http://www.lawcom.org.uk/lc-forum/ Reforming the law en Tue, 07 Sep 2010 10:56:35 +0000 http://www.lawcom.org.uk/lc-forum/topic/difficulties-with-proposed-judicial-screening-of-expert-evidence#post-42 Tue, 21 Jul 2009 13:58:39 +0000 bodriche 42@http://www.lawcom.org.uk/lc-forum/ <p>I agree with post 2. The son of a very close friend of mine is currently on a murder charge and we have our fingers crossed that a good barrister will represent him and ask all the right questions (which involve head trauma forensics, eye witness reliability and, possibly, PTSD after a tour of duty in Afghanistan). There are numerous cases (eg. the Jill Dando case) where it has been left to journalists to probe more deeply and get unsafe convictions quashed, often after many years. Perhaps the commission could look at these cases as a group to see if injustice could have been averted at an earlier stage. </p> http://www.lawcom.org.uk/lc-forum/topic/difficulties-with-proposed-judicial-screening-of-expert-evidence#post-41 Thu, 16 Jul 2009 12:06:43 +0000 Deirdre Dwyer 41@http://www.lawcom.org.uk/lc-forum/ <p>I think that the same message should be taken from the 'Report of the Inquiry into Pediatric Forensic Pathology in Ontario'. Most miscarriages of justice involving expert evidence seem, at least anecdotally, to arise from a failure to exercise adequate vigilance within existing evidential and procedural structures.</p> <p>Dr Deirdre Dwyer<br /> Faculty of Law<br /> University of Oxford </p> http://www.lawcom.org.uk/lc-forum/topic/difficulties-with-proposed-judicial-screening-of-expert-evidence#post-40 Mon, 13 Jul 2009 16:43:09 +0000 gilsonc 40@http://www.lawcom.org.uk/lc-forum/ <p>This posting expresses more eloquently,efficiently and substantively the views I submitted to the Forum but Dr Dwyer and I hold the same view, albeit from different perspectives. I appreciate her fine analysis of judgments in the important cases in question and the realistic assessment of the operation of rules of evidence in American courts. I believe courts in the English jurisdiction can use their 'standard' reasoning to reach conclusions without resorting to rigid procedures that do not, in any event, guarantee that evidence is 100% reliable and the use of which might introduce even more problems. Learning from errors of the kind made in Clark and Cannings need only take the form of more care and close questioning of expert opinions that appear to decide cases on the basis of their evidence alone. The solution to the problem of expert evidence lies in courts taking more responsibility of their own for conclusions. </p> http://www.lawcom.org.uk/lc-forum/topic/difficulties-with-proposed-judicial-screening-of-expert-evidence#post-39 Tue, 07 Jul 2009 21:47:55 +0000 Deirdre Dwyer 39@http://www.lawcom.org.uk/lc-forum/ <p>The concerns expressed by Law Commission about the quality of some of the expert evidence admitted before the criminal courts are to be welcomed. Recent miscarriages of justice, particularly in relation to suspected infant homicides, have highlighted the dangers of unreliable expert evidence being placed before the courts. </p> <p>The proposed partial solution, of a statutory admissibility test for the reliability of expert evidence, may, however, mark a wrong turning in the development of English law. This is for at least five reasons:<br /> (1) There is no clear principle that evidence generally may be excluded because of its unreliability, and it is undesirable as a matter of principle to make ad hoc rules for particular categories of evidence. The discussion in Appendix A suggests the existence of only occasional dicta. In particular, the dictum of Hoffman LJ cited from Vernon v Bosley does not appear to be well formed. We might alternatively consider screening hearings for all evidence which is potentially unreliable, such as eye witness identification evidence, rather than just expert evidence.<br /> (2) The American experience with Daubert suggests that judicial assessment of the reliability of expert evidence, at least on a formal basis, is deeply problematic, both theoretically and practically. Although the Paper suggests that little expert evidence is likely to be excluded under the proposed rules, the US experience is of the generation of an extraordinary volume of satellite litigation, first instance and appellate decisions, and academic commentary. Daubert is one of the few cases for which one can buy a t-shirt (http://www.cafepress.com/daubertontheweb). Of particular relevance here is that there appears a broad academic consensus that Daubert poorly serves the needs of the US criminal justice system. See for example, the Symposium on ‘Daubert, Innocence and the Future of Forensic Science’ in (2007) 43(2) Tulsa L Rev 229-626. The Paper is probably wrong to suggest that the philosophical objections to the Daubert factors are over-stated; rather, the practical problems with a Daubert approach arise in large part from its underlying conceptual difficulties.