Examination of Witnesses (Questions 40-59)
RT HON
LORD GOLDSMITH
QC, RT HON
HARRIET HARMAN
QC MP AND ANDY
BURNHAM MP
23 NOVEMBER 2005
Q40 Chairman: There would not be
any then, would there, if there was just one?
Andy Burnham: That has been helpful,
in my view, in driving some of the scientific and innovative changes
we have seen. I would say—
Q41 Chairman: The point I make is
that is where we came from, Andy.
Andy Burnham: I would probably
say, if I can, that the regulator—that you are quite rightly
saying is needed—would probably be a consideration on which
they would advise Ministers at the time: whether that would be
a development in the interests of the criminal justice system.
Chairman: You have quickly learned Civil
Service-speak!
Q42 Mr Newmark: One of the implications
of this whole area is, as technology improves, that rather like
with the NHS there will be a greater and greater demand for using
this sort of technology. Are there cost implications the Government
has thought through with that? Tied to that, there is also benefit
because, as you go down the learning curve, the cost should come
down. The question is whether the overall cost goes up as the
individual costs themselves go down. I am wondering what that
tension is there and has the Government thought that through?
Andy Burnham: That is a very fair
question. You will know that the DNA Expansion Programme had some
very clear funding attached to it. We would argue that by doing
that we have enabled—and I know this phrase is overused
at times—a step change to take place. However, I think it
has and, if you look at the evidence about the size of the DNA
database and the use that is being made of it in the detection
of crime, you cannot but conclude that a step change has happened.
It has happened through some very ring-fenced funding for that,
so that it did produce the lift that the Prime Minister wanted
when he announced the creation of the programme. You are therefore
rightly pointing to an issue about how long do you carry on ring-fencing
that funding to enable growth in this particular area; or how
do revenue implications that come from the creation of these systems
get carried through? That is something we are working through,
with the police particularly, with regard to the next funding
round for the police. The advances we have made—obviously
we would not want to lose those now. If we can come on to this
at a later stage, the practical effects of the DNA database in
terms of solving crime are quite impressive.
Chairman: We are coming on to that. We
will move on now to the use of forensic evidence in court.
Q43 Dr Harris: Fiona Mactaggart,
in a recent written answer—and this may be for you, Mr Burnham—recently
referred to a consultation exercise regarding the regulation of
quality of expert witnesses. Is that the same consultation exercise
that you referred to earlier, in response to Des Turner's question
about the consultation on the forensic services market, or is
it another one? Has it happened? Do you need the reference?
Andy Burnham: Was it in the debate?
Q44 Dr Harris: She said, "I
am aware of the recent concerns raised with regard to the quality
of expert witnesses". It was a written answer on 12 September.
"I have therefore instituted a consultation exercise on how
best to implement a quality regulation system within the forensic
science market. The decision of the GMC and the issue of accreditation
with appropriate regulatory bodies will be considered as part
of that process."
Andy Burnham: Thank you for the
clarification. If we are talking about the exercise with regard
to the regulation of the market, I can say that it will be the
same consultation exercise. So that issue will be bound into the
consultation proposals that are published in the New Year.
Q45 Dr Harris: If this aspect is
about expert witnesses, is it not for another department to be
getting involved and not the Home Office? The danger is that the
Home Office will concentrate on forensic stuff that we have already
discussed, which is the job of the FSS and others. The PQ was
about the quality of expert witness evidence.
Lord Goldsmith: Would it help
if I just said a word about what is actually happening, because
there is quite a lot that is taking place? The CPS is engaged
in a number of projects. One of them, which I think is important
and directly relevant to this question, is what is called the
Experts Disclosure Project. That is wider than its name suggests.
The purpose of this is to set standards across the criminal
justice system for the use of expert witnesses, by a careful analysis
of the wide range of experience that the agencies have. What it
is likely to do—it is not yet signed off but it is imminent—is
give a clear definition of what an expert is, which is quite important.
Secondly, a clear standard for the disclosure by the prosecution
in relation to materials of the expert—and that is very
important. Thirdly, a detailed guidance booklet for all expert
witnesses as to what their tasks are, what their role is, what
their disclosure obligations are; and a requirement for them to
certify that they understand what their duties are and to give
certain standard disclosure, for example, if they had any previous
convictions—and will give guidance on the issues of competence
and credibility of experts. That is an overall project which will
set a framework across the criminal justice system, which will
be enormously important to the quality of the expert evidence
which is given in court, not just by forensic scientists but by
all experts.
Q46 Dr Harris: And you are funding
that?
Lord Goldsmith: It is being funded
as part of the Crown Prosecution Service. One of my departments
is doing that work with other agencies, yes.
