Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Thomas of Gresford Excerpts

Monday 5th March 2012 Lords Chamber

[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.

[Lord Thomas of Gresford]

My Lords, I would like to illustrate the usefulness of experts. This came from a case that I did three or four years ago. There had been family proceedings in relation to a little child of 11 months old who was found dead but with no visible injury. The case for the adoption of other children took about three weeks, with something like three experts on both sides. As a result, the judge held that the father was culpable but was not going to say that he had actually caused the injuries that the child had sustained. Shaken baby syndrome was alleged, but I discovered that there was a huge divide between experts on that issue.

I advised the instruction of a biomechanical expert and the Legal Services Commission found one from Detroit, who had gained his expertise in car accidents. He was able to manufacture a doll that was of the same size and weight as the 11 month-old child. He demonstrated that, as the child was at the age of feeling around the furniture and pulling himself up on to his legs, not even yet climbing on the sofa, if the child fell over, his back hit the ground and his head followed, that would generate sufficient force to cause precisely the injuries that he had sustained. There had been no history of any previous child abuse; there were no marks, the skull was intact and nothing was broken. As a result of that evidence, the prosecution dropped the murder case that it had brought against the father following the judge’s previous decisions.

That indicates how an expert can make all the difference in a case like that, but expensively. It is to the credit of the Legal Services Commission that it was prepared to fund a report like that which ultimately led to a proper conclusion to the case, but one has to think of all the experts who had been involved in the argument about shaken baby syndrome before the judge. It is vital that experts are properly instructed and funded when they are required but I am sure that there are times when far too many experts are employed, and I accept what the noble Earl, Lord Listowel, has said previously on that point.

--- Later in debate ---

[Lord Bach]

My Lords, I am conscious of the time. I would sooner that this amendment is left to Wednesday.

[Lord Thomas of Gresford]

If the noble Lord does not move his amendment perhaps I may move my Amendment 10 in the same group.

[Lord Bach]

I was not sure whether the Government were minded to adjourn the House now, it being 10 o’clock. Clause 8 has always taken a considerable amount of attention from those inside and outside the legal profession. People are very struck by the fact that it was very much a one-way ticket; namely, that the Lord Chancellor would have the power to take extra matters out from legal aid by regulation but not have the power to put them back in. Many people felt that that was very unsatisfactory.

The solution was to do it the other way around; namely, that he could put things into legal aid but could not take them out by regulation. But we see the virtues of the amendments, which are not quite the same in wording but come to the same thing, in the names of the noble Lord, Lord Thomas, and my noble friend Lord Hart. Although I will move my amendment, I would be more than happy to accept either of their amendments. I very much hope that the Government will be happy to accept one of their amendments. I beg to move.

[Lord Hart of Chilton]

My Lords, I accept the undertaking from the Minister.

[Lord Thomas of Gresford]

My noble friend will know that I have been urging this course upon him since the Bill was first drafted and I am delighted with the undertaking he has given.

[Lord Bach]

It is only a question for me to decide whether to put my amendment to a vote, but I do not intend to do so. I can see one or two faces opposite looking anxious—or perhaps they look confident. It is only graceful from this side to thank the Minister for arranging this concession by the Government. It is much appreciated and we look forward to seeing the draft amendment when it comes forward. In the mean time, I seek the leave of the House to withdraw my amendment.