The case for the defence

Lawyers are up in arms about the Government's new US-style public defenders, but what will the public think, asks Robert Verkaik
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The Independent Online

If the Lord Chancellor thinks his plan to create a US-style public defenders system has won over the legal professions then he should cast his eye over some of the responses generated by his own consultation on the subject.

If the Lord Chancellor thinks his plan to create a US-style public defenders system has won over the legal professions then he should cast his eye over some of the responses generated by his own consultation on the subject.

The majority of respondents, made up of solicitors, barristers, judges and legal reform groups, have made it clear that they believe there is "no justification or evidence" for introducing such a scheme.

The new service, to be piloted in the summer, is to be staffed by state-employed lawyers to represent defendants in criminal cases who will compete for work with solicitors in private practice.

But one legal interest group, not named in the report, was so strongly opposed to the project that it claimed it had not been properly thought through, that it would be costly and inefficient, would lead to injustice and that the legal profession had been insufficiently consulted. A second group said that the new service would be "grossly expensive and a waste of valuable resources."

One solicitor claimed the Government was in danger of creating a "bureaucratic white elephant" where no need existed. Another solicitor wondered what would motivate a salaried defender, who would be a civil servant, to work civil service hours.

The Law Society and the Bar Council, which represent solicitors and barristers in England and Wales, have raised concerns that the shake-up of the criminal defence system would mean people accused of crimes would get poor quality representation in court if the salaried solicitors became overworked. There have also been questions raised about the service's independence.

In March the Government announced that the new American-style "public defenders" will cost the tax-payer £3m in their first year. Steve Orchard, the head of the Legal Services Commission which administers legal aid in England and Wales, said that the investment would help stop the state-run defence service being dogged by the problems faced by the Crown Prosecution Service in its early years.

Mr Orchard, whose organisation will run the new service, has given an assurance that the public defenders will not be asked to take on too many cases. Naming the new heads of the four pilot schemes in Birmingham, Liverpool, Middlesbrough and Swansea, Mr Orchard said: "I've made it clear to all the heads that there's a certain level of staffing which we start with and it's a constant process of monitoring as the work builds up. If it builds up we will increase the number of staff we are employing." A clause to prevent overwork will also be included in a code of conduct for the salaried defenders.

Even the new heads of the pilot schemes have admitted there had been a "mixed reaction" to the new system in the towns where it will be operating. Lee Preston, who will head the Birmingham Bureau said recently: "Solicitors are very wary of it and concerned about what effect it might have on their business." But Richard Whitehead, in charge of the Liverpool office, said: "They see the public defenders as one way to make progress in the future in their own careers. The constraints of making a profit can be removed and you can actually get on with the job." However, the £55,000 salary package will represent a pay cut for most of the new recruits.

Mr Whitehead said he had earned "substantially more" in private practice and Rom-ano Ferrari, head of the Swansea office, said the salary was proportionate with their levels of experience and skill.

He said the scheme would guarantee a quality service for people arrested by police and facing court cases, adding that there was room in the law for the new public defenders and solicitors in private practice.

The new scheme would introduce a new element of competition that would help give value for money and as it was rolled out to two more towns in the near future would help give added value for money to the taxpayer.

Each of the four offices will carry the name Public Defenders and will also employ two or three deputy solicitors earning about £30,000-a-year. Lord Bach, minister at the Lord Chancellor's Department, said the initial £3 million was tiny a faction of the total criminal legal aid bill of £800 million.

Despite criticisms from the legal profession and legal interest groups, the Government is committed to setting up public defender offices all over the country leaving the defendant to choose between private practice solicitors and the new defenders. The Lord Chancellor's Department said that its consultation had also generated a minority of support for its plans among a range of groups including some solicitors who had not been recruited to Criminal Defence Service.