The Admissibility of Expert Evidence in Criminal Proceedings in England and Wales (original) (raw)
2000, SSRN Electronic Journal
THE SEVEN CONSULTATION CRITERIA Criterion 1: When to consult Formal consultation should take place at a stage when there is scope to influence the policy outcome. Criterion 2: Duration of consultation exercise Consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible. Criterion 3: Clarity and scope of impact Consultation documents should be clear about the consultation process, what is being proposed, the scope to influence and the expected costs and benefits of the proposals. Criterion 4: Accessibility of consultation exercises Consultation exercises should be designed to be accessible to, and clearly targeted at, those people the exercise is intended to reach. Criterion 5: The burden of consultation Keeping the burden of consultation to a minimum is essential if consultations are to be effective and if consultees' buy-in to the process is to be obtained. Criterion 6: Responsiveness of consultation exercises Consultation responses should be analysed carefully and clear feedback should be provided to participants following the consultation. Criterion 7: Capacity to consult Officials running consultations should seek guidance in how to run an effective consultation exercise and share what they have learned from the experience. m CONSULTATION COORDINATOR The Law Commission's Consultation Coordinator is Correna Callender. m You are invited to send comments to the Consultation Coordinator about the extent to which the criteria have been observed and any ways of improving the consultation process.
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There is no systematic deterioration in the ability of law to make sound judgments in criminal cases where scientific opinion evidence has important bearing on matters, even if doubt on its integrity has been cast over recent egregious errors. There are limitations on the capacity of science to depict the absolute truth and its conclusions always must be regarded as provisional. Law is not always aware of this. Science is not a privileged source of knowledge. It is socially constructed. Empirical studies attest high precision and objectivity in their findings but the design of studies affects the reliability of conclusions. Gatekeeper functions and rules of evidence would diminish pragmatism, flexibility and judicial discretion in court, notwithstanding that it would protect the jury from misleading evidence in some cases. If the proposal is a reaction to recent mishaps over convictions, it might be superfluous because law has not become incompetent and can continue to resolve matters using legal reasoning and the experience of judges. For judges to have to learn science would be arduous. Also, it would be unbeneficial because more would be gained by appreciation of the philosophy and sociology of science and the sociology of knowledge. Reference manuals in science are well constructed but substantial. Though training for judges in the USA has been well-received, I contend that this is inappropriate. I argue for retention of part of Option 3 of the proposal that retains experts who can form a consensus over scientific evidence and present the judge with an opinion on its accuracy. The judge can then consider this in deciding its admissibility. This eliminates the ‘deference test’ and makes the ‘panel’ merely advisory. Much of the risk of repeating recent errors can be reduced by adopting better procedures. Expert opinion witnesses should be reminded of their duty to the court. A proposal has been located in the literature that would change the rôle of expert witnesses to ‘auxiliary forensic professionals’ who would not be immune from civil liability. Professional bodies have instituted procedures to investigate some forms of non-accidental deaths in children. Multiplication of such protocols will relieve law of some of the burden of decision-making in this and other ‘grey areas’.
This is a sequel to the comment of the same name previously posted. It describes the progress in the English Courts towards reaching safer conclusions in criminal prosecutions for Non-Accidental Head Injury (NAHI) in children. The Law Commission proposed new primary legislation to overcome the problem of flawed expert opinion evidence that so misled the courts previously. The measure would have bowdlerized evidence to prevent that ruled inadmissible from reaching the court. The government rejected the recommendation, though, but instead suggested amendment of Criminal Procedure Rules and Practice Directions, to include pre-trial discussions between experts that can indicate to the court the range and complexity of opinion in these cases which it can take into account. The piece concludes by showing how this and the traditional values of orality, pragmatism, openness, discretion, witness demeanour and common law precedents that characterize the culture of English court practice help the courts towards conclusions that do not need to be appealed.
