Response to the Legal Services Commission Consultation

Executive Summary

This is the response of the UK Register of Expert Witnesses to ‘The Use of Experts’ Consultation Paper issued by the LSC on 25 November 2004. It draws together contributions from 238 expert witnesses listed in the Register.

Quality

The LSC’s principal proposal on quality (proposal 2.2) is predicated on two assumptions:

• there is a problem with the current quality of expert evidence;
• CRFP accreditation is capable of delivering quality assurance.

We believe, and over 80% of our expert contributors agree, that both assumptions are wrong.

The LSC offers no evidence in support of the first of these assumptions. Furthermore, the high-profile problems in the criminal courts, which have been popularly ascribed to the failings of expert witnesses, have actually, according to the Court of Appeal (R -v- Cannings [2004] EWCA Crim 1), reflected a failing in the way the courts have handled conflicting scientific evidence. This is a view supported by 81% of our expert contributors.

Even if there was a general problem with the quality of expert evidence, we reject the proposition that the CRFP accreditation scheme would be able to remedy the situation by delivering “quality assured” experts. Quality assurance can only come from looking carefully at each expert, in each case and from many angles. And that’s precisely the system already in place in the form of the lawyers, the judge and the other expert witnesses in a case. Perhaps this is the reason why 83% of our expert contributors agree that the current quality assurance system is the best way of ensuring competence amongst expert witnesses.

Implicit in the approach adopted by the LSC is the assumption that the skills of the expert witness, as opposed to those of the expert, are susceptible to accreditation. We disagree with this assumption. What is there in a person’s ability to form an opinion and bear witness to it that is susceptible to meaningful accreditation? The basic skills specific to report writing and the giving of evidence are really not that onerous, and are easily acquired through training, although experience is a better tutor.

Insofar as an individual’s competence as an expert might be in need of accreditation, this is a task best performed by the expert’s professional body. Such bodies will generally already have the disciplinary powers in place to deal with an expert whose expertise is found to be below some defined standard.

Price

The proposals on fees – based, as they are, on guesswork – fail to arrive at a convincing analysis of the current position. We provide evidence from our own bi-annual surveys of expert witnesses that fees have increased by less than 10% above the rate of inflation since 1997.

From such poor groundwork, the LSC has arrived at proposals that carry with them a significant danger of reducing the pool, and overall quality, of experts willing to work in publicly-funded cases. This negative effect is likely to be most acute for the CLS. Indeed, we predict a serious impact on supply and competition within the expert witness marketplace for civil cases if the ‘meagre’ fee scales on offer in the criminal arena are imposed on expert witnesses in the civil arena. This prediction is supported by 92% of our expert contributors.

We identify a number of inflationary pressures flowing from the Access to Justice Act 1999, and offer suggestions involving a staged approach to the instruction of experts for how the effects of these pressures can be ameliorated.

Procedures

Whilst appreciating the difficulties of assessing applications for prior authorities, we consider its removal would have a serious impact on the supply of expert witnesses, a view endorsed by 82% of our expert contributors. We suggest that a staged approach to the instruction of experts would offer a way for the LSC to make more informed decisions on applications for prior authority.

We welcome, as do 89% of our expert contributors, any pressure the LSC can bring to ensure expert witnesses adopt clear, written terms of engagement. However, we, together with 85% of our expert contributors, do not consider it appropriate for the LSC to impose mandatory clauses in those terms of engagement.

Summary

The nature of the key proposals on accreditation, fees and procedures leaves little doubt that the main driving force behind the consultation paper is financial. If implemented, these changes will act to reduce access to justice to the most vulnerable in Society. We make a number of suggestions for procedural changes that may help to contain costs whilst protecting access to justice.