Berkeley Lifford Hall Accountancy ServicesIQ Legal Training

MoJ advises those concerned about potentially unreliable forensic toxicology tests

ALC comments on legal aid status of clients potentially affected by tests

The Ministry of Justice has published guidance for those concerned about potentially unreliable forensic toxicology tests. This follows news that the police are investigating potential manipulation of forensic toxicology test results at two private companies: Trimega Laboratories Limited and Randox Testing Services. The test results were used as expert evidence in England and Wales.

The MoJ makes no comment on the on-going criminal investigation.

As a precautionary measure, the MoJ is currently treating test results from the laboratories of these two companies as potentially unreliable. Results from other forensic test providers are not believed to be affected. The information below gives examples of where toxicology tests may have been used as part of decision making.

The MoJ recognises the seriousness of this issue, and the concerns people who have used the courts may have about its implications for them. The MoJ's information below is aimed at helping people understand where toxicology tests may have been used as part of decision making in court cases, and to guide them on the next steps.

"Family cases involving decisions about children
Hair strand testing for drug and alcohol use was undertaken by Trimega Laboratories Limited between 2010 and April 2014.

Family court proceedings
These are cases where the court was asked to make decisions about a child's upbringing and may have ordered a toxicology test to be carried out to help it make decisions. Court proceedings may either have been started by the local authority, by parents, or others. A local authority may have made an application to ask the court for an order, for example, to place a child into local authority care or under the local authority's supervision. A parent (or other person) may have made an application, for example, for a child arrangements order (previously known as a contact or residence order) or special guardianship order.

If you believe that a test by Trimega was carried out in your case and may have materially affected the decisions made in respect of your child(ren), you can:

- contact your local authority
-  contact your original solicitor from the original court proceedings

You may also wish to seek legal advice about other options available to you. A legal adviser will be able to tell you about the merits of making any application to the court. Legal Aid may be available to you. Individuals will continue to be assessed for their suitability for legal aid on a case-by-case basis.

Court staff are unable to give legal advice, which includes advice on what type of application you should make and the likelihood of any application being successful. Organisations like Citizen's Advice may also be able to provide you with assistance.

If you are concerned that the final order made by the court in your case was affected by an unreliable test result you can ask the court to consider changing or setting aside that order.

Local authorities may also have requested tests as part of their decision-making before court proceedings. Local authorities have been asked to review their files to ensure that the basis of decisions about children's safety and wellbeing is not now questioned.

I want the court to review my final order
If you wish to ask the court to change or set aside your order(s) you can complete a special form C650 'Application notice to vary or set aside an order in relation to children' that has been created specifically for this purpose. The form and any attachments can be sent by e-mail or by post. Details are provided in the form. No fee will be payable if you use this form.
The availability of this specifically created form does not prevent you from making any other application to vary, discharge or appeal your order, that you may wish, or be advised, to make. The relevant court fee will be payable for any other type of application.

Criminal prosecutions and coroners' cases
These are court cases where Randox Testing Services carried out testing of blood, urine, and other bodily samples for drugs on behalf of the police between 2013 and 2017. Potentially affected cases are being reviewed on a case-by-case basis by individual police forces and the Crown Prosecution Service (CPS). Where it is possible to do so, samples are being re-tested. Priority is being given to cases where individuals are in custody or where court proceedings are on-going. Members of the public do not need to take any action at this time. Those affected will be contacted by the police or CPS in due course.

A similar approach to independent re-testing is being applied to cases which have been referred to the Coroner, in particular following an investigation by the police into a suspicious death. Coroners are reviewing potentially affected cases and will consider the outcome of any re-testing and what steps need to be taken. Members of the public do not need to take any action at this time. Anyone affected by this will be contacted by the coroner's office in due course.

Civil cases
There is no information that any civil case is affected. However, if you were involved in proceedings where expert evidence following hair strand testing for drug or alcohol use was relied on, and you are concerned, you may wish to obtain legal advice about the available options either from a solicitor or an organisation like Citizen's Advice."

The Association of Lawyers for Children has commented on the above development. As well as referring to the above guidance, the ALC advises anyone who might have been involved in a family court case that they think was affected by an unreliable drug or alcohol test, to try to contact the solicitors' firm which represented them in that case and ask for their advice. If they cannot be contacted or cannot help the party, he or she can look for another solicitor on The Law Society's Website or consult Citizens Advice or the local authority involved in the case.

The ALC considers that those affected should be able to receive non-means, non-merits tested advice and assistance under the 'Legal Help' scheme so that they can get free initial advice about their situation. Further, if the lawyer representing the affected client takes the view that a client has sufficient merit to make an application to the court, the ALC considers that he or she ought to be able to apply for a legal aid certificate to continue to assist the client and prepare any relevant application. While the Legal Aid Agency (LAA) may require an application for a legal aid certificate to meet the merits criteria, the ALC firmly believe that no financial eligibility test should be imposed; the application for a legal aid certificate should be non-means tested.

The ALC will therefore be making its position clear to the LAA and the MoJ.

The ALC statement addresses lawyers:

"You may wish to carry out a review of your files so as to identify cases in which drug or alcohol testing by Trimega, or Randox (if applicable) occurred during the applicable period. The ALC will be liaising with relevant organisations in order to better establish what can reasonably be expected of our members in these circumstances. If you are a member of the ALC and you wish to contact us in relation to this issue, please do so by the usual channels."

For the full MoJ guidance, click here. For the ALC's statement, click here.