Speculating on the Public Defender Service: Some Questions

In an interesting move, the Ministry of Justice (MoJ) today announced the appointment of two QCs to the Public Defender Service (PDS). It also posted an advertisement to recruit more lawyers to the organisation. This follows the announcement of a new Head of Advocacy in October 2013. The PDS was created in 2001; it provides publicly-funded criminal defence services and is an arm of the state. Therefore, PDS lawyers are state employees with fixed salaries, much like the Crown Proesecution Service (CPS), whereas private firms of solicitors and the self-employed Bar - who supply the majority of defence services - are akin to independent contractors, paid with public money. The PDS is a small organisation. It has only four offices - in Cheltenham, Darlington, Pontypridd and Swansea - reduced from eight (Liverpool, Chester, Birmingham, Middlesbrough have all closed). The announcement has quickly generated controversy and drawn criticism, from the Law Society as well as the blogs and Twitter accounts of lawyers. The announcement raises a number of interesting questions, some of which do not necessarily have clear answers:

- Why are the Government investing money in expanding the PDS, whilst proposing fee cuts for all private criminal defence suppliers?

- Should more money be invested in a service which has been criticised in the past for being excessively expensive?

- Is the Government aiming to rebuild the PDS to its original size and beyond?

- Does the Government want to exert more control over the operations of criminal defence lawyers by making them state employees?

- Is this an overt indication that the Government would prefer criminal defence services to be delivered by an arm of the state?

- Is this a first step towards a US-style universal public defender service (which has been much criticised in recent years)?

- Why have the Government not explained their justifications for these appointments at a time of proposed contraction in the defence services sector?

- Does the expansion of the PDS, a public entity, stand in contrast to both the ideology and practice of the Coalition?

- Is the timing of the announcement designed to undermine current opposition to legal aid reforms, perhaps representing a threat that work can be taken away from the private sector?

- Does active recruitment suggest the Government are preparing for strikes by defence lawyers, which the PDS will be used to cover?

- Is the Government poaching key players, in the hope that others will follow? Is it attempting to create divisions between opponents of the reforms?

- Will the temptation of a guaranteed salary and benefits (e.g. pension, holiday, etc.) tempt private sector lawyers away?

- Why has a high-profile circuit leader decided to leave the private sector for the PDS?

- Considering two of the most recent appointments (David Aubrey and Gregory Bull), is there some link between the Welsh Circuit and the expansion of the PDS?

- What position have the two QCs been appointed to? Will they simply be advocates, or are they tasked with any management/business duties?

- Is it wise or fair to appoint QCs on high wages to an organisation that currently provides a very small proportion of criminal defence services?

- Do these particular appointments contradict the Government's implied attitude towards barrister fees i.e. that too many are earning too much?

- What sort of clients will QCs be serving? Will they be involved in VHCC case work? How frequently is high-value work undertaken by the PDS?

- Does the PDS have a monopoly in its operating regions? Does this damage quality of service because of a lack of competition?

- What current evidence is there that the PDS provides benchmarking for quality standards, as claimed by the Government in its 'Transforming Legal Aid' consultation?

- Does criticism of the PDS by privately employed lawyers stem from a fear of competition? Is the private sector truly as competitive as it claims to be?

- Is there an argument to be made that the PDS will provide a guarantee of services to clients should private firms and chambers close in the wake of cuts?

- In the long-term, can the PDS generally pay wages that will attract talent to publicly funded criminal defence work?

- Could a well-funded, properly managed, universal public defender service, with a robust ethical framework and competitive aspects, be as effective as the private sector? Is this a realistic goal?

- How robust would ethical protections for clients be in an expanded PDS? For example, how would the Cab Rank principle cope, how 'zealous' would representation be?

- Would an expanded PDS dilute the independence of advocates, employed as they are by the state?

- Will clients be able to fully trust state-appointed defence lawyers?

- Will  fluctuating pressure on public funding directly impact on the behaviour of lawyers via their superiors - for example, in making plea decisions, accepting clients, use of time for preparation of a case, travel, etc.

