Chris Grayling may consider the judgment today in the Court of Appeal to reverse the stay on the Operation Cotton fraud trial as some kind of success in his battle against those who defend cases in the criminal justice system. If anything, it is likely to be a temporary and rather pyrrhic victory. The Court of Appeal expressed grave concerns about the current state of affairs in which no advocates can be found to work on the case under the new VHCC rates which were slashed by 30% recently. The truth is that the criminal justice system is in crisis. All of us working within it are aware of this and have been pointing it out for some time. Only Mr Grayling seems not to notice.

Mr Grayling has said that he is going to consider a recruitment drive for advocates to be employed by the Public Defender Service contrary to his promise to the CBA in their recent deal on shelving further cuts to advocacy fees. The PDS has been around for a good few years now quietly working away in a few areas of the country. In effect it operates as a firm of solicitors representing clients at the police station and in the court system. It has always been considerably more expensive to run than private practice (the commonly held belief is that it costs about three times as much per case) and has in every Contract round and proposal by the Government been guaranteed a place at the table when private firms have not. The fact that it is so vastly more expensive seems irrelevant to Government which is decidedly odd when one considers that the cuts to legal aid are allegedly driven by the need to save public money.

So what of the expansion of the PDS into advocacy and the employment of junior counsel and QC’s by the organisation? If Mr Grayling considers that this will provide representation for those charged in Operation Cotton, and presumably in the seven or eight VHCCs soon to hit the same buffers, surely it must be saving the public purse a lot of money.

Quite the contrary it seems. A QC employed by the PDS is paid a basic salary of £125,000 p.a. When one adds in pension contribution (something the self employed Bar and private practice solicitors do not enjoy), NI contribution, practising certificate fees, and other sundries necessities of every advocate that the PDS will have to supply, the figure comes out at around £173,500.

Now a QC employed on a case like Operation Cotton in private practice and acting under the VHCC rates before the cuts working for a year would gross about £145,500 from the public purse. From this they would pay their own expenses such as chambers rent, pension, insurance, IT etc which reduces the amount in their pocket considerably. Therefore it will cost the tax payer about £28,000 more to have a defendant represented by a PDS QC than one from private practice … and this is before the 30% cut in fees. After the cut the cost of the advocate in private practice has his fee cut to £97,000. This is close to the figure of £100,000 that the MOJ repeats ad nauseam in the hope that the public will consider it outrageous that such a dispute is ongoing when such a fee can be obtained by the advocate. Of course, the MOJ makes no mention of the significant expenses that have to be taken from this figure (about 35%) before it is even taxable. These are cases of the highest complexity and require representation from the best available advocates.

The Government has proved that these cuts are not about saving money. They are ideological. The proposed cuts will destroy many small and medium sized solicitors firms (exactly the sort of business the Government claims to wish to help succeed) and they will destroy the independent Bar. We know that the proposed cuts will end up costing the tax payer more in the cost of an increased number of miscarriages of justice with people going to prison wrongly convicted and the unpalatable corollary that those guilty of the crime are not brought to justice. Mr Grayling has been told this over and over again but he has his fingers in his ears. On his watch will our long cherished criminal justice system crumble to dust unless he starts to take our concerns seriously.

There is one other concerning thought about the use of PDS advocates in Operation Cotton (or indeed the other affected fraud cases) which those solicitors representing the defendants and the defendants themselves might like to bear in mind: it is the rather large spectre of a conflict of interest.

Recently my firm was asked to act in a case but one of our solicitor advocates had acted for a co-defendant in the same matter and issues of conflict arose. That advocate had not been instructed by our firm but by another firm of solicitors. However, we took the view that for us to be instructed as a firm where one of our advocates had acted for a conflicting defendant would be a conflict of interest and we declined to take on the case.

It is our understanding that the Ministry of Justice, in intervening in the Operation Cotton appeal to argue that the case against the defendants could be continued, instructed a junior advocate from the PDS. If this is true, does it not raise any conflict of interest alarm bells with anyone at the PDS? Could it not mean that the PDS is conflicted from having any of their advocates acting for the defendants in defending the case that might not have required defending but for the intervention of the MOJ instructing the very same PDS?

Is the PDS not more akin to a firm of solicitors than a chambers and, if so, how comfortable would you be as a solicitor instructing an advocate from the PDS in these circumstances and how comfortable would your client be with that instruction? Or is it that the normal rules do not apply when the MOJ is involved? Which professional body regulates the PDS or its employees in terms of professional conduct?

It may be that this situation causes no problem at all from a professional point of view … but it smells a bit whiffy to us.