Expert Evidence in Criminal Proceedings

AuthorMichael Stockdale,Adam Jackson
DOI10.1177/0022018316668448
Published date01 October 2016
Date01 October 2016
Subject MatterArticles
Article
Expert Evidence in Criminal
Proceedings: Current Challenges
and Opportunities
Michael Stockdale
Director, Centre for Evidence and Criminal Justice Studies, Northumbria Law School, Northumbria University
Adam Jackson
Deputy Director, Centre for Evidence and Criminal Justice Studies, Northumbria Law School, Northumbria University
Abstract
In its 2011 report Expert Evidence in Criminal Proceedings in England and Wa les (Law Com
No. 325), the Law Commission recommended that the admissibility of expert evidence in
criminal proceedings should be governed by a new statutory regime comprising a new
statutory reliability test in combination with codification and refinement of existing common
law principles relating to ‘assistance’, ‘expertise’ and ‘impartiality’. The government declined
to enact the Law Commission’s draft Bill due to a lack of certainty as to whether the
additional costs incurred would be offset by savings. Instead the government invited the
Criminal Procedure Rule Committee (CrimPRC) to consider amendments to the Criminal
Procedure Rules (CrimPR) to introduce, as far as possible, the spirit of the Law Commis-
sion’s recommendations. The consequent amendments to CrimPR Part 33 (now CrimPR
Part 19) in combination with the making of the new Practice Direction CrimPD 33A (now
CrimPD 19A) by the Lord Chief Justice resulted in what he described in his 2014 Criminal
Bar Association Kalisher Lecture as ‘a novel way of implementing an excellent Report’. This
paper considers the possible evolution of the common law in light of these amendments, the
challenges associated with adopting such a novel approach to reform and the potential
opportunities for the improvement of expert evidence in criminal proceedings that the
changes were intended to create.
Keywords
Expert evidence, reliability, Part 19 Criminal Procedure Rules, Criminal Practice Direction 19A
Corresponding author:
Michael Stockdale, Centre for Evidence and Criminal Justice Studies, Northumbria Law School, Northumbria University, United
Kingdom of Great Britain and Northern Ireland.
E-mail: m.w.stockdale@northumbria.ac.uk
The Journal of Criminal Law
2016, Vol. 80(5) 344–363
ªThe Author(s) 2016
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DOI: 10.1177/0022018316668448
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Introduction
In 2009 the Law Commission published its consultation paper The Admissibility of Expert Evidence in
Criminal Proceedings in England and Wales.
1
This consultation, to which Northumbria Centre for
Evidence and Criminal Justice Studies r esponded, had been catalysed by a report o f the House of
Commons’ Science and Technology Committee, published in 2005.
2
The Law Commission ‘shared the
Committee’s concern that expert opinion evidence was being admitted in criminal proceedings too
readily, with insufficient scrutiny’.
3
In its resultant 2011 report Expert Evidence in Criminal Proceed-
ings in England and Wales, the Law Commission recommended that the admissibility of expert evidence
in criminal proceedings should be governed by a new statutory regime comprising a new statutory
reliability test in combination with codificat ion and refinement of existing common law prin ciples
relating to ‘assistance’, ‘expertise’ and ‘impartiality’.
4
Other recommendations related to pre-trial dis-
closure, court-appointed experts and amendments to the Criminal Procedure Rules (CrimPR).
5
The Law
Commission recognised, however, that these proposed developments would not in themselves remedy
the problems they had identified in relation to expert evidence. Consequently it emphasised the impor-
tance of other parallel changes, such as appropriate regulatory schemes to ensure minimum standards, a
more critical approach on the part of the judiciary and appropriate training for judges and lawyers.
6
The government declined to enact the Law Commission’s draft Bill because, whilst the Law Com-
mission’s impact assessment recognised that implementation of its recommendations would result in the
added expense of holding additional pre-trial hearings,
7
there was a lack of certainty as to whether the
additional costs incurred would be offset by savings (via, for example, fewer or shorter trials, reduction
in expert’s fees and fewer appeals).
8
Whilst the result of the government’s decision was to leave in place
the common law principles that govern the admissibility of expert evidence in criminal proceedings, the
government invited the Criminal Procedure Rule Committee (CrimPRC) to consider amendments to the
CrimPR, which it believed ‘could increase the likelihood of the trial judge and the opposing party, where
appropriate, challenging expert evidence’ and ‘would go some way towards reducing the risk of unsafe
convictions as a result of unchallenged inappropriate or unreliable expert evidence’.
9
The consequent
amendments to CrimPR Part 33 (now CrimPR Part 19) in combination with the making of the new
Practice Direction CrimPD 33A (now CrimPD 19A) by the Lord Chief Justice, resulted in what he
described in the 2014 Criminal Bar Association Kalisher Lecture as ‘a novel way of implementing an
excellent Report’.
10
The Lord Chief Justice believed that these changes in combination with develop-
ments at common law and the work of the Advocacy Training Council (now the Inns of Court College of
Advocacy (ICCA)) to develop relevant guidance and training for advocates meant that the bulk of the
Law Commission’s recommendations had been implemented.
11
The purpose of this paper is to examine the principles that currently govern the admissibility of expert
evidence in criminal proceedings, the provisions of CrimPR Part 19 and CrimPD 19A and the Law
1. Law Commission Consultation Paper No. 190 (2009).
2. Forensic Science on Trial, Seventh Report (2004–2005) HC 96-1.
3. Law Commission, Expert Evidence in Criminal Proceedings in England and Wales, LAW COM No. 325 at [1.2].
4. Ibid. at [1.37–1.38].
5. Ibid. at [1.41].
6. Ibid. at [1.42–1.43].
7. Ibid. at 165.
8. Ministry of Justice (2013) The Government’s Response to the Law Commission Report: Expert Evidence in Criminal Pro-
ceedings in England and Wales (Law Com No. 325) at [3]. Available at: https://www.gov.uk/government/uploads/system/
uploads/attachment_data/file/260369/govt-resp-experts-evidence.pdf (accessed 30 January 2016).
9. Ibid. at [4-5].
10. Lord Thomas CJ (Baron Thomas of Cwmgiedd) (2014) The Future of Forensic Science in Criminal Trials: 2014 Criminal Bar
Association Kalisher Lecture at [17]. Available at: http://www.judiciary.gov.uk/wp-content/uploads/2014/10/kalisher-lecture-
expert-evidence-oct-14.pdf (accessed 30 January 2016).
11. Ibid.
Stockdale and Jackson 345

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