Why is the government willing to pay more for Public Defender Service advocates than it is for the independent bar?

With the prospect of at least eight multi-million-pound fraud trials collapsing due to legal aid cuts that led barristers to refuse the cases, the lord chancellor has – somewhat late in the day – decided to introduce an ‘emergency measure’.

The government has decided to ‘implement any necessary increase of the [Public Defender Service]’ to ensure representation.

It emerged from the skeleton argument submitted on behalf of Chris Grayling at the appeal challenging the stay of charges against five unrepresented defendants at Southwark Crown Court in R v Crawley and Others for want of advocates. The skeleton said: ‘The government is ready to place advertisements as soon as the weekend and headhunters have been retained on a contingency basis to secure senior counsel.’

It is also considering ‘options for obtaining advocacy services through sub-contracting from other providers’.

The standoff between the bar and the government followed the December introduction of 30% (44% according to barristers) cuts to the legal aid rates paid to lawyers in the most serious criminal cases.

Until this week’s revelation over moves to headhunt counsel to the PDS, the government’s response to the bar’s refusal to take the cases – a problem that had been apparent since last year – had been somewhat Micawber-like.

As articulated by Sean Larkin QC, appearing for the Financial Conduct Authority to argue against the stay at the Court of Appeal, the lord chancellor had worked on the basis that ‘matters would somehow be resolved’.

Larkin also told the court of the ‘expectation by lord chancellor’ that the bar would start to accept the cases again. Though why Grayling would entertain the belief is unclear given the bar’s resolve, despite its sustained loss in income, even after the Bar Council’s deal with the MoJ.

Figures produced by the South Eastern circuit and a criminal barrister who returned a brief following the December cut, show that the government’s scheme to bolster the PDS is a false economy.

They calculate the annual cost of employing a junior at the PDS who works a 37-hour week is £125,360.68, including salary, pension and national insurance contributions, practising certificate, clothing, expenses and Archbold.

In contrast, the cost of employing a self-employed junior to work full-time for a year on case such as Crawley & Others – with eight months preparation (1,080 hours) and four months in court – would be £69,268 at the new rates. (Calculated on the basis of £51.10 x 1,080 for prep and £176 x 80 for trial.)

So the government would be willing to pay an advocate at the independent bar £56,092,83 less than they would be willing to spend on a lawyer employed by the PDS.

Even on the old rates, the self-employed bar is cheaper than the PDS, by £26,360, the bar's figures suggest. (Calculated on the basis of £73 x 1,080 = £78,840 for prep and £252 x 80 = £20,160 for trial, totalling £99,000.) 

So the government will end up forking out more for the trials than if it had not made the cuts in the first place. Perhaps no one did the math.

This sort of on-the-hoof policymaking will not solve the problem in the long-term – and makes the justice system look pretty shambolic.

Whether the Court of Appeal, led by Sir Brian Leveson, overturns the stay remains to be seen – it seems likely, from the grilling given to Alex Cameron QC who appeared pro bono for the five, and the noises from their lordships.

We may still witness the spectacle of an appeal to the Supreme Court – all over the government’s failure to pay market-rate advocacy services.

As an aside, one assumes the government did not pay the reduced legal aid rate for the services of commercial silk and head of Blackstone Chambers, Anthony Peto, to represent the lord chancellor in the Court of Appeal. The MoJ declined to tell the Gazette his fee – one suspects it was not the best use of taxpayers’ money as Peto was on his feet in the all-day hearing for less than five minutes.

Catherine Baksi is a Gazette reporter