- Are the interests and aims of the PDS and the private sector so different as to prevent co-existence and cooperation?

- Considering its current size, would significant expansion of the PDS not take an enormous amount of financial investment and time? Are the Government (and subsequent Governments) willing to commit to this long-term?

- Would the expansion of the PDS require a large shift in clients away from their familiar lawyers? If so, would this create issues of trust between lawyers and clients? Otherwise, would there need to be a simultaneous shift of lawyers and clients to the PDS?

- If the Government is planning to expand the PDS, is it time for a fresh, independent assessment of its effectiveness and value for money?

Any thoughts on these and any other questions would, of course, be welcome !

Earnings of the Criminal Bar: It's all about timing...

With impending strikes across England and Wales by criminal barristers on January 6th, the Ministry of Justice has chosen to use the first working day of 2014 for a not-so-subtle pre-emptive 'strike' of its own. The MoJ has released figures detailing the earnings of criminal barristers in 2012/2013. The timing is clearly relevant. Whilst one might argue that the beginning of the year is a logical time for publishing such information, a search of the database of Government publications in recent years reveals that no such equivalent statistical release has occurred - not at the beginning of the year or, in fact, at all. As such, collating this information has presumably been specifically commissioned with both target (criminal barristers) and timing (prior to their strike) in mind.

The main findings that will likely be highlighted by the Government are the mean and median earnings - £72,000 and £56,000 respectively. Whilst the explicit purpose of the document is to provide the public with an idea of what criminal barristers' earned last year, I would argue that the implict purpose is to suggest that barristers aren't doing too badly financially. After all, £56,000 a year is more than double the average national salary. The logical progression from this conclusion would be  - 'how can barristers justify striking over fee cuts when they earn THAT MUCH??' The timing of this publication strongly suggests that invoking such a train of thought is the intention.

Importantly, the document clearly underlines the dangers of misinterpretation and the caution with which such figures should be treated. Factors that should be considered include: that the figures may represent several years worth of earnings; that VAT and disbursements (such as travelling expenses) need to be considered; that barristers must cover professional overheads (e.g. a proportion payable to their Chambers); and that the majority of barristers are self-employed and must deduct income tax and national insurance contributions from gross earnings. Moreover, other factors not mentioned should be considered. Self-employed barristers do not have state pension provision and so need to account for this from the earnings above. Barristers are also compelled by the Bar Standards Board to take out professional indemnity insurance - another cost to deduct. 

When considering the amounts earned, one must also remember that the work undertaken by barristers varies enormously in complexity. Very High Cost Cases are usually lengthy and technically challenging, representing the most difficult work criminal barristers can undertake. Harder work should mean a higher reward. Finally, barristers - like similar professionals - have trained for many years and undertaken extensive education in order to serve the criminal justice system, building up very large debts in the process. It seems only fair that such commitment, to a profession that many do not have the skill or determination to enter, should lead to a higher than average salary.

If one deducts the proportions above and weighs the indirect factors mentioned, £56,000 (as an average) begins to look a lot more modest. Add to this the stressful and sometimes traumatic nature of the work, and you have a salary that seems to undervalue barristers. The question is - will the Government, in discussing the findings, mention these factors or will they simply highlight the headline figures? One suspects the latter will occur. If so, this will surely be an attempt to undermine the strike action - which the Bar insists is about preserving a functioning justice system rather than protecting their salaries. One must, of course, consider this statement carefully too; it is rare for a group to strike for entirely altruistic reasons. But the implication that 'fat cat' barristers are striking over pay whilst earning large amounts is obviously misleading and underhand. It is also the oldest trick in the book. If the Government choose to pursue this tactic in the guise of balanced statistical analysis, it will surely be a new low.

Law Society vote of 'no confidence' - is unity the latest casualty of war?

In fieldwork I conducted In May 2013 at the 'Justice For Sale' meeting of criminal defence lawyers, the unity amongst the profession - solicitors and advocates, constituents and representatives - was pretty clear. The strength of agreement and the robust nature of this alliance was almost unprecedented, created by the near absolute rejection of the Ministry of Justice's legal aid reforms.

