Nunn so blind as those who cannot see.

“It is important to emphasise that the procedure leading to trial is specifically designed to give the defendant the fullest opportunity to receive disclosure of the information in the possession of the Crown and, with the benefit of that disclosure, to investigate the evidence and, in particular, the forensic evidence. …

This thorough and layered procedure provides the general and main safeguard against wrongful convictions. It is for a defendant in a criminal case to utilise best the opportunities that the procedure affords.  …

What is essentially sought by the claimant is access to material to enable the case to be re-investigated and re-examined. The time for that investigation and examination was the trial.

So says the judgement in Nunn v Suffolk Constabulary[1] thereby blocking the route to appeal for some defendants.  As is frequently the case, we will never know how many.

The Court’s touching, if naïve, faith in the ‘thorough and layered procedure’ insofar as scientific evidence is concerned, appears to misunderstand the entire legally aided forensic scientific endeavour.

Let’s begin at the beginning[2]:

The solicitor (according to reports, increasingly underfunded and demotivated) receives the case and must decide whether an expert is required at all.  While in normal life we normally seek to obtain value for money – and indeed that was once the government mantra too – the Legal Aid Agency is now focussed on the cheapest expert that the solicitor can identify.

It seems the LAA would rather pay a little for a useless opinion than a bit more for a useful one.  The problem is that the LAA don’t know which one they are going to get; only that it is the cheapest one.  Remembering that those experts employed by the prosecution are not subject to any ‘guidelines for payment’, what can the defence solicitor expect to get?

The cuts in Legal Aid affect not only the legal team.  Experts’ fees (and I am discussing here the forensic sciences mainly) were cut by about 35% in the last two years.  They are much less than half what the ‘market’ achieves when the expert is not working for Legal Aid.  Reductions in police contracted forensic science caused the redundancy of scores of forensic scientists who promptly set themselves up as ‘defence’ scientists.  Few of these have the administrative and scientific backup (e.g. access to current literature and peer review) which improves and maintains the quality of their expertise; and of course they are compared negatively to prosecution scientists working for the police in large firms.  Those who maintain laboratories must pay for the purchase, maintenance and replacement of equipment yet their rates are the same and sometimes less.  Recently, one trace evidence lab (Contact Traces) has announced its closure.

This irrational assessment by the LAA of the actual cost of expertise is illustrated by the guideline rate for a handwriting expert, which needs no degree and is arguably a skill, is the same as that for a DNA analyst who can be expected to have a degree, be competent in a number of complex areas including statistics, and have to maintain knowledge of a rapidly developing and arcane discipline.  Why is a toxicologist ‘guideline’ fee greater than a vet’s?

The solicitor engages the expert dictated by the LAA.  Nowadays, if the defence seek the, “fullest disclosure”, of the forensic evidence this will require another trip to the LAA to fund the prosecution lab to disclose the evidence against the defendant (an approach endorsed by the Forensic Science Regulator whose scope seems rather stretched if this is part of it).  Perhaps removing that fee, which did not exist until recently, would be one way of reducing the Legal Aid budget[3].  Surely there is something abhorrent about the defendant having to pay to see the evidence against them whether funded by Legal Aid or not?  So the, “fullest opportunity”, is available only at a cost, and only if the defendant is diligent enough to request it.  Formerly, we (at The Forensic Institute) visited the lab and scan-copied the entire case file to enable a thorough and diligent examination of the file (see R v T[4] for one example of the result of that study), now we are limited to receiving copies of the portions of the file that the provider sends us, unless we can again raise funds to travel to the lab despite the increased strictures of LAA resources.

So the system, “specifically designed to give the defendant the fullest opportunity to receive disclosure”, simply fails.

The expert must next assess what they have and develop their opinion.   The Forensic Science Regulator recommends that scientific opinion is peer reviewed.  Just who does the lone practitioner review their results with?  Will the LAA pay for such a second opinion?  And what if the single practitioner’s opinion wrongly agrees with, or at least does not challenge, the prosecution?  It would appear that it is just the defendant’s tough luck if a scientist who would have countered the prosecution’s expert was either not identified or just too expensive for the Legal Aid Agency.   The expert may or may not agree with the prosecution. If they do agree, then the LAA are unlikely to grant further sanction to seek for an alternative opinion (unlike the police who can shop for an opinion by asking another provider to ‘re-examine’ the evidence).   As in every other profession or skilled trade, not every scientist is the same.  Further, it is perfectly normal to find two scientists drawing different, but reasoned and rational conclusions from the same data; it is unnecessary that there be ‘new developments in science’ for there to be ‘new evidence’; surely another scientist with a different reasoned opinion is ‘new evidence’ if it was not available to the defence at trial.

So while in an ideal world the laudable and understandable view of the Court that, “The time for that investigation and examination was the trial”, the system to achieve that ideal is demonstrably lacking.  The “opportunities that the procedure affords”, are simply inadequate and therefore undermines the consequence of the Court’s judgement; the now routine refusal by the police and CPS to enable another look at the scientific evidence in a case.

I end here where I ended before;

“Surely the real measure of cost effectiveness, at least for the moment, is that the accused is given the same opportunity as the prosecution to choose their experts. Do we want the best criminal justice system or the cheapest? It is almost certain that the two are mutually incompatible.”2

The Court appear to have the desire to support that view, but either through ignorance or intransigence, appear unwilling to acknowledge that the system underpinning their view of a thorough procedure simply does not exist, yet insists that everyone acts as if it did.

[1] Regina (Nunn) v Chief Constable of Suffolk Constabulary [2014] UKSC 37;  [2014] WLR (D)  265

[2] I have written an extensive article on the inequalities present in expert testimony elsewhere; Weighted Scales, in the Journal of the Law Society of Scotland available online at http://www.journalonline.co.uk/Magazine/57-11/1011844.aspx

[3] http://www.heraldscotland.com/news/13082793.Legal_aid_cost__driven_up_by_police_labs

[4] R v T [2010] EWCA Crim 2439

By Professor Allan Jamieson and Dr Rhonda Wheate, The Forensic Institute

 


 

One Response to Nunn so blind as those who cannot see.

  1. Allan, I agree entirely.

    As the only toxicologist registered with the Directory of Expert Witnesses for the Law Society of Scotland, I have been undercut frequently by “experts” who do not have the clinical expertise to examine clinical findings properly. On the other hand, when I am contracted to examine the statements of these experts it is amazingly easy to pick them apart and to demonstrate the fallacies of their argument.

    In support of your comments, surely it is cheaper to get an expert who is reliably knowledgable and who might be able to help close the case before it goes to enormously expensive court proceedings. That would save LAA so very much more than employing only the cheap and cheerful but inept experts.

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