Written evidence from Keith Borer Consultants

  1. Orchid Cellmark Ltd, trading as Keith Borer Consultants, is one of the United Kingdom’s larger employers of defence-focussed expert witnesses and has been supplying high quality independent forensic science consultancy in criminal, civil, family and disciplinary matters since 1980. On an annual basis our scientific, digital and engineering specialists provide expert review and investigation services in around 2,000 separate cases, the vast majority of which are funding by legal aid.

How LASPO has impacted access to justice and for views on the post-implementation review and the criminal legal aid review

  1. The Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), hereafter The Review, refers both to the Act itself and to two related and intrinsically linked Government initiatives: the 2010 ‘Proposals for the Reform of Legal Aid in England and Wales’ (LAR) and 2012 ‘Legal Aid Transformation programme’ (LAT).  For the purpose of this submission, reference to ‘LASPO’ includes the Act, LAR and LAT.
  2. The Review, the Justice Committee’s Criminal Legal Aid Review and the recent Government’s Response to the Criminal Legal Aid Review all focus on solicitors and advocates and the impact LASPO has had on their finances and sustainability.  The reach of LASPO was not, however, limited to the legal profession; it affected others who supply professional services into the criminal justice system (CJS), including forensic science expert witnesses.  When assessing the impact of LASPO on access to justice the experiences of these additional service providers must also be considered.
  3. Forensic science can be defined as the application of science in a legal setting, and a ‘Forensic Scientist’ can therefore be thought of as anyone who provides expert scientific services.  As acknowledged in the Guide to Allowances Under Part V of the Costs in Criminal Cases (General) Regulations 1986, Forensic Scientists can have expertise that cover a range of subjects, and this is something that has been to the advantage of the CJS for many years.  Prior to the implementation of LASPO the vast majority of defence-focussed, legal aid funded scientific work was regarded simply as ‘forensic science’; and rightly so.  As a result, and as remains the current practise in Northern Ireland and Scotland, anyone classed as a Forensic Scientist attracted the same funding rate, irrespective of the scientific discipline/s they had expertise in. 
  4. Following the implementation of LASPO, Forensic Scientists were arbitrarily rebranded as subject-specific experts and assigned varying rates of pay.  As a consequence, and contrary to the figures presented in The Review, rates in highly specialised disciplines such as Forensic DNA analysis and interpretation, Digital Forensics and Fire Investigations were reduced by around 40%. In monetary terms, this meant that the rate of remuneration for most Forensic Science disciplines was lower than the rate accepted as reasonable at the turn of the millennium, and lower than the rate Lord Auld referred to as ‘meagre for professional men in any discipline’ in his 2001 review.  In real terms, allowing for inflation, funding levels today are around 50% of what they were in 2010. 
  5. Two recent government reviews into forensic science provision in England and Wales, instigated after one of the larger forensic providers entered administration in February 2018, have highlighted the national importance of forensic science to the CJSIntegral to this is the need for robust and responsive defence-focussed forensic review and analysis.
  6. Since the implementation of LASPO, severe austerity cuts to police budgets combined with the CPS initiative ‘Streamlined Forensic Reporting’ have placed increased demands on the defence to conduct work which previously might have been carried out by the prosecution.  Thorough and insightful forensic review by defence scientists provides vital checks and balances to the CJS and requires that the scientists involved be versed not only in their scientific discipline, but also in quality standards and legal precedent.   To deliver the necessarily level of service requires that defence organisations recruit and retain high calibre individuals, and provide extensive training, support, and ongoing professional development; none of which is readily provisioned by the current remuneration rates.  It is also paramount to be able to retain experienced staff so that they can mentor and train more junior scientists and impart their knowledge and wisdom.  However, just as with the forensic organisations providing forensic services to the police, we have seen experienced scientists leaving the industry for more financially rewarding professions. 
  7. It is inevitable that if left unchecked, defence legal practitioners will not be able to access appropriately qualified scientific experts, amplifying problems already reported in respect of other areas of expert evidence (as referenced at paragraph 1098 of The Review)This will be to the detriment of the CJS and the people it serves.  It will also be to the detriment of the public purse, as defence expert reports often reduce the length or even the need for expensive trials by agreeing or clarifying critical forensic evidence.
  8. In her annual report issued in early 2017 the Forensic Science Regulator remarked that, “The current legal aid rates for experts makes establishing a sustainable and accredited business offering high quality scientific advice to the defence extremely challenging”.  In her 2018 annual report the Regulator went further by saying “The current rates paid by the LAA for forensic science are too low to enable quality standards to be adopted.  The rates for different disciplines of expert appear to be largely historical, and do not reflect the underlying costs of provision of the service.”  This assessment was echoed in the recent House of Lords report into Forensic Science and the CJS, prompting the recommendation that “… the Legal Aid Agency… set new pricing schemes, properly funded by the Ministry of Justice, for forensic testing and expert advice for defendants.  Despite this, funding rates remain unchanged.

