While it has already acted for many thousands of apparently satisfied clients, the greatest test facing the Public Defender Service (PDS) remains defending itself. But though its critics continue to decry its cost and the whole underlying ethos of state involvement in the defence, the early stages of research into the service have at last given its supporters something to shout about.
After ploughing through the pages and pages of researcherese, plus the usual caveats and statistical quirks and anomalies, some perhaps surprising messages begin to emerge: when compared to their private practice counterparts, public defenders have a lower proportion of their police station clients charged or summonsed; they are more timely in their first contact with clients; and they give more appropriate advice to clients during police interviews.
This latter finding was considered particularly important given that public defender clients tended to make no comment in interviews more often than private practice clients – this also perhaps explains why public defenders spent less time sitting in interviews than private practice solicitors.
|
On the other hand, private practice lawyers generally keep better files and make better decisions on whether to attend in person at the police station and police interviews.
Could it be that private practice has something to learn from the way the PDS does business?
There are five main PDS offices – Birmingham, Cheltenham, Liverpool, Middlesbrough and Swansea. The last three have branch offices in Chester, Darlington and Pontypridd respectively. In the last year, according to the PDS’s recently published annual report (see [2004] Gazette, 7 October, 1), they cost £3.8 million to run.
The report showed that real advances have been made in the PDS’s quality. Whereas in the year before, only Cheltenham won category one status in cost compliance audits – showing a variation of 10% or less between costs claimed and those allowed by the Legal Services Commission (LSC) – and Swansea fell into the bottom category three (more than 20% discrepancy). In 2003/4, all the offices were rated in category one. They also all passed the transaction criteria audit, which assesses quality of work, while client surveys showed satisfaction levels at between 94% and 100%.
On the downside, the PDS’s inability to meet its caseload targets – both in quantity and in quality of cases undertaken – only fuel those who claim it offers poor value for money. Using a crude calculation of annual running costs divided by the number of files opened, each new case cost the PDS around £885 in 2003/4. According to the LSC’s annual report, the average claim per representation order for private practice firms is £506.
Rodney Warren, director of the Criminal Law Solicitors Association and chairman of the Law Society’s access to justice committee, suggests this could go some way to explaining the research findings in relation to PDS lawyers’ performance in police stations. ‘I don’t accept that they suddenly become better lawyers when they join the PDS,’ he says.
His instinct is that it is cost-related. Without the funding pressures and caseloads of the average law firm, the PDS ‘doesn’t have to deal with the realities of practice – they don’t have to deal with all the other things you have to do to keep a practice buoyant’.
Richard Miller, director of the Legal Aid Practitioners Group, says: ‘Last year, we commented on the failure of the PDS accurately to predict caseloads. This year, the service has once again failed comprehensively to meet caseload targets that most criminal practitioners considered very modest to begin with.
‘This highlights one of the major drawbacks of a salaried service. If a private practice firm does not attract the clients, it does not get paid. The taxpayer has to pay all the costs of the PDS even though the client services are not being delivered at anything close to the level promised.’
PDS chief Gaynor Ogden – who also heads the Cheltenham office – admits that the PDS’s own notional bills for magistrates’ court work show ‘it is likely [the PDS is] going to be more expensive than private practice’, although she suggests that it may offer savings in Crown Court matters. She adds: ‘We too are disappointed that we haven’t met caseload targets in all PDS offices, but this is largely due to it taking longer than expected to recruit the number of legal staff we needed. That said, the nearly 4,300 cases the PDS dealt with in 2003/04 represents a 12% increase on the previous year.’
In all, more than £10 million has been spent in the first three years of the controversial four-year pilot into whether England and Wales should follow the likes of the US, Canada and Australia and, more recently, Scotland in having a state defence service.
It is also blazing a trail for salaried services in the civil sector, apparently now officially called ‘Public Legal Services’. In June, practitioners reacted with anger at LSC plans to open an immigration office in Birmingham – which the LSC said was aimed at providing it with valuable information about the way immigration practices work – while it is thought to be considering a similar move in family law, mirroring an initiative in Canada.
The basic objection to the PDS – that it is the state prosecuting and the state defending – may transfer to asylum cases, where it is the state denying entry, but it would at least not cause the same concern in a divorce.
Despite a ropey start, the Edinburgh Public Defence Solicitors Office – the first of its kind in the UK – has been rated a sufficient success since it began work in 1998 that an Inverness office was opened in June to cover the Highlands and Moray, and one is planned for Glasgow.
But the concept is still on trial. Scottish justice minister Cathy Jamieson said part of the reason for the new offices is to ‘enable us to make better comparisons between public defence and private solicitors in terms of cost, quality, client satisfaction and the wider impact on the criminal justice system’.
With money – or the lack of it – at the forefront of most criminal defence solicitors’ minds in general, the focus on the PDS tends to be on the cost. But the service was not set up solely for the purposes of finding a cheaper way of providing legal services.
