juniors, compared to their private sector counterparts. Also, they are likely to be expected to work in different parts of the country, which could mean further costs in time, travel and accommodation, not paid to their private sector equivalents.

 

Throwing money at a service which all indications are will prove more expensive has the potential to reap greater political damage on the government in the longer term. It is precisely the sort of scenario which the powerful Public Accounts Committee relishes investigating and it will lead to some disquiet amongst many parliamentarians, who are both instinctively suspicious of a state controlled service to defend criminals and who will be quick to point to the hypocrisy of austerity measures aimed at private practice lawyers, but not at their PDS counterparts.