Emma Piasecki

Opening the Scientific Expert’s Black Box: ‘Critical Trust’ as a Reformative Principle in Criminal Evidence

The work of forensic scientists, by providing specialist assistance beyond the normal experience or knowledge of the factfinders, can be elusive to the law’s traditional probative safeguards. These safeguards, in any case, only apply to the small proportion of such evidence actually tested in court. The specialist nature of the scientific work and the knowledge and understanding needed by users with a non-scientific background makes trust in forensic science problematic if conceptualised in binary terms. A systematic review of the development of the quality controls for the production and use of expert scientific evidence demonstrates that critical trust, as an organising principle, does offer a continuum (ranging from scepticism to acceptance) for assessing the reliability and use of forensic science evidence. Despite progressive reform in forensic science, significant risks remain. These risks are both (i) scientific, including the fragmentation of scientific interpretation and the assurance that all providers and/or processes can meet the necessary standards, and (ii) professional, ranging from the timely provision of information to the ability of counsel to critically test the evidence in a manner intelligible to the factfinders.

No More Laissez Faire? Expert Evidence, Rule Changes and Reliability: Can More Effective Training for the Bar and Judiciary Prevent Miscarriages of Justice?

The apparent link between miscarriages of justice in prosecutions involving expert evidence and the level of training provided to the legal profession (the Bar in particular) and the judiciary in respect of such evidence was highlighted in 2005 with the publication of the House of Commons Science and Technology Committee Report Expert Evidence on Trial.2 The Law Commission, in the 2011 Report Expert Evidence in England and Wales 3 subsequently comprehensively addressed the same issue. This article seeks to consider why appropriate training in relation to expert evidence is so necessary and questions whether, in the context of the amendments to what is now Part 19 of the Criminal Procedure Rules (CrimPR19) and Part 19A of the Criminal Practice Direction (CrimPD19A), there have been sufficient developments in training to effect a cultural change within the legal profession and ultimately substantially reduce the risk of future miscarriages of justice. Finally, the article debates the nature of required training, arguing that much more detailed training is required than has previously been considered and addresses where this training best sits.

The Safety-Valve: Discretion to Admit Hearsay Evidence in Criminal Proceedings

Section 114(1)(d) of the Criminal Justice Act 2003 gave the criminal courts discretion to admit hearsay evidence in the interests of justice. The Law Commission envisaged that the courts would only exercise this inclusionary discretion in exceptional circumstances. Whilst the admissibility threshold created by s. 114(1)(d) is not as high as the Law Commission had intended, the recent jurisprudence suggests that the courts will exercise the s. 114(1)(d) discretion much as the Law Commission had anticipated except that, contrary to the Law Commissions intentions, there is authority for the proposition that where a confession is admitted under s. 114(1)(d) it may be admissible against persons other than its maker and there is also authority for the proposition that the hearsay evidence of a witness who cannot be identified is not admissible under s. 114(1)(d).