Michael Mansfield, QC
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When Angela and Ian Gay were acquitted of poisoning with salt the three-year-old boy they were adopting, it marked the end of a nightmare that began with Christian Blewitt’s death in December 2002 and the couple’s subsequent arrest.
At their first trial, which began at the end of 2004, they were acquitted of murder but convicted of manslaughter. The basis for the conviction was hypernatraemia caused by forcible ingestion of salt — at least four teaspoonfuls in one dose. There was no realistic explanation of how such an amount could have been administered.
They were sentenced to five years’ imprisonment. Like others incarcerated for crimes against children, they suffered humiliation and abuse. After 15 months the Court of Appeal quashed the conviction, ordered a retrial and both of the Gays were released on bail.
After their acquittal at the recent retrial, their solicitor, William Bache, observed: “I do not believe that cases of this sort should be brought to trial when so much doubt remained about the science involved.”
Over the past few years, this has become a disappointingly familiar tale which has recurred in the cases of Sally Clark, Angela Cannings, Donna Anthony and Trupti Patel (sudden infant death syndrome); Lorraine Harris and Michael Faulder (shaken baby syndrome); and Marianne Williams (salt poisoning). In each, the defendant parent was ultimately vindicated.
There are several failings common to many of these cases, although not all. Frequently, a prosecution is embarked upon when it is clear from the start that there is a serious division of opinion between reputable experts about the cause of particular injuries. Sometimes the dispute is as basic as what the original findings amount to. In other words, what can actually be discerned from scans, the X-rays, the histology and so forth.
The process nearly always involves at least these two stages — the findings and then interpretation; often with the added complication that the original samples have been used up, or lost and, occasionally, that the appropriate examinations were not all done in the first place.
What remains, therefore, tends to be the opinion of one expert against another. This provides a nearly impossible situation for any fact-finding tribunal whether jury and judge, or judge alone. On what basis can a nonscientist arrive at a certain conclusion (guilt) when the choice perhaps comes down to a preference in presentation? Rarely will there be exhibits that can be pored over and, even if there are, they are often unintelligible.
In the Cannings case, the Court of Appeal provided some extremely sensible guidance: Sir Igor Judge suggested that where an investigation into two or more sudden unexplained infant deaths was followed by a serious disagreement between reputable experts, then the prosecution should not be started or continued — without additional cogent evidence.
Unfortunately, this advice has not been heeded. Cases proceed in the absence of corroborative evidence. Even when experts have been discredited, cases proceed by substituting other experts who will come up with the same theory or a new one, or who stray beyond their own expertise.
It is time that the criminal justice system took a firm grip of the situation by establishing a clear, regulatory structure with obligatory protocols and guidelines. This has been raised endlessly in professional debate, parliamentary reports, reviews and Royal Commissions. But there persists an extraordinary reluctance to act.
What is needed is a national institute of forensic science to lay down standards and guidelines for experts who give evidence in court. The newly established Council for the Registration of Forensic Practitioners is not comprehensive and membership is only voluntary. There should also be a national and obligatory register of accreditation. In all cases where forensic science is involved there needs to be — as in the United States — a preliminary hearing where the trial judge assesses the admissibility of expert evidence (the Daubert Test). Essentially, the courts exercise a form of quality control. The judge decides which experts are capable of giving evidence and the areas where they are qualified to comment. This ensures that certain basic thresholds are achieved, that the theory or technique employed can or has been tested, subjected to peer-review or publication, scrutinised for any known rate of error and identifies whether there is a consensus within the scientific community.
The present deficiencies have been given a recent and stark illustration by the conviction of a so-called expert forensic psychologist. Gene Morrison was recently convicted of 20 offences involving a deception he had practised for 27 years. His qualifications had been bought from a website — he had no genuine academic or forensic psychology skills. Up to 700 cases may now have to be reviewed because of the bogus opinions he proffered.
Besides wondering why forensic scientists, police officers, solicitors, barristers and judges never asked a single fundamental question that would have exposed this individual, what the case really illustrates is systemic failure on a grand scale. Obligatory accreditation and hearings before the admission of such evidence would have weeded Morrison out 27 years ago.
An improvement in standards would also help to prevent future cases where the expert evidence is disputed from going to trial without giving effect to Lord Justice Judge’s wishes.
The author is head of Tooks Chambers and represented Angela Cannings, Lorraine Harris, Michael Faulder and Ian and Angela Gay on appeal
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Another important issue is education, training and good science. Despite its popular profile, forensic science is relatively neglected by the World's Universities and traditional science funding bodies. When it does appear it is often used as a ploy to attract students in order to breath life into failing traditional science departments and careers, sometimes in areas of forensic science where future prospects are minimal. Paradoxically, a number of real departments of forensic medicine have been closed. It is unlikely that this disingenuous practice can be overcome within the University system as the few real academic forensic scientists within it are struggling against the defensive agendas of academics who regard a popular science subject as a threat. How can one get a strong message to Research Councils, University Presidents and Vice-Chancellors that they have a civic duty to fulfil, outwith the short sighted agendas of some of their faculty?
