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Expert evidence: difficulties and solutions in prosecutions for infant harm

Published online by Cambridge University Press:  02 January 2018

John Hartshorne  and
José Miola
John Hartshorne
Affiliation:
School of Law, University of Leicester
José Miola
Affiliation:
School of Law, University of Leicester
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Abstract

This paper identifies and considers difficulties that gave rise to successful appeals from prosecutions where expert evidence was relied upon to demonstrate that defendants had killed or caused harm to infants in their care. It evaluates the extent to which these difficulties may be addressed by measures which have been introduced or proposed by way of tackling problems associated with expert evidence. Part of the paper is dedicated to an analysis of the Law Commission's consultation paper on the admissibility of expert evidence in criminal proceedings. The paper argues that trial judges may not be best placed to discharge the Law Commission's proposed gate-keeping test for screening the reliability of expert evidence. Expert evidence will often be ‘outcome determinative’ in prosecutions for infant harm, which is why we argue for the introduction of a specialist gate-keeping panel instead to determine the reliability of new theories and techniques.

Type
Research Article
Information
Legal Studies , Volume 30 , Issue 2 , June 2010 , pp. 279 - 300
Copyright
Copyright © Society of Legal Scholars 2010

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References

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60. Which restricted its recommendation to the development of a gate-keeping test built upon Daubert. Above n 10, para 173.

61. Above n 5, para 6.8.

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63. Ibid, para 6.10.

64. Ibid, para 6.22.

65. Ibid, para 6.26.

66. Ibid, paras 6.55 and 6.62–6.64.

67. Ibid, paras 6.59–6.61.

68. Per Associate Justice Van Orsdel, Frye v United States 293 F 1013 at 1014. This is the test which was applied in US federal courts prior to the decision of the Supreme Court in Daubert.

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84. See Review of Infant Death Cases following the Court of Appeal Decision in the Case of R v Cannings (2004), available at http://www.attorneygeneral.gov.uk/attachments/Infant_death_report.pdf.

85. The review group identified 97 cases where convictions appeared to have been based on a finding of SBS, with 12 of these categorised as being potentially unsafe: Review of Infant Death Cases: Shaken Baby Syndrome (14 February 2006), available at http://www.attorneygeneral.gov.uk/attachments/shaken_baby_syndrome_review_report.doc.

86. Police and Criminal Evidence Act 1984, s 76A(2).

87. Redmayne, above n 47, p 136.

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92. An expression used by Judge LJ in R v Kai-Whitewind[2005] EWCA Crim 1092, [2005] 2 Cr App R 31 at [82].

93. BBC news website, above n 40.

94. [2005] EWCA Crim 1092, [2005] 2 Cr App R 31.

95. Per Judge LJ, ibid, at [84].

96. Ibid, at [82]. Although as Walker has commented, to say that R v Kai-Whitewind‘had no resonance with Cannings is untrue’: C Walker ‘Case comment on R v Kai-Whitewind’[2006] Crim LR 348 at 350.

97. [2008] EWCA Crim 971, [2009] Crim LR 195.

98. Per Toulson LJ, ibid, at [58].

99. Ibid, at [57].

100. Re X (Non-Accidental Injury: Expert Evidence)[2001] EWHC Fam 1, [2001] 2 FLR 90, per Singer J at [118].

101. See British Medical Journal online GMC Strikes Off Proponent of Temporary Brittle Bone Disease (13 March 2004), available at http://bmj.bmjjournals.com/search.dtl (doi:10.1136/bmj.328.7440.604-a). See also Hansard HC Deb, vol 422, col 52WS, 17 June 2004, and letter on behalf of the Minister for Children, Margaret Hodge, to local authorities dated 20 December 2004 (available at http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4099862.pdf).

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104. Above n 100.