It's just a little miscarriage of justice so who really cares?

Miscarriage of Justice

Miscarriages of justice aren’t always big news involving somebody spending years in prison for a crime they didn’t commit. Often they are the minor cases that nobody but the people involved care about.

I'll let you into a secret... there's almost certainly a good few miscarriages of justice every single day in the English courts.  They are usually for relatively "minor" offences and happen to people who either don't care because of they have drink, drug or psychiatric problems.  The other big group are those who cannot afford to fight - the justice lacuna.

Most solicitors will have come across the defendant who pleads guilty while maintaining their innocence.  The reasons for pleading guilty are as diverse as the people who make “false” guilty pleas.  I’ve seen everyone from drug-addicts clucking so badly that all they can think about is getting out of the cells to get another hit and very highly educated professionals pleading guilty simply because they are scared of the court process.  I also spent many years dealing with a man for whom making false confessions was practically a hobby – he confessed to arson, well known murders, acts of terrorism and many other things.  Worryingly he is still in prison having served 29-years of a life sentence (that was imposed with a 4-year tariff) for arson.  He confessed to police and entered a guilty plea in the early 1980s.

I am currently instructed in a case that comes to trial later this week.  The defendant is accused of a drink driving offence, in this case failing to provide a specimen of breath for analysis.  She insists that she followed the instructions and did her best to provide the breath specimen.  I’ve watched the video a number of times and she certainly appears to be co-operating properly, albeit I’m neither a medical nor intoximeter expert.

Because I am not an expert, I advised the client to obtain evidence from expert as to whether there is a medical reason for her failure to provide or a fault with the intoximeter or by the police officers. 

Sadly this individual falls into the ever increasing bracket of people – often middle-income families and young-professionals – who do not qualify for legal aid (which will also pay for the expert reports, if you can find an expert for the very low rates paid by the Legal Aid Agency) but who cannot afford to pay the relatively high costs charged by experts.  She is only represented at all because I was happy to trust her to pay me by instalment.

There is a rule that if an expert witness is relied upon at trial then the witness becomes the court’s witnesses for the purposes of costs and thus the defendant is able to be reimbursed for the costs of instructing the expert.  This still requires the expert’s full fees to be paid up-front, which is where many people have a problem.

This client therefore is about to go to trial lacking vital evidence, which she simply has no way of obtaining.

To give you an idea of this lady’s position, imagine being told that you could take three luxury holidays and all for free… except you have to book and pay for the holidays then claim back the costs later.  Best of all it’s not a scam; you’re pretty much guaranteed your money back.  You’d be champing at the bit to take those free holidays wouldn’t you?  But, if you don’t have the money to put down at the start then it doesn’t matter how badly you want or need the holiday you’re not going to get it.

Is this person innocent or guilty of a crime?  I don’t know.  I will make sure that she receives the strongest possible defence at the trial but ultimately, she is going to be hamstrung by the lack of evidence supporting her case.  There is nothing any solicitor can do about that.


  1. If the defendant is wealthy enough not to qualify for legal aid, aren't they able to get a bank loan? I'd think even the interest on a Wonga loan would be worth paying in the circumstances.

    1. Not necessarily. You are only guaranteed to qualify for legal aid if your yearly income is £12,475 or less. Between that and £22,353 you might qualify depending on some allowed outgoings and if you earn over £22,353 you will never qualify for legal aid in the magistrates' court.

      Personally, I wouldn't use the word wealthy to describe somebody on a salary of £22K, although I know the government does (with their £65K+ salaries).

      If you already have loans or, as many young professionals are, living in your overdraft the bank may not be willing to lend - as indeed happened in the case I mentioned.

  2. Is not being able to afford experts really a miscarriage of justice though? I'd have to say it's not.

    Sure it doesn't help a robust defence in a case of failing to provide where the defendant is really up against it anyway but still...

    1. The defendant says that she has a medical reason for not providing. The GP has diagnosed a breathing problem that restricts her ability to take a full lung of air and, we say, blow into the machine. The GP cannot give evidence because, like most GPs, he does not have expertise in the breath test and so cannot assist the court with whether the condition would prevent the test taking place.

      The client knows her diagnosis but cannot give evidence of it since it would be hearsay!

      Thus the inability to finance an expert report leaves the defendant in a position of saying that there is a medical reason for the failure to provide but with her having no way of proving that failure.

      Given the lack of medical evidence the only outcome can be a guilty verdict. If she is genuinely ill and could not provide but is found guilty because expert evidence was not available then that must be a miscarriage of justice.

  3. Even if the GP can't comment on the way the breathalyser works, can he give her a letter to the effect that she blew 2.3 out of 10 on the GP practice wind-o-meter, while he would expect a person with normal lung function to score between 6.5 and 8.5 (and then convert it to standard units - litres per minute or whatever)?

    Presumably the breathalyser spec sheet should be able to clarify what blowing capacity is needed to make the machine work.

    1. Yes the GP can do that and did.

      However, there are rules of evidence that make getting evidence before the court hard and for good reason else we'd all print out our own "medical notes" as and when we needed them!

      The letter from the GP can be exhibited by somebody who can give evidence of its contents. The client cannot give that evidence as her only knowledge of her condition (and what is normal/abnormal) comes from the GP and thus is hearsay meaning she cannot give that evidence. If she cannot give that evidence she cannot exhibit the letter from the doctor!

      Secondly, the GP can say Ms S has problem X, Y and Z. He cannot then go on to give evidence of how the intoximeter works and what it requires to function normally.

      It is not easy to get hold of technical information about intoximeters. But, even if we could get a spec sheet for the particular model being used we would have the same problem about adducing it into evidence before the court as we have for the medical note.

      You'd think that a prosecutor faced with a medical note indicating that somebody is innocent, albeit that the evidence isn't in an admissible form would take a view on the case and discontinue in the interests of justice. Sadly, few do that. In fact, the prosecutor at court practically rubbed her hands with glee at the prospect of an easy conviction!

  4. Surely if she has the potential to provide exculpatory evidence in the form of an expert witness but is prevented from doing so by the government's changes to legal aid, that is reasonable doubt and she should be acquitted? It's what I would do if I were a magistrate. Anything else would indeed be a miscarriage of justice.

  5. And an Expert cannot provide his/her evidence with a CFA ('no win, no fee') basis like a lawyer can ...


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