RT HON LORD GOLDSMITH QC, RT HON HARRIET HARMAN QC MP AND ANDY BURNHAM MP

23 NOVEMBER 2005

  Q80  Chairman: Do you support Professor Zellick's view that, in complex cases which involve scientific forensic evidence, the judge, together with two scientific advisers, could in fact assess the case without the jury being present, and then the judge advise the jury?

  Lord Goldsmith: I think that is a very different process from the one that we are used to having. We either have a process in which a judge—either a judge alone or, as someone has suggested, the judge with assessors—makes the decision, or you have a jury which hears the evidence itself.

  Q81  Chairman: Do you support the former though?

  Lord Goldsmith: I do support that there should be a different system in the case of a serious and complex fraud. I most certainly do, and have for a long time. I believe that there is a special case there why it is not in the interests of justice that in all those cases there should be a jury.

  Q82  Adam Afriyie: Do you not think that the similar situation could be argued in a situation where there is very complicated scientific evidence? Is that not similar to a complex criminal fraud trial?

  Lord Goldsmith: I certainly accept that it can be argued, but I think that these are questions of balance. I recognise the strong support there is in many parts for the jury system, and therefore think that it is only in the most compelling cases that that should be set aside. I do believe that the case of serious and complex fraud is such a compelling case. The Government was of the view, when it put forward the Criminal Justice Bill, that that compelling case could arise in other cases as well; but that is not a position that we put forward at all at the moment.

  Q83  Adam Afriyie: You are not convinced at the present time that cases involving complex scientific evidence represents a similar situation?

  Lord Goldsmith: I am convinced at the moment that there is a compelling case in relation to serious and complex fraud. That is all that the Government is seeking to do. I do not seek to go beyond that at all.

  Q84  Chairman: You do not have a view?

  Ms Harman: Can I add to that? To the extent that Professor Zellick is saying there ought to be more help to the jury in advance, I think that the process of case management and the consultation which is being undertaken by the Criminal Cases Review Committee may address some of those concerns. I might regret trying to make this distinction, but it seems to me that the distinction between complex fraud and the question of medical evidence in a case of homicide is that, in complex fraud cases, part of the problem for the prosecution has been to frame an indictment in such a way that the jury can understand, without being experts in the technicality, what the act which is alleged is, because it is all so complex—albeit that there is a new Fraud Act going through. In relation to whether or not somebody has killed a child, that is something where everybody understands what the act alleged is. Sometimes in fraud cases it is a question of understanding the indictment. Everybody understands the indictment in homicide cases, and then there is very complex medical evidence where, hopefully, with good case management and possibly new rules, more help will be given to the jury. However, I think that is one of the distinctions with fraud—where you do not even get to first base, or they have to sever the indictment into bite-size pieces, so that you cannot try one big thing. You take a snapshot because you think that makes it comprehensible, and then you lose the big picture. That is how people who commit complex frauds get away with things, whereas people who commit benefit frauds do not.

  Lord Goldsmith: I absolutely agree with that, and the answer to the question is I do not believe that we should extend this beyond what we are presently intending. I do not believe that we should.

  Q85  Chairman: That is your personal view?

  Lord Goldsmith: Yes, it is my personal view.

  Q86  Mr Flello: Thank you, Harriet. I thought that your last comment was very helpful. Returning to an issue that was raised earlier, the Government's response "noted" the Committee's concerns about the lack of independent scrutiny of expert evidence. Is that an appropriate response to such a serious issue? Are you satisfied that the current safeguards are sufficient to prevent further miscarriages of justice due to flawed expert evidence? Could they prevent another Professor Sir Roy Meadow from slipping through the net?

  Lord Goldsmith: Could I ask which recommendation you are referring to?

  Q87  Mr Flello: This was the adversarial system "providing sufficient safeguards to obviate the need for independent scrutiny".

  Lord Goldsmith: The answer is that there is more that needs to be done, and that is why work has been in progress, some of which I have identified today. There are others that are being worked on. For example, in the specific context of the shaken baby, Sudden Infant Death Syndrome cases, as well as the review that I undertook looking at historic cases, the Crown Prosecution Service[1] undertook, quite rightly, an analysis of all the current cases and what guidance should be given to prosecutors in the light of our present understanding about the medical evidence as to which cases should be brought. That is a specific example where a particular issue comes up. Rightly, the prosecutors then look and they can then give guidance to the police as to what cases to take forward. There are other areas too where further work is being done which I can identify; such as the Criminal Cases Review Commission has given researchers from Warwick University access to something like 7,000 cases dating back to 1997, with specific reference to the use of expert evidence. That project has started looking to see whether that would give some guidance as to how miscarriages of justice where expert evidence is involved can be avoided in the future, and we would look forward to seeing what the result of that research is.

  Q88 Mr Flello: Moving on from that, what steps have you taken to restore expert witnesses' confidence in the court system, following the public vilification of Meadow? What are you doing to remedy the shortage of experts willing to give evidence, particularly in paediatric specialities?

