A long-awaited report on the public defender service has revealed its costs are far higher than private practice. Grania Langdon-Down questions whether it has a future


The Legal Services Commission’s (LSC) press release accompanying the long-awaited evaluation of the Public Defender Service (PDS) last month was unequivocal – the PDS ‘provides a better quality of service than private practitioners, according to independent research’. Legal aid minister Vera Baird had no hesitation in declaring: ‘Clearly the PDS has a future.’



However, while the LSC majored on the findings that some PDS offices outperformed private practice in certain areas, such as the appropriateness of advice given to clients and decisions whether to attend the police station, there was little mention of the other key finding – that the PDS was far more expensive than private practice.



Average case costs in the early years were 40% to 90% higher than those of cases in private practice. To be fair, the offices have become more cost-effective as workloads have grown; 27% more cases last year with a 4% increase in costs. However, the total cost of the PDS – which has 36 lawyers working from eight offices – was more than £4.3 million last year, and £18.5 million since it was set up .



Richard Miller, director of the Legal Aid Practitioners Group, asserts that, five years after the pilot started, the service is ‘absolutely not worth keeping’. He says: ‘If things were moving along okay, we would say “yes, the PDS is rather expensive but we can see potential benefits, things can be learned from it, so fair enough”.



‘But at a time when we are being told that £100 million has to be cut off the criminal legal aid bill and that the government can’t go on paying private practitioners at the same rate, it is just a sick joke to carry on with this.’



Raymond Shaw, junior vice-president of the London Criminal Courts Solicitors Association, is equally dismissive: ‘What a colossal waste of money, time and energy to prove what we already knew.’



Rodney Warren, director of the Criminal Law Solicitors Association (CLSA), adds: ‘It’s hard to see how there can be any logical justification for the PDS’s survival if the government and the LSC adopt Lord Carter’s basic premise of a market economy for the delivery of criminal defence work.’



While the PDS may have a role filling gaps where private practices have pulled out of legal aid work because the pay is so poor, it will be ‘ironic’, he says, ‘if the government ends up plugging the gaps at a much greater cost to the state than having private practice providers there’.



CLSA chairman Ian Kelcey, senior partner of Bristol firm Kelcey & Hall, does not take issue with the government running a pilot project to find out what it costs to manage a criminal defence practice. In fact, the research is helpful in showing that private practice lawyers do a cost-effective job. ‘What I question is why it took so long to publish the evaluation,’ he says. ‘It was disingenuous to hold it back until after the government had said it was going ahead with the Carter proposals. While the PDS may well be needed to plug gaps, I suggest that the Lord Chancellor does his maths. It will be an extremely expensive process.’



Gaynor Ogden, an experienced partner in private practice, joined the PDS in 2002 to open the Cheltenham office, and became the first head of the service two years later. She says practitioners are reading too much into the delay in publishing the research. ‘There wasn’t any attempt to sit on it. We wanted it out as soon as possible, because there were a lot of positives in it for us. But it was the largest peer review exercise that has ever been conducted into criminal defence services and the researchers also agreed at the end to look at the implications in relation to Lord Carter’s proposals.’



She says she does not know if the PDS could ever be cheaper than private practice. ‘Cheltenham and Darlington are now profitable, but it is difficult to equate us with private practice, not knowing their overheads. There are opportunities for us to be very cost-effective in Crown Court work with the development of in-house advocates. We set up a higher court unit in Cheltenham, but that has been hampered by difficulties in recruiting more staff, so those advocates have had to do magistrates’ court work.’



Ms Ogden is convinced there is a role for the PDS in the future. ‘But we need to define what we are about and get our objectives straight. There is a conflict in being asked to deliver value for money and a quality service, but at the same time being asked to inform policy and be a test bed for service delivery, which affects our chargeable hours.’



Tony Edwards, who as senior partner of east London legal aid firm TV Edwards sees first-hand the ‘huge tensions’ in private practice over legal aid, has long supported the idea of public defenders. An LSC commissioner, he became the PDS’s professional head of service at its inception to help give it credibility as an independent organisation.



He says the LSC and the government would be ‘foolhardy’ to give it up, because of the service’s ability to inform the development of the criminal process. It has already developed a ‘terrific’ case management system which he wants to see made available to general practice, he says.



Mr Edwards argues that the PDS has a future as an ‘important, although not a majority, player’ in areas where it meets the reform programme’s requirements on cost, efficiency and quality. ‘The key to change in criminal practice is for it to be done steadily and incrementally and not by revolution – that is unnecessary.’



However, he also acknowledges that, given the current climate and the fact that the PDS is never going to be cheaper than private practice, it would be wrong to risk spending more money on it. He says: ‘There will be no feather bedding for the PDS. If it is there, it will be there for business reasons.’



Practitioners are now waiting to hear what is to happen to the service. No one expects it to expand; more likely is that some of its offices may be relocated or closed, while staffing numbers are examined.



Ms Ogden says her ‘gut feeling’ is that the PDS will go through a period of consolidation rather than expansion. ‘That may come but not immediately, and I imagine it will be to plug gaps in the market if they arise as a result of the reform programme. Also there are proposals to freeze the duty solicitor scheme, while the LSC is looking at boundary changes for police stations, so it is definitely time to consolidate.’