The role of the Legal Aid Agency;

  1. As stated in The Review, the Legal Aid Agency does not contract directly with experts, however it plays a central role in determining which experts can and cannot be instructed in any particular matter by controlling the funding that it makes available. Whilst it is entirely appropriate that the Legal Aid Agency should strive to secure value for money from public funding, a distinction needs to be made between ‘cheapest’ and ‘best value
  2. In forensic science there is increasing demand, primarily driven by the Forensic Science Regulator, for organisations to demonstrate the quality of their work by satisfying an ever increasing array of accreditation standards.  For organisations that focus on defence provision, this requires investment of large sums of money to develop and maintain services that are fundamentally important to the smooth running of the CJS, but that may be accessed infrequently
  3. The Legal Aid Agency undertakes no due diligence in respect of the expert witnesses it allows funding for, does not take into account the views and preferences of legal practitioners who are undoubtedly better placed to comment on the calibre of the experts they are seeking to instruct, and makes no allowance for organisations that have shown a commitment to quality.  Instead decisions are made based solely on price, putting practitioners with higher operating costs, including those who employ experienced staff and have made a commitment to quality, at a distinct disadvantage. 
  4. The current Legal Aid Agency funding regime presents a barrier to compliance with forensic science regulation, which the government has indicated it would like to put on a statutory footing, and is damaging to the future sustainability of defence-focussed forensic science.  As has been demonstrated in the prosecution side of the industry, when procurement models are based solely on price it is only a matter of time before organisations fail financially or choose to withdraw from the marketplace completely. 

Recruitment and retention problems among legal aid professionals

  1. As was made plain during the recent House of Lords enquiry, forensic science is in crisis.  Funding cuts, and the Legal Aid Agency’s policy of awarding work based solely on price, have stretched defence-focussed forensic science services to breaking point. 
  2. In order that the range of expert forensic services the CJS demands be maintained, there is a need to retain experienced personnel and to grow and develop junior staff under the mentorship of existing senior colleagues.  Developing staff requires significant investment of time, and therefore money, but with funding rates pared back advancement of the next generation of scientific experts and the cascading of skills and invaluable experience is being severely hampered.  Additionally, experienced scientists are leaving the industry for more financially rewarding professions, creating skills gaps that are becoming increasingly difficult, if not impossible, to fill. 
  3. Until Legal Aid rates for forensic science are increased, the defence expert marketplace will remain precariousIt would be naïve to believe that because a broad range of defence expert services can today be procured for the price the Legal Aid Agency are willing to pay, that this will remain the situation in years to come. Indeed, we are already aware of organisations, particularly in the engineering sector, that simply refuse to work at legal aid rates.  Going forward, there is a very real danger that if funding levels are not increased the pool of suitably qualified, experienced individuals will reduce to the point that the demands of the CJS cannot be met, or else will be met by less qualified people

The impact of the court reform programme and the increasing use of technology on legal aid services and clients

