In the Media

There'll be no playing to the court, thank you, professor

PUBLISHED April 18, 2006

MPs are worried that it is the presentation skills of expert witnesses, rather than the arguments they present, that are the key factors in influencing a Jury
NEW technologies and cutting-edge science are increasingly being applied effectively to the prosecution of criminals. A number of highly publicised trials, such as that of S?on Jenkins and Angela Cannings, have hinged upon strongly contested evidence from expert witnesses that has subsequently been discredited. Something is apparently not working. In these types of cases involving complex scientific evidence, are juries, and indeed judges, properly equipped to do what is asked of them? 
The recent tragic cases should be cause enough for a long, hard look at the use of expert witnesses and their evidence, particularly as their presence in court is liable to increase as new technologies are used. There appears to be growing evidence, albeit largely anecdotal, that this evidence is presenting understandable difficulties for both juries and judges.

As part of a broader inquiry last year into the provision of forensic science to the criminal justice system, the Commons Science and Technology Committee (which I have since taken over as chairman) heard disturbing evidence about the role and impact of expert evidence in court. Professor Sir Alex Jeffreys, the founder of DNA fingerprinting, articulated the widely held view that it was the charisma or presentation skills of the expert rather than the arguments they presented that were the key factors in influencing a jury.

The police and the Crown Prosecution Service acknowledged the importance of securing the best expert witness and made no bones about cherry-picking those experts who go down well in court. There was a perception that experts were ?guns for hire? who would be encouraged to favour the prosecution?s case rather than act as truly independent witnesses. More alarmingly, the committee heard that some experts even refused to appear in opposition to certain experts deemed to have a greater presence and ability in court. It is difficult to see how such game-playing can possibly serve the interests of justice.

The concern is not confined to a few peripheral figures. Professor Graham Zellick, the chairman of the Criminal Cases Review Commission, recently cited the complex and conflicting evidence given in shaken baby cases, and said that he would be ?profoundly unhappy to come to firm conclusions on those sorts of conflicts of evidence?. Where does this leave the average juror?

At present, in cases where the expert evidence is crucial, it is left up to the judge to determine whether there is a need for an expert witness, whether the person presented is suitably qualified to give evidence and whether they are straying out of their area of expertise under questioning in court. It is also for the judge to assist the jury in interpreting what has been said. Yet the committee found that the training given to judges on forensic evidence is sporadic and far from comprehensive. For lawyers, such training is not even required. Little wonder that serious mistakes are made in dealing with expert evidence.

So is there a better way of handling these complex cases? The committee recommended that the Home Office should undertake research to test the value of replicating the arrangements for complex fraud trials in cases that rest on highly complex scientific evidence. I do not believe that the trial by jury principle should be lightly discarded, but an exception has rightly already been made for serious and complex fraud cases. Only a small minority of all criminal cases are presently tried by jury so it is difficult to argue that fundamental legal principles are at stake.

But there are other avenues to explore. Better training for lawyers and judges should be a start. Such training could even extend to some limited degree of specialisation in order to build up a cadre of lawyers and judges well equipped to take on certain types of complex cases. More detailed instruction to juries could also be beneficial, or at least some attempt to ensure that jurors fully understand what they are being told. A greater degree of jury selection could also be pursued, although this would no doubt be controversial. Professor Zellick has argued for the judge to hear the expert evidence with perhaps two relevant assessors and then direct the jury on its implications.

When ministers, including the Attorney-General, Lord Goldsmith, QC, came before the committee last November, they acknowledged that there are areas in which judges and juries could be better equipped, but there was an underlying faith in the adversarial system to flag up any problems and a reluctance to examine seriously the case for change.

The adversarial system hinges on the ability of lawyers to understand and test the evidence presented, including complex scientific evidence. Professor Sir Roy Meadow was widely vilified for the evidence he gave in the Cannings case, but a scientifically capable legal system should have picked up and rejected the flaws in his evidence that subsequently came to light. This was a failure of the system more than one individual.

Ministers may be right in thinking that radical reform is not a proportionate response to a few cases. In truth, we cannot accurately gauge how systemic the problems are, as the Contempt of Court Act 1981 forbids jury research. The Government, bizarrely, has stubbornly resisted all recommendations to overturn the relevant provisions of this Act, thus deliberately denying this debate the benefit of hard information. This adherence to evidence-free policy making must end.

We should not underestimate the costs of the failings. The financial cost of retrials can be significant ? ?10 million in costs for the Jenkins trials; the human costs are huge and immeasurable; not to mention the substantial cost in terms of the damage to public confidence in the legal system.

The Home Secretary?s recently reported enthusiasm for the French inquisitorial system suggests a deeper dissatisfaction with the performance of the UK courts. Whether this amounts to a willingness on behalf of government to contemplate fundamental reform of the legal system is open to doubt.

We will see on Thursday, when I, along with my colleagues, will be putting some of these issues to the Government in a debate in the Commons. I shall be asking why a government that has committed itself to modernising public services should be prepared to leave this area well alone. The case for complacency needs to be proven.
The author is Liberal Democrat MP for Harrogate & Knaresborough and chairman of the Commons Science and Technology Select Committee

  • The Government should establish a forensic science advisory council to oversee the regulation of the forensic science market and advise on the use of forensic science in the criminal justice system.
  • Police and expert witnesses lacked faith in the ability of juries to distinguish between the strength of evidence and the personality of the expert witness presenting it. The complacent attitude of the Crown Prosecution Service to this problem was not justified.
  • Judges are not well placed to determine the validity of new scientific techniques or theories. An agreed protocol for validation should be introduced, as in the US.
  • Government should consult on the establishment of a cadre of lawyers and judges with expertise in specific areas of forensic science.
  • Government should fund training where necessary for forensic practitioners on the legal process and the principles of presentation of evidence to court.
  • Pre-trial meetings to identify areas of agreement and disagreement between expert witnesses must be held as a matter of routine.
  • Government should establish a forum in which experts can give feedback on their courtroom experiences.
  • Research into j
    urors? deliberations should be permitted.
  • Government should undertake research to test whether there would be value in extending the arrangements for complex fraud trials to be tried without a jury to other cases that rest upon highly complex scientific evidence.
  • A scientific review committee should be established (within the Criminal Cases Review Commission) to handle complaints about expert evidence.