Evaluating the Scottish Public Defence Solicitors’ Office
| DOI | http://doi.org/10.1111/1467-6478.00247 |
| Date | 01 March 2003 |
| Published date | 01 March 2003 |
JOURNAL OF LAW AND SOCIETY
VOLUME 30, NUMBER 1, MARCH 2003
ISSN: 0263-323X, pp. 84–101
Evaluating the Scottish Public Defence Solicitors’ Office
Tamara Goriely*
The debate continues over whether salaried public defenders are more
cost-effective than private practitioners. A three-year evaluation of the
Edinburgh pilot office found that public defenders resolve cases at an
earlier stage. Their clients were more likely to plead guilty at
preliminary hearings, and less likely to hold out to the day of trial. This
has the (so far unrealized) potential to save legal aid costs, and it
inconvenienced fewer witnesses. But it also meant that public
defenders had a higher conviction rate. Furthermore, in Scotland
(unlike Canada) earlier pleas did not lead to lower sentences. Clients
described public defenders as businesslike but felt less emotionally
supported. Finally, the study showed that it is not easy to realize cost
savings. Pilot offices, operating in the glare of publicity, incur some
additional costs.
In October 1998 a pilot Public Defence Solicitors’ Office (PDSO) opened in
central Edinburgh. The pilot was designed to test whether salaried lawyers
would be a more cost-effective method of delivering criminal defence
services than the traditional case-by-case payments to private practice
solicitors. This article is based on a three-year evaluation of the PDSO.
1
It
starts by describing the history of the proposal, the office, and the system by
which clients were directed to use it. It then compares the PDSO with private
legal aid solicitors in Edinburgh on three main criteria: outcomes, client
satisfaction, and cost. We were interested to explore how far criminal
defence lawyers are influenced by the economic incentives under which they
operate, and the extent to which this affects the timing and nature of pleas,
convictions, and sentences.
84
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*The Law Commission for England and Wales, Conquest House, 37–38
John Street, Theobalds Road, London WC1N 2BQ, England
1 The team that carried out the evaluation included Paul McCrone, Peter Duff, Martin
Knapp, Alistair Henry, Cyrus Tata, and Becki Lancaster. For the full report, see T.
Goriely et al., The Public Defence Solicitors’ Office in Edinburgh: An Independent
Evaluation (2001).
Public defenders have proved a controversial subject in many common
law jurisdictions. As the Canadian Bar Association remarked:
There are few topics which appear to arouse such strong and varying opinions
as the choice of delivery model. Ideology and personal experience come
together on this topic, allowing most lawyers to hold and advocate positions
with great conviction.
2
The same can be said in Scotland, where criminal legal aid has a
reputation for being particularly expensive. Research in 1997 suggested that
Scottish expenditure per head of population was over one and a half times
that of England and Wales, and over nine times that of the Netherlands.
3
Concern about legal aid expenditure has led to periodic discussion of public
defenders, but the idea has been vigorously contested. In 1980 the Hughes
Commission on Legal Services recommended an experimental public
defender scheme, observing that they ‘operated successfully in other parts
of the world’ and ‘might be better for value for money’.
4
The Law Society of
Scotland, however, raised strong objections, suggesting that public defenders
would threaten the independence of the profession, interfere with the normal
relationship between client and solicitor, and be unacceptable to the public.
5
No steps were taken to act on the Commission’s recommendation until
1996, when the Conservative government commented that the rapidly rising
cost of summary criminal legal aid ‘simply cannot be sustained’.
6
It
proposed several reforms including controlled fees and quality standards.
One suggestion was that the Scottish Legal Aid Board ‘should employ on
fixed salaries a small number of solicitors to provide criminal legal aid on a
pilot basis’.
7
These proposals were enacted in the Crime and Punishment (Scotland)
Act 1997. The government, however, was forced to make concessions, and
the legislation highlighted the experimental nature of the scheme by
imposing several restrictions. The board was given authority only to set up a
single office, employing no more than six solicitors, for an experimental
period of five years.
8
The legislation also required that an evaluation be laid
before the Scottish Parliament within three years.
9
Despite originating during a Conservative government, the PDSO was
opened by a Labour administration. The then Home Affairs minister, Henry
McLeish MP, described it as ‘an important part of a drive towards delivering
85
2 Canadian Bar Association Standing Committee, Legal Aid Delivery Models: A
Discussion Paper (1987) 19.
3 T. Goriely et al., Expenditure on Criminal Legal Aid (1997).
4Report of the Royal Commission on Legal Services in Scotland (1980; Cmnd. 7846;
Chair, Lord Hughes) para. 8.81.
5 id., para. 8.77.
6 Scottish Office, Crime and Punishment (1996) para. 6.11.
7 id., para. 6.30.
8 Now the Legal Aid (Scotland) Act, s. 28A.
9 Legal Aid (Scotland) Act, s. 28A(10).
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