<br /> (3) The concept of ‘unreliability’ in relation to expert evidence needs to be unpacked, lest we conflate very different causes, such as unreliable experts and uncertainty within disciplines. For example, on p 79 it is suggested that Clark and Cannings are both example of miscarriages of justice arising from unreliable evidence. However, in Clark the unreliability arose from the negligence of one of the experts, while in Cannings the unreliability arose from profound disagreement between reputable experts.<br /> (4) The probative evaluation of evidence is correctly the role of the jury, and a Daubert-style screening by the judge would be to usurp that role. Associated with this, we should be slow to believe that judges are better placed than jurors to evaluate reliability. See, for example, R Munday, ‘Case Management, Similar Fact Evidence in Civil Cases, and a Divided Law of Evidence’ (2006) 10 Int J Evidence and Proof 81-103. On the ability of non-specialists to evaluate expert evidence at trial, see D Dwyer, The Judicial Assessment of Expert Evidence (CUP, 2009) ch 2. At the same time, the role of the judge is changed, to become actively involved in the evaluation of evidence.<br /> (5) There are no clear examples of English criminal cases where a miscarriage of justice would certainly have been avoided if the proposed approach had been in place. If one thinks of a case such as Clark, where much of the evidence of a leading paediatric expert was problematic, defence counsel made little effort at trial to challenge the reliability of the evidence, for example in cross examination. The paper gives some examples of bogus experts, to support a subsidiary suggestion of the accreditation of experts, but these experts would readily have been exposed as bogus by any legal team making simple enquiries.</p> <p>If we were to proceed with a reliability test for expert evidence, the American experience would appear to suggest that the test for reliability should be as flexible as possible, and left as far as possible to the discretion and common sense of the judge. Much of the Daubert satellite litigation and academic debate arises from an examination of the minutiae of the meanings to be attached to the four Daubert factors. A more effective approach, if we accept judicial screening of evidence, would be to focus on the training of judges and counsel to identify potentially weak expert evidence.<br /> The provisionally proposed wording at para 6.10 is well thought out, and a marked improvement on the wording in Daubert. However, the use of discretionary words such as ‘sound’, ‘properly’ and ‘sufficiently’ may lead to unnecessary satellite litigation.<br /> The proposed wording of the guidelines at paras. 6.26 and 6.35 is similarly well thought out. It may, however, but unduly prescriptive. The proposed distinction here between scientific and experience-based expert evidence may not be as clear cut as statutory guidelines would require. For example, it is unclear why ear-print identification evidence should be tested as scientific expert evidence, while handwriting identification evidence should be treated as experience based.</p> <p>The proposed use of court-appointed assessors, although perhaps attractive at first blush, is unlikely to succeed. The experience of the English civil courts since 1999 has been of very limited use of assessors. To ask assessors to make decisions on the reliability of expert evidence might be to give them a judicial function that does not sit comfortably with current views in the civil courts on the role of the assessor as an expert witness. </p> http://www.lawcom.org.uk/lc-forum/topic/admissibility-of-scientific-evidence-some-after-thoughts#post-38 Tue, 07 Jul 2009 10:12:11 +0000 gilsonc 38@http://www.lawcom.org.uk/lc-forum/ <p>1. There is no guarantee that the introduction of rules of evidence and gatekeeper functions will eliminate unfailingly the possibility of error in judging admissibility. This might occur infrequently but would interfere with justice if evidence were to be disallowed in court that later transpired to be material to a case.