Examination of Witnesses (Questions 60-79)
RT HON
LORD GOLDSMITH
QC, RT HON
HARRIET HARMAN
QC MP AND ANDY
BURNHAM MP
23 NOVEMBER 2005
Q60 Chairman: Nobody is listening
actually!
Lord Goldsmith: It did not look
that way to me.
Q61 Dr Harris: Every single newspaper
in the country managed to have an opinion.
Lord Goldsmith: Putting it more
generally rather than dealing with a particular individual, there
are methods, where you have an expert in court under the adversarial
system, where you seek to test whether it really is his opinion
or not. You would look to see the published papers or the previous
reports of that expert, to see whether he had previously said
something else. You would obviously test, with the help of your
own expert, the opinion that is being put forward. If somebody
puts forward a proposition, you will want to know what is the
proof behind it; what scientific studies are there; what papers
are there which demonstrate that point of view. These are the
ways which broadly—I am not saying in every single case—will
keep an expert up to the mark, together with the sanction of being
criticised for having put forward a partisan point of view which
may, at the very least, stop that expert being instructed in other
cases in the future. The one thing you would not want to do is
to instruct someone as an expert to support your case who has
previously been criticised for not being objective.
Q62 Adam Afriyie: It sounds as if
you are satisfied with the measures that are in place at the moment
and how it all operates, despite some of the history. I wonder
if Harriet Harman could comment on her view on the same situation—the
adversarial system placing pressure on expert witnesses?
Ms Harman: I do not have much
to add to what the Attorney has said on that, except that, against
a background of an increasing opportunity for expert evidence,
we have to make sure that we have the best processes we possibly
can. I do not think any of us are saying that they are perfect,
because they are changing so rapidly. All the time, we are just
looking to what the best processes are and reviewing them. Also,
as the Attorney has said, making sure that we have retrospective
safeguards. Basically, we want a safeguard to stop things going
wrong in the first place, but we have to be sure that if things
have gone wrong the mechanisms are sufficiently flexible that,
when apparently something has gone wrong, people get together
and sort it out. It is effectively what happened outside of the
procedures in relation to the Attorney setting up the inquiry
which was undertaken post-Clark and Cannings. There was no statutory
procedure for that. The Attorney took that action to try to sort
out a problem which had arisen on the back of expert evidence.
So there is vigilance in addition to the processes, and the processes
are constantly under review.
Q63 Adam Afriyie: Are you satisfied
that the absence of a single joint expert in criminal cases is
an acceptable position? I understand that in civil cases there
is a single joint expert who is appointed from time to time. Do
you think that makes a difference to the outcome in the civil
system? Is it something that you would like to see in the criminal
justice system?
Lord Goldsmith: It is actually
quite rare still in the civil system for there to be a single
expert, though it is possible. As I said, it is one of the things
I understand the Criminal Procedure Rules Committee are looking
at—because it is the judges and the Rules Committee who
meet and lay down what the rules are for criminal trials—that
the judge should have the power to order that in appropriate cases.
Q64 Chairman: We made a recommendation
that pre-trial meetings should be held—this is to agree
on the forensic science—as a matter of routine, and yet
you were not keen on that, or the Government was not keen on that.
Why?
Lord Goldsmith: I am just reminding
myself of what we said. I am not sure that I would accept that
we were not—
Q65 Chairman: Let us say you have
not taken that up as a proposal to implement it.
Lord Goldsmith: Again, if I may
say so, this is part of the work that the Criminal Procedure Rules
Committee do. Historically, there was an excellent report by Lord
Woolf, which created a completely new approach to civil cases
and the new Rules Committee. We established—and it was one
of the results of the Criminal Justice Act 2003—that there
should be a Criminal Procedure Rules Committee that should be
able to look radically at the criminal rules that apply throughout
the country, and determine how they should change. That Rules
Committee was set up when the new procedures were put in place.
It is working. It has produced a great deal already, and experts
is one of the topics which I know that they are looking at at
the moment. I am sure that requiring pre-trial meetings between
experts in appropriate cases is one of the things that they will
look at hard, make recommendations about, and lay down rules for
judges to apply.
Q66 Chairman: What is the timescale
for that, Lord Goldsmith?
