OPINION:Miscarriages of justice can and will occur because of obstacles to the use of expert forensic evidence
IN THE past, defence lawyers could rely on their knowledge of the law and of the legal process to defend their client. Today it is increasingly necessary that they are also familiar with developments in the area of forensic science.
Ever-changing developments and technologies mean that defence lawyers often have to call on experts working outside this State to ensure the most robust defence for their clients.
Furthermore, criminal defence solicitors are now faced with a new dilemma – whether to instruct an independent expert shortly after a client has been arrested and before there is any real idea what evidence the prosecution has gathered against that client.
This development, as well as section 19A of the Criminal Justice Act 1984, as amended by the Criminal Justice Act 2007, whereby inferences can be drawn from the failure of the accused person to mention a particular fact following their arrest, means that defence solicitors now have to give active and early consideration as to whether they should be instructing an independent forensic scientist or pathologist to examine material evidence.
Ironically, this need for more immediate action on behalf of the client is coming up against a system which is making it more difficult to engage independent expertise when necessary.
In most criminal cases, the cost of a forensic scientist is met under the criminal legal aid scheme. Since 2008, however, legal aid has been cut by over 25 per cent.
The National Recovery Plan 2011-14 includes a commitment to reduce it by a further €5 million by the end of this year, with plans for still further cuts of €10 million in 2012. These reductions are having a debilitating impact on the ability of defence lawyers to run their practices and to call forensic science experts.
It is not as though legal aid is being cut from a high threshold. In 2009, an assessment concluded that the per capita spend on legal aid here was far below that spent by our nearest common law neighbours at €8.40 in comparison to €29 in Northern Ireland and approximately €25 in England, Scotland and Wales.
In addition, the introduction last month of new procedures in relation to the engagement of expert witnesses through legal aid have made it more restrictive, with lower fees available for expert witnesses and even more onerous application processes for their consultations and appearances.
While value for money is supported by everyone, the almost exclusive emphasis on cost savings within the criminal legal aid system is having a disproportionate impact on criminal defence.
It is also a policy of false economy. The rush to savings could ultimately end up costing the State a far greater price in damages arising from a miscarriage of justice, as it did in the Frank Shortt case, for example, when damages of €4.5 million were awarded for the miscarriage of justice he suffered.
That award alone – not counting legal costs involved – was the equivalent to about 10 per cent of the overall legal aid budget. Two or three similar cases of unsafe convictions would quickly wipe out any proposed saving in the legal aid budget.
But the issue at stake here is far more fundamental than an argument about price. What is at stake is equality before the law, as set out in the Constitution. In article 40.3 the State guarantees “in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”.
Every person is entitled to a fair trial with access to the best legal expertise available.
There can be no more heinous a State crime than the wrongful conviction of an innocent person. If that wrongful conviction is based on a lack of forensic expertise and evidence that is available but unattainable, there can be little excuse.
Yet that is the risk that is run in Irish courts daily. From our own practice alone I can point to a number of cases where the evidence from a forensic expert resulted in the exoneration of defendants who may otherwise have been wrongly convicted.
In Director of Public Prosecutions v DC and Another, a case in which I was acting solicitor, the evidence of a handwriting forensic expert from Northern Ireland undermined the prosecution’s case that the defendants had dishonestly and by deception obtained a cheque for monies owed for a building contract from an elderly man, altered that cheque from €24,000 to €240,000, and forged a tax deduction certificate.
This evidence was uncontested because the prosecution had not had the samples tested. The judge directed the jury to acquit after this evidence was heard.
Another case, from a number of years ago, still demonstrates the risk of serious miscarriage of justice if material cannot be independently analysed.
An elderly woman was raped and a man who suffered serious psychiatric problems was arrested. He made several statements of admission.
A trace of semen was sent to a Northern Ireland laboratory but it could not obtain a trace. A blood sample, provided by the accused, was then sent to a UK-based laboratory.
On the third day of the trial, the London-based scientist confirmed that the semen was not that of the accused. Without this independent analysis, and having regard to the admission made, this man would probably have served a very long sentence for a brutal crime that he did not commit.
This is the type of clear and unrestricted use of expert forensic evidence that is often needed to ensure that a defendant’s right to due process is upheld.
The right to a defence and equality before the law should not be determined by budgets and savings alone; cut-price legal aid will surely cost Irish justice dearly.
Peter Mullan is a partner in Sheehan and Partners, which hosted a seminar on Forensic Science in Criminal Trials on October 20th