<br /> 2. I have been reminded of a procedure used in the French Administrative Court (Conseil d'Etat) that uses an ascending succession of 'rapporteurs' to represent evidence. Modification of the envisaged role for a court-appointed assessor in the present Law Commission consultation would provide for a rapporteur who would give his/her opinion advising the jury during proceedings of the state of scientific research and knowldge concerning the evidentiary issues of a case. This would be in the absence of rules of evidence or gatekeeper functions. The rapporteur would be appointed by the court and would not necessarily comment on the evidence proferred by the parties but would simply inform the jury what can be known in the scientific field concerned. There might be difficulty in locating such a person but the demands on them would not be the same as that placed on expert opinion witnesses. This might at least reduce any confusion for juries resulting from admitting all evidence judged to be relevant into court, a method I still prefer. The rapporteur could be questioned by the judge but not the parties. </p> http://www.lawcom.org.uk/lc-forum/topic/admissibility-of-scientific-evidence-in-criminal-proceedings#post-36 Thu, 02 Jul 2009 15:52:33 +0000 gilsonc 36@http://www.lawcom.org.uk/lc-forum/ <p>This is a summary of the paper I have submitted. The full response will be available shortly at <a href="http://westminster.academia.edu/CedricGilson" rel="nofollow">http://westminster.academia.edu/CedricGilson</a><br /> 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. Where evidence is dubious, law should employ the precautionary principle that recommends inaction if irrevocable harm might result from a wrong decision. 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’. </p> http://www.lawcom.org.uk/lc-forum/topic/1-12-admissibility-requirements#post-35 Sun, 28 Jun 2009 22:04:59 +0000 GEOFFT 35@http://www.lawcom.org.uk/lc-forum/ <p>Could I suggest an extra requirement 1-12 (4) "that the expert has had sufficient time and opportunity to properly consider all of the options open to him". It is important, I think, for the expert not to be rushed or even bullied into an opinion. </p> http://www.lawcom.org.uk/lc-forum/topic/your-examples-of-unreliable-expert-evidence#post-34 Fri, 19 Jun 2009 04:30:58 +0000 Dr Bob Moles 34@http://www.lawcom.org.uk/lc-forum/ <p>We have done extensive work on research into miscarriages of justice in Australia.<br /> The full text of the book "A State of Injustice" 2004 is available here:<br /> <a href="http://netk.net.au/soi/soi.asp" rel="nofollow">http://netk.net.au/soi/soi.asp</a><br /> This covers about a dozen cases of faulty expert evidence.<br /> The full text of the book "Losing Their Grip" is available here:<br /> it focusses on the case of Henry Keogh.<br /> We are currently completing a book comparing approaches in the UK, Canada and Australia to responses to miscarriages of justice in conjunction with Julie Goulding, Commissioner, CCRC and Prof Roach of Toronto University who was research director for the Goudge Commission in Canada.<br /> Our web site has a wide range of materials covering legal and forensic issues from those jurisdictions. </p> http://www.lawcom.org.uk/lc-forum/topic/filtering-unreliable-witnesses-as-well-as-unreliable-science#post-33 Sun, 31 May 2009 15:58:12 +0000 Laura Hoyano 33@http://www.lawcom.org.uk/lc-forum/ <p>As a chapter of Caroline Keenan's and my book Child Abuse Law and Policy across Boundaries (OUP 2007) is devoted to the reliability of expert evidence relating to child abuse, this is an area of particular interest to me. </p> <p>I fully endorse the recommendations in this consultation paper. In our book we compare the approaches of several jurisdictions and argue that a more systematic analytical approach should be taken to the admissibility of expert evidence. So I agree that the Law Commission's preference for a Daubert-style test and guidelines for the trial court should be adopted. However I think it would be more practicable and efficient to have them incorporated in a Statutory Instrument or Practice Direction rather than legislation, making them easier to amend after experience with them. </p> <p>That said, I submit that the risk to the criminal justice system is not only the admission of bogus evidence (such as Dr Colin Paterson's 'temporary brittle bone syndrome'); a more endemic risk is sloppy and incompetent practice and unfounded and speculative pieces of testimony. The Law Commission's admissibility test (¶ 6.26) would not intercept the opinion evidence of Prof Roy Meadow nor of Dr David Southwell (whose erasure from the medical practice register for serious professional misconduct was upheld by the High Court last week: Southall v General Medical Council [2009] EWHC 1155 (Admin)). Both of these paediatricians were internationally recognised experts in diagnosing physical child abuse, and had testified many times before the English criminal and family courts, so