Chairman: I do not think that specifically
was the question you were asking, was it?
Dr Harris: No, indeed. I will come back
to this question about what you are willing to fund.
Chairman: We want your response to this.
Q47 Dr Harris: In respect to the
consultation and the strategic consultation that is going on that
was just mentioned, do you have a way of feeding into that? Clearly,
certainly on the basis of Home Office Ministers' answers, it does
look as if that Home Office-led—perhaps solely Home Office—consultation
will cover a key area of the forensic science market, which is
the quality of expert witnesses.
Lord Goldsmith: We of course have—
Q48 Chairman: It should be for the
courts.
Lord Goldsmith: We have a real
interest of course in the quality of forensic scientists who come
forward to give evidence in the courts. I am comfortable with
what Andy Burnham has been explaining, about the way that the
Home Office are looking at that and the standards that the Home
Office requires for forensic scientists within its ambit.
Q49 Dr Harris: Did you mention the
project you have just mentioned now in the response? Was it mentioned
in the Government's response to our Select Committee report, or
is it of recent genesis?
Lord Goldsmith: No, it was not
mentioned. It had only gathered steam by last July. That therefore
gives an idea of the chronology of it.
Q50 Chairman: Andy, do you want to
clarify that?
Andy Burnham: I want to be clear
with Dr Harris. One of the clear points which we will be consulting
on is the system of accreditation of the suppliers who supply
to the police. That is an important area that we need to consult
on. There is a further question—and this is a point where
our departments will obviously be in close contact—whether
or not that should be extended to independent suppliers to the
defence in trials. That is not our primary focus and those further
issues would be done in consultation with Lord Goldsmith.
Q51 Chairman: Surely it is a primary
focus for the courts that that, if you like, body of experts is
made available to the defence?
Lord Goldsmith: Of course the
courts are concerned that the defence have access to appropriate
expertise as well as the prosecution. Absolutely.
Q52 Chairman: Do you not think that
is a contradiction in what Andy has just said: that their prime
responsibility is really to the police?
Lord Goldsmith: I can understand
the Home Office's concern in that respect, but I do not think
that it is inconsistent. The defence do need to have access to
appropriate expertise. It is important that they should have that
access, of course, so that there is equality of arms. I do not
think that is inconsistent with wanting to make sure that the
police have access to the sort of information that they need to
investigate, detect and, ultimately, for us to prosecute crime.
Q53 Dr Harris: In our report we expressed
concern about how the rapport between an expert witness and the
jury might unduly influence the jury, or at least influence the
weight that they gave to that evidence. Do you think that there
is a role for your departments, between you, to try and address
this problem, in the interests of preventing miscarriages of justice?
It was something we heard a lot in our evidence. I hope you accept
that.
Lord Goldsmith: I am well aware
of that. I have obviously read what you said in relation to that
and the summary of the evidence which lay behind it. I think it
is right to say—and I certainly do not want to be accused
myself of being complacent about this—the first step is
for the court to determine, when expert witnesses come forward,
whether they are qualified to give that evidence. Secondly, for
the adversarial process to ensure that that evidence is tested
and, if necessary, sometimes tested to destruction—and it
is. In my experience, which is now over many years, I have seen
that happen on a number of occasions. The adversarial process
can be good at doing that. In the course of that, how the expert
comes across will be a significant factor. I would not myself
describe it as charisma or personality. I would describe it as
how well the expert gives his evidence, particularly under cross-examination.
Someone can be authoritative and impressive even though they are
diffident and hesitant, because it is apparent that their background,
experience and the way that they deal with difficult questions
indicate that they really know what they are talking about. So
I would not put it myself in terms of personality or charisma.
The third element I want to emphasise is—which is the relevance
of the project I referred to before—what is important is
that experts know what their job is in court; that their job is
not to advocate a particular outcome, whether they are appearing
for the prosecution or for the defence, but they are to give the
court, the jury and the judge, the benefit of their expert assistance
in understanding the evidence in the case. That is one of the
things which the disclosure project will make clear. It will emphasise—and
the experts will have to sign off on this—that they understand
that their duty is to the court. So they need to disclose information,
for example, which may be unhelpful to the conclusion which the
side which is calling them wants to give. I think that this is
extremely important. We have advocates in court as it is; we do
not need experts to be advocates. We need them to give their expert
opinion and let it be tested.
