BRUCE McKAIN

THE Government's controversial plan to launch a pilot public defender scheme has been rubbished by the Law Society of Scotland, which represents Scotland's 8000 solicitors. In its response to Michael Forysth's crime and punishment White Paper, the Law Society warned of innocent people going to jail after their arms had been twisted to plead guilty by State-employed defence lawyers trying to cut legal aid costs.

The society derided the worst aspects of the system in the US, citing the case of New Orleans public defender Richard Teisser who successfully sued himself, demanding a judge declare his work inadequate and order the State to provide more resources.

Mr Forsyth is clearly not convinced the present arrangements for criminal legal aid are providing value for money and wants to develop benchmarks to see what the service should cost.

He would like to see the Scottish Legal Aid Board (SLAB) employ a number of solicitors to provide criminal legal aid on a pilot basis in one or two geographical areas so that the costs could be compared with the costs of work currently carried by solicitors in private practice.

The idea of a State-salaried defender has been floated before in Scotland. In 1980 the Royal Commission on Legal Services in Scotland concluded that with annual spending on criminal legal aid running at #4m it would be ``irresponsible'' to ignore a potential saving if this could be achieved without a reduction in the quality of work provided for accused persons.

That figure of #4m will produce a wry smile from Mr Forsyth, given that the total legal bill for last year was #133.4m, with more than #74m going on criminal cases.

The warning last week in the annual report of the Scottish Legal Aid Board, which administers the legal aid system, was clear enough. ``Under the present system the cost of legal aid in Scotland has risen from #47.7m in 1987/88 to #133.4m in 1995/96. This rise cannot continue indefinitely.''

SLAB chief executive Richard Scott echoes that warning by pointing out: ``The amount of money paid out in criminal legal aid in Scotland both in total terms and per case terms is much higher than virtually any other European country and in many other countries in the world.

``Given the cost of criminal legal aid and the variable quality of service coming through the private sector, why not look to see whether a public defender scheme might be a worthwhile component - and it will only be a component - of the overall provision?

``At the board we believe there should be a mixed system where the majority of the provision may still rest in the private sector.''

He accepts that the public defender system in America is ``pretty mixed'' but cautions against a knee-jerk reaction.

``We can all quote the American Bar Association and I have quotes from them, basically saying that when adequately funded and staffed defender organisations employing full-time personnel are capable of providing excellent defence services.

``So, despite what the Law Society has been saying, the American Bar Association and, indeed, the Canadian Bar Association are actually very much in favour of a properly funded public defender system.''

He accepts that the key phrase is ``properly funded'' and agrees with the Law Society that justice underfunded is justice denied.

``Quite frankly we wouldn't want anything to do with a system that was underfunded. However, we believe there are savings to be made. I'm not skating round this. That's one aspect of this.

``But at the moment it's very difficult for anyone to know really whether we are getting the best value for money out of private solicitors. The general suspicion is that we're probably not.

``As the White Paper says, until we can benchmark this, we don't know.

``Experience in other jurisdictions has shown that if you have a public defender component, almost in competition as it were, that encourages the private sector to pare back on its costs and to improve its service. ``The danger is that given the continuing escalating cost of providing legal aid through the private sector the State will not continue to pay that escalating cost. That's why it's important at this stage to look at what the options might be, how we can broaden the base of provision.

``Looking at public defender systems in particular I agree that if the government of any political party think this is just a cut-price option which they can keep underfunding, it won't work. It has to be properly resourced and you have to make sure you've got the right calibre of lawyers to do the work. I don't honestly think there's a problem there because I think there are enough lawyers who would be happy to do the work within a public defender system for a reasonable remuneration - #35,000 or #40,000 or so a year.''

As for miscarriages of justice, Richard Scott says research in Canada has shown that under a public defender scheme no more people are found guilty or plead guilty than under a private scheme. ``Client'' satisfaction with the public defender system is apparently as high and, in some cases, higher than with private solicitors.

He accepts that it is vital that the public defender should be seen as independent from any other player in the criminal justice system.

``If there is the slightest whiff of collusion, if people see the public defender as somehow in cahoots with the prosecution and think that they are going to carve up the case, people would simply lose faith in the system.''

He thinks this danger can be avoided because, as practising solicitors, public defenders would be members of the Law Society and not beholden to the State.

``The procurator-fiscal service is clearly part of the State, but it still prosecutes people like (Conservative MP) Allan Stewart.''