their biases and their opinions which ventured into territory in which they were not qualified, such as statistical probability, were more difficult for child protection agencies, counsel and the courts to identify. </p> <p>Like another respondent, I would commend to the Law Commission all four volumes of The Hon Stephen T Goudge, Commissioner, Report of the Inquiry into Paediatric Forensic Pathology in Ontario (1 Oct 2008). Like Dr Meadow and Dr Southwell, Dr Charles Smith, the Director of the Ontario Paediatric Forensic Pathology Unit, was a highly plausible and persuasive witness who inspired deference in professional colleagues, child protection agencies and criminal justice practitioners and judges; like them he was strongly predisposed to 'think dirty' and find that a child had died of non-accidental injuries; like them he was the cause of miscarriages of justice. </p> <p>Mr Justice Goudge stressed that the trial judge's role as gatekeeper in determining whether the expert scientific evidence has sufficient threshold reliability to be considered by the trier of fact should not be confined to so-called 'novel science'. He recommended that both forensic pathology and the criminal justice system should be vigilant about the following aspects of a forensic pathologist's opinion:</p> <p>1. whether the substance of the opinion and the language in which it is expressed as susceptible to varied meanings or otherwise does not elucidate the pathology issues at stake;<br /> 2. whether the level of confidence or certainty that the expert has in the opinion is accurately expressed;<br /> 3. whether the opinion addresses other explanations for the pathology findings;<br /> 4. whether the opinion is in an area of controversy within the forensic pathology community;<br /> 5. whether all or part of the opinion falls outside the pathologist's area of expertise;<br /> 6. whether the opinion is based, in whole or in part, on non-pathology information provided to the pathologist;<br /> 7. whether the opinion relies, in whole or in part, on other expert opinions provided to the pathologist; and<br /> 8. whether the opinion includes the facts and the reasoning process relied on to form the opinion. </p> <p>Obviously these criteria are applicable to all areas of opinion evidence. So I would urge that the guidelines which the Law Commission proposes for experience-based expert evidence (¶ 6.35) should be applied to all expert witnesses, even those testifying in areas of recognised empirically-based research.</p> <p>Because of these concerns, I am disappointed that the Law Commission seems to have rejected the option of compulsory accreditation or registration for expert witnesses (¶ 6.75), on the basis that it would be impracticable and and unduly costly and would not bring any additional benefit in terms of quality assurance. Having called many expert witnesses during my own civil practice as a barrister, I know that the scrutiny which is required of expert testimony is very costly for the parties. So I believe that the cost of compulsory accreditation need to be balanced against the cost to the criminal justice system of either conducting a case-by-case review of every expert's qualifications and scope of expertise, or of letting unreliable evidence be heard by the jury. Obviously accreditation would not relieve the trial judge of the obligation to ensure that the expert's opinion was relevant to the facts in the issue and based on the factual evidence in the case, but it would provide a basis of identifying, not just bogus science and bogus scientists, but also the parameters of expertise of particular professional witnesses. So I would hope that accreditation will receive further consideration in your eventual recommendations, with a more detailed analysis of the costs and benefits.</p> <p>I agree that the same evidentiary reliability test should be applied to defence evidence as to prosecution evidence (¶ 6.57), as no party is entitled to have taken patently unreliable evidence admitted. I also, with some hesitation, agree to the recommendations regarding court-appointed assessors. I am hesitant because my own experience as counsel of tribunals being assisted by their own experts has not been a good one, as it was exceptionally difficult to challenge the experts' expertise and in camera advice to the tribunals. So I strongly agree that it is essential that the parties have an opportunity to question the assessor and the basis of his or her views (¶ 6.68). Finally, I agree that the question of evidentiary reliability should as a matter of practice be determined before the jury sworn, to ensure that the court is not pressed to make quick decisions for logistical reasons associated with delay for the jury, witnesses and the courthouse. The factual matrix for the opinion should be evident from the expert report itself, and so a preliminary pre-trial ruling should be feasible. In situations, however, where the evidence called in the case turns out not to support that opinion, then I believe that a voir dire might be necessary to (re)consider the issue of admissibility. I also strongly support the availability of an interlocutory appeal, so that a trial is not held unnecessarily where the prosecution's case depends upon an expert’s evidence which prima facie is unreliable.