PEOPLE: International Journal of Social Sciences, 2018
This work aims to analyse the legislation proposed by The Law Commission in Great Britain in order to establish statutory criteria for expert evidence in court. The proposal is assessed against the amendment of the Criminal Procedure Rules (CPR) initiated by The Government. From this comparison implications for expert witnesses are derived. For illustrative purposes, the case study of fictitious divorce proceedings of Peter Morgan is dealt with. The study shows legal remedies available to a party against its expert witness in negligence cases. Methodologically, expert evidence admissibility criteria are discussed on the background of common law rules and the Criminal Procedure Rules (2015). Legal academic literature is consulted to enrich the argument. The findings show that the Criminal Procedure Rules (2015) are rooted in settled case law, albeit stressing expertise enhancement and professional qualifications. The discussion of the Peter Morgan case study provides for a legal route for negligence claims based on the case law of Jones v Kaney. The originality of this work is based upon a thorough analysis of case law and legal writings, with the focus on newly introduced Criminal Procedure Rules and recent landmark cases.
No More Laissez Faire? Expert Evidence, Rule Changes and Reliability
The Journal of Criminal Law
The apparent link between miscarriages of justice in prosecutions involving expert evidence and the level of training provided to the legal profession (the Bar in particular) and the Judiciary in respect of such evidence was highlighted in 2005 with the publication of the House of Commons Science and Technology Committee Report 'Expert Evidence on Trial' 2. The Law Commission, in the 2011 Report 'Expert Evidence in England and Wales' 3 subsequently comprehensively addressed the same issue. This article seeks to consider why appropriate training in relation to expert evidence is so necessary and questions whether, in the context of the amendments to what is now Part 19 of the Criminal Procedure Rules (CrimPR19) and Part 19A of the Criminal Practice Direction (CrimPD19A), there have been sufficient developments in training to effect a cultural change within the legal profession and ultimately substantially reduce the risk of future miscarriages of justice. Finally the article debates the nature of required training, arguing that much more detailed 1 We should like to thank Professor Tim Wilson and Dr Michael Stockdale, Northumbria Centre for Evidence and Criminal Justice Studies for their assistance with earlier drafts of this article.
London, UK. ABSTRACT The issue in relation to the admissibility of confessions and improperly obtained evidence in the English criminal law has been the subject of substantial debate. The focus of the controversy is on the reason why the English law cases appear to stick to the principle of inclusion of improperly obtained evidence. The court in R v Leatham for example, demonstrated their desire to include any evidence even if it were stolen. Although the coming of the Police and Criminal Evidence Act (PACE) in 1984 was an opportunity to change the approach, the courts chose not to take it; this approach has been subjected to intense scrutiny and criticisms by legal scholars. Professor David Ormerod, for example, has argued that in admitting evidence the need to protect the ‘’public from crime ought to be balanced against a general principle of procedural fairness.’’ The controversies surrounding how evidence is admitted in the English courts and its concomitant effects on the fairness of the proceedings have triggered the interest of the writer in this area of law. Allowing the inclusion of improperly obtained evidence by the English court, the question that readily comes to mind is: to what extent is the method to improperly obtained evidence sufficiently balanced in the English law, or should an exclusionary rule extended to include the fruit of the poisonous tree principle be adopted?
Usurping the Role of the Jury? Expert Evidence and Witness Credibility in English Criminal Trials
The reluctance of English and other common-law criminal courts to admit expert evidence of witness credibility is rooted in two main objections: that such evidence needlessly complicates the jury's task and that it threatens to ‘ usurp’ the jury's role. The ‘ usurpation’ objection can be understood as referring to a risk that the expert will be accorded unwarranted epistemic authority on matters which it is important for the jury to decide for itself. These objections have substance, and although they apply to expert evidence in general they have particular force when applied to evidence of credibility. But the jury, as a responsible fact-finder, also has a duty to attend to expert evidence that will help it avoid ‘ epistemic injustice’ . Particularly in rape and sexual abuse cases, there are good reasons for admitting some forms of expert evidence of credibility, and concerns about ‘ usurpation’ do not justify the British government's apparent abandonment of proposals to make such evidence more widely admissible in rape trials.
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