  1. From the perspective of the expert witness, the increased use of video link technology, and the expansion of this to allow access from places of work not just court premises, has been a welcome improvement.  The benefits of this are clear; it allows people to access court proceedings without the need to travel and this keeps costs down by minimising time in transit and time wasted when hearings are delayed.
  2. Video link technology will not, however, always be the most effective way of engaging with an expert, and in our experience can be particularly poor when there is the need for discussions with Counsel or other experts, or a requirement for experts to prepare a joint statement of agreement/ disagreement – something that can simplify presentation of scientific evidence and save a large amount of court time (and therefore cost)
  3. Expert witnesses engage with the court process at the request of solicitors, advocates and private individuals from whom they take instruction.  They do so in good faith that their services are needed, but ultimately have no say over which court hearings they attend nor how much of their working day this takes up.  The Guide to Allowances Under Part V of the Costs in Criminal Cases (General) Regulations 1986 allow the Courts sole discretion over payment of expert fees following court attendance.  The guidance is inherently vague, for example referring to ‘a normal court day’ without qualification of what this is, and a fee structure (which has remained unchanged since 2003) that allows for payment at widely different rates. 
  4. Court determining officers apply the payment guidance in very different ways.  Whilst most accept a reasonable interpretation of the normal court day and routinely pay at the higher end of the fee range,  we have experienced refusal or restriction of payments because court determining officers have made a retrospective decision that expert attendance was either not required or else was, but not for all of the time that the expert was present.  Experience has shown that securing payment can be particularly problematic if an expert is asked to attend court but, through no fault of their own, does not directly engage in the court process (for example if charges are dropped or a floating trial isn’t heard)
  5. The proliferation of video conferencing has the potential to add to these remuneration difficulties and will inevitably do so if Courts are not required to honour the decisions of those who instruct experts; both in terms of the requirement for them to physical attend legal hearings or the time they must reserve to participate, or be available to participate, in online discussionsUndervaluing the time experts devote to the court process places strain on an already stretched industry and unless appropriately managed video conferencing has the potential to exacerbate current problems.

The impact of Covid-19 on legal aid services and clients

  1. The principle impact of Covid-19, beyond the inevitable reduction in work volumes and the difficulties this poses for a financially challenged industry, has been the difficulty securing timely payment for delivered work.  This is not something that is particularly unusual; despite the interim payment scheme available for all prior approved work it is not uncommon to experience delays of several months, and sometimes longer, before applications for payments are made and monies are transferred from those who instruct us.  This not only affects cashflow but also increases the risk of bad debts, particularly when financial pressures for already stretched customers are suddenly exacerbated (such as during the current pandemic).  For forensic science organisations that are already struggling due to underfunding, any reduction in cashflow or increase in bad debts has the potential to impact on short and medium term sustainability.

What the challenges are for legal aid over the next decade, what reforms are needed and what can be learnt from elsewhere

  1. Forensic Science plays a crucial role in the administration of justice and central to this are expert witness services provided to the defence. 
  2. The LASPO reforms introduced unprecedented rate cuts to legal aid funded forensic scientists; cuts that today mean that for many areas funding levels are, in real terms, around 50% of what they were almost a decade ago.  Since these cuts were made, regulatory demands have increased, and the forensic landscape has changed dramatically.  As a result of this, the scale and scope of instructions from defence practitioners have changed, placing increased demand on an already strained industryStaff recruitment, training and retention has now become problematic, creating skills gaps that in some areas are unlikely to be recoverable. This is to the detriment of the CJS and the people it serves.  The situation will inevitably continue to worsen unless legal aid rates are significantly increased and are index linked to match inflation.
  3. The practice of awarding funding for expert services on the grounds of cost alone presents a further challenge to sustainability and is a barrier to accreditation.  Recent history has shown that when procurement models are based solely or largely on cost, this inevitably leads to organisations failing.  Were this to occur in the defence arena it can be anticipated that this would accelerate the loss of expertise making it difficult for lawyers to locate high calibre experts who are willing and able to provide robust advice in the short timescales the Courts have come to demand.  To ensure the continued viable of defence-focussed forensic science services, and to allow for active pursuit of the accreditation standards the government will mandate when the Forensic Science Regulator is given statutory powers, requires that the Legal Aid Agency place value on quality. Weight should also be afforded to the views and preferences of lawyers requesting expert services; particularly if they can attest to the quality and professionalism of their experts of choice.
  4. The Covid-19 pandemic has brought cashflow and bad debt concerns into sharp focus. For legal aid funded defence work, obtaining payment in a timely fashion is a habitual problem, primarily due to delays in monies being requested from the Legal Aid Agency and then being transferred to the instructed expert.  Removing the middle-man and emulating the payment system in place in the Republic of Ireland, where solicitors advise the Department of Justice (DoJ) when they have received a pre-approved report and the DoJ then arrange payment direct to the expert, would eradicate these problems, improving cashflow significantly and alleviating the risk of bad debts.
  5. Whilst improvements in technology such as video conferencing have clear and obvious benefits, it is important to be aware that remote engagement of expert witnesses will not always be appropriate or effective, and that the decision of whether it will or won’t should lie with whoever instructs the expert.  It is also important that legislation and guidance keeps pace with technological developments; guidance governing payment of expert witness fees from 1986 does not translate well in the modern era.