Lord Goldsmith: The consultation
finishes in December. I am reminded, rightly, that formerly the
Lord Chief Justice issued guidance on particularly complex cases
earlier this year. That was one of the things he included in that
protocol for judges to consider when they are case-managing. We
have not had a great deal of case management of criminal cases
in the past. I think that we all think it is extremely important,
because then judges can really get hold of cases, understand what
the issues are, and make sure that things happen in advance of
a trial which are necessary so that the trial can then focus on
what the real issues are. Having a close look at what the experts'
evidence is going to be, and what the real issues between them
are in particular, by getting the experts to meet to see whether
there really are differences between them and agreements, is a
very good way of doing that—in appropriate cases. It will
not work in all cases.
Q67 Chairman: How do we stop an expert
witness like Meadow giving expert information on an area in which
he was not an expert? Was that the judge's fault, or the prosecution's
fault for asking him a question which was of a statistical nature
rather than in fact within his remit?
Lord Goldsmith: All of these cases
teach us lessons, both on the prosecution side and on the defence
side. A particular statistical statement was made. I do not know
whether the defence even challenged it or challenged his expertise
to give that answer—which would really be the right way
of dealing with it. I am certainly not blaming the defence.
Q68 Chairman: It was the concern
of the Committee, if I read the report correctly, that they were
concerned that star witnesses become so powerful that they stray
off-piste and their evidence is then taken, if you like, as gospel—as
it appeared to be at that time. I am interested, Harriet, whether
in fact that has changed. Could that happen again?
Ms Harman: As the Attorney said,
one of the things that has really changed, and there is a big
trend towards, is more front-loading of the case management and
more clarity about what should be sorted out in advance. To characterise
it, instead of everybody turning up in court, nobody knowing what
is going to happen and everybody being taken by surprise, or alternatively
a bit of a chat in the judge's chambers without necessarily any
clarity about what is going to be sorted out and what are the
appropriate areas for that sort of chat, and whether or not any
record is kept of it, that is changing so that there is a real
emphasis on effective trial management. The judge leads the management
of the trial, not waiting until it turns up in court, in front
of him or her, but scoping out what the nature of the issues will
be. The question of the expert evidence is increasingly a feature
within that, and I know that the Attorney has some numbers about
the trend of the increase in criminal cases of the use of expert
evidence. What we do not want to do is have the courts working
in a world where we are behind the game; that we set rules that
exclude evidence that actually could be very important. So it
is quite difficult to get hard-and-fast rules that say, "This
sort of evidence should not be allowed", and apply a template
to it. As I say, I think that you have to have processes and vigilance,
and transparent and high demands of effective case management;
so that anything that might start to go wrong in respect of expert
evidence can be seen even before you get to the situation of the
defence having to challenge it in court.
Q69 Dr Harris: Lord Goldsmith has
just said that he would not blame the defence in this case. I
do not understand why. Here was a man, an expert, who was asked
a question which was not his specialty. The defence could have
noticed that; the judge could have noticed that. He then said
something that was a more obvious fallacy than the well-known
prosecutor's fallacy, and it should have been obvious to lawyers
and the judge in this case that that was the case. It was, as
far as we know, never challenged by the defence and it was not
corrected by the judge. Everyone has blamed the expert who is
said to have given it, and judged by the GMC to have given it,
in good faith; he was not malicious in so doing. So all the blame
is on the good-faith guy, and then you are saying no blame attaches
to the professionals who are paid to ensure that juries are not
misled.
Lord Goldsmith: If I may say so,
I think that you make a very good and important point. I think
it is unfair to put all the blame for these things which go wrong
on a single expert, and I think that some of them have been vilified.
Sometimes there is a genuine disagreement between experts and
they should not be criticised at all. Sometimes they have gone
too far and they deserve some blame. I entirely agree with you,
however, that it is wrong to lay it all at their feet. All I was
seeking to do was to avoid, frankly, the headline "Attorney
Blames Defence" in this particular case. I think that the
system did not work in this case, as the Court of Appeal made
clear when it came to look at it—the system working, but
at the second stage. This was evidence which ought not to have
been there before the jury to influence them.
