Caught in the crossfire, PDSO takes aim at ‘mythmaking’

PUBLIC Defence Solicitors’ Office director Matthew Auchincloss tells John Forsyth that criticism of the Office does not add up.

The focus of the current “protest for justice campaign” is principally targeted at the Justice Secretary, Kenny MacAskill, and his reforms requiring not only that accused persons should be means tested with a view to contributing towards their legal aid costs but also that the solicitors should arrange to collect any contributions assessed.

Strikes and withdrawal of service on a wildcat basis have taken place over the last three weeks in Edinburgh, Glasgow, Dundee and further afield.

Last week Mr MacAskill offered to raise the threshold at which charges would begin, from £68 to £82 weekly disposable income, but remains steadfast on requiring payments to be collected by the individual defence solicitor.

The Public Defence Solicitors’ Office (PDSO) has been caught in the crossfire. With 22 salaried public defence solicitors in seven offices throughout Scotland from Kirkwall to Ayr the PDSO would be considered one of Scotland’s biggest defence firms.

On the other hand, the Scottish Legal Aid Board, in the budget of which the PDSO appears, points out: “This compares with a total of 1,425 solicitors registered to provide criminal legal assistance and 592 firms. This is approaching 30 more firms and 100 more solicitors than in 2009.”

The suspicions heard among the protestors is that while fee changes over the last decade have driven down the overall cost of criminal legal aid, with consequent effect on the revenue of individual firms, the PDSO is somehow featherbedded. At a time when the downward pressure on criminal defence fees is continuous, the PDSO is more expensive per case than is demanded of criminal defence firms in private practice.

The fear is that even with its small share of overall defence work, the PDSO is somehow a Trojan horse within the city walls of criminal defence. These are propositions that clearly sting Matthew Auchincloss, director of the PDSO since 2002.

“We are all members of the same professional organisation, the Law Society of Scotland, and work to the same code of practice,” he said. “All of us bar one have been in private practice. Some stay for a long time. Others go back to private practice. Things that have an impact on the justice system have an impact on us. You’re right to say that PDSO has become an issue attached to the current discontentment. It’s not clear why. Throughout its life the PDSO has tended to come up from time to time when other issues arise. I’m not sure I can see the connection here.”

The PDSO opened in 1998 with an office in Edinburgh. Others were added in 2003 and 2008/9. Its remit was to offer a criminal defence service in areas where it was hard to find, and be available as a choice in the marketplace along with private firms. But what has its role been in the course of the recent days of action, with private defence agents refusing to participate in the custody courts?

“It hasn’t affected us particularly much so far and not at all in the first week in Edinburgh,” Auchincloss continued. “The second week was Edinburgh and Glasgow. By the rota we were duty solicitor in both. It wasn’t a particularly busy day in either court for a holiday Tuesday – about 120 in Glasgow. The biggest problem that day, and the reason the court ran very late, was the Crown Office computer effectively wasn’t working. There had been a planned upgrade for that weekend and it failed. So by something crazy like 5pm none of the new custodies had been marked. The custody court finished at about 9:40pm and, frankly, it was a miracle to get through all the business in that time.

“There were some accused people who went through unrepresented. That happened after they’d spoken to their solicitor and they made a choice that that’s what they were going to do. They could have chosen to speak to us and in Edinburgh we maybe dealt with five or six more than we otherwise might have. But we’re used to being duty lawyers. It wasn’t a big impact on us.”

What about the suggestion that the PDSO costs SLAB more per case than if a private firm was doing the same case?

“No. It’s more complicated than just looking at the number of cases and dividing it by the amount of money you spend. The extreme example is that we took a case to the Supreme Court last year, one of the sons of Cadder cases. It was probably about £60,000 cheaper for us to do it but certainly bumped up our average cost per case,” said Auchincloss. “Of course, that’s not representative of the bulk of cases we do. We do tend to have a different case trajectory.

“If a PDSO is entering a guilty plea it tends to be earlier than in private practice though that has been changing because of the changes to the general fee structure. That appears to have had an impact on the rate of guilty pleas at the first calling. Private practice cases look more like our profile than they did three or four years ago. It is very difficult to say per case we are cheaper. I can say that overall we have made substantial savings to our costs over the last two years. At the start of 2011, for example, as part of a savings package for the legal aid fund PDSO, after negotiation with the law society, took on more duty solicitor slots – up to 35 per cent across Scotland.”

How does that save money?

“Case volume. Volume of business against costs. It’s a simple equation. We are working really hard. That’s what the answer is.”

Having repeated that you are all defence solicitors together, do you have sympathy for those who have taken a public stand?

There’s a long pause.

“I don’t buy the argument about the ‘moral’ difficulties in collecting contributions from clients. It has always been a feature of criminal defence that most firms have done some degree of private client work and seem to manage to collect fees there. I don’t buy it that it works for some clients but not for others,” said the director. “The big thing for us coming out of the coverage is the issue of independence. Some implications have been made about us not being ‘truly’ independent. It’s a myth. We are all members of the Law Society of Scotland. There’s a standards rule that you must be independent when you give your client advice. We have all had the same training at university and traineeships. I don’t buy for a minute that just because you’re in the public sector your professional ethics change. It’s just not true. We have our own code of conduct on the website which says we’ve got to be independent and we’ve got to be fearless. Otherwise, what’s the point of being a solicitor if you’re not going to do the job?

“We’ve got consistently high client satisfaction results. We were at the front of the Salduz argument. We were the first to lodge a devolution minute in Edinburgh after the Cadder judgment and I think the first in Glasgow. We argued one of the sons of Cadder cases (HMA v P) at the Supreme Court. It’s difficult to take when they question our independence of mind or practice. It’s just not true.”