</p> <p>Laura Hoyano<br /> Fellow &#38; Tutor in Law, Wadham College, Oxford </p> http://www.lawcom.org.uk/lc-forum/topic/your-examples-of-unreliable-expert-evidence#post-32 Fri, 29 May 2009 00:52:44 +0000 berolena 32@http://www.lawcom.org.uk/lc-forum/ <p>I am concerned where expert opinion is used as fact, even though it may be divided. Peter Ablett is quoted as saying there are only 3 ways to prove a crime, reliable eyewitness, confession or forensics. </p> <p>In my research I've noticed that in many cases where conviction is overturned, it's overturned based on faulty or biased expert opinion. That is where experts do not fulfill their obligation to the court by providing the court and jury with the flaws in their opinion or provide the known alternatives.</p> <p>These are experts who may be Solon trained and well qualified but who provide opinion to support their paymasters case instead of giving an unbiased opinion covering all areas.</p> <p>This problem needs addressing too surely. </p> http://www.lawcom.org.uk/lc-forum/topic/your-examples-of-unreliable-expert-evidence#post-31 Thu, 28 May 2009 16:10:13 +0000 Law Commission 31@http://www.lawcom.org.uk/lc-forum/ <p>Thank you very much for your post and contribution to our discussion.</p> <p>How do you think the Law Commission proposals in the consultation paper would affect the outcome of cases such as these? In particular in relation to your second example, do you think that the provisional proposal for a new admissibility test would have had an effect on the outcome?</p> <p>Do others have any views on this, or other experiences to share? </p> http://www.lawcom.org.uk/lc-forum/topic/your-examples-of-unreliable-expert-evidence#post-29 Tue, 26 May 2009 13:41:13 +0000 Roy Everett 29@http://www.lawcom.org.uk/lc-forum/ <p>Yes. I have two separate cases, although the first never reached a jury as it was re-directed to a family court.</p> <p>(1) I have seen an expert commit scientific and legal fraud by misrepresentation of evidence. The case was one of child abuse of various types. The evidence included a small file of the following evidence groups: (a) drawings and essays made by a primary school child during art and literacy (b) test results made by a child psychologist in the form of matching pictures of faces to emotions (c) reports [sic] of photographs of infantile genitalia taken in hospital purporting to show damage by intromission of foreign objects (d) reports of lab tests showing positive test for routine microbial infection of female genitalia.</p> <p>The fraud was primarily perpetrated in (b). The test results consists of two or more repeated tests spread over several weeks. In the trial only some of the results were shown, namely those that the expert interpreted as implicating the accused parents. Other results, from identical tests taken at a different time with the same child by the same expert, but having an exonerating interpretation, were not supplied in court nor made available to either counsel. These results showed up three months after the case was heard, namely some three years after they had been taken. The expert had clearly fraudulently concealed information which was incompatible with the outcome the expert was being paid to provide. There was a police inquiry, which is active at the moment, and this led to the revelation that evidence group (c) was also falsified, in that the photographs did not exist at all, and the hearsay reports were invented to suggest that the photographs existed and were incriminatory. Evidence (c) was never, in the event, presented to court for other reasons and its falsehood came to light only during the police investigation into (b). Evidence (d), which tended to exonerate the accused by virtue of showing an alternative reason for genital inflammation, was originally withheld from counsel. The whole case originated from evidence group (a)which triggered a child protection inquiry. In fact, evidence (a) was in reality entirely benign, being the result of over-zealous or mis-trained teachers misinterpreting normal childhood scatological language and imagery as indicative of exposure to abuse. Further investigation exposed a sort of "feeding frenzy" which, once abuse had been suggested, led to several experts vying to come up with even more evidence, resulting in ambiguous or even benign indicants, which would in isolation have been discounted, being perceived as indicative of abuse.