It seems somewhat bizarre that you should be prosecuted by the state who rely, say, on evidence of your DNA but you should have to pay to have access to your own genetic material – see HERE. How has this come about? What to make of the news that defence experts now have to pay before they are allowed to examine Crown exhibits?
Following the closure of the Forensic Science Service and the outsourcing of the examination of items seized in connection with the investigation of crime are now looked at by private companies. Their activities are watched over by the Forensic Science Regulator who issues codes of practice and buried away (page 43, footnote 62) provides that it ‘would be reasonable to charge the defence for any use of facilities or equipment, or for the provision of copies of documents in hard copy or electronic form under the disclosure regime’. It sounds pretty innocuous and reasonable.
But the reality according to the Guardian is very different. Some companies are demanding that defence experts enter into a credit agreement before they are allowed to examine material such as DNA. The sums involved are not trifling: a figure of £800 a day to examine firearms in a laboratory for example.
There is an overwhelming inference that the provision is being used to generate a profit stream for these providers. This gives rise to a commercial conflict of interest, or at the very least the threat of one.
An ambiguous prosecution report couched in vague language will trigger a need for a defence expert. The providing company will be paid for the original report, paid again for the attendance at their premises of the defence expert and then possibly paid yet again if they have to comment on the defence expert’s report.
In the Guardian report a spokeswoman for LGC Forensics stressed that requests from the defence to examine forensic material were ‘very rare’.
That may be the case for LGC, but that is certainly not my experience in a field in which I practice, namely firearms law. Classification of firearms is frequently vitally important to a defendant. Possession of a prohibited firearm can lead to a minimum sentence of five years. These firearms are often old. The Firearms Act 1968, s58(2), provides a total exemption from the licensing regime for antique weapons – if it is an antique, no offence committed provided that it is held as a ‘curiosity or ornament’. Antiquity is not defined in the legislation and yet the Home Office produce a document called Home Office Guidance to Police, Firearms Law which advises forces which firearms should or should not benefit from the exemption. It is not an authoritative statement of the law but is frequently quoted in prosecution reports.
It includes the following passage: ‘Evidence of antique status may include an indication of date of manufacture, details of technical obsolescence, a lack of commercial availability of suitable ammunition; or a written opinion by an accredited expert.’
Partly as a consequence of this last point and because classification of firearms can be complicated it is good practice to obtain an expert’s report in almost all firearms cases.
Advances in the science of DNA analysis have led to the prosecution of cold case rapes based on DNA evidence sometimes many years after the event. Standards in laboratories were different then and defence practitioners must be on the alert for the possibility of contamination between samples. DNA is now sometimes obtained from tapings from samples that have now been lost or destroyed. These processes need checking to prevent the possibility of miscarriages of justice – juries find, understandably that DNA evidence very powerful. It is, in my experience, completely commonplace for the defence to examine and check original samples and notes.
So who, other than ultimately the taxpayer, bears the cost of all this? The FSS was formerly the responsibility of the Home Office. It was an executive agency and then a government-owned company. It did not charge for access to exhibits. Now that firms are demanding money from legally aided defendants the cost will have to come from the Legal Aid Agency budget.
The Legal Aid Agency is of course an executive agency of the Ministry of Justice. The more budgets are slashed by outsourcing provision of legal or ancillary services the more it seems there are unintended and expensive consequences – most notably private profit and public loss. Let’s hope this doesn’t become yet another costly fiasco.
Peter’ is a barrister at 9 Bedford Row. His practice spans both the prosecution and defence of very serious crime; licensing; regulatory and administrative law.