The principal weakness in the English law concerning the reception of expert evidence is that its development has been based on pragmatism rather than principle.’ (A Roberts, ‘Drawing on Expertise: Legal Decision Making and the Reception of Expert Evidence’ [2008] Crim LR 443, p 443).
Assess the validity of this observation in relation to criminal trials.
Introduction
The question is asking you to assess if the common law approach is not based on a consistent application of principle. You first need to define what would be a principled approach. One definition is suggested by Choo who (2012, p 311) refers to the twin arguments of ‘necessity and reliability’ which underlie considerations of the admissibility of expert evidence. This could provide a framework for your essay. Your answer to this question would be improved if if you were able to refer in the introduction to a number of recent miscarriages of justice which have been based on flawed expert evidence. These indeed demonstrate ‘weakness’ in that they do not uphold the principle of reliability. You should refer, as does Roberts (2008) to cases such as R v Cannings (2004) and the comments made in R v Kai-Whitewind (2005), para 85, that, ‘In Cannings there was essentially no evidence beyond the inferences based on coincidence which the experts for the Crown were prepared to draw.’ You should set out arguments which criticise the current approach and those which point to its effectiveness. Note that the quotation refers to ‘reception’ of expert evidence so you should cover both admissibility and the treatment of evidence once it is admitted. It is important in essays of this sort that you adopt a critical approach and do not simply give a narrative account.
Arguments critical of the present approach i.e. necessity and reliability not satisfied by common law
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