  Lord Goldsmith: I think that one of the most important things that we can do, as I was saying before, is to be very clear indeed, across the criminal justice system, as to what we expect from experts; so that they know that, as long as they stick to that, they will be able to give their evidence within the area of expertise which they have, giving their opinion, not advocating a particular conclusion for the case. I hope that clarity will help them to see that the process is one in which they can be more ready to engage. However, I do recognise the concerns which underlie your question, as they underlay Dr Harris's as well, of people being put off from giving expert evidence. It is critical, both for prosecutions and for defence. We need people to come forward to give that expert advice which will help determine guilt or innocence. On the specific issue of medical expert evidence, the Chief Medical Officer Sir Liam Donaldson has been asked to consider and report on that particular issue and for there to be recommendations. I am told that he will report before the end of this year.

  Q89  Dr Iddon: Do you think it is in the best interests of justice that a judge with absolutely no technological or scientific knowledge should be the gatekeeper for allowing that kind of evidence to proceed into court, or should there be some kind of independent gate-keeping process?

  Lord Goldsmith: Judges are called upon to oversee all sorts of trials, in many of which they will not necessarily have any detailed knowledge of the subject matter. If we are talking about criminal trials, it is not their job to determine who is right in relation to perhaps disputed expert evidence but to ensure that evidence is given in accordance with the rules, which include rules as to admissibility, such as that people should not give evidence if they are not qualified to give that evidence, and to make sure that it is put properly before the court. There are a number of different mechanisms they can use to help them. Where someone comes forward who does not have any recognised qualifications in a particular field, that would be a reason for questioning whether that person ought to be entitled to give expert evidence at all. It does not necessarily exclude. I can think of cases where a lifetime's experience in a particular field, with no professional qualification, may give one a very good ability to give expert evidence. In others, however, judges will look at those and see whether or not someone is qualified to give evidence. If not, even if they say, "Well, we're just past the threshold to give evidence", the absence of those qualifications will no doubt be ruthlessly put to them in the course of the evidence that they give, so that whichever is the fact-finding tribunal will not accept it. That is a rather long answer to say that I do not believe that we need to have some other system for determining, before the judges get to it, who should be allowed to give expert evidence in court, though I think there are a number of tools which will help them make the right decision.

  Q90  Dr Iddon: Harriet referred earlier to the fact that it was unimaginable, 20 or 30 years ago, how much expert evidence would be given in courts today. My second question, therefore, is this. Do you think the criminal justice system is well equipped enough to deal with the ever-increasing amount of that kind of evidence that will be given in courts in future, or should a review be undertaken?

  Lord Goldsmith: I think that we are keeping this all under review, and the work of this Committee has been very helpful in that respect. It has had agencies share information; it has had us focus on particular areas with a greater urgency. I think that is helpful. Do I think that the criminal justice system is coping? Broadly speaking, yes; but plainly we have incidents where we get, for example, to new areas of scientific knowledge which it is more difficult to deal with. Expertise grows. Now, DNA and fingerprinting evidence is a commonplace; it obviously was not many years ago. People had to develop the expertise, and it may be that there are certain aspects, for example probabilistic statements, where there is still some expertise to be gained.

  Q91  Chairman: Much of what we have said so far relies almost exclusively on lawyers and judges being able to pick up problems with expert scientific evidence. If scientists require expert legal advice, they go to lawyers. Yet it seems inconceivable that the judge does not have sitting at the side of him or her a scientist who can actually advise them during the case. What is so special about lawyers that they do not need that advice and yet the rest of us do? Am I being very naive, Harriet?

  Ms Harman: Absolutely not. It seems to me that what in practice happens, and the way that the system has tried to respond to dealing with this very big change, is that the judge does not try and usurp to him or herself and take away from the defence or the prosecution the right to put forward various assertions and to bring forward evidence, but an awful lot, in this fast-changing world, depends on how the prosecuting and defence barrister deal with this. I would give just one example of some cases I was involved in when I was the Attorney's Deputy Solicitor-General, cases which had come to us as unduly lenient sentences. They were to do with child pornography on the internet, which involved very serious abuse going on internationally and then being sold and finding their way to offenders in the UK. What emerges is a group of barristers who become highly technically expert in really complex issues about what is or is not on a computer. They are backed up by experts and they call evidence, depending on whether they are the defence or the prosecution. They are, if you like, the kind of intermediary. They set up societies; they set up groups whereby they exchange information; they talk to each other; they work internationally. So at the moment it seems to me that there is a kind of informal network; but they are trying all the time to be the best level interface between the experts and the judge. The question is whether the judge should be doing this or whether we need to get it right at the level of the prosecution and defence. I can see the pattern emerging where it is the barristers who are trying to develop that level of expertise to put it forward to the judge and indeed to the jury.

  Chairman: We are moving on now to the issue of training of lawyers.

