Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Kennedy of Shaws and Lord Elystan-Morgan

Tuesday 10th January 2012 Lords Chamber

[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.