In its response to the consultation issued in 2000 about creating the PDS, the government made no firm commitment on cost. ‘Every effort will be made to ensure that expenditure is reasonable and gives value for money,’ it said, adding that it expected the service ‘to set an example of excellent service and be a catalyst for change and improvement within the wider criminal defence and legal services community’. It particularly focused on the opportunities for lawyers.
Speaking at last year’s International Bar Association annual conference, Richard Collins, then head of the Criminal Defence Service, recalled that neither the government nor the LSC had said the PDS would necessarily be cheaper than private practice.
Many practitioners would say that, given the squeeze on the legal aid budget, the PDS should be discontinued if it fails to save money, or even worse, costs more than private practice. In the first PDS annual report, the LSC said it considered that the service existed for seven reasons:
Tony Edwards, senior partner of east London firm TV Edwards, is the PDS’s professional head, charged with overseeing the service’s professional integrity. ‘I’ve seen no evidence of ethical problems, nor have the researchers. That’s what I expected. I never bought the idea that just because you’re in employment, you’re biased.’
To him, the service is ‘developing well, but developing slowly’. He acknowledges that it was set up in an expensive way that no private practice start-up would, or could, mirror, offering 24-hour coverage from the start.
This is especially sensitive at the moment, when the whole sector is reportedly seeing a downturn in cases while the charging pilot – which transfers responsibility for charging from the police to the Crown Prosecution Service – finds its feet.
‘There’s no likelihood in my mind that it will be cheaper,’ Mr Edwards declares, but he says this is ‘not a problem’ because of the ‘benefits [the PDS] brings in quality’. And these benefits are not related to the PDS’s resources, he contends, because it does not spend longer on cases than private practice firms.
Mr Warren says the primary objection to the PDS among solicitors is that these well-resourced offices are in competition with local firms, putting the latter’s viability in doubt. Mr Edwards disagrees that the PDS offers unfair competition. ‘I would accept that if we were staffing them up to take a bigger market share, but we’re not.’
Private practitioners acknowledge that one of the principal benefits of the PDS has been the practical experience the LSC gains from running criminal law practices. In particular, it has experienced recruitment problems from the start, despite offering good salaries compared to private practice.
Mr Warren suggests this is because ‘the reputation of the PDS – which has nothing to do with its quality or people – is such that people would not consider it a career-enhancing move’. They are uncomfortable about working for the state in defending people, he explains.
The LSC has also had first-hand experience of the effect of the government’s criminal justice reforms on legal aid solicitors.
Mr Edwards says the PDS ‘is teaching the LSC about being criminal lawyers’. This has helped the LSC develop systems that will be shared with private practice.
He highlights its case management system; if it were used by every criminal law practice in the country, the LSC could amend it centrally to take into account a change in the law. Mr Edwards maintains that it is cheaper to develop such systems through the PDS than private practice. For Mr Warren, this could be a positive side-effect, but nothing more than a side-effect. ‘The PDS is not run as a model to improve private practice,’ he says.
PDS lawyers also have the opportunity to become more involved in their local communities, Mr Edwards says, ‘because we don’t have to worry about the bottom line to the last penny’. He is sympathetic that private practice lawyers cannot spare as much time.
This means, for example, that it is piloting outreach services in the Cheltenham and Mold areas; that the Chester PDS has become the first defence solicitor representative to be invited on to the local mentally disordered offenders steering group; that the Liverpool office has become involved in a range of local initiatives, including the new community justice court; and all the offices attend local university careers fairs.
Once the pilot ends next year, and the researchers publish their full findings beyond police station work, it will be decision time on the PDS’s future.
Speaking last year, Mr Collins – who is now the LSC’s executive director for policy and planning – suggested that even if the research does not make a case for expanding the service, it would still be worth continuing if it helped the LSC run the system better.
Mr Edwards says: ‘There’s no doubt in my mind that it will continue. There will be less of an emphasis on the cities because there’s ample private practice there... We need to make sure the offices operate as efficiently as they can and maintain their quality.’ He highlights areas such as the Thames Valley, East Anglia, Cumbria and Northumbria where the PDS could be vital and effective in plugging gaps in provision – in some areas, there are eight-hour delays in getting advice.
Mr Warren agrees that where there is inadequacy of private practice supply, the PDS could be one way to counter it. ‘But more significant, given the cost difference between the two, is to ask why there’s an inadequacy in the first place.’
If the PDS is to continue, how can the profession be won over? ‘By going on doing the job well,’ Mr Edwards responds. ‘We won’t convince everyone and I’m not sure I care.’ He contends that solicitors outside of London are not used to competition, something Mr Warren disputes. Mr Edwards continues: ‘Good private practice has nothing to worry about. But the PDS needs to be a little more business-like.’
The government and LSC have made it clear from the start that the PDS, even if it continues beyond its pilot, will only be part of a mixed provision of criminal defence services.
So far as Mr Warren is concerned, the LSC is not about to make many staff redundant. He is reserving judgement until the final evaluation is published next year, but his feeling is that, while the PDS may continue, expansion will not be on the agenda.
The reason comes back to money. He says: ‘Given what we’re told about the [financial] restrictions on private practice, it is difficult to see how that could happen.’
No comments yet