What price justice?

The US Public Defender System has a reputation for providing the poor with representation that is only second-rate. The Government may introduce it here. Rebecca Butlin reports

We've had their television programmes and movies. Now Britain may be about to take another import from the US - cut-price legal aid. A White Paper from the previous government proposed that the American Public Defender System be evaluated in Scotland in place of the more costly Legal Aid and Labour has made clear its support for the idea.

The Public Defender System is available in the US for people without sufficient means who are accused of a criminal offence. Last year it was used in 11 million out of 13 million criminal cases heard in the US courts, most of which involve poor blacks or Hispanics. The majority of Death Row inmates have been represented in that way.

It has been assumed that the motive underlying the proposal is the rapidly increasing cost of Legal Aid, as the public defender system is claimed to be cheaper. Between 1990 and 1995, Legal Aid costs increased by 59 per cent overall for both criminal and civil cases. Although there is no indication of the cost of the public defender system, opinion has it that a Scottish pilot scheme would act as a useful indicator of costs across Britain. The reason for the expected lower costs of the public defender approach lies in the way in which the work is contracted out. At present, a solicitor acting for a client eligible for Legal Aid is paid on an hourly basis for time spent on each case. In the public defender system, work is contracted out and firms are paid a fixed sum for each case regardless of the time spent on it.

The seemingly lower costs notwithstanding, the public defender system also has the potential to be unfair and ineffective from a civil rights perspective. At worst, a defendant may only see his lawyer for the first time on the day of the trial, with little or no time for in-depth preparation of the defence by the public defender on the basis of sufficient interviews with the defendant, or for reflection on the case and how best it can be presented in court. In such cases, the lawyer's presence may only provide token justice rather than ensuring equality under the law in practice. Under these circumstances, the public defender is the embodiment of "poor man's justice".

The Law Society of Scotland is extremely unhappy about the plans and has formed its own limited company, Public Defender (Scotland), giving it rights to the term. The point of the action, the Scottish law society claims, is that anyone who is employed by the Scottish Public Defender Scheme will have to call themselves "a state-employed defender".

Robert R Bryan, a specialist trial and appeal lawyer based in San Francisco, and former chair of the National Coalition to Abolish the Death Penalty in the US, has defended those accused of murder across the States for 30 years. In his opinion, the Public Defender System is certainly cost- effective but "rights-wise" is grossly ineffective. "The system is notorious for allowing clients to see their lawyers for as little as five minutes before a trial," he says. "The lawyer then goes before the judge and acts as if he has a real relationship with his client. It is like a drama acted out before a jury: a complete sham. One has to be in the position of needing legal representation under the scheme to understand the fear of finding yourself victimised by a system that does not function very well. The reality of the Public Defender System is that many innocent people are convicted."

The unfortunate truth is that those who make the decisions about whether the public defender scheme should replace the current Legal Aid system will never find themselves in a position where they are forced to use it. It is difficult to envisage a relative of any Scottish Secretary of State or English Home Secretary electing to use the public defender system because of its reputation for excellence.

This is not to say, of course, that US Public Defender lawyers are not committed to offering access to real justice to their impoverished clientele. There are some extremely capable public defender lawyers but, unfortunately, they are overwhelmed with work. However, public defender work can provide a good living for law practices in the US who, perhaps cynically, decide to opt for quantity of public defender clients over quality of representation and time spent on each case.

In the UK, even though there are some mistakes made under Legal Aid, the quality of representation is generally of a high quality. If the Public Defender Scheme should ever replace the Legal Aid system, Robert Bryan feels that the quality of representation would suffer.

The proposal to introduce the public defender system on a pilot basis in Scotland poses a conundrum: in principle it offers an alternative and maybe more cost-effective public legal representation system; in practice, it may lead to free access to justice in name only.

The opinion that is expressed in the White Paper is that it is possible to use the public defender scheme in conjunction with Legal Aid both to save money on the system and improve the quality of the whole system. Paragraph 6.32 of the White Paper, Summary of Proposals, states:

"The Government believes that the efficiency of the present system of summary criminal legal aid could be considerably improved [by introducing a public defender system] without undermining the right of accused persons to a fair trial."

If principles were adhered to and corners were not cut, and more public defender lawyers were appointed, it may well be possible to produce a public defender scheme which was as fair as the more diligent American lawyers strive to make their current one. The Internet is littered with the websites of frustrated public defender lawyers who see the system as a positive step away from the double standard of justice, one for the rich and one for the poor, and who also see it as a real hope for particularly disadvantaged defendants such as the mentally ill, those on drugs or under- age offenders. A typical public defender's office in the US represents 90 per cent of all juveniles who are accused of a crime and many public defenders see that as a chance to help to teach those children "the ways of the righteous" before they turn into full-blown criminals. Those are impressive and ambitious goals but much would need to be improved if the public defender system was ever to be seen as offering a step up to the disadvantaged either in the US or Britain.

The evolution of a two-tier health care system in the US, with an efficient private system for the middle class and well off and an inferior, increasingly inadequately resourced one for the poor, seems to be reflected in Britain. Would the same be true of justice if the public defender system were to come to stay in Scotland and, possibly, the rest of the United Kingdom?