Expert witnesses are being subjected to greater scrutiny by the criminal courts in the UK, despite the government’s refusal to implement safeguards recommended by its own law reform advisers.
But Lord Thomas of Cwmgiedd, lord chief justice of England and Wales, insisted that senior judges were not acting unconstitutionally in introducing the reforms themselves because the necessary rule changes had been signed off by Chris Grayling, the justice secretary.
Thomas disclosed this “novel way” of implementing Law Commission proposals when delivering the annual Kalisher lecture at the Old Bailey on Tuesday evening. The Kalisher trust supports students who aspire to become criminal barristers. I am one of its trustees.
In March 2011, the government’s law reform advice body recommended legislation to deal with concerns that scientific evidence was being admitted too readily and with too little scrutiny. Law commissioners called for a new reliability-based admissibility test for expert evidence in criminal proceedings.
The test was designed to reduce the risk that juries would reach their conclusions on unreliable evidence. Experts would be questioned in court about their methods and experience, enhancing public confidence and leading – it was hoped – to fewer miscarriages of justice.
In support of its recommendations, the Law Commission gave the example of a case in which a prosecution expert told a jury he was “absolutely convinced” that an earprint found on a window had been left by a man accused of murder. Mark Dallagher spent seven years in prison before DNA evidence established that the print could not have come from his ear. If the Law Commission’s test had been applied, the expert’s evidence would never have been admitted.
However, ministers said in November 2011 that they could not afford to introduce reforms that would involve additional pre-trial hearings.
Responding to the Law Commission’s recommendations, the Ministry of Justice explained that “without certainty as to the offsetting savings which might be achieved, when set against current resource constraints it is not feasible to implement the proposals in full at this time”.
Instead, the government suggested amendments to criminal procedure rules that, while “falling short” of the recommended reliability test, “would go some way towards reducing the risk of unsafe convictions”.
Those amendments were subsequently introduced and the judges had buttressed them with new practice directions and new precedents. “There has been no primary legislation and there won’t be,” Thomas said. “But with changes in the common law that paralleled the [Law Commission] report and introduced a different test … we have nearly implemented the entire report.”
Even so, the lord chief justice continued, further improvements were needed in the use of forensic science if juries and the wider public were not to lose faith in it.
While insisting that it would be inappropriate for him to comment on the government’s decision to close its Forensic Science Service in 2012, he expressed “great concern” that the private companies which have replaced it were treating their methods as commercially confidential.
Where a development in forensic science is used in court, information that goes to the reliability of the technical or scientific method used must be put into the public domain and made available to all. That is because, in relation to the use of such science in criminal justice, commercial considerations of a kind which might ordinarily be applicable must take second place to the provision of all material which is relevant to establishing innocence or proving guilt.
Thomas welcomed moves by the bar’s advocacy training council to ensure that lawyers understood how to test the reliability of expert witnesses in cross-examination.
He also wanted statutory powers for the government’s forensic science regulator, “to ensure and, if necessary, enforce compliance with quality standards”. Courts depended on the integrity of expert witnesses and judges “must take whatever stringent steps are open to them” if experts did not act with integrity.
Although he avoided the phrase himself, Thomas appeared concerned that juries were being blinded by science. Jurors should not be expected to understand and interpret complex scientific concepts, he said. Instead, their task should be to decide between opposing scientific views.
To assist them and reduce the risk of juries reaching perverse decisions, the lord chief justice called for juries to be given written “primers” on relevant scientific concepts. These short, plain-English guides would be restricted to areas on which there was consensus within the scientific community but could assist juries in understanding the concepts in cases they were hearing.
Thomas did not say who would pay for these guides to be written or ensure that they were kept up to date. But it was a project he hoped to pursue in the coming years. And, as he said, the judges might find them helpful too.
Source: The Guardian