Whether Current Laws Adequately Protect against Miscarriages of Justice - Essay Example

?‘courts must ensure the reliability, as well as the relevance, of scientific evidence before admitting it’ Keane The Modern Law of Evidence, 8th Edition, Oxford University Press, 535. Critically analyse the above statement in the context of criminal litigation. Analyse whether current laws adequately protect against miscarriages of justice. The reliability and relevance of scientific evidence is important as such evidence is only the opinion of the person supplying the evidence. In general terms, opinion evidence is inadmissible, however, exceptions apply with regard to evidence given by a qualified expert and in some instances a non-expert witness may be entitled to state their opinion if the matter does not call for expertise in that area. Evidence can only be deemed to be relevant if it is used to prove or disprove a matter that is in issue before the court. Evidence adduced with the intention of causing the jury to disapprove of the defendant is generally inadmissible, unless it is properly presented as evidence of bad character to show the propensity of the defendant to a particular kind of crime. Since scientific evidence is a specific area of expertise it is essential that the person giving evidence relating to scientific findings is suitably qualified, and that the evidence can be relied upon in order to secure a conviction. It is not always easy to draw a distinction between a person who is giving an expert opinion as opposed to evidence of fact1 . The Criminal Procedure Rules 1998 (CPR) were reformed in order to restrict the usage of expert evidence2. CPR r 35.1 states that ‘expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.’ One of the dangers associated with the reliance of expert opinion is that miscarriages of justice may occur as a direct result. This was evidenced in the case of R v Cannings [2004]3 in which the expert in this case concluded that the death of her children had been non-accidental, and that the children had not died of natural causes. It later transpired that the expert used in this case that the expert had been the subject of misconduct enquiries and serious non-disclosure of material facts. On appeal the conviction was quashed on the grounds that the evidence of the expert was unreliable. This case was very similar to R v Clark (no2) [2003]4 in which the evidence of the same expert used in the Cannings case was regarded as reliable, resulting in the conviction of Clark for the murder of her 2 children. Professor Meadow, the expert in these cases was at the time carrying out a government funded report into the causes of sudden infant death. At the trial Professor Meadow made the observation that the chances of 2 children dying of cot death within Clark’s family situation could be compared to the chances of 4 different horses winning the Grand National in consecutive years at odds of 80 to 1. As a result of the elevated status of Professor Meadow as an expert in this field the jury concluded that the deaths could not have been natural causes. The courts have struggled consistently with the testing of expert evidence as there is no compulsory requirement for accreditation of the qualifications of the expert. There is also a lack of training for judges and barristers in the understanding of expert evidence, as well as training in judging the reliability of such evidence. In a report conducted by the House of Commons into the reliability of expert forensic evidence the report expressed concern that when the Forensic Science Service moved to the private sector the police service would no longer be able to ask the FSS to ‘provide advice as to the reliability of forensic techniques5.’ At present there is no control over the testing of the reliability of expert witnesses, however, the Law Commission have recently tried to address this issue in the Criminal Evidence (experts) Bill which was published 22 March 20116. In this Bill it was recommended that a reliability based admissibility test should be established for expert evidence in criminal proceedings. The Law Commission expressed the opinion that applying this test would result in unreliable expert evidence being excluded from proceedings. Applying a reliability test is likely to result in less chances of a miscarriage of justice. The Bill also provides guidance to judges by setting out the key reasons why the expert’s opinion might be considered to be unreliable. There have been a number of occasions when the English courts have demonstrated their approval of the admissibility test that was applied in the South African case of R v Bonython (1984)7. In this case the court stated that the test to be applied was (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area: and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, as special acquaintance with which by the witness would render his opinion of assistance to the court. Although reference has been made to this case, in general there seems to be a reluctance to apply an admissibility test. There are a few exceptions were the court have refused to rely on expert opinion. One such case is R v Gilfoyle 8 in which the court of appeal refused to accept evidence from a psychologist who had carried out a psychological autopsy of the deceased. In this case, there was no way of testing the reliability of his evidence as there was no academic writing on the subject, and no database to compare real and questionable suicides. The case of R v Dallagher9 demonstrated how the reliability and relevance of forensic evidence was important. In this case the defendant had been convicted after ear prints left at the scene had been identified as belonging to the defendant. It later transpired that identification from ear prints was not a well established method of identification, and the conviction was overturned. The court made reference to the comments made by Cross and Tapper on Evidence (1999) in which they stated that ‘The better, and now more widely accepted, view is that so long as the field is sufficiently well-established to pass the ordinary tests of relevance and reliability, then no enhanced test of admissibility should be applied, but the weight of evidence should be established by the same adversarial forensic techniques applicable elsewhere.’ The court in R v Luttrell [2004]10 also accepted the test suggested by Cross and Tapper. In this case the court accepted that the reliability of expert evidence can be relevant when considering admissibility, but refused to accept that lip-reading evidence from viewing of CCTV recording should not be excluded, as it was possible to sufficiently test the methods used through cross examination of the expert. The UK so far has no specific test for reliability and relevance of scientific evidence, but has taken on board recommendations made in the United States with regard for the need to examine relevance and reliability before evidence is adduced in court. Since the case of Daubert v Merrell Dow Pharmaceuticals 11 the introduction of rule 702 has meant that the courts have to ensure the reliability and relevance of scientific evidence before admitting the evidence. Reliability is to be determined by examining whether the technique can be and have been tested, and whether the technique used is one that is generally accepted. In the Law Commission Report 19012 the Commission accepted that ...expert evidence should be admissible in criminal proceedings only if it is sufficiently reliable to be considered by the jury...we make proposals for a new approach to the determination of evidentiary reliability of expert evidence in criminal proceedings. This has required us to address two separate ...issues (1) The fundamental question whether the subject matter of the expert’s evidence is sufficiently organised or recognised to “be accepted as a reliable body of knowledge or experience”; and (2) The case-specific question whether the particular expert has properly drawn from that “reliable body of knowledge or experience” to provide a reliable opinion on the factual issues the jury must resolve. Failure to disclose issues surrounding the reliability of the evidence relied upon could lead to a conviction being overturned, as the prosecutor has a duty under s3, 4 and 7A of the Criminal Procedure and Investigations Act 1996 to disclose any material to the defence, which might undermine the prosecution case or assist the defence case. The need for reform is apparent in the light of the cases mentioned above, in particular the case of Clark and Cannings, where the expert wrongly directed the jury that it was highly unlikely to have more than one child die from cot death, therefore the cause of the children’s deaths had to be non-accidental. Other cases which demonstrate the need for reform include R v O’Doherty [2003]13 in which the court concluded that auditory analysis evidence must be supported or supplanted by acoustic analysis evidence in order for it to be deemed to be reliable. Roberts and Zuckerman (2004) were of the opinion in their study, that ‘the admissibility of scientific evidence in criminal trials needs to be reconsidered afresh in the light of the practical demands of modern criminal litigation.’ Ormerod (2002) expressed the opinion that ‘it would be desirable for the courts to apply a reliability test in all cases’. It is clear from all the above, that there is a need for the reliability of scientific evidence to be properly scrutinised, as juries are often swayed by the opinion of an expert, believing that if an expert has said this is the case then it must be true. Experts tend to disagree with this, expressing the view that a jury should possess the necessary powers of discernment to determine the ‘wheat from the chaff14’. However, this does not fit with other areas of criminal evidence where the judge has to determine the reliability of the evidence to be disclosed, as might occur in determining whether a confession made by the defendant can be admissible at trial15. At present there are no clear guidelines in determining the expertise of the expert giving an opinion though the courts have attempted to make such a definition as occurred in the case of R v Robb16 in which Bingham LJ stated that ‘The test which the English common law has developed is characteristically pragmatic… Thus the essential questions are whether study and experience will give a witness’s opinion an authority which the opinion of one not so qualified will lack, and (if so) whether the witness in question is [skilled and has an adequate knowledge]… If these conditions are met the evidence of the witness in law is admissible, although the weight to be attached to his opinion must of course be assessed by the tribunal of fact.’ This test is wholly inadequate as was demonstrated in the case of R v Silverlock17 in which a solicitor was allowed to testify on handwriting analysis despite the fact that he had no qualifications in this field, nor any formal training. This was merely a skill he had acquired in the course of his work. The accreditation of experts has in part been achieved through the Council for the Registration of Forensic Practitioners, which was established in 1999 in response to a number of miscarriages of justice cases coming to light. However, there is no legislative requirement for an expert to hold accreditation in order to give an expert opinion to the court. Insistence on accreditation could help solve the difficulties addressed above. From the above it can be concluded that the reliability of scientific evidence is essential in the prevention of miscarriages of justice. The proposed reform Bill should help to achieve this, however, until it is enacted the likelihood of wrongful convictions may still be fairly high. Although it could be argued that there is too high a degree of reliance on scientific evidence to secure a prosecution, the need to use such evidence is important as evidenced by advances in technology which have led to the arrest of suspects many years after the crime has been committed. An appropriate balance has to be made between the need for scientific evidence and the reliability of that evidence in order to ensure wrongful convictions cease to occur. Bibliography Cross and Tapper on Evidence (1999), 9th Ed, Butterworths: London House of Commons Science and Technology Committee, (2005) Forensic Science on Trial, 7th Report HC 96-1 Keane (2010) The Modern Law of Evidence, 8th Edition, Oxford University Press, Law Commission Report, Commission Paper 190 , The Admissibility of Expert Evidence in Criminal Proceedings in England and Wales: A New Approach to the Determination of Evidentiary Liability Lord Woolf Access to Justice Final Report (HMSO London: 1996) para 13.1 Ormerod, D, “Sounding Out Expert Voice Identification”, [2002], Criminal Law Review 771 Roberts and Zuckerman, (2004), Criminal Evidence, Oxford The Law Commission (LAW COM No 325) Expert Evidence in Criminal Proceedings in England and Wales, 21 March 2011 Read More

 

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