Guides on Expert Evidence for judges;

The BBC report that judges are to be provided with ‘primers’ on scientific topics is potentially seriously dangerous for court proceedings.  It is our understanding that judges do not ‘judge’ other than for example when there is an issue on the admissibility of evidence, or other matters of the legal process.  Juries judge.  While juries are routinely warned to assess the case only on the evidence before them, it seems that judges may now swot up on matters which may or may not be given in evidence in the case.  In matters of admissibility, it seems to us that a dangerous precedent may be set when the judge can consult and rely upon material not presented by either side.

The current rules recommend that the experts should identify areas of agreement and disagreement to focus the court’s attention on the relevant issues.  It is opaque how these primers will work other than to influence the judge’s thinking in matters of admissibility or, worse, to intervene when Counsel appear to be failing in their understanding of the scientific evidence.

Of particular concern is the influence of statisticians in the process.  In our opinion, statistics are not empirical science; they are synthetic mathematical tools which scientists use to test results or groups of data.  The most appropriate tool can be a matter of debate in itself.  For example, there is a current debate on the use of the Likelihood Ratio (LR) which was the statistic featured in the case of R v T.  One of the problems with the Likelihood Ratio is amply demonstrated in the BBC report.  The Likelihood Ratio is not, as stated by the reporter, “used by statisticians to calculate the likelihood of an event based on the probabilities of other related events”. The LR is actually a comparison of the probabilities of the evidence IF the prosecution proposition is true as opposed to IF the defence proposition is true.  Similar mistakes of understanding the LR have been made by courts and experts throughout the world yet some ‘experts’ insist that it is the ONLY way to assess evidence.

Our concern is amplified when we look back at the inception of these primers and see that the Forensic Science Regulator had meetings with one of the judges of the Court of Appeal previously in R v T.  The Regulator had given evidence that was rejected by that Court.  Now, the Regulator meets with a judge (who was involved in the trial and is now the most senior judge in England & Wales) “to discuss the consequences of the decision on RvT”.   (“Mr Rennison [the Forensic Science Regulator] said that both the Lord Justices’ hold a keen interest in the work to develop guidance and standards for the interpretation of evidence, and will be nominating a High Court Judge and a Circuit Judge to join the Interpretation Specialist Group. … Mr Rennison said that Lord Justice Hughes was keen to seek consensus from the forensic science community on how best such evidence (i.e. relating to databases/likelihood ratios) should be presented.”)  Really?  We, who provided the counter argument in R v T and have consistently challenged not only the Likelihood Ratio but some other DNA technologies did not receive such an invitation.  Perhaps that is how consensus is achieved in forensic science – just ignore or eliminate the contrary perspective.  We do not recall any opportunity being afforded to us to meet with any judge to ‘discuss’ any judicial misunderstanding in the case of R v Reed & Anor which also had consequences. As it happens, we would not expect such meetings.

We have yet to see all of these primers, but warn that science is always evolving and there are great dangers in treating today’s orthodoxy as the correct and only answer.  In almost every case in court, the evidence is led by a solicitor or Counsel.  In our experience, the skill and knowledge of the barrister both as a legal expert and in their role as leading the expert, is the most important factor in ensuring that the evidence is presented competently and comprehensively to the jury.  For this reason we offer seminars and briefings to solicitors and barristers (who would work for either defence or prosecution) and work with them, as our desire to assist the legal profession with mutual comprehension of the scientific issues and debates, in advance of ‘the day in court’. 

We welcome anything which improves the understanding of science, but remain cautious as to whether the development and implementation of this project as it has occurred will achieve the apparent aim in an unbiased process. We wonder if it also may create novel issues in terms of evidence presentation. If an expert gives testimony that in some way clashes with what the judge has understood from a primer, to what extent will it be appropriate for the judge to react?

Footnote: Only a week after a Supreme Court judge stated at the launch of these primers at the Royal Society of Edinburgh that these primers were for the judge's reading room and not to be cited as authorities, that's exactly what was done by the prosecution at a trial in Bradford.