Questions and Answers on the Public Defender Service

Here were my questions this week to the Ministry of Justice press office on the Public Defender Service, with their answers.  I will be using some of this material for a forthcoming post at FT.com – – but I thought it would be useful to set the questions and answers out in the public domain so as to inform discussions that may follow the handing down of the Operation Cotton appeal judgment.

 

Question:

What has been the annual budget for PDS each year since its inception? What is the forecast budget for the PDS in this and next year?

Answer:

The PDS was established in 2001. The audited expenditure details are as follows:

 year

£m

2001/02

2.58

2002/03

3.58

2003/04

3.94

2004/05

4.26

2005/06

4.39

2006/07

4.59

2007/08

4.03

2008/09

           3.02

2009/10

           3.12

2010/11

           2.51

2011/12

           1.95

2012/13

           1.95

The PDS out-turn for 2013/14 has not yet been audited and is therefore subject to change, however, the current estimated out-turn is £2.28m.

 

Question:

If the PDS does VHCC work, how can it possibly do any non-VHCC work?  When was it first proposed that the PDS be devoted to VHCC work?

Answer:

The establishment of the PDS Advocacy Unit further strengthen its capability and allows it to provide a range of criminal defence services.

Where a member of the PDS was instructed on a VHCC clearly it would depend on the individual case as to what their workload would be but, as we have seen on numerous occasions, there are invariably ‘cycles’ to cases which include periods when there is time for other work. We would expect that to be most likely during the preparation of a case in this type of work.

 

Question:

I understand the PDS is there (in part) for “market failure” – what does the MoJ mean by “market failure”? (see page 10)  http://www.justice.gov.uk/downloads/publications/corporate-reports/legal-aid-agency/laa-business-plan-2013-14.pdf )

Answer:

The PDS is available to provide a service in parts of the criminal legal aid market where, for whatever reason, clients are unable to access advice and representation in the Police Station, Magistrates Court and Crown Court.

 

Question:

In the MoJ skeleton argument for the Operation Cotton appeal, it is stated: “It is presently intended to secure the necessary number of advocates for the PDS to cover the affected cases. Twenty-one have already been appointed. The Government is ready to place advertisements as soon as the weekend and head-hunters have been retained on a contingency basis to secure senior Counsel.” Can you please provide as much detail as possible on this statement.

Answer:

There is nothing to add to the statement which very clearly sets out our intention.

 

Question:

How much has MoJ spent on the “head-hunters” re above? How much does it intend to spend? What does “contingency basis” mean?

Answer:

It’s too early to say as costs will depend on how we recruit additional capacity. As the statement above clearly says – we stand ready to place advertisements should that be needed.

 

Question:

The MoJ skeleton argument states: “The Lord Chancellor regards this as an emergency measure to address the needs of the interests of justice with the current VHCCs.” – why is this an “emergency” measure when it was clear from last year that the VHCCs were at risk?

See http://blogs.ft.com/david-allen-green/2014/05/12/how-a-policy-failure-now-means-a-number-of-uk-complex-fraud-cases-may-collapse/

Answer:

Legal aid remains available for all VHCCs – if a QC picked up a typical VHCC they could expect to receive around £100,000. It remains open to the Bar to take these cases and there are also PDS lawyers available. Clearly the Government will take the necessary steps to ensure representation on cases that would otherwise be disrupted.

 

Question:

Is the MoJ aware of any other government department which has ever told the High Court or Court of Appeal that it was in a state of “emergency”?

Answer:

We do not hold records of other Government department’s legal arguments.

 

Question:

Does the MoJ dispute the figures set out in https://dl.dropboxusercontent.com/u/77869779/PDS%20Facts.pdf as to the relative costs of the PDS and independent Bar?  If the MoJ disputes these figures, can it explain the basis of the dispute?

Answer:

The figures quoted do not compare like with like. It should also be noted that the calculations mentioned assume a self-employed barrister will only take on one case a year and only work on legal aid, when that may not necessarily be the reality.