Nine months on, the picture is somewhat different and one might ask - is this 'unity' slowly dying in the heat of battle? The Law Society are now considered enemies by a substantial number of defence solicitors. Critics have been vocal and consistent in their condemnation of the Society's negotiation with the MoJ over the legal aid reforms. Yet, today's Vote of No Confidence saw a near 50/50 split between those wishing to bring down the executives who have apparently betrayed the cause and those who, for various reasons, wish to protect them. Unity might well be one of the reasons. Targeting the wrong enemy and wasting energy may be another.

Most striking is how different the internal dynamic is now when compared to May 2013. Defence solicitors no longer seem to be singing from the same hymn sheet, regardless of their differences; and unlike the Bar, there does not seem to be a clear plan of action for the future. They appear to have lost sight of the greater goal. When an opposing force is dvided, there is clearly an opportunity for the enemy (in this case, the Government) to take advantage. Internal squabbling and power struggles are likely only to dilute the power of the campaign against reform. Unity was the primary strength of the profession - that now appears to be at serious risk. Moreover, the spotlight will shift away from the substantive issues to the grisly business of politics.

Perhaps the recriminations can wait until later, whilst there is still a war to be won?

VHCC fee cuts: A sign of things to come in criminal defence work?

Having been engaged in fieldwork over the last 6 months, I've neglected to keep up blogging. With a new year approaching, I'd like to try and renew it with more posts - so here's the first.

Today, a variety of changes kick in relating to the funding of criminal legal aid in England and Wales. Chief among these is a reduction of 30% (possibly more in some cases) in the level of fee paid to lawyers for Very High Cost Cases (VHCCs) in criminal work. These involve lengthy preparation, complex issues, technical knowledge and extensive proceedings in court. They are the toughest cases and thus are generally handled by the best practitioners. VHCCs usually involve serious offences such as fraud, terrorism, murder, sexual offences, drugs, etc. Any threat to the integrity of these criminal cases is therefore of great significance.

The cuts in fees affect legally aided VHCC work - in short, those who cannot afford to pay to defend themselves and are reliant on the state. In light of the large reductions in effect from today, an indeterminate but apparently significant number of criminal defence advocates will be returning ongoing VHCC work and refusing future briefs. The concern this raises is that defendants in VHCCs will not be able to obtain representation, effecting the fairness of trials. 

An example of this was recently cited by retired Court of Appeal judge, Sir Anthony Hooper. In R v P [2008] EW Misc 2 (EWCC), a convicted drug dealer faced confiscation of the proceeds from his offences. The values involved ran into the millions and the issues were complex. No lawyer could be found to represent the defendant due to the low fees, 'deemed' (as the Bar's terminology expresses it) as insufficient remuneration for the level of work involved. It was held that the proceedings should be stayed as the defendant could not have a fair hearing. The confiscation therefore did not take place.

This case may represent an harbinger of trouble to come. If the logic of the judge in R v P is followed, potential offenders may escape justice if left without representation in VHCCs involving serious matters. Equally, if proceedings are not stayed, unrepresented defendants may be faced with serious challenges to their Article 6 rights. Judges will have to deal with this; delays may be caused; appeals will likely increase; miscarriages of justice could occur.

The Government has expressed its confidence that replacements can be found in place of those lawyers rejecting the fees. Presumably, these 'supply' lawyers will not be of the same quality; after all, if large numbers of the best representatives turn their back on VHCCs, why would anyone at the same level, with the same experience, choose to fill the void?

Those with something to gain from this situation are the less experienced (and possibly less able) defence lawyers, who see the opportunity to act in a VHCC as being more valuable than the fee offered. As such, one would logically presume that the quality of VHCC representation would inevitably diminish. This in turn implies that the Government's insistence that its reforms to legal aid will not damage quality cannot be accurate. 

The VHCC cuts and their aftermath may therefore represent a test-run for the broader roll out of fee cuts next year, which may only leave two outcomes for defendants: no representation or poorer representation.

