Expert Testimony Issues in the UK

For over half a century, judges have spoken in imprecise terms of a standard of proof in civil cases involving serious allegations or bearing a serious consequence (serious civil cases), a standard higher than the ‘balance of probabilities’ (see Bater v Bater). Judges have continued to explain and define the standard of proof in serious civil cases across pages and pages of their judgments and continue to adopt various approaches since the early twentieth century. The vagueness of these explanations is far from coherent. The true scope of the case law on the civil standard in serious civil cases remains confusing and subsequent case law has not settled into a clear path, despite precedent established in the House of Lords in Re B and Re D. In the interests of greater certainty and consistency, this paper seeks to offer a better approach – a third standard of proof, a standard lying between the ordinary civil standard of balance of probabilities and the higher criminal standard of beyond reasonable doubt.1 This ‘third-standard’ approach would be open-textured, but it would be stabilised by identifying a range of clear cases to which it could be applied. New serious civil cases could be embraced by the third standard if, and only if, a suitably strong analogical argument could be devised. This approach would set in motion a process of incremental development and would, thus, by nature be a source of some uncertainty. However, it would be clearer than the law as it now stands and mark a significant advance over the imprecision that has prevailed for too long.

1988

The International Journal of Evidence & Proof, 2009

This ambitious and impressive study combines philosophical, historical and comparative perspectives on the thorny question of how a court in a civil case can decide which expert witnesses to believe. Dwyer locates herself firmly within the 'rationalist tradition' of evidence scholarship, which she sets out to combine both with general epistemology-specifically, Susan Haack's 'foundherentism'-and with the study of civil procedure. Her historical and comparative chapters, in particular, are invaluable, while those whose interest is practical rather than theoretical will also find here a detailed examination of the relevant English case law on civil procedure.

London, UK. ABSTRACT The issue in relation to the admissibility of confessions and improperly obtained evidence in the English criminal law has been the subject of substantial debate. The focus of the controversy is on the reason why the English law cases appear to stick to the principle of inclusion of improperly obtained evidence. The court in R v Leatham for example, demonstrated their desire to include any evidence even if it were stolen. Although the coming of the Police and Criminal Evidence Act (PACE) in 1984 was an opportunity to change the approach, the courts chose not to take it; this approach has been subjected to intense scrutiny and criticisms by legal scholars. Professor David Ormerod, for example, has argued that in admitting evidence the need to protect the ‘’public from crime ought to be balanced against a general principle of procedural fairness.’’ The controversies surrounding how evidence is admitted in the English courts and its concomitant effects on the fairness of the proceedings have triggered the interest of the writer in this area of law. Allowing the inclusion of improperly obtained evidence by the English court, the question that readily comes to mind is: to what extent is the method to improperly obtained evidence sufficiently balanced in the English law, or should an exclusionary rule extended to include the fruit of the poisonous tree principle be adopted?

This study is an attempt to review the implications of the Criminal Justice Act 2003. The Act is considered by many to have had an impact on the admissibility of hearsay evidence in the Criminal Courts; the question is, has that impact been a positive or a negative one? This study traces the history of hearsay evidence from the 1800s, following it through its many guises until we reach the present. The study looks at whether hearsay is truly an exclusionary rule or whether the reforms implemented by the Criminal Justice Act 2003 have in fact made hearsay "inclusionary in all but name". It considers whether hearsay is truly best evidence in the circumstances of the case and whether the number of exceptions and the wording of the legislation prevent advocates and lay people from being able to understand hearsay as a legal principle. The study goes on to consider the hearsay rules of other countries and assesses whether those rules might fit better into the British criminal justice system.

The Modern Law Review, 1985

The reluctance of English and other common-law criminal courts to admit expert evidence of witness credibility is rooted in two main objections: that such evidence needlessly complicates the jury's task and that it threatens to ‘ usurp’ the jury's role. The ‘ usurpation’ objection can be understood as referring to a risk that the expert will be accorded unwarranted epistemic authority on matters which it is important for the jury to decide for itself. These objections have substance, and although they apply to expert evidence in general they have particular force when applied to evidence of credibility. But the jury, as a responsible fact-finder, also has a duty to attend to expert evidence that will help it avoid ‘ epistemic injustice’ . Particularly in rape and sexual abuse cases, there are good reasons for admitting some forms of expert evidence of credibility, and concerns about ‘ usurpation’ do not justify the British government's apparent abandonment of proposals to make such evidence more widely admissible in rape trials.

2014

In English law, in spite of the existence of the Crown Prosecution Service, every person still has the right to bring a criminal prosecution. Nowadays, this right is little used by individuals acting in a personal capacity, but private prosecutions have become much more common in recent years as corporations have attempted to use them to protect their commercial interests, and as some law firms have encouraged individuals and corporations to bring them as a means of obtaining redress. In 1977, Lord Diplock stated that the right to bring a private prosecution is ‘a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of [the relevant state] authorities to prosecute offenders against the criminal law.’1 However, there is more recent judicial authority for the view that the right to prosecute privately is a historical anomaly of little worth, and potentially dangerous.2 It is with both of these judicial views in mind that we examine the relationship ...