Memorandum submitted by David Marriott
There are two aspects of the CJ process which
I think we've got wrong. And they reveal themselves time and time
again when miscarriages of justice finally come to light.
The first is the relationship between the police
and the Crown prosecutors, which seems way too close and mutually
supportive. The CPS gets intimately involved at an early stage
of investigations and often actively drives police to search for
particular evidence that helps compile a case for the prosecution.
I know there are arguments that say that this kind of relationship
ensures fewer failed prosecutions, but is it at the cost of more
wrongful convictions? In my view the police should investigate,
follow all the leads, collect all the facts and pass them to the
CPS for them to decide whether there is enough evidence to prosecute
someone, with a clear dividing line between the roles of investigator
and prosecutor. The way it currently works makes the police the
evidence-gathering agency for the prosecutor's office. We don't
know if the CPS were aware of the evidence in the Gilfoyle case
which was never passed to the defence, but I wouldn't be surprised
if that was actually the case.
The second aspect is the role of the "expert
witness". In principle the "expert" is there to
provide the court with technical explanations of evidence that
an ordinary member of the jury couldn't be expected to understand.
He is not there to offer opinions about anything else. But all
too often the expert appears to bat for one side, and rather than
serving the court he appears to serve the side which has hired
him. There are some individuals who now make a career out of being
an expert witness and will routinely be hired by either prosecution
or defence to provide the testimony they require. With so many
serious cases turning crucially on the evidence the expert witnesses,
I think there needs to be some regulation to break the link between
remuneration and giving evidence helpful to one side or the other.
Perhaps a "stable" of experts could be kept on file
and where the court deemed it necessary, one could be called,
as the next cab on the rank, to provide expert testimony for the
court about technical evidence. Being hired by the court rather
than by one or other legal team would reinforce the expert's impartiality.
It might also reduce the costs and complexity of a lot of cases
that currently rely on expert witness testimony.