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Law Commission outlines tougher rules for experts in criminal trials

28 March 2011

A statutory reliability test for experts in criminal trials “would prevent miscarriages of justice” such as the conviction of solicitor Sally Clark for the killing of her two baby boys, a Law Commissioner has said.

Clark was convicted in 1999 after professor Sir Roy Meadow told the court that the chance of two children from a similar family suffering sudden infant death syndrome was “one in 73 million”.

The conviction was overturned in 2003, after a second appeal, but Clark died of alcohol poisoning in 2007.

The Law Commission published a draft bill last week introducing a reliability test which judges could apply in appropriate cases to exclude unreliable evidence.

Professor David Ormerod, the law commissioner in charge of the project, said flawed expert evidence was responsible for “some of the most notorious miscarriages of justice”, including the cases of Clark and Angela Cannings.

The Court of Appeal quashed Cannings’ convictions for the murder of her baby sons in 2004. Ormerod said that had the safeguards contained in the new test been in place, expert evidence in the Clark and Cannings trials “would never have been submitted in the way that it was”.

He said that the “one in 73 million” comment by Professor Meadows, widely blamed for Clark’s conviction, would “never have happened”.

Although the professor’s comment was not made in his expert report, but during the trial, Ormerod said Meadows would have been “conscious that he could not make that kind of statement”.

The law commissioner said the new test would result in “better expert evidence and more focused experts’ reports” and help advocates challenge experts.

“Judges are in the unsatisfactory position of having no real test to gauge the unreliability of expert evidence,” Ormerod said.

He said the proposals would also codify the existing common law reliability tests and allow for the appointment of an independent expert to advise the judge in exceptional cases.

He said the Ministry of Justice had been “broadly supportive” of the measures, which would save £3.5m over ten years.

Lord Justice Munby, chairman of the Law Commission, added that the new rules would “stop up a loophole” and, as well as preventing convictions based on unreliable evidence, would stop people being acquitted “based on what one judge called ‘junk science’”.

Munby LJ said judges would be more likely to raise “show-stopping” questions if the test was in place.

The House of Commons science and technology committee said in 2005 that expert evidence was being admitted too freely in criminal trials and suggested a reliability test similar to the one recently introduced in the USA.

The Law Commission launched a consultation on the issue in 2009, and its proposals were supported by the CPS, Criminal Bar Association and Law Society.

However, Mark Solon, managing director of Bond Solon, said judges were already expected to analyse expert reports before they were put before the jury.

“The new guidelines add to what exists under the common law,” Solon said. “If they are not followed, it would open the case to potential appeal.

“What is wrong with good, old-fashioned judicial discretion? Surely any judge would be able to spot an astrologist purporting to be an expert witness.”

Solon said that, before they instructed them, solicitors should make sure experts were credible, knew their field and were trained in the skills of being an expert witness.

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