The Carter Review: The Register's proposed submission

After last year’s ill-informed attempt by the Legal Services Commission (LSC) to reduce their spend on expert witnesses by the simple expedient of cutting expert fees in half, Lord Carter’s Review of Legal Aid Procurement is most welcome. It offers the chance to design a coherent strategy by which the Department for Constitutional Affairs (DCA) and LSC can deliver cost-effective and efficient expert evidence within the constraints of public funding limits. The aim of Lord Carter’s Review of Legal Aid Procurement, with respect to expert evidence, is to seek more efficient and effective use of expert witnesses. There is surely no better place to find these answers than amongst the expert witnesses themselves.

The UK Register of Expert Witnesses has been asked to draw together views of expert witnesses about the use of expert evidence in complex and costly cases, including fraud cases, with particular emphasis on:

• What costs are incurred when experts are used, and what factors cause these costs to escalate?
• Is there scope for greater efficiency in using expert witnesses?

Whilst it is self-evident that most expert witnesses will not have been instructed in the tiny number of complex and costly (fraud) cases. Yet, the lessons to be learnt from the generality of cases that are neither overly complex nor particularly expensive apply to these exceptional cases.

The core problem for the Legal Aid system is how it can pay fee rates to expert witnesses that are about half of those paid in the privately funded arena and yet retain a pool of experienced expert witnesses willing to provide opinion evidence. Based on the UK Register of Expert Witnesses’ analysis, the answer seems to lie in a combination of:

• Early involvement of experts
• Staged instructions
• Pre-trial meetings of experts to identify issues

Criminal -v- Civil

Before looking at these aspects in more detail, it should be noted that the DCA reminds us, in A Fairer Deal for Legal Aid, that the changes in eligibility for legal aid introduced over the last few years means that most public funding now finances criminal cases. As we shall see, the reforms in the civil arena brought about by Lord Woolf have much to teach the criminal courts how expert evidence can be deployed more efficiently. And that is despite the differences between the jurisdictions, such as the standard of proof and the higher frequency of trials in criminal cases. In much of what follows, our suggestions relate specifically to the criminal courts.

Earlier involvement

Through the UK Register of Expert Witnesses helpline, we have heard of a number of criminal prosecutions that have collapsed at a late stage because the expert opinion evidence, which clearly demonstrated the weakness of the prosecution case, only became available late in the proceedings. This meant that scarce financial resources were wasted simply because the expert evidence didn’t inform the decision making within the Crown Prosecution Service (CPS).

Including expert evidence in the initial case assessment process within the CPS is likely to have a beneficial effect in either preventing weak cases going forward or securing early guilty pleas. Such expert involvement might be achieved by the CPS, or LSC, commissioning individual experts on a case-by-case basis, on block contracts or by forming panels of experts within the CPS.

The CPS is already moving in this direction. In A Fairer Deal for Legal Aid, the DCA notes:

“4.10 Close collaboration with the Crown Prosecution Service, the Association of Chief Police Officers (ACPO) and the Forensic Science Service (FSS) has resulted in plans to enable forensic evidence to be made available much earlier in the life of a case, enabling defendants to receive well informed early advice from their lawyers on the strength of their case.

“4.11 Currently the first appearance of forensic evidence will often not be until late in the progress of a case. This means that much of the early legal advice to defendants cannot take account of key forensic information that may determine the outcome of the case. However, a ‘first match report’ of DNA evidence can be produced early in the process. In appropriate cases this provides the prosecution with the opportunity to base a charge on the match report and agree summary forensic evidence. Managing cases involving DNA in this way reduces delay and assists with early identification of trial issues. We are now investigating with the CPS and FSS whether early reports could also be provided for other evidence, such as finger printing, drugs analysis and firearms analysis. For a defendant who is aware of his or her own guilt, legal advice that there is hard scientific evidence of that fact is likely to be a key determinant in considering an early guilty plea.”

But, the range of expert evidence goes well beyond that derived from forensic science analysis of a scene of crime. For example, in a case involving alleged theft by a shop assistant, expert evidence on weaknesses in point of sale security was crucial in securing an acquittal. Such evidence could have been made available at the very earliest stage of that prosecution. If it had, it would have saved thousands of pounds of trial costs.

Better Counsel

With expert witnesses being involved at the earliest stages, Counsel would be better placed to determine precisely what expert evidence is required. Furthermore, having received a report, Counsel would be better able to assess whether it addressed the core issues in the case. Early involvement would also encourage direct lines of communication between expert witnesses and Counsel. The confusion that can arise from the historical bureaucracy that requires experts to communicate with counsel through the solicitor is a source of additional cost and delay.