Doctor Grayling: A Short Story

Chris Grayling has unwittingly been appointed the shift doctor at a busy A&E. He has no medical qualifications and no experience in treating patients. A man , Mr CJ System, comes into the department with a badly broken leg. Mr System knows he is broken, but luckily he is a doctor and has a good idea of how one would go about sorting his medical issue. Mr Grayling does not. He’s also been told in no uncertain terms by hospital management that he must save time and money in doing his job ! 

“Hmm” thinks Doctor Grayling, “there’s something wrong here, but I have no idea what I’m doing. But I’ve got to do SOMETHING”. Complicated surgery is way beyond his capabilities, would take quite a long time, and cost the hospital cash. He doesn’t want to ask anyone else – after all, he’s the shift doctor and it’s his job to sort the problem.

Suddenly Doctor Grayling thinks of a solution – he’ll just cut the leg clean off ! That will save time and money, and fix the problem of the broken leg (sort of). After all, Mr System can just use a crutch or a cheap artifical leg instead, right?

“DEAR GOD!” screams Mr System as Doctor Grayling hacks away at his leg, “What are you doing?? I know how you can save my leg!!”

“Now, now, quiet down” says Doctor Grayling ,“I’m just doing my job. Patients just don’t know what’s good for them sometimes !”

THE END (Probably)

My response to the 'Transforming Legal Aid' Consultation

Dear Sir/Madam,

I would like to submit this as my response to your consultation, ‘Transforming Legal Aid: Delivering a More Credible and Efficient System’. It does not address the questions contained in the consultation document directly, but generally comments on the proposals contained in and the issues raised by the document. It primarily relates to those proposals relating to criminal defence services and legal aid.

I am a legal academic within Plymouth Law School. My fields of expertise are criminal defence services and legal aid. I find the proposed reforms deeply concerning, and believe they will be highly damaging to the effectiveness, efficiency and – ultimately – credibility of the criminal justice system in both the short and long term.

I suspect you will receive a large number of responses echoing mine. As such, I will attempt to be as concise as possible and focus on the major issues as I perceive them from a non-practitioner perspective. However, I can assure you that the views I will express, although my own, form part of a wide consensus amongst my colleagues in both academia and the legal profession.

The introduction of price-competitive tendering for the provision of legally aided criminal defence is both unworkable and inappropriate. The infrastructure required for bidding at the rates proposed (at least 17.5% below current rates) will not be achievable for nearly all currently operating firms, even large ones, and certainly not in the timescale suggested. 

It is clear that firms will need to increase profits by at least 250% in order to survive; this must be achieved within a year. This is not simply not viable. One might therefore suggest other providers will step in – this can only mean corporates with the necessary size and infrastructure to do so. 

Such entities have no experience or expertise in providing highly specialised criminal defence services; they will therefore recruit practitioners to work in-house and will do so at the lowest cost possible (as encouraged by the ‘lowest bid’ model). This will consist of the least experienced, the least competent and the most desperate. The best lawyers will simply cease to work in publicly funded criminal defence. This will impact on the future quality of the judiciary, the training of new practitioners, and most importantly the quality of the service provided.

Moreover, when such providers re-bid for contracts in several years time they will inevitably tender at massively inflated levels, since they will almost certainly be operating at a loss in the short-term. The Government will have to accept these bids as the current providers will no longer exist, and some form of criminal defence service must be provided. This is fairly simple economics. It will be enormously costly and will destroy any short-term savings the Government believes it can achieve.

The proposed division of service provision into geographical areas, where providers will only be able to have a fixed market share, will create advice deserts for the most vulnerable clients (particularly in rural areas). It will be logistically and financially unviable for the remaining providers to service large areas sufficiently, particularly considering that travel costs are not reimbursed. Moreover, a fixed market share is antipathetical to free market competition – quality of service will inevitably suffer as providers will have no motivation to improve.

It is conceded in the consultation document that the removal of client choice, to guarantee volume for the remaining providers, is necessary to ensure the proposed model works. This is simply unacceptable. Client choice is absolutely the key driver behind quality legal services and is a fundamental right in our liberal democracy, alongside the right to choose your NHS doctor or which political party you wish to vote for. 