Martin Evison, Toronto, Canada
The easy acceptance of bogus "experts" by the legal
community is a result of the adversarial system of justice.
It's all about getting a result and enhancing the
reputations of barristers and the police.
John, London,
Recent high profile trials have clearly demonstrated that where evidence is finely balanced, dodgy, or even non - existent, the Police and CPS will often proceed on the basis that a half-witted jury may convict anyway. High-profile in this context means "tip-of-the iceberg". The problem lies not in the quality of the evidence presented, but in the quality of those charged with assessing it. Only a fool or charlatan would propose an "assessor" whose competence varied from trial to trial, and whose responsibility ended the moment he walked out the door. So there's the solution: Get rid of juries. A dodgy Judge can always be put out to grass, but with a jury you get what you're given.
Ken Leyland, Liverpool, U.K.
With our great history in criminology (first use of both fingerprints and DNA) I'm sure we can create an organisation and system to be the envy of the World.
Bill Bird, Wallasey, United Kingdom of Great Britain
A potential and inherent problem with forensic science in the UK is the fact that forensic services are (in the majority of instances) outsourced to private service providers. The upside to such an arrangement is the (perceived) separation, and associated objectivity, between the Police Force, the CPS and the Forensic Science provider. Having work in the UK forensic market, and also in a different country where forensic science laboratories are part and parcel of the police forces (i.e. forensic services are 'free' to the police/CJS), I am of the opinion that in the UK a decrease in government funding to police forces, will result in a decrease in the amounts available to spend on forensic science, and by extension a 'price war' between different forensic science providers. I do not say this is happening, but money talks and if this should result in 'no-frills, budget' forensic evidence being presented in Courts, then I'm afraid that more cases may 'go wrong'.
Etienne van Zyl, Drayton-St Leonard, UK
As a practising (and CRFP Registered) forensic chemist it saddens me when the forensic profession is brought into disrepute by fellow scientist. I want to believe that it is through 'honest mistakes' that these miscarriages of justice happens, and not through anything else. Irrespective, it remains unacceptable! The Nobel-prize winning physicist, Werner Heisenberg, is quoted as having said: An expert is someone who knows some of the worst mistakes that can be made in his subject, and how to avoid them. I subscribe to the content of this 'quote', and therefore that the experts who get it wrong are not true experts - which a know is a sweeping an potentially unfair statement. A requirement that experts needs to be vetted by the Court will indeed be a step in the right direction. However this process will only be as effective in as much as the Court is competent to understand what criteria to apply, and when to reject or accept a scientist's (or scientific process') credentials.
Etienne van Zyl, Drayton-St Leonard, UK
I spent 12 years in jail for a crime I DID NOT commit and so I speak from experience in that juries do regard forensic/scientific evidence as the truth. The recent surge in TV crime programmes, like CSA, can lead to members of the public thinking that all evidence given by so called experts is foolproof? So often expert witnesses go way beyond their remit and neglect to tell the jury that the science is not exact. Juries are influenced by the qualifications spelt out before the evidence is given, they can be both baffled by the evidence and truly believe the expert to be telling the whole truth! Forensic science has led to huge progress in solving crime and can be a useful tool but there is a risk that unrealistic portrayals in TV detective programmes seduce the public into questioning that science. Mere opinions are not good enough when a persons liberty is at stake! It is horrendous to be imprisoned wrongfully and worse still that the real culprit goes free.
Sue may, Royton, UK
Sadly lawyers working for either side, who do not have any medical training, can be easily led to the wrong conclusions by the experts they seek to rely on.
It stands to reason that one of the changes that could be instigated as a fail safe, would be for both sides to employ barristers with medico/legal expertise, at that juncture they can then at least be able to properly understand the medical evidence said to support either side's claims.
Having sat though the Gay appeal and some of both R-V-Williams and R-V-Gay retrial and had access to the medical records for both cases, might I also suggest that from the very outset, the least the experts could do was ensure they had done their sums right-how did it come about that in three arenas the prosecution experts in relation to alleged salt poisoning, gave evidence that was erroneous? And how is it that the prosecution did not pick up that the math was wrong-a matter that seriously underminded both cases.
Penny Mellor, Staffordshire, UK
Well, we are all aware of this in family law courts where the only experts allowed are on the side of SS. How unfair is that to anyone.??
