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Expert Witnesses are Not Getting a Fair Deal From Legal Aid

Special Reports

The MoJ must make urgent changes to fee rates and case management if it expects to rely on qualified and experienced experts to, advise the courts, argues
Richard Emery

 

In response to a ‘widespread feeling [among the judiciary] of not being valued or appreciated for their work’, the Ministry of Justice (MoJ) has awarded top judges a pay rise that is six times the rate of inflation because ‘the evidence available suggests that there is an emerging problem with recruitment and retention’.

So what, we must ask, is the MoJ doing about the growing concerns regarding the availability of suitably qualified and experienced expert witnesses, who, like High Court judges, need to develop their expertise over many years?

I suggest that the MoJ needs to urgently consider four key issues if we are to avoid the serious problems that will occur if our well-paid judges are no longer able to rely on suitably qualified and experienced experts to advise them on matters that neither they nor the jury can hope to understand without our input.

Fees for reports

In 2003, the ‘Guidance for taxing/determining officers’ set out a range of fees for the remuneration of expert witnesses. It included the immortal words: ‘It is intended that the information will be revised annually.’

‘Revised annually’? I doubt that it was even reviewed annually, and it most certainly wasn’t revised in any upward direction over the following seven or eight  years.

Then, in March 2010, Lord Bach, then parliamentary under-secretary at the MoJ, announced a ‘central working group… to help [the] MoJ gain a greater understanding of the range of work which experts do and how this is currently remunerated’, adding that ‘additional analysis of this complex area is needed to ensure that any future fee structures are both sustainable and fair’ – parliamentary speak for ‘expect cuts’. Sure enough, the following year we saw the first fully detailed schedule of experts’ fees, which for most experts were about 10 per cent less than the rates from 2003. Further reductions of 20 per cent were announced in 2013.

So, from a starting point in 2003 we have two numbers: inflation has added about 50 per cent to the cost of living and fee rates have been cut by about 28 per cent.

This means fee rates that should have risen from, say, £100 to £150 have actually been cut to £72, an effective reduction of over 50 per cent. ‘Fair’?

If top judges feel undervalued, just think how experts feel.

Allowances for attending court

Allowances for attending court haven’t fared quite so badly. They were set in 2003 and haven’t been changed at all in the last 12 years, so they have only gone down by 33 per cent in real terms. But the headline rate is not the only issue.

The ‘guidance’ gives a very wide margin for discretion to the local court officials. So for experts like surveyors, accountants, architects, and similar professionals the guidance ranges from £226 to £490 for a full day at court. Can the MoJ seriously expect a qualified and experienced professional to attend court for several days for just £226 a day?

When I prepare an expert report for a legally aided criminal case, prior authority gives me certainty over my fee rate for the report, but I also take on an
obligation to attend court if required, with no guarantee as to how much the local court officials will agree to pay me. This is just not right.

And then, just to complete the injustice, there are the issues of travel time and cancellations.

As an expert in a specialist area, I travel all over the UK. If I’m to be in court in Newcastle or Belfast for 10am, I have no option but to travel the day before. There is no additional allowance for this.

In one case I travelled up to Newcastle on a Sunday and arrived in court at 9.30am on Monday, only to be told later that morning that the case, for which I had allocated three days in my diary, wouldn’t be going ahead. I was offered an allowance for a halfday attendance, and nothing for travelling up the day before, travelling back that afternoon, or the two days that would have followed. ‘Sustainable and fair’? I think not.

Expenses

There is very little that one can say about expense allowances, except to point out that the amount that can be claimed for an overnight hotel was fixed over ten years ago at £55.25 (for all except the top six cities in England). A quick internet search reveals that a one-night stay in Leicester Central Travelodge next Wednesday is currently priced at £75. Who is going to cover the extra £20?

Getting paid

Perhaps I’ve been fortunate. There have been only a few cases where I’ve had to chase and chase and threaten court action, but I’ve always been paid in the end, until now.

The latest round of cuts in legal aid funding have combined with the ‘re-structuring’ of criminal defence law firms, resulting (I understand) in an increasing number of law firms going into liquidation. Where does this leave the expert?

Despite having prior authority (and a county court judgment), I’m now facing non-payment of an invoice for more than £5,000 because the solicitors have gone into liquidation. I’m told that I’m just another unsecured creditor who is unlikely to get anything after the banks and the Inland Revenue have had first pickings. That is, unless someone can tell me, the liquidator, or the Legal Aid Agency (LAA) any differently.

So, what can we all do to reduce costs?

We have to accept that the criminal justice system is expensive to run. But access to justice is also a vital part of our society, so we have to find ways of delivering quality decisions at less cost. I offer four thoughts.

Value of experts

When Lord Bach announced the central working group on experts’ work, he was actually highlighting the dearth of information the LAA (or the Legal Services Commission before it) has about the true value of experts.

I get instructed by the defence team in a criminal case. I write a report for which the LAA pays me £2,500. The direct result of my report is either the prosecution dropping the case or the defendant pleading guilty, saving the cost of a three to four-day trial. I think that this makes me great value for money. But the simple truth is that the LAA does not have any process for tracking the outcome of the expert reports it funds.

Isn’t it time that judges were required to write a short note to the LAA after every trial to say whether or not the LAA-funded expert report assisted in the case? At least it would be a starting point for the MoJ to understand the contribution that experts make.

Better case preparation

At a recent plea and case management hearing (PCMH), soon to be replaced by plea and trial preparation hearings (PTPHs) and further case management hearings (FCMHs), the judge was justifiably annoyed with the police and Crown Prosecution Service (CPS) for serious failures in case preparation.

The police claimed the CD I had been given (through the defendant’s legal team) contained everything I had requested, but it didn’t. The officer was forced to
admit that she had not actually checked the contents of the disk, so it could have contained anything. A wasted costs order against the CPS may help the defence team, but it’s still wasted costs coming out of the public purse.

Early assessment of evidence

In the course of investigating a case of alleged retail fraud, I identified a serious flaw in the electronic point of sale (EPoS) system that, in my view, invalidated vital EPoS evidence. Rather than waste LAA-funded time preparing a full report, I wrote a letter to the instructing solicitor explaining my findings.

This letter was forwarded to the CPS (with my approval) but when asked about it at the next PCMH the prosecuting barrister admitted to not having read it. Having read it, following the PCMH, the CPS decided to drop the charges. Why was the letter not considered earlier?

Trial management

I recently attended a trial that was scheduled for four days but took seven. Why? The answer was simply poor management of the court’s time.

All parties were ready at 10am each day, but we never started before 11am – and on some days it was even later – because the judge was dealing with other
matters. The case needed only 20 hours of court time, but this ended up being spread over seven days rather than four because of the delayed starts each
morning.

Surely there must be better way of managing the court’s time?

This article was first published by Solicitors Journal on 16/02/2016, and is reproduced by kind permission. Many thanks to The Solictors Journal and Mr Emery.

Mr Richard Emery has served as an expert witness in cases relating to retail theft, credit/debit card fraud, electronic point of sale (EPoS) systems and warehouse management, since 1994. Web: www.4keys.co.uk - Tel: 01344 484235

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