NORTHERN Ireland’s Director of Public Prosecutions has called for a root-and-branch review of how legal aid is paid to defence lawyers, claiming they have access to an apparent “bottomless pit” of public funds.
Barra McGrory QC said it was not right that the proportion of money distributed to defence solicitors and barristers representing clients supported by the state was around double that of the Public Prosecution Service’s (PPS) £35 million annual budget.
Mr McGrory said the establishment of a public defenders office was one possible way to bring spending on both sides into line while also introducing a needed measure of regulation over defence advocates, whom he claimed were operating “a free market on the public purse”.
“I think there needs to be a root-and-branch examination of the criminal justice system to have a look at just why the defence costs appear to be a bottomless pit,” he said.
The head of the PPS acknowledged recent measures introduced by Stormont Justice Minister David Ford to reduce the fees paid to defence teams in criminal cases but said more substantive reform was needed.
Mr McGrory was a prominent defence lawyer himself before joining the prosecution service.
“In a sense I am poacher turned gamekeeper but I know it from both sides, and one of the things that struck me coming into the prosecution service is how under-resourced it is compared to the defence,” he said.
“I have to work at not getting annoyed when people say ‘you took this case and it cost a fortune’ – with the greatest of respect, the vast bulk of money that was spent on the case came from defending it.”
He added: “I look over the fence now where I used to be – they are very well resourced and I just think simply tinkering with the method of calculating the fees doesn’t tackle the problem.
“There needs to be a deeper and specific examination of how the money is spent.”
Legal aid spend on criminal cases has reduced on the back of Department of Justice reforms – from £60 million two years ago to £48 million this year – but the overall bill for defence lawyers still well exceeds the PPS’s budget.
Mr McGrory’s comments come as Mr Ford is attempting to take similar action to cut the legal aid bill for civil cases.
Legal bodies such as the Bar Council have criticised the minister’s initiatives, claiming they will create a system where only those who can afford it will be able to access a good defence.
Mr McGrory rejected that analysis.
He said: “There’s nobody more conscious of the right to a fair trial than I am, having been a defence lawyer and bearing that responsibility as a prosecutor, but I know of no right to a fair trial which requires the defence to have double the resources of the prosecutor, I think that needs to be kept in perspective.
“Everybody, of course, has a right to a fair trial; has a right to be represented; has a right to sufficient resources to ensure they are fairly represented – but I think that means that there is an obligation on the state if it is providing those resources to make sure that it is in balance and in keeping with the resources that it’s spending on the prosecution.
“I think there needs to be an examination of the structure of the legal profession and of the system which requires the state to spend so much money on defending cases as opposed to prosecuting them – there’s something wrong somewhere.”
Mr McGrory, who has been in post a year, said there remained room in the system for an independent body such as the Bar but he voiced concern that it was not subject to the same degree of regulation as the PPS.
“I think the important thing is that those who are dishing out the money control the quality,” he said.
“I would make this point – there is no quality control over defence advocacy and the preparation of defence cases; there is of ours, and that’s the difference.
“So, not only have we a restricted budget but we are subjected to regular inspections by the Criminal Justice Inspection on the quality of our decision-making and the quality of our advocacy. Now where is the quality control over the defence?
“The Department of Justice is dishing out millions, over and above what it gives us, and there is nobody controlling quality, there is no quality control.
“As a prosecutor, what has struck me is we have limited resources and we are rightly subjected to rigorous quality control and criticisms in respect of the quality of our work.
“I look at the other side now and realise that there is a free market on a public purse and there appears to me to be little quality control and little control over how the money is prioritised in the way in which I have to do it.”
The head of the PPS said he was not carrying a torch for a public defenders office but said it was one potential option.
“I don’t see why not,” he said.
“People will go ‘Oh a public defenders office – that’s an infringement of a defendant’s rights’. But is it?
“It might be a better way to control the costs. Certainly it would be a mirror image of the prosecution service and if it was equally resourced and was providing the service in a more streamlined way, then I think why not look at it?”