Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Butler-Sloss Excerpts

Monday 5th March 2012 Lords Chamber

[Baroness Howarth of Breckland]

My Lords, I encourage the Minister to accept the amendment. I do not think for one moment that it cuts across the Government’s own policies or—as the noble Lord, Lord McNally, continually tells us—deficit issues. Looking at this might improve those deficit issues. If we do not have good expert witnesses, the consequences could be very high costs in some cases.

I have to declare an interest as the vice-chair of the Lucy Faithfull Foundation. Lady Faithfull was of course an eminent Conservative in the House of Lords. She developed the foundation to work with abusers, and the foundation continues that work. One of the things that we do is make assessments in very complex cases so as to make recommendations to the courts on whether some individuals are safe to remain with their families. It is absolutely crucial that these experts are maintained. However, at £63 an hour, the foundation has to subsidise that work at the moment. We cannot do that for long. I use that as an example of one of many organisations that find themselves unable to produce these experts.

I also declare an interest as having been the chair and vice-chair of CAFCASS for some eight years. I absolutely agree that there are too many expert witnesses. Children’s cases have been held up in court over the years because reports have been commissioned by judges and have had numbers of witnesses. Many of these have been commissioned by people who, as the noble Lord, Lord Beecham, said, can afford to commission the reports themselves. That is a difficulty. We have a serious administrative muddle. The amendment of the noble Lord, Lord Beecham, gives the Government the opportunity to review and sort this out.

No one is saying that we want to maintain the high level of expert witnesses in the court. We want to ensure that, where expert witnesses are needed, they are available. If they are not available, that would be a really serious miscarriage of justice for children. Mistakes will be made and children will be put in danger. It is quality not quantity that really matters on this issue. If you talk to judges, social workers who work in the courts, or expert lawyers, they will always tell you that this will be the consequence.

My only other point is that the assessments being made by the Legal Services Commission are usually based on some sort of broad criteria that have little to do with expertise but have to do with qualification. If you are a poor social worker, you come very much at the bottom of the pile in terms of what you are worth, whatever your extra qualification might be. Lucy Faithfull Foundation social workers are experts in their field—psychologists and psychiatrists do not come near them, as anyone will tell you. Yet, in making their assessments, they are still paid at this sort of level. I encourage the Government to accept the amendment, not because it will mean that every expert is preserved but because it gives an opportunity to put the system on to a safe footing.

[Baroness Butler-Sloss]

My Lords, this amendment is a timely reminder of a potential major problem which already exists but which will be much exacerbated in future. I have considerable, sometimes very uncomfortable, personal experience of large numbers of experts in the courts before me, so I should like to make three specific points. The first is on quality.

Quality, as the Norgrove report said, is variable, and I can tell you that it is variable. There are experts who are over-enthusiasts. There were two extreme examples, of brittle bones and salt, which reverberated about the medical consultant profession. The trouble is that they were not the only two. Other experts are giving evidence because they happen to have a line.

When I was president of the Family Division, I had very useful discussions with the Chief Medical Officer about how we could identify appropriate people who one might call middle of the road. They were not at one or the other end of the continuum; they were not people who said, “Nobody ever injures a baby”. I once had 13 doctors giving evidence in a shaken baby case, of which there probably needed to be about five. This was absolutely unnecessary. Half of those experts were giving evidence from a preconceived notion rather than from the evidence that they actually had, and it was extremely difficult to get them to do something sensible. It was an appalling case. It was not the only one—it was just the worst that I remember.

Quality is a real point. It is not the numbers but the people who can do it that matter. The Chief Medical Officer, Sir Liam Donaldson, and I really struggled to see how we could identify for the benefit of the judiciary and the lawyers the doctors who would be middle of the road. It is unfinished business and, particularly in a time of financial stringency, it becomes all the more important. So quality is really very important.

Secondly, it is a problem of numbers—there are far too many. That ought to be dealt with in directions hearings, but they quite often get appointed before the case ever gets to the judge or the justices. Something must be done about numbers.

The third point is fees. There is no shortage of very distinguished doctors, particularly in the London area but right round the country, who will not put their heads above the parapet because they do not want to expend the time and trouble on going to court. On the fees that are now suggested—and I heard the noble Lord, Lord Beecham, talking about £90—I have heard the figure of £63 mentioned in the endless e-mails that I have had, as the noble Baroness, Lady Howarth, was saying. Quite simply, if you cannot get the best experts now, what on earth is going to happen to the welfare of these very high-risk children if they do not have the doctors to help the judge or magistrates to decide whether they can safely go home or will for the rest of their lives be denied the real natural family? It is the most appalling decision. Shaken babies are an example. There is still no agreement on whether having hematomas on the outskirts of the brain within the skull or problems behind the retina is or is not an indication of a child having been shaken rather than suffering a natural trauma. How on earth does a judge try that—and these are High Court judges—if they do not have some help? What they need is good help; they need other people who will turn up and give sensible advice to the courts.

Social workers need more support. They are not having their evidence taken sufficiently seriously, and there is no shortage of cases where it would not be necessary to have several doctors if the sensible social workers’ advice was taken by the courts. Too many local authorities are pulling their social workers out of a case after six months. In a case that takes two years, there may be four social workers in charge, and the result is that no social worker is really on top of a case. If something could be done about that, you would need fewer doctors.

The amendment deals with the review and is a timely reminder of the real need to have a look at this and involve the Chief Medical Officer—if I may respectfully suggest it—to see what could be done to get the right doctors in the right place, and not too many of them.

[Lord Faulks]

We have heard a great deal, and very helpfully, about the role of experts in family proceedings. I defer to those with much greater knowledge than I have about the various inadequacies in the arrangements that exist there. But this amendment is not, in fact, peculiar to family experts but covers the whole range of experts that assist the court.

Although all is not perfect in the litigation system, it is worth recording that considerable steps have been taken by the courts in the approach to expert evidence, particularly the various changes brought about by the noble and learned Lord, Lord Woolf, that have resulted in the timely exchange of reports, experts’ meetings and even the exciting developments known as “hot-tubbing”, which your Lordships may not be familiar with, involving experts in court at the same time and exchanging views in order to provide a synthesis for the judge in an effective way.

So, the courts themselves are providing a great deal of control over the way that expert evidence is given. The judges and the consumers of experts are in a position to judge the quality of the product, which itself provides a certain discipline that is relevant in deciding which experts are retained and how much use they are. Those of us who practise in the courts are familiar with judges expressing the view that there is no need for expert evidence on this or that case, which helps considerably.

Early directions, timely interventions by judges and the proper application of expertise by the lawyers can result in the provision of expert evidence being satisfactory. The only caveat that I would give from my experience with experts’ evidence, which relates essentially to professional negligence, is that in legal aid cases there is a continuing concern, just as there is in the context of family proceedings, that the rates for expert witnesses is so low that the best experts may not be available.

Subject to that, I am slightly concerned that this is rather outside the province of the Lord Chancellor in terms of accessibility and the quality of expert advice. The courts are making progress and will continue to do so. Nevertheless, I defer to what has been said about the family courts by the noble and learned Baroness, Lady Butler-Sloss.