Q70 Dr Harris: In the Clark case,
as I understand it, the Court of Appeal found that the failure
of Dr Williams to disclose the microbiological result was
the basis of the acquittal. They did not criticise Roy Meadow,
yet he was still referred to the GMC and we know the subsequent
events. It has been suggested to me by a large number of people
with an interest in preserving people willing to give expert evidence
that referral to the GMC should only occur in these cases where
the Court of Appeal or the judges have criticised the witness.
Would that not be a far better way, because then you have some
prima facie basis, rather than simply people feeling that
they are going to be sent to the GMC with the attendant publicity—without
ever being criticised by the judicial process, which is the field
in which they work?
Lord Goldsmith: You are absolutely
right as to the basis of the Court of Appeal's decision, which
was on the non-disclosure by another expert of certain important
material, as the Court of Appeal saw it. I do not think any of
us are responsible for the GMC, how it determines which cases
it should take, or how matters are referred. If matters are referred
to the GMC, like any professional body, it will then consider
those on their merits. I do not think that we can really add anything
to that.
Q71 Dr Harris: I am arguing that
there was a case to be made, because it is in our interest to
preserve people willing to testify as expert witnesses. You know
the background. I know that you know the background, and Harriet
Harman has dealt with it sensitively, of the dispute around these
sorts of cases. Yet people I speak to are just not willing to
go into that field—and it is the same with child protection—because
they are liable to be sent to trial by the other side, even when
they have not been found fault with. It must be a matter for the
Government to be concerned about.
Lord Goldsmith: Absolutely. That
is why it is important that we have a very clear framework where
we know and experts know what is expected of them. When I was
answering questions before about the adversarial system, I was
not actually saying that everything is working absolutely as it
should do—which is why all the work that I have been referring
to is taking place. I think that it is very important particularly
that experts know what is expected of them, and they will be supported.
They will be supported if they say simply, "In accordance
with my duty, I can't answer that question because it is not within
my expertise", rather than going into court thinking that
somehow, because they have been engaged by one side or the other,
there is a sort of obligation to try.
Q72 Dr Harris: But if they make a
mistake in good faith, they will be hung out to dry. Could I ask
one question on the statistics? How are we doing with progress
on how to present the statistical evidence to juries? There is
some work that you have instigated or which has been instigated
by the Home Office Scientific Adviser, so obviously it is a court
matter. Who is leading this? How is it going forward?
Lord Goldsmith: The Home Office
are leading on it, though the Director of Public Prosecutions
has also met. The work is ongoing and has included discussions,
not just with some of those who gave evidence to this Committee
in its original session but also with the Royal Statistical Society,
with a leading member of the School of Mathematics and others.
Q73 Dr Harris: We recommended some
research in our report into how statistical evidence is best presented
so that juries can understand it.
Lord Goldsmith: Yes.
Q74 Dr Harris: I think that this
is a critical area and I think the Committee thought so. Can you
report back on whether any research has been done in this area?
Lord Goldsmith: In terms of having
important and detailed discussions with those who really understand
statistics and the presentation of statistics, I would hope that
the Committee would think that is a strong and good step. You
will obviously want to know what the outcome of that is, and I
will undertake to make sure—we will all undertake to make
sure—that when that work is completed the Committee is informed
of that.
Andy Burnham: Home Office officials
have, since the Committee reported, met with the Royal Statistical
Society on 21 September to discuss precisely the issues that you
are raising. There is the intention to maintain a dialogue with
them on this particular issue.
Q75 Mr Flello: In the Committee's
report it was argued that jury research is vital to understand
how juries cope with highly complex forensic evidence. The Government
response stated that the issue was being addressed in the context
of the current Department for Constitutional Affairs' consultation
exercise on jury research. Further to the publication of the DCA's
response, what will the next steps be?
