Oh yes! I am the Public Defender

“If I were running a business and I had the choice between a group of people on my payroll, National Insurance, pension contribution, who I had to pay come rain or shine, who I had to pay whilst on holiday and all the rest…. Or I could use a team of experienced freelancers I’d go for the experienced freelancer every time”.

This quote goes to the very heart of why the self-employed Bar represents good value to the taxpayer when it comes to the procurement of advocacy services. The taxpayer does not pay me when I am ill, does not have to find work for me when I have none, does not have to provide back office staff, does not have to pay them when they are ill, does not have to have HR concerns about me, does not have to give me free eye tests because I read cases on my computer and does not have to provide me with a pension. Which is why if the average barrister did receive, on average, £84,000 including VAT for prosecuting and defending serious cases in the Crown Court they would still represent bloody good value for money and would mean that the barrister in question was probably receiving £40,000 to 45,000 in taxable income. A figure below the starting salary for a new advocate in the PDS.

So the wise person, the prudent person, if given the choice goes for the “experienced freelancer every time.” So who is this champion of the Bar? This wise connoisseur of legal services? It is none other than The Lord Chancellor himself. A direct quote from a meeting I attended in June 2013 (the full report of which is here). So, given the sense and the strength of his view just a few months ago imagine my surprise to see that the Public Defender Service are avariciously recruiting advocates, including three QCs. And that recruitment is being managed by the Ministry of Justice. So the Lord Chancellor is in overall charge of something which he has previously declared as bad business sense.

And we all know it is bad business sense. I confess I was appalled when the received fees of Greg Bull QC were published recently. However, given that they have been, I now cannot help but observe that his new job is ultimately going to cost the taxpayer even more than before. Pension. Training. Practicing Certificate. Sick pay. Even Archbold. The taxpayer now pay for all of those ON TOP of his salary. Even a cursory Internet search leads me to believe he will be able to claim travel expenses, hotel expenses and subsistence as a civil servant which he would never have received as a member of the self-employed Bar.

As I come to think of it I cannot help but wonder if those masters of spontaneity, the MoJ statisticians, are going to publish some ad hoc figures which will compare the new salaried income of the three Silks against their previous earnings? Such figures factoring in expenses, pensions, the cost of administrative staff etc. I am sure that such things can be calculated by the clever number crunchers. And I know how keen they are in giving the public really good information to inform the debate. So inform the public. The PDS is going to cost the taxpayer more than the current system. Now MoJ statisticians have you got any impromptu figures to prove me wrong?

Where is all this leading? I do not recall either the original consultation or the Next Steps document speaking of a rapid expansion of the PDS. The first thing that springs to mind is how much choice there will be for the clients of the PDS? You need a Silk. The PDS have three. If you don’t use one of their Silks then they are going to have three Silks back in the office doing the filing and making tea. So there may be no choice for the client at all. Secondly one of the beauties of our system is that most senior counsel have prosecuted and defended. That is going to evaporate slowly. Thirdly, should defence advocates be bound by the Civil Service Code? You can read the code for yourself and decide. It makes me uncomfortable.

At a time when the CPS are seemingly acknowledging that in house advocacy is not providing value for money the move to expand the PDS must be an expensive sticking plaster for the wound inflicted on the criminal justice system by the paucity of funding in VHCC cases. It is not a sticking plaster that will cover all the damage of those cuts or the further cuts coming down the line. It is not rearranging the deck chairs on the Titanic. It is hoping that replacing a couple of them with Chippendales will somehow cause the ship to swerve the iceberg. There already is a dedicated Public Defender Service. It is called the independent Bar.

The recruitment of three Silks and the advertisement provoked shock and anger yesterday. I can understand both the ideological and the personal anger. What it actually provides is very strong evidence for the strength of our argument that the Bar and private practice generally is the cheaper option. I would also suggest that it shows the MoJ are worried by our collective strength. This move should be a catalyst for further action.

As a PostScript to this blog would just like to add that in each of the last two years the CPS have spent £20 million in “exit” payments on redundancies and early retirements. Payments on members of the independent Bar who become surplus requirements? £0. Payments in pension contributions last year? £50 million. Payments to the pensions of the legion of barristers prosecuting the cases? £0.