Written evidence from the Expert Witness Institute

 

1           The Expert Witness Institute

The Expert Witness Institute (EWI) is the voice of the Expert Witness community, championing experts from all professional disciplines and the lawyers who use their services.

 

Our mission is to support the proper administration of justice and the early resolution of disputes through high-quality expert evidence from specialists.

 

Launched in 1996, the EWI is independent of outside commercial interests. A not-for-profit organisation limited by guarantee, it is run by an eminent Board of Governors that is democratic, transparent and fully accountable to members.

 

We represent just under 1000 Expert Witnesses and offer different levels of membership depending on experience for experts and associate membership for solicitors and barristers.

 

Our register of expert witnesses contains experts with a diverse range of expertise including medical, finance and accounting, business, construction, and forensic science from across the UK, Ireland and across the globe. Experts included on our directory (Find an Expert) have been fully vetted checking their professional credentials and ensuring the reports they have written are compliant with appropriate regulations and are of excellent quality; providing instructing parties with assurance that when they appoint one of our experts they are appointing an expert with the appropriate skills and experience.

 

2           General comments

The EWI is pleased to take this opportunity to feed into this consultation on the future of Legal Aid. As you would expect we have focussed our comments on the treatment of Experts giving Evidence under the Legal Aid system.

 

3           Consultation Response

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

The most significant issue we have identified in conversation with our members is the ability to secure expert witnesses of sufficient quality due to the wholly inappropriate and inadequate codified rates.

 

Expert Witnesses are fundamental to the proper administration of justice, providing unbiased expert evidence which will support the courts in the resolution of the case. Expert Witnesses play a key role in supporting legal teams and judges in their decision making and therefore have a crucial role to play. It is therefore imperative that instructing parties seek Expert Witnesses who have both the professional expertise to be able to advise in the case as well as the training and competencies required to act as an Expert Witness. For the latter they need to have a core understanding of the rules, regulations and practice directions for the delivery of Experts. They must understand how to apply legal tests and understand their duty to the court and their role in giving impartial, unbiased evidence.

 

As we have seen in a number of cases over the last year, when an Expert Witness does not get it right through a fundamental lack of understanding about their role, the impact of the case can be catastrophic. For example, the highly reported Andrew Ager case (where the Expert was found not to be an Expert at all) resulted in the collapse of a trial and a review of 10 other cases in which he had acted as an Expert. And more recently in Leach v North East Ambulance Service NHS Foundation Trust [2020], it was found that one of the Expert Witnesses was lacking objectivity in the case.

 

It is therefore imperative that it is recognised that for the proper administration of justice, Expert Witnesses should be rewarded fairly for their work to ensure that claimants and defendants have equality of access to justice.

 

In discussion with our members, we note that:

 

The reduction in the scope of legal aid has increased the numbers of litigants in person who cannot afford legal representation. This places any expert witness in an invidious position as the expert has to explain the legal issues with evidence and so on to the litigant and problems of making any admissions to the expert. This was brought to a head by the TV programme excoriating experts who had been placed in this position who were placed in the position of having to lie about what they knew or to destroy the case by disclosing what they had been told.

 

3.2         The role of the LAA

The role of the Legal Aid Agency has never been more important, but it is possibly time for a review to ensure that the body and its processes remain fit for purpose. In respect of the points made above regarding the fees for Expert Witnesses, it seems that an overhaul is much needed.

 

We would also suggest that LAA should consider the ‘equality of arms’ between the parties to the case. If the state is prosecuting an individual with no expense spared, it is not fair for that individual to be restricted to the cheapest duty solicitor and lowest cost experts. While some experienced criminals may have access to funds to pay for better representation, many of those before the courts are severely limited in fighting the case because their defence cannot afford to challenge the evidence through expert opinion.

 

 

3.3         Recruitment and retention problems among LA professionals

We are not able to comment on this point.

 

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

There are three areas in which Expert Witnesses have been impacted.

 

Face to face assessments are always considered to be the gold standard. However, where, as a result of COVID-19, Experts have been unable to assess in person they have resorted to a combination of video assessment (using a platform such as Skype or Zoom) and telephone assessment. In many cases, this can achieve the same (or a high percentage) as face to face. In some areas (such as Psychological assessments), Experts have highlighted that speaking to people via an online platform where the individual remains in the comfort of their usual surroundings has led them to open up quicker. But there are still a number of areas of practice where a physical examination or a site visit is imperative in making an assessment.

 

Many Experts have been holding these via telephone or online. However, since the initial lockdown in March 2020, we have noticed a higher percentage of case conferences happening online. Using this method reduces costs of meeting face to face, and we consider is very successful in achieving its purpose.

 

Several our members have highlighted to us their experience in being involved in remote trials. Trials are either being held entirely online or as a Hybrid of online and physical attendance. It is our view that whilst hybrid trials do provide some physical attendance, this can lead to an unlevel experience for those who are unable to attend in person.

 

Whilst members acknowledge that remote trials are not as effective as physical attendance, they are a good alternative if attending in person is really not possible.

 

3.5         The impact of COVID-19 on legal aid services and clients

The key issue for clients has been around the delivery of assessments. As we have highlighted, some assessments are more easily adaptable to an online format. However, some are just not possible and as a result, experts have not been able to undertake them during times of strict lockdown. Since May, Experts have adapted their processes to enable these to occur.

 

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

We believe that the renumeration of Expert Witnesses needs to be considered to ensure that clients have equality of access to justice.

 

We would also hope that LAA can move to online operation so that claims can be submitted and responded to more quickly.

 

4           Further Information

Should you wish any further information or to discuss this further, please contact Simon Berney-Edwards, Executive Manager of the Expert Witness Institute.

 

 

 

 

2nd November 2020