Law and Court Structure

Michael BrombyReader in Law

Joseph Bell Centre for

Forensic Statistics

and Legal Reasoning

m.bromby@gcu.ac.uk

Global Systems

• Anglo-American (common law)– UK, USA, Commonwealth nations

• Continental (civil jurisdiction)– Mainland Europe

• Other systems– China, East Asia

British Isles

• England and Wales

• Scotland

• N Ireland

• Channel Islands– Jersey– Guernsey (inc Alderney)

• Isle of Man

• Republic of Ireland

Legal System

• Public Law– Criminal law– Public order– Judicial review

• Private Law– Tort / delict– Negligence– Family law

Criminal Court Structure

JP Court (prev. District Court)

Sheriff Court

High Court of Justiciary Court of Criminal Appeal (HCJ - Edinburgh)

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UK Supreme Court (London)(devolution matters)

ECHR (Strasbourg)

(Human Rights related)

ICC (Hague)

(Completely different!)

English Crim Court Structure

Magistrates’ Court

Crown Court

Central Criminal Court Court of Appeal (criminal division)

UK Supreme Court (prev. House of Lords)

JUDGE

WitnessBox

Clerk

Press

Public Gallery

DOCK

COUNSEL

Prosec. Defence

SOLICITORS

JURY

Procedure

• Solemn– Accused appears on indictment– by the Lord Advocate (e.g. HMA v Smith)– Jury (facts) and Judge (law)

• Summary– Accused appears on complaint– by the Procurator Fiscal (e.g. PF of Dundee v

Smith)– Judge (facts and law)

Pleas of the Crown

• High Court of Justiciary only!– Murder– Rape– Treason– Incest– Also:

• Terrorism• Wilful fireraising• Other serious crimes

Who’s Who?

• Advocate Depute Crown Office• Fiscal (Depute) COPFS (regional)• Solicitor (Defence agent)

• Crown Prosecutor England (CPS Barrister)• DPP NI, Australia• (District) Attorney USA• Crown Attorney Canada

Burden of Proof

• Criminal– Beyond reasonable doubt– No requirement for defence evidence

• Civil– Balance of probabilities

Evidence

• Admissibility– Legal issues (judge)

• Reliability– Jury analysis

• Sufficiency– Prima facie case

Evidence

• Examination in chief– Main points of evidence (probative value)

• Cross examination– Checking of reliability etc

• Re-examination– Opportunity to redress any prejudice

Legal Requirements

• Actus reus– Commission / omission– “the naughty act”

• Mens rea– Intention to commit a crime– “the naughty thought”

Legal Requirements

• Act or Omission– Both actus reus and mens rea– Inchoate: attempt / incitement / conspiracy

• Unlawful– Defences – see next slide – Insanity as a bar to trial

• Identification– Eyewitness– Forensics– Corroboration

Legal Requirements

• Defences may be Complete or Mitigating

• Special Defences– alibi, incrimination, insanity, self-defence,

automatism and coercion

• Defences– Diminished responsibility, provocation,

intoxication, necessity, superior orders

• Why the distinction?

Part 2

Quis Custodiet Ipsos Custodes?

(Who’s keeping an eye on the gatekeepers?)

Expert Evidence and Legal Safeguards

for Identification

Expert Witnesses

• Admissibility of Expert Testimony– Frye v United States (1923) 54 App DC 46

• Exclusive ‘general acceptance test’

• Superseded by Federal Rules of Evidence (702)

• Attack on authority, not content

“In principle, under the Federal Rules no common law of evidence remains. "All relevant evidence is admissible, except as otherwise provided . . . ."

Expert Witnesses

• Admissibility of Scientific Expertise– Daubert v Merrell Dow Pharmaceuticals Inc.

(1993) 509 US 579• Falsifiability

• Peer review and publication

• General acceptance within the relevant academic community

• Known (or potential) rate of error

• Existence and maintenance of standards

Expert Witnesses

• Admissibility of Technical Expertise– Kumho Tire v Carmichael (1999) 526 US 137

• Relevant and reliable

• Applies to all expertise, not just scientific

• May rely on experience and judgment

• Daubert criteria may still be applied in these areas

Expert Witnesses

• Admissibility of Expert Testimony– UK Approach

• Ad hoc admissibility

• Often Daubert factors are touched upon in cross-examination

• Civil Procedure Rules (CPR) well developed regarding expert witnesses in England and Wales

• Similar rules and guidelines now exist for Criminal Law in E+W

Expert Witnesses

• Admissibility of identification evidence:– DNA, match probabilities– Fingerprints, 16 point match– Faces, lack of database material– Voice, restricted to accent and dialect

• Study of comparison

• Opinion of probability

Rulings on Types of Expertise

• Inadmissible– Provocation - R v Turner (1975)

– Likelihood of suicide - R v Wood (1990)

– Truthfulness of witnesses - R v MacKenney (1983)

• Admissible– Insanity - R v Homes (1953)

– Diminished responsibility - R v Bailey (1977)

– Automatism - R v Smith (1979)

Which Approach?

“[T]he correct approach is to admit such evidence based on hearsay and that the judge has a responsibility to warn the jury as to the flimsy or non-existent foundations of the expert evidence”

M. Redmayne

Ultimate Issue Rule

• Expert opinion permitted in:– R v Stockwell (1993)

• Evidence of identification

– Barings Plc (2001)• Professional negligence

– The judge and jury are not bound to accept an admissible opinion…

• Do they realise this?

Jury Perceptions

• White coat syndrome

• Number dyslexia

• Baffled by jargon, science and law

• … and by the judge!

• Facts, opinions and alternatives require more separation in court

Improvements

• Joint minutes/memoranda of understanding

• Written questions and responses

• Single joint experts?!

• Court-appointed experts and assessors

Legal Safeguards

• Corroboration– Not a legal art in E&W, requirement in

Scotland for all facts to be independently supported by two sources

– Current debate in Scotland about corroboration

• Challenge by the Defence– Clash of expert witness opinion; lack of time or

finances to retain a second expert

Legal Safeguards

• Common-law Submission– Outwith cross-examination, either party may

suggest that the evidence is unreliable

• Directions to the Jury– Improved judicial knowledge and training in

scientific areas is required

Summary

• Expert evidence may be useful, but not conclusive or sufficiently probative

• Legal safeguards offer some protection, but may not be sufficient either

• Responsibility lies with the professional ethics of the expert, and of the judge