The principal weakness in the English law concerning the reception of expert evidence is

that its development has been based on pragmatism rather than principle. (A Roberts,
Drawing on Expertise: Legal Decision Making and the Reception of Expert Evidence [2008]
Crim LR 443, p 443).

Assess the validity of this observation in relation to criminal trials.

Introduction
The question is asking you to assess if the common law approach is not based on a
consistent application of principle. You first need to define what would be a principled
approach. One definition is suggested by Choo who (2012, p 311) refers to the twin
arguments of ?necessity and reliability? which underlie considerations of the admissibility of
expert evidence. This could provide a framework for your essay. Your answer to this
question would be improved if if you were able to refer in the introduction to a number of
recent miscarriages of justice which have been based on ?awed expert evidence. These
indeed demonstrate ?weakness? in that they do not uphold the principle of reliability. You
should refer, as does Roberts (2008) to cases such as R v Cannings (2004) and the
comments made in R v Kai-Whitewind (2005), para 85, that, ?In Cannings there was
essentially no evidence beyond the inferences based on coincidence which the experts for
the Crown were prepared to draw.? You should set out arguments which criticise the
current approach and those which point to its effectiveness. Note that the quotation refers
to ?reception? of expert evidence so you should cover both admissibility and the treatment
of evidence once it is admitted. It is important in essays of this sort that you adopt a critical
approach and do not simply give a narrative account.
Arguments critical of the present approach i.e. necessity and reliability not satisfied by
common law
 The Law Commission in its 2011 Report on Expert Evidence in Criminal Proceedings?
makes criticisms of the current common law approach and recommends that the trial
judge should occupy more of a gate-keeper role. It recommended a statutory test for
expert evidence. This proposal bears a close resemblance to the United States
approach based on scientific reliability, see Daubert v Merrell Dow Pharmaceuticals
(1993).
 The distinction between acceptable areas of expertise and ?quack? areas is unclear ?
see Robb (1991). Roberts (2008) is critical of the judgment in accepting voice identi?
cation evidence and suggests that the ?relevance? test is too vague. See
also Luttrell [2004] on questionable expertise of the expert. It is arguable that
necessity and reliability are not suf?ciently distinguished and that the vaguer concept
of relevance prevails.
 Gilfoyle [2001] ? evidence helpful to the defence was excluded and subsequent
investigations have shown this is a possible miscarriage of justice.
 Expert evidence is given too much weight by judge and jury who cannot assess it
because it is beyond their competence ? see Clark [2003] and Cannings [2004].
  The position on psychiatrists? evidence is arguably inconsistent ? compare the
contrasting cases Turner [1975] and Lowery [1975].
 The cases are also incoherent on the ultimate issue rule e.g. DPP v A&BC Chewing
Gum Ltd (1968) and also the question of diminished responsibility.
 The law on reception of evidence on credibility is unclear ? see Somanathan (2006).
 The courts have in the past been criticised for being too partisan in relation to the
police. In R v Ward (1993) the Court of Appeal stated that senior forensic scientists ?
regarded their task as being to help the police?.
Arguments to support current approach i.e. necessity and reliability is satisfied by
common law
 The courts are adopting a liberal approach e.g. Stockwell [1993] and allowing more
evidence. This accords with the principle of full proof and the judge can direct on
weight and improper treatment if corrected on appeal e.g. Tilly [1981] where the
Court of Appeal held the judge was wrong to invite the jury to make comparisons of
handwriting without the guidance of an expert. This ?exible approach in criminal law is
fairer to defendants rather than the more structured cost-aware civil approach.
 The problem is lack of scientific understanding in the criminal justice system and the
lay jury. See Edmond (2002) OJLS p53. He argues that there is an idealised view of
scientific evidence, particularly by the appeal court. This could be addressed by
exploring the conceptual disparity between the assessment of scientific evidence used
to acquit and that used to convict.
 The main problem is inequality of arms and resources between defence and
prosecution t rather than the law.
 The current approach re?ects popular values ? e.g. scepticism about new sciences.
 The much praised US approach is still led by case law and pragmatism prevails ?
e.g. Daubert (1993) replacing Frye (1923).There is academic support for the argument
that the basic principles of the common law approach are correct. Ward
(2013) CrimLR 561 argues that a radical overhaul is not needed.
 The Law Commission proposal for a statutory test has not been legislated. The
Government invited the Criminal Rules Procedure Committee to amend the relevant
Criminal Procedure Rule, namely Rule 33. This retains the common law as setting the
criteria for admissibility but now the courts may be expressly guided by the Law
Commission?s proposals.
Conclusion
You should comment on Roberts? (2008) argument that more education is needed. See also
House of Commons Science and Technology Committee Report, ?the complexity and role of
forensic evidence are ever increasing and we have not seen evidence to reassure us that the
criminal justice system has kept pace with these developments.' Arguably, the current
position aids the prosecution; see Edmond (2002, p58) ?Scienti?c evidence is an important
component of most high pro?le miscarriage of justice cases.? Note that the most
elementary mistakes seem to have been made by the greatest legal brains. Consider how
bench, counsel, and jury all were taken in by the elementary ?aws in the statistics presented
in the case of (Sally) Clark [2003]. Common sense and a healthy scepticism about received
truths is an asset in the court room and the examination room.