To remove it will not only drive down quality (also conceded in the document) but will destroy years of local knowledge amongst the legal community, sever relationships between clients and lawyers, and render reputation and quality irrelevant to securing work. This will mean less incentive to provide a good service, to the cutting of corners, to the exposure of vulnerable citizens to poor (or even no) legal advice, and inevitable disruption in the criminal justice system.

Lawyers are crucial to ensuring clients attend court, plead appropriately and follow procedures correctly; the trust between them means that advice the client may not like can be provided, and lengthy proceedings can be avoided. Many clients, denied their choice of lawyer, will opt to represent themselves in person. This will create widespread delay, inefficiency, cost, and unfairness. 

Trials will descend into farce, riddled with adjournments and delays; moreover, without a sturdy, reasoned and thorough examination of the case against a defendant, prosecutions will become less robust and miscarriages of justice will increase. Witnesses and victims may also be faced with the intimidating prospect of being questioned by the accused in court. As such, some may decide not to engage and prosecutions will collapse. Furthermore, questioning of complainants by the defendant is prohibited, by statute, in certain sexual offence cases (including rape), raising the prospect of the judge cross-examining witnesses for the defendant or of no cross-examination at all. This is extremely troubling.

I am also deeply concerned by the proposal to pay the same rate to lawyers for guilty pleas as for trials. This clearly creates an incentive to avoid costly trials which involve many hours of work, when a guilty plea is both cheaper and quicker for the lawyer. Considering that lawyers will inevitably have to be very wary of extremely tight profit margins under the proposed system (potentially with pressure to reduce costs from practice managers, senior partners, shareholders or heads of chambers), the temptation to give less than a full defence for the client will be very real.

Furthermore, such a proposal may well destroy the essential bond of trust between lawyer and client; if the lawyer advises a guilty plea, the defendant will be entitled to ask ‘Is he or she doing this to save money?’ This suspicion, coupled with the fact that the lawyer will be a State-assigned stranger, will cripple effective legal representation.

I am also concerned, in the case of barristers, that the proposals will seriously undermine Rule 303(a) of the Bar Code of Conduct:

‘A Barrister must promote and protect fearlessly and by all proper and lawful means the lay client's best interests and do so without regard to his own interests or to any consequences to himself or to any other person’

This is a crucial and long-standing ethical principle, without which defendants would be given a less robust defence against the accusations of the State. With the introduction of the same fee for both guilty pleas and trials, the barrister will inevitably have a personal interest in what course to pursue; the cost consequences may well be in the back of his or her mind. To apply this kind of pressure to a professional who's primary responsibility should be to the client is indefensible. In summary, this proposal, to my mind, creates a serious conflict of interest, will endanger professional ethical principles, and is a moral turpitude.

I would like to add one more thought from an academic perspective. The provision of robust criminal defence for those accused of crime has been an essential part of English and Welsh criminal justice for over three centuries. The ethics and traditions ingrained in this professional role have been repeatedly proven to be essential to fair and effective prosecutions, to the prevention of miscarriages of justice, to the enforcement of and respect for the rights of individual citizens, to the protection of victims and witnesses, and to efficient and effective proceedings.

Under these proposals, the breadth and quality of this service – underfunded for so long now, and part of a legal aid budget accounting for under 0.5% of Government expenditure – will collapse. The number of litigants in person will increase enormously, endangering defendant and victim rights, and generating delay, ineffiency and cost. Judges will be forced to become advocates for the accused. This has not been common since the 1600s. These proposals will turn back the clock by nearly 400 years in criminal justice terms. 

Please reconsider these reforms – listen to the profession that provides the service, the academics that study it, and the public you serve, 71% of whom, when polled recently, agreed that more miscarriages of justice will occur if you proceed.

Kind Regards,

Dr Tom Smith

Plymouth Law School

Plymouth University

Effective and fair justice means that even Stuart Hazell gets a defence lawyer

Stuart Hazell has spent 9 months denying the murder of Tia Sharp. He also spent just over four days of his trial for that offence claiming not to be guilty. On the fifth day, Hazell changed his plea to guilty and has now been sentenced to 38 years in prison. 