She says they are looking at ways of reducing overheads, such as co-locating with other organisations, for example a youth offending team or a charity, and at virtual working.



Mr Shaw, however, still questions whether continuing with the service is a good use of public money. ‘The hourly charge-out rates of the PDS are between £95 and £105. If they are allowed to continue doing publicly funded work, the taxpayer will be subsidising a more expensive service. The LSC is abusing its position as a public fund-holder but it also knows that the true cost of providing police station and magistrates representation is well above legal aid rates.’



He argues that the £18 million cost of the service would have been better spent increasing payment rates across the board or helping private firms to get the new computer systems and software which Lord Carter said were crucial to make his proposals manageable.



However, the research, headed by Professor Lee Bridges, director of the legal research institute at the University of Warwick, and Professor Avrom Sherr, director of the Institute of Advanced Legal Studies in London, concludes there is a role for the PDS.



The 350-page report says it is difficult to recommend that the service be developed, in the context of the current system of contracting, as a large-scale provider of generalist criminal defence services or as a means of providing competition with or cost benchmarking for private practice providers in this field on a nationwide basis.



However, the authors go on to say that the PDS does have a role to play both in benchmarking and further developing quality standards in criminal defence.



‘Beyond this, and looking forward from the Carter review to the possible development of competitive tendering for criminal defence services, we can envisage a wider role for the PDS as an essential guarantor of quality standards, minimum costs and client choice of representative in a more “managed market” for such services,’ the report says.



Mr Miller, however, does not see how the PDS offices can fit into competitive tendering. ‘Looking into the future, there is a real question mark over how it will fit in because the PDS is clearly not competing on a level playing field with private firms.’



Mr Warren agrees. ‘How can it be right that, on an open-tender basis, a part of the organisation that is giving the tenders is bidding for its own contracts? You can compete for clients but once the market driver changes to price, then the emphasis shifts and I don’t see how the ideology of a market approach sits with an administered public office.’



Ms Ogden says she is still working on how the PDS will fit into a post-Carter world, including ‘whether we would compete on some sort of basis or whether the commission would reserve a slice of work for us in certain areas’.



Despite the fears over competition, all agree that there is one criticism that has not been borne out – that being employed by the state might affect the defence solicitors’ independence.



David Singh, previously a partner in a Swansea law firm, is head of the PDS offices in Swansea and Pontypridd. ‘There was a suggestion at the start that we would somehow collude with the police and there would be no incentive for us to give robust advice in the police stations. But the research found that PDS lawyers were more likely to advise clients of their right to remain silent than private practitioners. I think that shows we are doing our job properly.’



But does being employed make him feel more of a civil servant? ‘Not in the least,’ he says. ‘You have the same mindset as in private practice. Your clients and the job come first. You know there is a level of bureaucracy above you, which you have in any big organisation. That has its advantages and disadvantages. But otherwise we have the same stresses and strains as private practice, for example managing a budget and dealing with staff issues.



‘Where the PDS is different is in its commitment to training and development. I have acquired my higher rights and do a significant amount of Crown Court work which I am not sure, economically, I could have done in private practice.’



If any PDS staff have concerns about conflicts of interest, they contact Mr Edwards, who is standing down from his roles with the LSC and PDS in April to allow in ‘new blood’. He says: ‘I am responsible for the ghastly truism that independence is a state of mind and you don’t do criminal law unless you have that state of mind. The idea that my employed staff – at my firm, forget the PDS – are not as independent as me as a partner is ridiculous. So why should that change just because they are employed through a mechanism operated through the commission?’



Mr Warren agrees. ‘I haven’t heard anyone question the ability or professionalism of those working within the PDS. Where there was some ill feeling was over some of the practices the PDS adopted to win market share at the start. Some offices were opened with large numbers of staff even though there was no work, which gave them a large presence on the duty solicitor scheme and enabled them to get work. No private firm could have done that.’



When it comes to the quality of work, what rankles private practitioners is the claim that the PDS is offering a ‘better’ quality of service, particularly given the lower volume of case loads and generally less complex cases.



Mr Miller says: ‘The quality issue is highly unimpressive. The research compared a range of files with files taken from a range of private practices, so it was not a comparison with the best firms and, even on that basis, two of the PDS offices came out worse.



‘There were very mixed results – in some cases, PDS files were below “threshold competence” [the lowest quality level accepted by the LSC] even though the offices had lower case loads and none of the standard business pressures of a private practice because the financial side is sorted out for them.



‘So, is there anything that says the PDS is different and that this difference makes it better? No. The results for the offices were all over the place with no consistency, so there is nothing that tells us it delivers a benefit.’



Ms Ogden says there were lots of positive comments, ‘but I accept that there were regional variations’. A lot of work has since been done to improve those areas, she adds.



On overall working relationships, she says: ‘There was friction in some areas at first but I think that has largely gone through working together. The profession is obviously concerned whether the PDS will expand and whether it will be a threat to them, but we are tiny compared to private practice.’



So, given the criticisms, would practitioners call the PDS an expensive failure? ‘Not a failure,’ says Mr Kelcey. ‘Rather an expensive justification for the government to learn what we had been telling them. However, the government has never been slow to act with stupidity.’



Grania Langdon-Down is a freelance journalist