Bill Waddington argues that replacing criminal legal aid with a larger public defender scheme would not solve the problems that plague the system in England and Wales.
So, once again, the concept of a public defender service (PDS) to replace the existing system raises its head.
It is many years since the first pilots for the PDS were launched.
1See Lee Bridges et al, Evaluation of the Public Defender Service in England and Wales, 2007, page 1. They were called pilots, tending to suggest that if they succeeded, then the PDS would be rolled out across the country over time. When first introduced, the pilots were for an initial five-year period. Given that no government would ever introduce a pilot for a period as long as five years to test whether or not it worked and could be rolled out, the clear suggestion from the start was that it was known all along that the PDS would never succeed and could certainly never replace the provision of criminal legal aid services by private practices specialising in criminal law.
Problems with a public defender service
Cost
I believe I am right in saying that the only time there was any noticeable expansion of a PDS was when the government launched a recruitment drive as criminal legal aid practitioners were becoming more restless than usual and talking about working to rule.
2See Mary-Rachel McCabe, ‘MoJ criticised over Public Defender Service expansion’, LegalVoice, 22 January 2014. The principal reason for zero expansion of the PDS must be down to the issue of cost. In the initial stages, the government acknowledged that the cost of the PDS was up to three times higher than private legal aid practices.
3Evaluation of the Public Defender Service in England and Wales, page 215. The PDS paid higher salaries, office rentals were generally higher, the benefits were more generous – health schemes, pensions and so on, indeed all the benefits that tend to accompany a state-financed organisation. If we were to enquire now as to the cost of
the existing PDS, the answer would probably be: ‘We don’t know.’ Of course, most private firms are unable to compete with the salaries and benefits available in the PDS. It is very similar to the situation today where the CPS offers salaries to Crown prosecutors that criminal legal aid practices could never afford to pay.
It was, of course, ever thus. In my early years as a trainee solicitor in private practice, it was always the case that trainees in local government or with the court received salaries and benefits far greater than those in private practice. Surprisingly, though, there was no queue forming for trainee jobs in local government. Queues were for the jobs in private practice. No doubt trainees felt they would receive better training, more job satisfaction, wider experience, better quality of work and greater job opportunities in the future. In those days, local authorities and courts tended to attract a certain type of trainee: those who were interested in the higher salary, the Steady Eddies if you like. I am not for one moment suggesting that every local authority lawyer falls into this category – I accept it is something of a generalisation and I appreciate, of course, that generalisation is dangerous (including that one!). It should be noted, however, that these better conditions are similarly on offer in the PDS: higher salaries, better benefits, strict (nine-to-five) hours of work.
Trust
Most legal aid firms have an established clientele, a following; a happy client will always recommend their solicitor to their family and friends, and in that way a reputation is established, as is a strong client base. My feeling is that there has always been a lack of trust by the client if a lawyer is appointed for them by the court or the police, particularly if that lawyer is a direct employee of the state, as they realise, of course, that it is the same state that is funding the prosecution against them.
No solution to funding problems
No system is perfect and of course the present system has its problems. Our current criminal justice system has functioned in a much better way in the years gone by, but that was when it was properly funded. Years of underinvestment and years of legal aid cuts have left us where we are today with the system on its knees.
Legal aid providers are numerically at an all-time low and that figure continues to fall. The age of criminal practitioners is at an all-time high, and it is rising. Recruitment to this side of the profession is at an all-time low and still getting worse. We have a crumbling court estate. We have a hopeless IT system that is beset with what are still called ‘teething problems’. I often wonder how long a teething problem can continue before it becomes a fundamental flaw and renders the system unfit for purpose.
The legal aid system itself also has its imperfections – many of them. The criminal legal aid budget in this country has gone from c£1.3bn in 2010/2011
4The future of legal aid, House of Commons Library, Debate Pack No CDP-2018/0230, 31 October 2018, p4. to c£800m in 2019/20, a huge reduction. This has happened notwithstanding the fact there is more legislation, more crime, more complex cases, longer and longer trials, and complex but essential Criminal Procedure Rules, so it is quite remarkable that the cost has fallen so dramatically.
The reduction in budget has come about in many ways. For example, there have been unnecessary and dramatic cuts to legal aid rates. The introduction of means testing excluded great swathes of the population from the scheme. The thresholds need to be urgently addressed (they have not been revised since first introduced and are now so drastic that even some people on benefits find themselves ineligible for legal aid).
Any system has to be properly funded, so although the current system is by no means perfect, with proper investment it could be considerably better, as indeed it has been before. In my humble view, a PDS in whatever form is not the answer.
How would the development of a PDS fix any of these problems? The answer, of course, is that it would not. Any system has to be properly funded, so although the current system is by no means perfect, with proper investment it could be considerably better, as indeed it has been before. In my humble view, a PDS in whatever form is not the answer. The solution lies in proper investment and rebuilding of our once world-class system of justice. Indeed, as the government has historically underfunded the existing system to the point of extinction, I am left wondering why on earth it would even consider introducing a far more expensive system like a PDS in whatever format.
Weaknesses in the current system
I now turn to the question of justice under the existing system. There are immense flaws in the current system, not least the innocence tax, whereby an acquitted defendant recovers only a fraction of the costs paid out in a case where they have been refused legal aid.
5This is because someone paying for representation would generally pay at private rates, but the defence costs order they would receive on acquittal would be calculated at legal aid rates, ie, substantially lower than the private rates they would have paid. There is a strong argument that an individual who successfully fought off a prosecution by the state and who has funded the defence themselves should recover 100 per cent of their outlay, with the caveat, of course, that there would need to be some sort of cap on this. So, for example, if they choose to pay solicitors at an exorbitant hourly rate of £600 per hour, that is their choice and they would know from the start that they would be out of pocket if successful.
The contribution system is good in theory but bad in practice. The sums people have to pay and the time within which they have to pay them are often nothing short of outrageous. It would be far better to sort this out at the end of the case (if the defendant is convicted, of course).
Refusal of legal aid does cause problems for everyone in the criminal justice system – obviously the defendant themselves, but also everyone involved in the case. It usually takes up more court time dealing with an unrepresented defendant. This is another reason why the eligibility limits need revising.
It all comes down to funding
What I’m suggesting here is that there is absolutely no need to deconstruct the existing system of defence work and replace it with some form of PDS. We already have the structure, we know it has worked very efficiently and cost-effectively in the past, but we also know it needs fixing and we know that investment is the way to do that. It is simply not possible to run an efficient system on a shoestring budget.