Don’t be Innocent under PCT

It is only when you discuss PCT with defence lawyers that the reality of the proposals come alive. This more so when that conversation is with 2 lawyers who, between them, hold over half-a-century of experience. They have a highly successful firm based largely on an “own client” base. This has been built through long, hard graft and quality representation – you will empathise.

This case would have been totally off my radar had it not been for Crimeline. It involves a false accusation of rape, which collapsed just before trial*.

Under the PCT proposals this man would have been randomly allocated a defence firm, in the Police Station. Unlike other public services such as health and education where “choice” is a prized factor, Father Taylor would have none. It is likely that he would not have his “own” criminal solicitor and may well have plumped for “duty” in any event. Lets assume he did.

The PCT “duty solicitor” pool (or “taxi rank” or month of birth or PACE lottery) will be smaller than now. Somewhere between 1 of 4 to 1 of 38. There will be no special, new quality filter just plain old SQM or Lexcel – the recent SQM experience, in Family, is hardly encouraging in this regard; we witnessed no failures despite enduring a number of very nervous days when clearly non-compliant firms faced an audit. They all survived with mild censure. Peer Review never offered a realistic alternative and has long since been “fit for purpose”.

So lets take the median – Fr. Taylor gets allocated, willingly or otherwise, a firm from a supplier base of 16 (nearest live example being Lancashire or Merseyside with 14, or South London with 18). With a “guaranteed” sixteenth or 6.5% of work in the Procurement Area, this outfit experiences no real “market force” driving quality. There is no irresistible “market” reason to build an “own client base”. Most firms will retain their intrinsic motivation to do a quality job but others may not or they may, simply, not be that good. Remember price is the key determinant and we all know what you get for peanuts.

During the lifetime of his case he might become disenchanted with the efforts of his defence team. He might even decide that he wants to transfer. The proposals (4/79-86) indicate a ramping-up of the “exceptional circumstances” when a transfer would be allowed, including the LAA taking a direct role, “pre-magistrates”. There might well be further financial disincentives, to discourage transfer, built into the final scheme too.

Alternatively he might become aware of another firm with greater expertise and a track record of defending rape cases. If that firm is outside the PA then, simply, tough. If the firm is one of the 16 it remains, just, possible to prove exceptional circumstances and transfer. However in no eventuality is there a “market force” driving a competitor to take over a case and do a better job – in fact who will want demanding “roundabout” cases when profit flows from the “swings”. Many firms will, I suspect, still engage in “economically irrational behaviour” and take on such cases as a matter of professional pride/duty.

So the worst case scenario (but not including the PDS).

Fr Taylor gets, by chance, the least competent firm of the 16. This bad luck is compounded by the fact that it is also the firm who “won at PC”, by bidding the lowest. The LAA, using it’s highly finessed, forensic-accounting skills, determined that this was not quite a “suicide bid” and granted a contract. This firm is now earning less than all its competitors, perhaps by a significant margin. The firm’s profitability is consequently compromised and “efficiency savings”, especially on its Crown Court cases, represent this years mission statement – or survival strategy.

Unable to achieve a transfer of LA his only alternative would be to “go private” at around £16,856 (para 3.30)

I am sure that you will all agree that this is a “transformation” of the system which assisted Fr Taylor. I anticipate however that, like me, you will have a view as to its “credibility” and/or “efficiency”. Most importantly of course is the question; will the Fr Taylors of the future receive improved access to justice?

You will have a view on that too.

* I have some unease about using this as an example given recent debate about rape convictions etc. If you do too please put them aside for the purpose of this example.