Even if you do get a private psychologist, SS, phone him or her up and say what result they want and that is it. Deal done, money handed over. I guess, if the right words do not appear on the report the psychologist will not receive further work or money. This all money for old rope and all it is, is bluff and spoof, big polthogs of words as we say in Dublin and you are a winner. You just have to act your part. Like most lawyers are mere actors,playing to their audience.
When the family law courts open to the light of justice, then the truth will backen this country for 50 years to come.
Women in particular are made shreds of, and most wished they never bothered. The others accused of msbp and other rubbish is crazy, and now we see how the scam worked. But to take these children and use them in drug experiments is appauling. Truth coming to light.
Lady Portia, London, UK
As a barrister specialising in representing people who claim to have been falsely accused, Michael Mansfield has a clear vested interest in undermining public confidence in the expert witnesses with whom he must do battle in the courts. In this article he has served that interest well (although, by introducing the spectre of Gene Morrison, somewhat shamelessly). It is, of course, worth pointing out that it is not experts of any kind who decide whether or not a prosecution should proceed. That responsibility belongs to lawyers who work for the Crown Prosecution Service. I dont think anyone could argue with Mr Mansfields concern that experts should not be allowed to come up with new theories or stray beyond their area of expertise. He doesnt say, but I assume he intends that such rules should apply equally to experts for the defence, as well as those for the prosecution.
Jonathan Gornall, London,
Christian's nightmare is over too. He's dead. From too much salt in his body it seems. Readers should not assume that because there was no 'realistic account of how it got there' that children cannot be so poisoned. They can. It's done by depriving them of water, then giving them salty drinks when they are desperate. Putting it down a tube is an option. Children need to be protected against experts bearing obscure diagnoses designed to release someone from prison rather than to discover the truth. The courts would rather a missed murder than a falsely accused parent and one can have sympathy for that view but someone has to speak for the child without venomous abuse from the media for reaching the sad conclusion that the caring parent, normally an ally in the relief of their infant's distress, can sometimes be the agent of it. Children are now at greater risk of abuse and death because doctors are understandably reluctant to undertake child protection work.
David Murray, huntingdon, cambridgeshire
I spent 12 years in jail for a crime I did not commit and so I speak from experience in that juries are heavily swayed by evidence given by so called experts. Jurors faith in forensic/scientific evidence can lead to a miscarraige of justice and the recent surge in crime series' on TV, like CSI, affects the way viewers identify with such evidence and in turn with the way they execute their role if called for jury service. So often the expert goes beyong their remit and neglect to tell the jury that the science is not exact. But because the jury are influenced by the qualifications spelt out before the evidence is given, they can be both baffled by the evidence and truly believe the expert to be telling the whole truth. Mere opinions are not good enough when a persons liberty is at stake!
Sue May, Royton, UK
As a barrister specialising in representing people who claim to have been falsely accused, Michael Mansfield has a clear vested interest in undermining public confidence in the expert witnesses with whom he must do battle in the courts. In this article he has served that interest well (although, by introducing the spectre of Gene Morrison, somewhat shamelessly). It is, of course, worth pointing out that it is not experts of any kind who decide whether or not a prosecution should proceed. That responsibility belongs to lawyers who work for the Crown Prosecution Service. I dont think anyone could argue with Mr Mansfields concern that experts should not be allowed to come up with new theories or stray beyond their area of expertise. He doesnt say, but I assume he intends that such rules should apply equally to experts for the defence, as well as those for the prosecution.
Jonathan Gornall, London,
Strictly speaking the Daubert and associated Khuomo Tire test is of "generally accepted scientific and technical knowledge", a protection against junk science, not the competence of an individual forensic witness.
CRFP is one good answer (I am Joint Lead Assessor for the computer speciality) but in addition to professional forensic scientists the courts also need to hear from experts with unique knowledge but who don't want to make a full-time business from it and who will never be formally registered with anyone.
A better route is to make expert evidence and competence a specific feature of Pre-Trial Review. Expertise can then be challenged early - and if appropriate the scope of Expert-to-Expert meetings ordered. This would fit in well with the new Part 33 of the Criminal Procedure Rules.
But, of course the Commission for Legal Services will need to recognise the great value of funding such hearings properly.
Peter Sommer, London,
I have been saying for ages to my solicitor colleagues that one thing the Legal Services Commission could very usefully do, and save costs at the same time (which is its usual goal) would be to set up registers of approved experts (taking into account the assessment of the expert by solicitors, Counsel and Judges at least) and negotiate fees with them instead of leaving this task to individual firms of solicitors who are supposed to keep a "register of approved experts". I am finding that for example owing to the "dangerousness provisions" Counsel is far more frequently requesting the solicitor to obtain a psychiatric report and we are getting charged ever increasing amounts for what is often a report expressing it is unable to express an opinion as the person has no mental illness. Getting a decent expert is something of a lottery and that should not be the case.
Chris Pye-Smith, Grantham, England