The Law of Evidence in 2020: news roundup

This blog post has been contributed by Ms Amber Marks, Module Convenor for Evidence.

Justice in the Pandemic

Much of the news this year has understandably been taken up with the global pandemic and its consequences for the administration of the criminal justice system. By contrast with some parts of the civil justice system, technology has not provided solutions to enable trials to go ahead in the magistrates’ courts and the Crown Court at anything close to normal levels.

Defence Rights: Over a period of 2 weeks in May 2020, the non-governmental organisation, Fair Trials, conducted a survey of individuals at the frontline of the criminal justice system, including defence solicitors, barristers, accredited legal representatives, judges, magistrates, police officers, CPS staff, and appropriate adults. They were asked to share their opinion of how COVID-19 had impacted fair trial rights in England & Wales since the lockdown began. The organisation received 89 responses in total, the majority of which were from defence lawyers. The results of the survey have greatly troubled Fair Trials as although, as it concedes in the report on its findings, ´drastic deviations from ordinary criminal procedures have had to be made to ensure the continued functioning of the justice system under these very unusual circumstances´ it is clear that the ´the rights of defendants have, in practice, been largely overlooked´. Fair Trials is particularly concerned that measures introduced as ‘temporary’ solutions to emergencies might become permanent features of our justice system. Fair Trials cites the recent announcement by the Home Office to make measures introduced during the pandemic to enable remote participation by solicitors in police interviews via video-link or telephone into law as grounds for this concern. According to Fair Trials ´it would be a serious mistake for the UK government to push through these changes without first considering the impact of remote legal assistance on the right to a fair trial, especially when criminal defence practitioners have already expressed that this undermines access to effective legal advice.

Victim Rights: The backlog of cases in the criminal justice system is exacerbating the difficulties faced by rape complainants, many of which were recently summarised in an article in The Guardian. The Crown Prosecution Service has recently launched a consultation on rape and sexual offences legal guidance which you might find interesting, particularly the section on rape myths and the proposed guidance on this to be provided to prosecutors. You can explore this topic in more depth by reading a recent article by Fiona Leverick on this topic: F.Leverick ´What do we know about rape myths and juror decision making? E&P 2020, 24 (3), 255-279

Progress on Resolving Miscarriages of Justice

The recent arrest of a man in connection with a bombing in Birmingham in 1974 serves as a critical reminder that the conviction of the innocent will often entail the escape of the guilty. One factor that contributed to the wrongful convictions in the trial of the Birmingham Six related to the expert evidence adduced. Debates around how to minimise the dangers associated with expert evidence continue to rage in evidential circles. One such debate relates to the issue of reliability. A series of judicial decisions and Practice Directions have developed a rule that expert evidence must have “a sufficiently reliable scientific basis to be admitted’ but there is very little guidance on what degree of reliability is “sufficient’. In a fascinating article published in the International Journal of Evidence and Proof this year, Tony Ward argues that the test should be interpreted as analogous to one developed in the law of hearsay: expert evidence (scientific or otherwise) must be “potentially safely reliable’ in the context of the evidence as a whole. See Tony Ward Explaining and trusting expert evidence: what is a “sufficiently reliable scientific basis”? E. & P. 2020, 24(3), 233-254

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