A test for the reliability of expert evidence in Scots law: the way forward?
Professor Gerry Maher QC, University of Edinburgh
Until recently Scots law had not explicitly developed a test on the reliability of expert evidence as a precondition for its admissibility. The court of appeal in HM Advocate v Young (2014), building upon earlier decisions in Liehne (2011) and Hainey (2013), has now set out criteria for determining whether expert evidence is based on a science or other organised discipline in order for the evidence to be admissible.
This paper considers the approach of Scots law before and after Young and provides a critical examination of the court's approach in that case. It argues that the judgment fails to deal with many relevant issues, such as those canvassed in the US Supreme Court in Daubert v Merrell Dow Pharmaceuticals Inc (1983) and by the Law Commission for England and Wales in its recent report on expert evidence.
The paper then goes on to consider how Scots law should develop further. An examination of this topic by the Scottish Law Commission is unlikely, and there may be problems in setting up an ad hoc review. Consideration will be given on the question whether Scots and English case law has been developing on similar lines and whether Scots law should follow English law in implementing a test like that proposed by the Law Commission for England and Wales.
Gerry Maher studied law at Glasgow and Oxford. He has held academic posts at the Universities of Glasgow and Strathclyde, where he was a professor from 1992 until 2000. He currently holds a Chair as Professor of Criminal Law at Edinburgh University.
He was admitted to the Faculty of Advocates in 1987 and was a practising advocate from 1989 to 1992. He was appointed as a Queen’s Counsel in 2003.
From 2000 to 2009 he was a full-time Scottish Law Commissioner. The law reform projects which he directed at the Commission included the age of criminal responsibility, mental disorder defences, and the law of sexual offences. His research interests include criminal law, criminal process, and evidence.