Ms Harman: When you have the decision
about guilty or not guilty being made by the jury, and the jury
do not say anything during this process, there is a great eagerness
for the defence, the prosecution, everybody, to know what is in
the jury's mind, how they come to that decision, and what the
discussions are. Traditionally, there has always been the rule
that, in order to allow the integrity of the process of each individual
juror in that individual jury room, there should not be any questioning
afterwards; that they should not have to go through the different
elements; that you preserve the integrity of the process by putting
them in a room, then coming out and getting their answer. However,
because there is this quite natural curiosity, across not just
issues about forensic evidence but also identification issues and
all sorts of issues—not least of which is the general dynamics—the
Department of Constitutional Affairs undertook to consult, to
see whether the clause that prohibits research which relates to
particular cases should be amended. On the basis of the response
to the consultation, which was published on 8 November this year—41
responses were received—the decision has been made for no
change to section 8 of the Contempt of Court Act, to allow research
into jurors' deliberations. So there will not be any change which
would allow research in future to pick out those jurors who have
been involved in cases which have had expert evidence—and
of course some have not—in order to ask them, "How
did you respond to the evidence? Could you understand it? Was
it influential? How did you decide between the defence and prosecution
experts?". Having said that, however, there is the possibility—and
this is done by researchers where they have a mock jury, so they
do not pick a real jury but have a mock jury—that that can
still go on. There is the possibility that you can do it and ask
people who have been on juries in general what they thought. The
difficulty, of course, is that if you are asking what they thought
about expert evidence, you would be asking them that only because
they had been involved in a particular trial where expert evidence
was an issue. The long answer to your question, therefore, is
no, there will not be any change. It is uncomfortable. The Department
for Constitutional Affairs is the department for freedom of information.
We all want to know; we want to test what we are doing. However,
it seems that the disadvantages to going through this ex-post
facto outweigh the advantages, so that is the decision that
has been made and the responses have been placed in the House
of Commons Library.
Q76 Chairman: You are not going to
do any further research in this area?
Ms Harman: We are not going to
change the rules about what research can be done.
Q77 Chairman: Are you going to do
any further research?
Ms Harman: I am sure there will
be further research done by the Home Office, by independent researchers
applying for permission to do research. So I am sure that research
will go on in this area, but the actual rules which set the parameters
for what you can and cannot research will not change. This is
something that Andy and I did discuss, on whether or not there
should be a further look, in terms of the Department, at the Home
Office's research programme—which is vast and marvellous—and
whether or not we are doing enough. That is something we are looking
at.
Andy Burnham: We are going to
carry on talking about that.
Q78 Chairman: Is there any deadline
for when you will conclude those?
Andy Burnham: Not at present.
Harriet, as she rightly said, raised it with me. I have responsibility
for Home Office research, and it is something that I would want
to take forward with her. The commitment is there to take it forward.
Q79 Mr Flello: The Chairman of the
Criminal Cases Review Commission, Professor Zellick, pointed out
that we are now asking juries to decide things for which they
have never been designed. Do you agree that? How do you respond
to his concern that trying highly complex cases by jury could
lead to miscarriages of justice?
Ms Harman: The answer to that
goes to the point that, fundamentally, for serious cases where
there is a possibility of a long time in prison, you have the
judgment of your peers; that it is a question of truth or lies,
guilt or innocence, and that the best safeguard in the system—and
one which can not only command the confidence in that particular
case as being the right decision, but generally command the confidence
of the public about the legitimacy of the system—is a jury
of ordinary people. So it is about making a decision which lay
people will respond to, and not somehow taking the criminal justice
system away from that area where people really understand it.
We have plenty of examples of technical decision-making which
the public lose track of. I do not think they lose track of understanding
what is going on in magistrates' courts. I do not think that they
lose track of what is going on in crown courts. They can see it;
they can understand it. When it is reported in the papers it is
quite clear what is going on. There are some court processes or
tribunals which are very mystifying and expert, and where all
the experts can absolutely have free range and do not have to
decode anything they say; they can just let rip. The question
is whether or not there is any public engagement in that sort
of process.
Lord Goldsmith: We do believe
that there is a compelling case for not having a jury in one specific
category of case which is contained in the Criminal Justice Act
2003, and that is serious and complex fraud cases, which are enormously
long and which usually involve highly technical issues. That would
be only with the leave of the judge and of the Lord Chief Justice.
That is obviously a debate for another occasion. We believe that
the case is made out there and we have consulted on that very
significantly in the past. We did believe that there was a case
to go a little bit further than that and put forward proposals
in the Criminal Justice Bill; but they were not accepted by Parliament.
Parliament limited the decision to serious and complex fraud cases.
That is precisely where we are and we have no plans therefore
to extend that limited extension beyond that category of case.
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