</p> <p>The case was discontinued by the police as a criminal case before reaching the courts, but transferred by the local authority to the Family Court, where a delay of a further three years took place. Even though both parents were eventually found by a family court judge not to have caused any injury or pose a risk to the child, all the children, who had been transferred out of their house since the first accusations were made some three years earlier, were deemed to have been re-settled in their temporary home and were never returned to the family.</p> <p>Either that expert, or a colleague or peer, stood to gain financially by about £25000 had the abuse been proved, this being the cost of an "abuse recovery course" that might have been provided.</p> <p>Case 2<br /> This is a case in which an X-ray image of a small baby of a few weeks showed up a small depression of one of the bones in the skull which the prosecution was attempting to portray as probative of non-accidental injury by a parent. The case reached a full trial in the criminal court. The expert did not draw the attention of the jury to several other possibilities, notably the fact that the baby had just had been delivered by emergency Caesarean after a failed natural and then failed forceps delivery, which could possibly have been an alternative cause. The expert also dismissed the notion that the depression might have been caused by the agreed head banging and limb thrashing during the precautionary X-ray. It is not clear if the expert was even informed of the delivery complications at any stage, which were presented to the jury after the expert testimony. Nor did the expert point out that, though uncommon, misaligned skull bone is an occasional natural product of foetal development and normal birth and, left unattended, is self-rectifying within a few weeks.</p> <p>In relation to this case, the expert did not comprehend the grand circularity of the argument that she was putting forward regarding "literature". That is, she was judging the scan mainly against other scans used in cases which had been resulted in a guilty verdict or where the case had not gone to trial. What she did not seem to realise is that (a) some of these cases may have depended solely or mostly on the evidence of her peers or her herself (b) the jury may have had convincing other evidence of guilt despite their considering the scans unconvincing (c) she needed to consider cases in which scans were interpreted as evidence of abuse, yet the jury returned a not guilty verdict, or the case was dropped before a trial. </p> http://www.lawcom.org.uk/lc-forum/topic/your-examples-of-unreliable-expert-evidence#post-26 Wed, 06 May 2009 17:07:08 +0000 Theodore Essex 26@http://www.lawcom.org.uk/lc-forum/ <p>I have seen "experts" prepared to testify on numerous things that there was no basis for. Examples include the use of dolls in sex abuse allegations, profiling, and attributing physical qualities of genitaliy to abuse, before there were any studies of "normal". I have also had prosecutors attempt to introduce into evidence medical test results that were broad spectrum, rather than forensic. </p> http://www.lawcom.org.uk/lc-forum/topic/report-of-the-inquiry-into-pediatric-forensic-pathology-in-ontario#post-25 Wed, 22 Apr 2009 02:53:46 +0000 david.ranson 25@http://www.lawcom.org.uk/lc-forum/ <p>Report of the Inquiry into Pediatric Forensic Pathology in Ontario<br /> Please see <a href="http://www.goudgeinquiry.ca/" rel="nofollow">http://www.goudgeinquiry.ca/</a></p> <p>This Inquiry dealt with flawed evidence in the field of paediatric forensic pathology and inrelation to wrongful convictions in this area. In addition to issues surrounding the admissibility and reliability of evidence and tools that courts can use to assist in this, it also addressed extrinsic factors relating to the organisation of forensic medical service provision with regard to quality, oversight and accountability. Law reform without reform of the systems for the provision of forensic expert evidence will only go some of the way to addressing the very real risks in this area. </p> <p>Volume 3 - Chapters 13, 15 and 18 are particularly pertinant.