 

Questions:

What is the MoJ response to the PDS being described as a “false economy” See http://www.lawgazette.co.uk/analysis/comment-and-opinion/pds-is-a-false-economy/5041282.article ?

What is the MoJ response to the PDS being described as a “total waste of public money” See http://www.lawgazette.co.uk/practice/call-to-review-public-defender-service/5039489.article

Answer:

Our over-riding priority is to ensure that defendants have a fair trial and the justice system continues to function properly. Barristers are refusing to work on Very High Cost Cases because they do not agree with the legal aid fees being offered. Even at the new rates – a QC could expect to pick up £100,000 for a typical Very High Cost Case.

In line with our effort to try and target the highest fee reductions towards the highest earners we have cut fees in Very High Cost cases the most. That is because these are a small number of cases that cost a disproportionate amount of taxpayers’ money – for example just one cost more than £8.5 million purely in legal aid fees.

 

Question:

How many of the PDS advocates are VHCC accredited?

Answer:

21 advocates have signed contracts with the PDS Advocacy Unit. Of these, 15 are VHCC accredited and the other 6 are in the process of gaining VHCC accreditation.

 

Question:

When was it first proposed that the PDS be devoted to VHCC work? I can find no mention of the possibility before 2013 – is this correct?

Answer:

They will undertake a range of criminal litigation and advocacy.

 

Question:

It appears that all be barristers being appointed are to do VHCC work.  Will they be expected to do any non-VHCC work?

Answer:

See above.

 

Question:

What do you mean by “disproportionate amount of taxpayers’ money” as opposed to a high proportion?  Does the MoJ think anything with a high proportion is disproportionate?

Answer:

VHCCS represent less than 1% of all Crown Court cases but were costing 10% of the crown court legal aid budget. As stated on many occasions, and discussed in numerous meetings with the professions in the past year, we are trying to target the highest reductions at those who receive the most in fee income from legal aid.

 

Question:

Will the PDS continue to not have a London office?

Answer:

As we made clear in our skeleton, we will expand the PDS as necessary to ensure availability of advocacy. We will make decisions as to the resources and set up as appropriate.

 

 

2 thoughts on “Questions and Answers on the Public Defender Service”

  1. Place your bets: how long before the PDS is rebranded as the Public Defender Agency and sold to Capita?

  2. “A QC could expect to pick up £100,000 for a typical Very High Cost Case.”

    A tax silk might pick up that amount for a 2-3 day hearing, but there would be real money at stake in that situation, not just someone’s life, liberty and reputation.

    Presumably the £100,000 includes VAT (which the QC collects for HMRC)? So the actual fee, exclusive of VAT, is about £83,000. (There are unlikely to be substantial amounts of input VAT to reduce the amount of output VAT payable to HMRC.)

    The QC is likely to be an additional rate income tax payer already (45%) and paying the 2% additional rate of NICs, so another 47% of the VAT-exclusive amount goes back to HMRC, leaving the QC with about £44,000 after tax.

    How many hours of work would the QC expect to undertake to earn that £44,000? How many lever arch files of documents and witness statements etc would there be to read and master? Would the QC be able to do any other work while devoting weeks to preparing for and then attending the hearing?

    “we are trying to target the highest reductions at those who receive the most in fee income from legal aid”

    So this is actually about reducing the income of the people who do this sort of work, not about paying a fair price for the work done? If these cases are 10 (or more) times as complex and time consuming as other cases, it is hardly surprising that they cost 10 (or more) times as much to deal with properly.

    Enough about the costs of the defence. How much would the prosecution of this sort of case cost, in terms of investigation, case preparation, prosecution lawyers, court time, etc? How many man-hours of time might be spent preparing the case?

    What is an individual defendant meant to do, when the might of the state is arranged against them?

    (apologies if this posts twice – I think there was an error)

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