The problem

In a criminal trial, a jury or magistrates’ court is required to determine disputed factual issues.

Experts in a relevant field are often called as witnesses to help the fact-finding body understand and
interpret evidence with which that body is unfamiliar.

The current judicial approach to the admissibility of expert evidence in England and Wales is one of
laissez-faire.

Too much expert opinion evidence is admitted without adequate scrutiny because no clear test is
being applied to determine whether the evidence is sufficiently reliable to be admitted.

This problem is exacerbated in two ways:

First, because expert evidence (particularly scientific evidence) will often be technical and complex,
jurors will understandably lack the experience to be able to assess the reliability of such evidence.

There is a danger that they may simply defer to the opinion of the specialist who has been called to
provide expert evidence.

Secondly, in the absence of a clear legal test to ensure the reliability of expert evidence, advocates
do not always cross-examine experts effectively to reveal potential flaws in the experts’
methodology, data and reasoning.

Juries may therefore be reaching conclusions on the basis of unreliable evidence. This conclusion is
confirmed by a number of miscarriages of justice in recent years.

The project
We published a consultation paper on 7 April 2009, in which we made a number of provisional
proposals which would reform the law governing the admissibility of expert evidence in criminal
proceedings in England and Wales.

The consultation period closed in July 2009.

In our 2009 consultation paper we agreed with the view of the House of Commons’ Science and
Technology Committee that a reliability test for expert evidence should be formulated in partnership
with judges, scientists and other key players in the criminal justice system.

Our provisional view that there should be a new reliability-based admissibility test was broadly (but
not universally) supported by our many consultees, including judges, scientists and other key players
in the criminal justice system.

A summary of the responses we received is available.

Following consultation, we formulated our final recommendations, produced draft legislation and
again consulted with judges, lawyers and experts.

Our recommendations
Our final recommendations and our draft Criminal Evidence (Experts) Bill are set out in the report we
published on 22 March 2011, Expert Evidence in Criminal Proceedings in England and Wales.
In the report we recommend:

a new admissibility test for expert evidence

that expert opinion evidence would not be admitted unless it was adjudged to be sufficiently reliable
new guidance for judges for applying the test, setting out the key reasons why an expert’s opinion
might be unreliable
a proper framework in criminal proceedings for screening expert evidence at the admissibility stage
codifying the uncontroversial aspects of the present law, so that all the admissibility requirements
for expert evidence would be set out in a single Act of Parliament
giving the Criminal Procedure Rules Committee the power to create further procedural rules
The draft Criminal Evidence (Experts) Bill published with the report (as Appendix A) sets out the
admissibility test that judges would apply to exclude unreliable expert evidence.

Result
The Ministry of Justice responded on 21 November 2013, indicating that it did not intend to act on
the majority of our recommendations at this time.

We have, however, achieved a great deal by other means:

The Criminal Procedure Rules Committee has adopted as many of the recommendations as it could
through the Criminal Procedure Rules and accompanying Criminal Practice Directions. As a result,
while the common law remains the source of the criteria by reference to which the court must
assess admissibility, the Rules list those matters which must be covered in the experts’ report so that
the court can conduct such an assessment and the Practice Directions list the factors the court may
take into account in determining the reliability of expert opinion.
Meanwhile, in a parallel development, a series of cases concerned mainly with the use of Low
Template DNA has established a requirement that the court can only admit expert evidence if it is
reliable.
In a development at least as significant as the other two, the Advocacy Training Council has adopted
our recommendations in this report as the basis for its training. In this way, we are confident that
the entire approach of the profession to expert evidence in both criminal and civil proceedings can
be fundamentally reformed and the risk of miscarriages of justice greatly reduced.