</p> <p>David Ranson<br /> Deputy Director - Victorian Institute of Forensic Medicine</p> <p>Hon. Clin. Assoc. Professor<br /> Department of Forensic Medicine - Monash University </p> http://www.lawcom.org.uk/lc-forum/topic/isoukas-accreditation-is-inappropriate#post-24 Tue, 21 Apr 2009 19:50:18 +0000 Dr. Wilson 24@http://www.lawcom.org.uk/lc-forum/ <p>It is welcomed that compulsory accreditation of experts is recognised as inadequate to assure the quality of expert evidence (6.75-6.77). Courts would be in flight from their responsibilities if they were to rely on third-party assessment and not to use other tools to assess specific experts and evidence in each case. </p> <p>While ISO standards for manufactured products may often be beneficial, ISO quality systems are contrary to the principles of the Better Regulation Executive (transparent, accountable, proportionate and consistent, and targeted according to need.) They are increasingly being recognised as poor standards: </p> <p>"Without market-place coercion ISO 9000 would have withered long ago, for it has little inherent value...<br /> "In the name of 'continuous improvement' the standards community has revised the Standard four times since 1979, yet it remains a fundamentally flawed concept."<br /> <a href="http://www.systemsthinking.co.uk/6-22.asp" rel="nofollow">http://www.systemsthinking.co.uk/6-22.asp</a></p> <p>John Seddon describes the origin of the problem here:<br /> <a href="http://www.systemsthinking.co.uk/3-1-article.asp" rel="nofollow">http://www.systemsthinking.co.uk/3-1-article.asp</a></p> <p>Another authority has correctly written:<br /> "What is susceptible to meaningful accreditation is an individual's expertise, and that is best done by his own professional regulatory body.....But we believe that the Regulator's proposal to impose UKAS accreditation against his Quality Standard on all providers is untargeted, disproportionate and potentially anti-competitive.<br /> "Accreditation may SEEM to offer users of forensic science services and enhanced level of confidence that all evidence, regardless of the supplier, is quality assured and directly comparable. However, the truth is that accreditation can never assure quality because quality comes from every individual's ongoing rigorous and error-free implementation of proper procedures; a priori accreditation can on give us some measure of past performance......It is far better for the court to determine if the Regulator's Quality Standards have been followed on a case-by-case basis than for accreditation of a provider and its employees to become and easy proxy for the scrutiny that should be applied properly in every case."<br /> <a href="http://tinyurl.com/cuhrxd" rel="nofollow">http://tinyurl.com/cuhrxd</a><br /> (http://www.jspubs.com/downloads/PDFs/UKREW_FSR_Apr09.pdf) </p> <p>In some cases, ISO/UKAS accreditation is enforced by European legislation and already excludes the evidence of non-accredited laboratories and experts from being weighed by the courts. UKAS purports to assure precise measurement but ultimately can offer only "confidence," an emotional and unscientific value. The organisation has limited understanding of forensic and clinical issues and is beginning to stray into attempting to supplant the discretion of the court regarding certain samples. It is currently in danger of preventing legitimate results being brought before courts for assessment. </p> <p>UKAS is very expensive, adding perhaps a third to costs. Its costs are vastly disproportionate to any benefit it brings. If it were a medical treatment, would there be evidence for its use to be permitted by the National Institute of Clinical Excellence? If there is no evidence, why does it continue to be enforced at great expense to public and private services? </p> <p>Management and medical professionals and organisations have been duped by the prima facie plausibility of the ISO/UKAS approach which mistakes compliance with protocols for quality which is much harder to define.<br /> The legal profession should avoid this error, strive to reverse the anti-competitive marketplace coercion requiring compulsory UKAS accreditation, and sidestep the trap of using it as an inappropriate shortcut to determining the facts in individual cases. </p> http://www.lawcom.org.uk/lc-forum/topic/your-examples-of-unreliable-expert-evidence#post-23 Thu, 09 Apr 2009 14:37:43 +0000 Law Commission 23@http://www.lawcom.org.uk/lc-forum/ <p>We provide examples in the consultation paper of a number of miscarriages of justice in recent years where prosecution evidence of doubtful reliability has been placed before Crown Court juries. [See Part 2 of the consultation paper.]</p> <p>We are interested in your experiences with expert evidence in criminal trials. Without giving sensitive details, what examples of unreliable expert evidence have you come across in practice? </p>