  Q92  Mr Newmark: In a response that Lord Goldsmith made to Dr Harris, you either explicitly or implicitly said that the adversarial system should be testing evidence to destruction. I guess my questions surround the training of judges and lawyers. Would you agree that the adversarial system functions properly only if lawyers and judges have sufficient understanding of expert evidence, tested properly? Are you happy with the current levels of understanding?

  Lord Goldsmith: First of all, one needs to distinguish between the position of judges and lawyers. As I said, particularly in criminal cases, which is where these issues crop up very acutely, the judge is not himself determining the facts in the case and does not thereby have to judge personally between what may be competing medical or scientific theories. He needs to understand the evidence that is being given in front of him, so that he can help the jury understand it. That is certainly true. However, judges do receive quite a degree of—whether "training" is the right word—familiarisation with these matters, both through the experience that they have in court but also through the work that is done by the Judicial Studies Board in training judges. I have spoken, in preparation for this session, with the Chairman of the Judicial Studies Board, with the judge who is in charge of family judges' training, and the senior presiding judge. They do have, for example, regular updates on developments in forensic science. This does not make them forensic scientists. I do not for a moment want to suggest that. However, it gives them an understanding of the area, so that they can understand the evidence that is being given.

  Q93  Mr Newmark: Has there been any research there to test the levels of awareness and understanding?

  Lord Goldsmith: I am not aware that there has been, but I emphasise that it is in order to understand the framework within which evidence is being given. What will then happen in court is that the evidence has to be given. It has to be given so that it is understood by the jury, if it is a jury that is sitting there, and the jury will have to be educated by the expert as the expert is giving evidence; indeed, if there is conflicting experts, by both of them. So far as the lawyers are concerned, they certainly need to understand the subject that they are dealing with if they are going to test it to destruction or present the case well. However, they will often be educated in it by the expert they are calling or the expert who is assisting them.

  Q94  Mr Newmark: Given the increasingly important role of forensic science, there seems to be no compulsory training at all with this. Do you find that acceptable or not?

  Lord Goldsmith: The DCA are discussing with the professional bodies whose responsibility it is to train lawyers whether part of the compulsory continuing professional development ought to include this aspect, and those discussions are going on.

  Q95  Mr Newmark: Clearly there is a benefit to having closer links—you would probably agree—between the science and the legal profession. What has been done to promote links between, for example, the FSS and the judiciary, the Bar Council and the CPS, if any?

  Lord Goldsmith: In particular areas, a significant amount. I referred before to what I regard as a very  important project—the Experts Disclosure Project—which will produce this guidance for experts. In the context of that there has been very close co-operation between these bodies. The project, although led by the CPS, has included ACPO, the Home Office, other prosecutors, the GMC—and this is relevant to the question I was asked by Dr Harris before, because I understand that one of the questions they have looked at is this very question of when to report misconduct and information-sharing on that level, in a general and perhaps not a prescriptive sense—with the FSS, with the CRFP, with the Home Office Chief Scientific Adviser, and with other bodies as well. There is another piece of work which I have not mentioned before, which the Crown Prosecution Service are dealing with. They are working with ACPO—the police chiefs—together with the FSS on what is called "staged reporting". It is relevant to the question you raised before about cost. That is, to look at a way, when you have a case that is coming before you, to identify what you really need in terms of the forensic report so that you do not have everything done—the full, long report in every case—if in fact that is not what will be necessary for the case. That will help the cost-benefit analysis. I am told on the statistics that there are, as the Committee would expect, a very large number of cases these days in which forensic evidence is relevant.

  Q96  Mr Newmark: When can we expect to hear when you will take up the Committee's recommendation to establish a forum for science and the law? What are the arguments against setting it up, if any?

  Lord Goldsmith: What I suggest I may do is to send to the Committee after this session details of other contacts that are taking place. Not perhaps in the context of a single forum that is meeting once a month, but contacts that are taking place between those who are concerned with the science and with the forensic preparation and the presentation of cases. I have given two examples already which I think are very important. Others would include, for example, the awareness lectures which judges get. They are given those by practitioners in the field. I spoke to the judge in charge of family cases and she was telling me that she had just been at a seminar with judges who are on their refresher course, which they have every third year, and they had been addressed by a psychiatric consultant.

  Q97  Chairman: Did you say "assessed"?

  Lord Goldsmith: "Addressed". That is another example. So these contacts, although perhaps not in that formal sense, are very close contacts.

  Q98  Mr Newmark: So there is no forum, but you are saying that what is going on at the moment, in your view, is enough to develop shared knowledge between the science and legal professions?

  Lord Goldsmith: Plainly we must keep this closely under review, for all the reasons that the Committee has given. My sense is that a great deal is going on, but we must continue to look to see whether more should be done.

  Q99  Adam Afriyie: But there is no specific forum for science and law at the moment?

  Lord Goldsmith: I will provide a note on this, so that I do not get this wrong. There is a monthly tripartite meeting.