The Criminal Bar Association has expressed its concern that the Ministry’s expansion of the PDS is an attempt to “bust what they see as a strike”, that is, the refusal of criminal barristers in self-employed practice to undertake Very High Cost Cases (VHCC) under the new rates.
In January the Legal Aid Agency declassified some VHCC cases to graduated fee cases, claiming that the cases no longer met the VHCC criteria, but the move was seen by many as an attempt to circumvent the boycott by barristers. In R v Crawley and others, Judge Leonard QC was told at Southwark Crown Court that no barrister could be found to take the case, although 70 chambers had been approached.
Attorney General Dominic Grieve QC MP had warned at the Bar Council’s annual conference in November last year that the Ministry would “look elsewhere” if criminal barristers refused cases at the new rates.
CBA Chairman Nigel Lithman QC said: “The Government has shown such contempt for the independent criminal Bar that they are prepared to set up a group of employed barristers to replace them. Suddenly the Government has found money to pay them.”
A Minstry spokesperson said: “The PDS has been in place for 10 years. We are advertising for a small number of advocates to provide additional resource, in addition to those already recruited. The public would expect us to take steps to ensure the PDS can provide high quality defence advocacy where it needs to – and that is what we are doing. We place a high value on the independent criminal Bar and will continue to maintain that position.”
The PDS was set up in 2001 as a criminal defence pilot modelled on a solicitors firm. Academic research, commissioned in 2000 by the Legal Services Commission and completed in 2006, found that the service was significantly more expensive to run than local private practice, but scored well on quality assessment. Since that time, according to Transforming Legal Aid: Next Steps, “the PDS has made a number of changes to the way it delivers its service and the way it is structured to ensure it remains cost effective” and it was important to maintain the service as a benchmarking aid and a “safeguard against market failure”.
The PDS has four offices in Cheltenham, Darlington, Pontypridd and Swansea.