Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Kennedy of Shaws Excerpts

Tuesday 10th January 2012 Lords Chamber

We need a situation in which sufficient experts are available to assist both courts and parties, and for that matter to provide an element of choice, because it would be wrong if only a very limited number of people were able to give evidence. In this rather unique market, one needs a sufficient number of players. The difficulty with the situation as it is now developing is that we shall see in this instance, as in other instances that we have been debating on this Bill, the probable emergence of a two-tier justice system. In this case, expert evidence will be available only to those who can afford it. That is not consistent with equitable access to justice for all who need it and it is not consonant with the obligation to assist the court by having available the necessary evidence that will enable it to reach the right conclusions. Whatever improvements might be made to the management of the system, this question needs to be kept under review. This amendment would oblige the Lord Chancellor to ensure, as far as possible, an adequate supply of expert witnesses and that their quality is maintained. I beg to move.

[Baroness Kennedy of The Shaws]

My Lords, I support the amendment and want to reinforce my noble friend’s concern over creating a two-tier system in which those with money are able to access expertise and those without have difficulty.

I have reflected on the cases in which I have been involved in the past few years where legal aid has made available expert witnesses, and on the fact that I have within the past decade chaired an inquiry for the Royal College of Pathologists and the Royal College of Paediatrics and Child Health into sudden infant death—that was in the aftermath of miscarriages of justice for women who had been accused of killing their babies. What comes out of my experience is the fact that, even with the curtailment of legal aid in the way that is being envisaged by government, there will be areas where the need for expertise will be clear. The Government are saying that legal aid should be available for family cases where domestic violence might be an issue. One of the ways in which a contested question of domestic violence might arise is by having supportive evidence from professionals who have the expertise to assess whether someone has been subjected to abuse. In most of the domestic violence cases that I have done over the years, a breakthrough has been brought about as a result of the legal world understanding the nature of domestic violence through the assistance lent to the courts by experts. Those experts know, for example, that women often remain in relationships which are abusive and do not seek help because of the psychiatric state of learnt helplessness that they develop, where they cannot envisage being able ever to withdraw from the abusive relationship.

I think of the circumstances in which one has had to use experts to establish age in cases; for example, where an applicant’s claims to be under age may be an issue in the case. Establishing age is taken up by the state or by other authorities and is done through medical examination and expert evidence. Linguistics quite often arises as an issue in cases; for example, in listening to tape-recorded interviews, where one needs the assistance of people with language expertise. We are talking not just about psychiatrists or medical experts but about psychologists.

Let us think of the huge advance that was made within the justice system by our realising that some people confessed because of high levels of suggestibility in particular personalities. Let us think of the ways in which some people process information aurally, while others have real difficulty in doing so and therefore cannot respond well to questions. Those people often give answers that they later correct because they had not understood and were not able to process complicated questions easily. On issues of culture and difference of religion, I have on a number of occasions in recent years used experts to explain to the court matters of practice in certain religions.

I therefore urge the Committee to reflect carefully on curtailment of legal aid where it would be appropriate in cases to have the expertise of properly qualified people lent to the court so that the court can, in turn, do proper justice.

[Lord Elystan-Morgan]

I, too, support the amendment that has been moved with such clarity by the noble Lord, Lord Beecham. An expert is not a luxury. Irrespective of how conscientious, patient and thorough a judge may be, there are many technical issues on which he would be lost in coming to a proper, conclusive determination of the case without expert evidence to assist him.

In some cases there will be privately paid experts and no expert on the other side. How can there be an equality of arms in such a situation? Without elaborating on the case that has been properly put by the noble Lord, I would urge on Her Majesty’s Government a consideration that the denial of an expert in a proper case is a denial of justice and, more often than not, may not be a saving in net financial terms.

We shall deal later with other amendments on savings. The Government believe that they can save £350 million through the changes proposed in this part of the Bill. The Law Society, very conscientiously, has drawn up a plan suggesting that £375 million could be saved in a totally different way. I appreciate that there are conscientious and genuine differences as to these opinions but I have no doubt that much of the saving which, on the face of it, appears to be attractive in this situation of financial stringency, may very well not be a saving in actuality.

The diminution in the fees of experts was an extremely retrograde step. There was no justification for it and it will reduce the availability of experts. I speak as one who sat for many years in the family jurisdiction in North Wales, where one had to go far afield for experts in the Manchester and Liverpool areas. One was at the end of the queue and had to wait for months before an expert was available. Diminish that availability and you will add to an injustice that already exists.

--- Later in debate ---

The benchmark rates are being developed by experienced civil bill assessment staff at the LSC and are based on their experience of typical hourly rates charged by experts in their respective geographic regions. The rates reflect the LSC’s experience that there is a greater supply of experts in London, which allows more competitive rates to be paid.

[Baroness Kennedy of The Shaws]

I am sorry to interrupt. On the issue of the assumption that experts will cluster in London rather than elsewhere, the experience, particularly in the medical field, is that—after, for example, the “sudden infant death” debacle and miscarriages of justice, and due to the feeling that there has been considerable criticism of paediatricians or pathologists over matters involving children—there is now real reluctance among people to be experts. It is not that there is a plethora of experts around; in fact, the opposite is the case. It is very hard to get medical people to come forward as experts in the courts because they do not want to have that kind of exposure. They also find that they are not paid enough money to make doing so worth cutting into their professional time. There is a misunderstanding about the availability of experts, particularly in the medical field.

My point about domestic violence is that in family cases, where on the whole there will not be legal aid, if someone is claiming that they have been a victim of domestic violence then they will be able to claim legal aid, but often there will be an argument over whether indeed there has been domestic violence. It is experts who often can resolve that. Will there be legal aid available to help to resolve the issue of domestic violence in order to enable access to legal aid?

[Lord McNally]

I do not think that I can give that assurance. The more that this goes on, the more that one can see why the Government are reluctant to accept an amendment that would impose a kind of impossibilism on the Lord Chancellor. We are working our way carefully with the LSC to a system that we think reflects the position. I hear what the noble Baroness is saying about the availability of expert witnesses. This is not the conclusion to which my right honourable and learned friend the Lord Chancellor has come; he thinks that this structure will provide the necessary experts. The more that we hear these examples given, the more I believe that the idea that legal aid or public funds can fund the whole range of expertise that the noble Baroness was suggesting is dangerous and one that I cannot possibly support from the Dispatch Box. I think that we will see some of the worst-case scenarios but we have confidence that the system we are setting up will carry on some of the procedures and reforms set in place by the previous Administration, and that it reflects an effective way of using public money. Therefore, accordingly, I ask the noble Lord to withdraw the amendment.