Staged instructions

In its consultation paper The Use of Experts, the LSC proposed that the seriousness of a crime be taken into account when selecting an expert witness. This is closely allied to the question of proportionality in relation to quantum in civil cases. In both areas, the same two basic considerations apply:

• expert witnesses should not be expected to work for inadequate payment
• expert witnesses are not competent to determine what aspects of a case can be omitted from consideration.

It follows, therefore, that if cost savings are required, they have to be realised by the solicitor instructing the expert witness to undertake a programme of work that can be completed within the available budget. But solicitors, who are not experts themselves, often have some difficulty knowing what can safely be omitted in pursuit of proportionality. The answer to this conundrum lies in greater use of staged instructions by solicitors.

‘Reconnaissance’ reports

An expert witness could be instructed to prepare an initial report. This would be designed to conduct a ‘reconnaissance’ of the expert matters raised by the case and to identify potential areas for more detailed analysis. If the quantum in a civil case, or the seriousness of the offence in a criminal case, warrants investigation of particular avenues of expert enquiry, further report stages could then be sanctioned.

This approach, already adopted by experienced litigation lawyers in the civil arena, results in breaking potentially large expert witness assignments into smaller, more easily managed, stages. And each stage of reporting acts to inform the next stage.

This approach would also ensure that scarce resources are used to better effect. The expert witness can be instructed to prepare a ‘reconnaissance’ report at relatively low cost. If this reveals specific areas for detailed analysis, or if early meetings of experts (see the next section) reduce the points of disputed expert evidence to a few key areas, additional resources can be made available for a detailed report on just those points.

Pay only for what is truly required

The current system requires two ‘Rolls Royce’ reports be obtained, covering all aspects of the expert evidence, even if at trial 75% of the evidence isn’t disputed. The staged reporting system would demand that a ‘Rolls Royce’ report be prepared only when the nature of the evidence, and of the criminal charge, justified it.

Pre-trial meetings of experts

Following introduction of the Civil Procedure Rules (CPR), the adversarial tendency towards evidential ambushes has been reduced greatly. The openness enshrined in the CPR means that expert evidence is disclosed early, and the experts in a case are able to identify the real areas of disagreement well in advance of any trial.

This model should be applied in the criminal jurisdiction. If expert witnesses from the prosecution and defence had the opportunity to exchange opinions in pre-trial meetings of experts, it is likely that:

1. much of the expert evidence could be agreed, saving time at trial
2. the real areas of disagreement would be identified – with possible further reports then being commissioned
3. the true nature of the expert evidence would become clear, leading to an early guilty plea or the halting of a weak prosecution case.

Rebuttal reports

One source of escalating expert witness cost is the use of rebuttal reports. With the introduction of pre-trial meetings of experts, consideration should be given to prohibiting such reports. They tends to create a vicious circle leading to more and more reportage as each rebuttal report is itself rebutted. Once a meeting of experts has identified the real areas of disagreement, further testing of the expert evidence should be left to cross-examination.

Better assessment of opinion evidence

The Court of Appeal decision in the Angela Cannings Appeal (R -v- Cannings [2004] EWCA Crim 1) concluded:

“If the outcome of the trial depends exclusively, or almost exclusively, on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed.”

Because there was no means by which the expert evidence could have been tested in a pre-trial setting, it was not until the end of the trial that the court could have been aware that the case against Angela Cannings fell into this category. If a pre-trial meeting of experts had resulted in a clear conclusion that there were virtually no areas of agreement on the expert evidence, perhaps the trial judge would have been better able to determine that the case was not one that ought to be put to the jury.

Conclusion

By involving expert witnesses in the earliest stages of case management, and where possible using initial ‘reconnaissance’ reports, experts will be able to help case assessments to be more efficient and effective. Staged instruction of expert witnesses will allow scarce resources to be used to best effect by identifying those aspects of the expert evidence that truly justify additional resourcing. In the criminal arena, a move to pre-trial meetings of experts, for the purpose of identifying the areas of agreement and disagreement in the opinion evidence, should shorten trials and provide a better assessment of the expert evidence. Trials will be shorter because only the real areas of disagreement need to be covered in oral evidence at trial. Opinion evidence should be better assessed because there will be more time for its impact to be understood by the court, the lawyers and the experts.

How to respond

The UK Register of Expert Witnesses has prepared a short survey to allow you to register your views on our proposed submission to Lord Carter. Alternatively, you can send your views, by e-mail or post, marked for the attention of the Carter Review Team by 25 November.

Take part in the survey...
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