Unreliable Technical Evidence – More Than A Slip ‘Twixt Cup And Lip
Rosalind English, UK Human Rights Blog, 25/10/13
a4632048X Local Authority v Trimega Laboratories and others  EWCC 6 (Fam)
– read judgment
Technical evidence can sometimes be crucial to judicial decisions and this case shows how dramatic the consequences are for a family if evidence is unreliable. If the respondent in this case had not put probity before its commercial interests, a mother would have been deprived of the care of her child. Hence the importance of publishing the judgment.
The case arose out applications by the parents, a child and the child’s guardian to care proceedings for wasted costs orders against Trimega Laboratories. In short, the care proceedings had been brought for a number of reasons foremost of which was the mother’s “excessive drinking”. In March 2013 the mother said she had been abstinent from alcohol since August 2012. But in July 2013 a blood alcohol test report from Trimega suggested that she had been drinking. Her abstinence was a crucial factor in the plan for rehabilitation of the child to her care, and had it not been for this test result a final order would have been made on 25 July 2013 and the child returned to her.
After a number of consequent hearings it transpired that there had been a mistake and the actual level had not been indicative of excessive alcohol consumption. Trimega admitted the error and in August the child was returned to her mother’s care. Trimega apologised and agreed to pay the costs which related to the unnecessary court hearings following its erroneous evidence. The only issue remaining was whether judgment should be published. All parties save Trimega sought publication. Willliams J decided to publish this judgment because she considered it was in the public interest to do so:
The family courts should be as open and transparent as possible to improve public confidence and understanding. In this case expert evidence was relied upon and if the mistake had remained undiscovered it is probable, given the history in this case, that it would have led to the adoption of the child instead of rehabilitation to care of her parent. Close scrutiny of expert evidence is needed and all the surrounding circumstances have to be considered in a situation such as this where the interpretation of test results was so important and influential.
Judge Calls for Press Access to Closed Courts
Britain’s most secretive court has made a further step towards transparency after its top judge called for the attendance of journalists to be its default position. Sir James Munby, the President of the Family Division, told a private gathering of lawyers at a conference on Monday that he wanted to see reporters routinely allowed into the Court of Protection. The majority of cases are currently heard in private and reporters have to make lengthy applications to attend, but Sir James said the assumption should now be that journalists are given access to the court. The court, which makes major care and medical decisions on behalf of those deemed to lack mental capacity, has been gradually opening up to reporters since The Independent led newspaper campaigns for access five years ago.
Read more: Emily Dugan, Indpendent, Thursday 17 October 2013
Neo-Liberalism and Prisons by John Bowden
Neo-liberaliosm, an ideology and concept usually associated with a particularly ruthless brand of free-market economics, has now reached into the very core services of the state and institutions that were once considered strictly off limits to financial speculators and entrepreneurs: the NHS, the prison system and the criminal justice system. Neo-liberalism doesn’t just involve a massive shift of economic power and wealth to an already extremely powerful and wealthy social group, but also a fundamental shift in the philosophy and policy of organisations like the welfare and criminal justice systems, both of whose ‘clients’ are now increasingly lumped together as an undifferentiated mass of the ‘undeserving poor’ or an always potentially criminal ‘underclass’ requiring an equal degree of punitive supervision, surveillance and ‘management’. For the poor the welfare state is becoming increasingly like a carceral state.
The change of philosophy and policy as far as the criminal justice system is concerned is especially reflected in the treatment of those subject to judicial supervision orders and conditions of parole, and the changing role of probation officers and criminal justice social workers from a ‘client centered’ and rehabilitative approach to one far more focused on strict supervision and ‘public protection’. Occupations that were once guided to a certain extent by the rehabilitative ideal have now become little more than an extension of the police and prison system and abandoning any vision of positively reforming and socially reintegrating the ‘offender’ now instead prioritize punishment, social isolation and stringent supervision. This replacement of the rehabilitation model with a more managerialist one enforcing ever more ‘robust’ and invasive conditions of parole and supervision renders it’s subjects increasingly less as prisoners being returned to freedom and more ones waiting to be returned to prison for technical breaches of licence conditions. As with all things neo-liberal the increased focus on the strict supervision and surveillance of ex-prisoners and ‘offenders’ draws it’s inspiration from the U.S. and it’s parole officer system with a total emphasis on the straight-forward policing of parolees. It’s also a form of supervision increasingly extended into the lives of the poor generally, especially those dependent on welfare and state benefit, the social group from which prisoners are disproportionately drawn. In an age of economic deregulation the marginality and inequality of the poor has increased to such an extent that they are now almost demonised and subjected to the same penal-like supervision as ex-convicts.
Tory politicians and the media now stigmatise with a zest benefit claimants as ‘scroungers’, ‘shirkers’ and potential criminals, and this stigmatisation and marginalisation is applied most viciously to poor single mothers who are now typecast not as poor but as deviant and a problem group who should be socially excluded and shamed, just like ex-prisoners. The steady increase of the female prisoner population is undoubtedly a symptom of this criminalisation of poor claimant-dependant women and their increasing relegation to the margins of society.
Again, this virtual criminalisation of benefit claimants who ‘want something for nothing’ draws it’s inspiration from the U.S. where the transformation from welfare to ‘workfare’ (forcing the unemployed to ‘earn’ their benefits by participating in cheap labour programmes) and the increasing change from welfare state to penal state in it’s treatment of the poor took place over twenty years ago.
Within the prison system itself, apart from its growing privatisation, the neo-liberal approach has jettisoned completely any pretence of rehabilitation and replaced it instead with the bureaucratic, managerialist model of box-ticking, exemplified by offence-related courses managed by prison-hired psychologists and which statistically have no appreciable effect on re-offending rates. As far as most prisoners are concerned offence-related courses represent little more than obedience tests and just a necessary prerequisite for parole or transfer to lower-security institutions. ‘Telling them what they want to hear’ is a strategy accepted and agreed on by both prisoners and those administering the courses. There is of course a huge social and existential divide between the prisoners who attend these courses and those managing them, usually middle class psychologists and trainee psychologists who have little or no concept of the social conditions and circumstances that shaped the ‘offending behaviour’ of most prisoners, and so they apply a crude form of moral behaviourism to prisoners criminal and anti-social behaviour (apart from that of financial capitalists of course) that has nothing to do with social deprivation and extreme disadvantage, and everything to do with defective moral choice-making, rather like that of poor single mothers ‘scrounging off the state’.
The prison-industrial complex, the finished product of neo-liberalism in the field or market of criminal justice, is not just reducible to prison privatisation, it also shapes and influences a set of institutions, practises and ideologies based on fear, punishment and control, as exemplified by the American experience.
In the U.S. there are over 2.3 million people in prison, and more than twice as many people under direct state supervision, and virtually all are from a well-defined social group: the poorest and most dependent on social welfare and assistance. This mass criminalisation of the poor is beginning to find expression here in the U.K. With a popularised contempt of welfare recipients and the urban ‘underclass’, and a growing consensus that penal policy should replace welfare policy as a means of dealing with them. Through a slavish imitation of the U.S. criminal justice system Britain now has the highest imprisonment rate, the most overcrowded prisons, the severest sentencing practises, and is one of the worst abusers of prisoners human rights in Europe.
As the social democratic model that characterised Britain since 1945 continues to fracture and break in the face of unrelenting U.S. style neo-liberalism the welfare state will be replaced by the penal state and the treatment of the poor will resemble a sort of punitive containment supervised by parole officers in everything but name.