Mehera San Roque

Atkins v The Emperor : the ‘cautious’ use of unreliable ‘expert’ opinion

What happens to a country under constant surveillance? The recent decision in Atkins v The Queen provides a partial answer.¹ The sheer availability of images seems to be driving decisions about their admissibility and use as identification evidence. Confronted with CCTV recordings associated with criminal activities English courts have been reluctant to restrict their admission or impose limitations on the scope or form of incriminating opinion derived from them. Although the Court of Appeal decision in Atkins v The Queen is concerned primarily with the way in which an opinion derived from CCTV images was expressed, the decision exposes jurisprudential weakness and continuing problems with photo comparison and facial-mapping evidence.

Model forensic science

This article provides an explanation of the duties and responsibilities owed by forensic practitioners (and other expert witnesses) when preparing for and presenting evidence in criminal proceedings. It is written in the shadow of reports by the National Academy of Sciences (US), the National Institute of Standards and Technology (US), the Scottish Fingerprint Inquiry and a recent publication entitled ‘How to cross-examine forensic scientists: A guide for Lawyers’. The article examines potential responses to questions focused on the need for scientific research, validation, uncertainties, limitations and error, contextual bias and the way expert opinions are expressed in reports and oral testimony. Responses and the discussion is developed around thematics such as disclosure, transparency, epistemic modesty and impartiality derived from modern admissibility and procedure rules, codes of conduct, ethical and professional responsibilities and employment contracts. The article explains why forensic practitioners must respond to the rules and expectations of adversarial legal institutions. Simultaneously, in line with accusatorial principles, it suggests that forensic practitioners employed by the state ought to conduct themselves as model forensic scientists.

A mixed-method study of expert psychological evidence submitted for a cohort of asylum seekers undergoing refugee status determination in Australia

The levels of exposure to conflict-related trauma and the high rates of mental health impairment amongst asylum seekers pose specific challenges for refugee decision makers who lack mental health training. We examined the use of psychological evidence amongst asylum decision makers in New South Wales, Australia, drawing on the archives of a representative cohort of 52 asylum seekers. A mixed-method approach was used to examine key mental health issues presented in psychological reports accompanying each asylum application, including key documents submitted for consideration of asylum at the primary and review levels. The findings indicated that the majority of decision makers at both levels did not refer to psychological evidence in their decision records. Those who did, particularly in the context of negative decisions, challenged the expert findings and rejected the value of such evidence. Asylum seekers exhibiting traumatic stress symptoms such as intrusive thoughts and avoidance, as well as memory impairment, experienced a lower acceptance rate than those who did not across the primary and review levels. The findings raise concern that trauma-affected asylum seekers may be consistently disadvantaged in the refugee decision-making process and underscore the need to improve the understanding and use of mental health evidence in the refugee decision-making setting. The study findings have been used to develop a set of guidelines to assist refugee decision makers, mental health professionals and legal advisers in improving the quality and use of psychological evidence within the refugee decision-making context.

Mental Health Expertise in Refugee Status Decision-Making: Judging or Caring?

Therapeutic and legal methodologies address credibility assessment in crucially different ways. These differences can generate mistrust and antipathy between refugee decision-makers and mental health professionals whose expert assessment reports are offered to assist decision-making. The anthropologist Good, quoted above, provides a graphic expression of one aspect of this discipline rift, highlighting the contrast of focus between the decision-makers perspective and the therapeutic lens in the highly sensitive legal environment of refugee determinations. Here a high percentage of applicants exhibit psychological sequelae of trauma. In addition, cultural and linguistic differences add to the challenge. These elements are particularly pertinent where, as is often the case, the applicants story is the pivot of his or her claim for protection. This article draws upon an Australian cross-disciplinary empirical study (known as the Tales study) in which the authors and psychology and psychiatry colleagues explored the propensity for psychologists and refugee decision-makers to misunderstand each others perspectives. The authors discuss the reasons why such misunderstandings arise, and the consequences for the decision-making process, and conclude with reference to guidelines developed from the Tales study which are intended to assist those providing expert opinions, decision-makers, and representatives.

Justice is blind as long as it isn’t deaf: excluding deaf people from jury duty – an Australian human rights breach

ABSTRACT In the wake of a recent decision by the High Court of Australia, currently a deaf person, who relies on sign language, is not able to serve as a juror because Australian law does not permit the swearing in of an interpreter as the ‘13th person’ in the jury room. In 2016, the United Nations Committee on the Rights of Persons with Disabilities found that Australia is in breach of its obligations under the Convention on the Rights of Persons with Disabilities, and indicated that legislative and policy change is both mandated and feasible. Four pieces of research conducted over the last decade in Australia have proved that deaf people have the ability to understand complex legal discourse in a courtroom setting using sign language interpretation and, therefore, are able to discharge the functions of juror. The latest research, funded by the Australian Research Council, has highlighted some residual procedural and logistical issues, alongside reservations from some legal stakeholders involved in the project. However, this article argues that these can be addressed, and what is now required is the motivation to address this breach of human rights that treats deaf people differently to hearing people.