“One of the elements of the broader concept of a fair trial is the principle of equality of arms, which requires each party to be given a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his opponent”

Lately, following an apparent acceptance by government in Scotland that the defendant should have to pay to see the evidence against him, this nasty development has now spread to England and Wales (but not yet Northern Ireland, or Ireland, or anywhere else that we work). Not only that, for reasons that are not readily apparent, the Forensic Science Regulator has seen fit to include permission, some may say encouragement, for such behaviour in his Code of Practice and Conduct.

The Forensic Institute received a notice from Cellmark Forensics informing that they would now be charging for copies of the casefile that the defence required to conduct their review of the evidence.

On 12th March 2014 we wrote to the Secretary of State for Justice, Chris Grayling, requesting that this practice cease.

The response from Jeff Adams (who was a member of the Forensic Science Regulator’s team) of the Home Office Direct Communications Unit referred us to a Ministerial Statement and reiterated the position. Curiously, the letter also stated,

“The Codes did not create the right to charge, do not require FSPs to charge nor do they demand the defence must be charged.”

Which must prompt the question, ‘then why were they mentioned in the Codes?’

The response basically claimed that this was all okay and in fact within the remit of the Forensic Science Regulator. We disagree. Rather than be assuaged by such an uninformative and apparently erroneous response, we wrote again to Jeff Adams on 30th April 2014 and received a response dated 28th May. This response states,

" The only limit this places on the advice provided by the Regulator is that it is related to quality standards. Clearly the costs of implementing and maintaining quality standards is an issue related to standards and therefore falls within the remit of the Regulator."

Apparently, what appears on the Regulator's website is an, "abbreviated", version of the role, but the entire purpose of a scope is to properly define what is and is not included. We leave the reader to decide whether the response answers the question we posed.

Interestingly, the letter explicitly accepts that the Crown laboratories can make a profit from such demands on the defence;

"The costs charged by the providers are, subject to the provisions of their contracts with the police, a commercial decision for the provider. It is not unreasonable for the provider to recover their costs for work undertaken. The providers can argue that the costs incurred are of two types. The first is the direct costs associated with the work. The second is the "opportunity cost" in that the resource involved (e.g. staff member) would otherwise be undertaking work which would result in fees, including profit, for the provider. The providers are therefore likely to impose costs which are above those required for bare recovery of costs."

In supporting the development of a commercial market for forensic science, and the concomitant introduction of external quality standards, our Professor Jamieson wrote;

"the triad of purchaser, provider, and quality assurer can be an effective means to achieve cost-effective delivery of public services generally. Quality assurance standards for key services should be addressed to mission-critical outcomes independent of cost considerations; it is for suppliers to design cost-efficient processes that meet the agreed standard. … The introduction of a forensic regulator is a positive step in the provision of quality assured forensic science to law enforcement; time will tell if the scope and practice go along the right road."

This was included in our response to the Parliamentary Science & Technology Committee's consultation on the dissolution of the FSS Ltd.

Time now appears to show that we are in fact not going along the right road: cost will indeed affect discussions on scientific quality.

The practical effects can be seen in this email from a solicitor trying to obtain the case file from a Crown laboratory:

"We have had terrible trouble trying to get these papers to you, ...

The CPS expert wanted to charge us £200 plus another £99 just to get a courier to collect and deliver. ...

To combine cuts in Legal Aid while simultaneously increasing the cost by forcing the defence to pay to see the evidence claimed to be against them is simply reprehensible. As we have said before,

“It is recognised that there isn’t much public, and hence political, support for Legal Aid. The fact that it is used sometimes to defend the apparently indefensible creates an unfortunate image of public funds being used to, “get the guilty off”. That may be so, but there is a phrase in business that, “80% of advertising is wasted, the problem is we don’t know which 80%”. Surely, the same is probably true of Legal Aid: we know that some of it may be ‘wasted’, but there is no real mechanism of knowing how much. …

The limitations on the defence are compounded by the recent urge to reduce spending on Legal Aid, yet the importance of a thorough defence assessment has arguably never been greater given the worrying decision in Nunn that has already encouraged the police to prevent access to material to enable the preparation for criminal appeals. ”

Unless and until people are aware of the erosion of the ability of those accused of crimes to properly defend themselves against the State there will be no informed public discussion as to whether that erosion is supported by the public or not. In any event, governments have a duty and responsibility to respond properly to questions about their actions, but even that does not seem to apply when Legal Aid and disclosure is involved.

Posted 21st May 2014; updated 10th June 2014 and 17th June 2014.  Re-posted January 2017