Like most child murders, the case has captured the public's attention. As such, it provides a good test of the argument that all those accused of crimes - even the guilty - need to have a defence representative. To most laymen, this would seem hard to justify in the case of Hazell.

He has systematically lied about the death of his partner's granddaughter. It has become clear that Hazell was sexually attracted to Tia Sharp  - another element of the case which fuels public horror, and rightly so. Hazell went to some lengths to conceal his crime by hiding the body in a neighbour's attic.

Now, after five days of legal proceedings - painful for the victim's family and at a cost to the taxpayer - Hazell has admitted his case is a lie. His timing of plea is unusual; defendants that have resolved to protest their innocence and allowed the trial to start normally see it through to the end. 

Beyond the motivation to plead guilty early for ethical reasons, defendants are given the incentive of sentence discounts for admitting an offence before the trial. Hazell will of course get no such credit now. As such, Hazell's decision raises some thoughts - did he have inadequate advice from his lawyers about the evidence or proceedings? Did he ignore their advice? Or has he made an unpredictable decision?

Hazell claims that the decision is motivated by a desire to end the suffering of Tia Sharp's family. Whether this is true or not, the unique pain of listening to the forensic dissection of your loved one's death could have been avoided. This is an important reason why Hazell should have good quality defence representation.

A defence lawyer has a paramount duty to protect their client's interests; however, this does not (as is often thought) inevitably mean fighting for their acquittal until the bitter end. Most defence lawyers would likely say that when their client insists on their innocence or has a compelling defence, there is little question about advancing a not guilty case.

However, they would also say that where the prosecution evidence is substantial or the defendant's story doesn't wash, they would probably advise them that it was in their interests to plead guilty - they will save themselves, the victim or victims, and witnesses some pain; the Court some time and money; and earn a sentence discount.

In the case of Stuart Hazell, dependent on the evidence before them, it would seem likely that an effective representative would have advised him to change his plea prior to the trial. Such a quick u-turn suggests that it dawned on Hazell that either he was doomed or that he was prolonging the agony of people he once loved. A defence lawyer is often essential to making a defendant have such realisations at the right time.

This demonstrates how defence lawyes can enhance effective justice. Hazell may not have known or trusted his lawyers, but in general many defence lawyers have 'repeat' clients who they have an established relationship with. This personal connection and the local knowledge that goes with it is crucial to effective and efficient delivery of justice.

Therefore, defence lawyers arguably save the court and the taxpayer time and money when necessary. Even if this weren't the case, had Hazell proceeded to plead his innocence (bearing in mind we now know him to be guilty) it is also fair that he have a defence lawyer to protect his interests and advance his case.

Until he confessed or was convicted, Hazell was an innocent man. Criminal liability is only acceptable when proven beyond reasonable doubt by the prosecution. Without a defence lawyer, Hazell (a man who seems unlikely to be capable of running an effective defence autonomously) would likely face a prosecution case free from any robust challenge, resulting in conviction.

If a prosecution case untested by a skilled defence professional - perhaps built of questionable evidence, omissions, assumptions or dressed with persuasive rhetoric - is sufficient for proving guilt, then arguably, in practice, the burden of proof is lowered. Reasonable doubt becomes acceptable because the prosecution no longer needs to go beyond it.

Any legitimate prosecution must be able to withstand the strength of opposing arguments - and the burden of proof is always the prosecution's. Had Hazell not had a defence lawyer, the prosecution could simply have presented a bare minimum should it wish to, perhaps convincing a jury of laymen with the oratory and spin that defence lawyers are often associated with.

If one tennis player walks onto the court to find his opponent missing, the game might well be forfeit in his favour. But that is no true victory and no guarantee that the winner was truly better than the absent opponent. The same principle applies here.

Stuart Hazell has confessed to his crime and justice has been done, but not as effectively as it could have been. Had he insisted on a full trial, would we not want him to be convicted of murder - the worst of crimes -  with proper evidence, tested and tried, or would we prefer the show trial of a folk devil?

Defence lawyers are important - even for those we hate. Not just because it's fair, but because it is effective.