Q54 Dr Harris: I think that is an
important answer which you have given, and one that we benefit
from. You have said that you were keen not to stand accused of
complacency. When we made this suggestion in the report we stated,
and I will repeat it, "There is clearly no easy answer to
this problem"—that is, the "jury's ability to
distinguish between the strength of evidence and the personality
of the expert witness presenting it"—"but that
does not justify the complacent attitude of the CPS". The
only response we got from the Government on this was seven words:
"This is a matter for the CPS". Is that not asking for
an allegation of complacency, when you could have said in your
response—if you had engaged—all the things that you
have just said, and mentioned more about the project you have
been talking about?
Lord Goldsmith: First of all,
I welcome the opportunity of being here today and I hope that
I can give some of this information, which may demonstrate that
the attitude of the CPS is not complacent. They have been engaged
in a considerable amount of work, as indeed I have been, in this
particular field. I am told that the CPS had a rather longer answer
to the response which missed the deadline, so the Committee did
not get it—and I am sorry about that. I have just been told
about that now. If I can deal as well as I can with the questions
that are there that the Committee would like to put, I am very
anxious to do that. The main point that I am making is this. I
do not think that this is just a question of charisma or personality,
but I do accept that there are a number of areas in which we have
to work, in order that juries and judges are best equipped and
best helped to reach the very important decisions which it is
their responsibility to make.
Q55 Dr Harris: If we had had the
information that there was an answer but it had not reached us,
and if we could have been circulated with that, it would have
been better than just seeing that short thing. I think that our
staff then had to engage with the CPS. However, I am grateful
to you for clarifying that. How do we ensure that expert witnesses
are employed for the right reasons? That is, for the quality and
accuracy of their evidence rather than their ability to impress
a jury? How do we, in the supply side and the selection side,
address that issue? That is, the issue before we get to what is
actually their approach in court?
Lord Goldsmith: I would suggest
two points. First, the judiciary, who have control over all the
trials which come in front of them, whether they are criminal,
civil or family, have an ability to exercise control over the
experts that are called before them. In the civil side at the
moment the rules provide that they can limit the number of experts.
They need to be satisfied of the relevance of those experts' evidence
to the question in issue. The Criminal Procedure Rules Committee,
which is currently working, is looking similarly at what rules
it will provide in relation to criminal trials. I cannot prejudge
what they will say. It is under the control of the judiciary,
and rightly so. However, I am sure that they will be looking at
issues like a single expert, qualifications of expert; and already,
in all trials where an expert is to be called, there is an obligation
to provide the details of that expert in advance, so that challenges
can be made to the appropriateness of that expert to the evidence.
That is the first point. The second point really is a repetition
of what I said before. It is enormously important that the experts
know what their job is, even if parties would like them to do
something else. They are not there to advocate a particular point
of view, but they are there to help with the particular scientific
or other issue in which they are expert and to give their genuine
opinion on that.
Q56 Adam Afriyie: My interest is
in the adversarial nature of the criminal justice system and the
pressures that may place on expert witnesses. What evidence do
you have that expert witnesses are not affected, or their evidence
is not affected, by the party that employs them? What evidence
is there that, when they are working on behalf of the prosecution,
they are not putting the prosecution case?
Lord Goldsmith: On the prosecution
side, there is an important safeguard in the disclosure obligations
which the prosecution has. If, for example, an expert were to
produce one report and were persuaded for some reason to produce
a different report and that expert was being called, that first
report would have to be produced to the defence so that they could
see that. That is therefore a safeguard on the prosecution side.
More generally, I do regard it as very important that experts
should know what their responsibilities are. Some of them have
been picked up quite severely in court by judges for actually
having been partisan. For that to happen—for someone to
stray outside the field of their proper expertise and to try to
become an advocate for a party—is a pretty serious criticism
to make of an expert.
Q57 Adam Afriyie: Are you satisfied
that the current system works? Are you satisfied that it is adequate?
Lord Goldsmith: I think this is
an important safeguard. I am not complacent. I recognise that
there are cases where things go wrong. We have the Court of Appeal,
and the Criminal Cases Review Commission. Occasionally—as
in relation to the review which I commissioned into nearly 300
infant deaths after the judgment of the Court of Appeal in Cannings—we
need to take a further step, to look to see whether exceptionally
something has gone wrong. I think that we need to keep this constantly
under review; but there are some powerful safeguards.
Q58 Chairman: How does a judge interpret
the difference if an expert witness is asked for their personal
opinion?
Lord Goldsmith: Forgive me, the
difference between what?
Q59 Chairman: How do they know that
that in fact is an expert opinion, or whether it is their personal
interpretation of, if you like, their expert knowledge and applying
it to that particular case? That does then become very personal,
and was that not the case with Meadow?
Lord Goldsmith: He—and I
am anxious not to say a great deal about an individual—developed
a particular theory—
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