25th April 2021
After every miscarriage of justice there is the question of how the wrong was possibly allowed to happen.
And often the miscarriage comes down to the evidence before the court.
In essence: the court is presented with evidence that [x] is the case, and unless that evidence can be undermined then the court will be satisfied that there is guilt beyond reasonable doubt.
The evidence can come from police officers. or from an ’eminent’ expert witness, or (as with the Horizon scandal) an IT system.
(See my Horizon posts here and here.)
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In a criminal case a court is presented with substantive (-looking) evidence on one side of the scale and nothing – other than perhaps bare denials – on the other side.
And so the scales tip to one side.
To dislodge such (on the face of it) compelling evidence is a difficult task.
To an extent the situation is alleviated by the obligation of the prosecution to disclose relevant evidence, and not just the evidence on which they are relying on.
To an extent the situation is also alleviated by a prosecutor assessing the soundness of the evidence before bringing any prosecution.
To an extent proper preparation for trial from everyone involved – judge, prosecution, defence – should be a safeguard.
And the main safeguard, of course, is (or should be) the forensic process itself.
Evidence – especially evidence which comes from supposedly authoritative sources – should be relentlessly tested for its cogency.
There should not be mere nodding-along in deference – whether to a police officer, a ‘respected paediatrician’ or a ‘robust’ computer system.
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But.
Disclosure exercises are sometimes not easy – or cheap.
A properly resourced prosecution authority is not cheap.
Proper case preparation is not cheap.
And skilled in-court lawyering and cross-examination is not easy – or cheap.
For justice to be served, however, requires all of this is done well – which requires funding and other resources.
Else the court will be prone to placing the wrong weight on evidence before it.
Or as techies put it: Garbage In, Garbage Out.
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Alternatively: “buy cheap, buy twice…“
Or “Life is like a sewer: what you get out of it depends on what you put into it”.
Tom Lehrer
GIGO is very apposite. An excellent computing to law to computing flow.
The “eminent” expert witness you refer to above is Roy Meadow; the relevance here is the trial of Sally Clark.
The difficulty is more than just a case of funding. Meadow was certainly eminent in his field — paediatrics — but he wasn’t a statistician.
He didn’t understand where the error in his “statistical reasoning” was; prosecution and defence teams didn’t understand, nor did the judge.
At the first appeal, it looks as if the judges didn’t appreciate the statistical errors, or if they did, thought that the jury would have understood correctly.
New evidence which had been withheld from the defence was introduced at the second appeal; this, rather than the statistics, seems to have been the reason why that appeal was successful.
So the problem becomes not one of money and resources, but one of understanding (in this case of conditional probability and Bayes’s Theorem). If a lawyer, whether prosecuting or defending, doesn’t understand the basics of this, how will they know whether to examine and interrogate the claims properly? Likewise the judge.
This particular problem is known as the “prosecutor’s fallacy”; but do prosecutors in the UK know what it is and what to do about it?
In N Ireland there were changes to the (rules of) evidence from “expert witnesses” after these cases. Roy Meadow’s “positional authority” was no longer acceptable; the expert had to limit themself to that area in which they really were an expert.
Roy Meadow?
He was struck off after giving his evidence in a murder trial!
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1179752/
He clearly has a track record for this kind of thing…
Professor Sir Roy Meadow was indeed struck off the Register of the General Medical Council. He appealed this decision to the High Court and was reinstated. This reinstatement was confirmed by the Appeal Court. He later voluntarily erased his name from the Register.
More here:
https://en.wikipedia.org/wiki/Roy_Meadow
Very interesting. Thank you.
One of my own concerns is how many cases involving injustice never get to court / tribunal, due to the cost and risks of obtaining a hearing being far too high to be affordable for ordinary mortals.
Employment tribunals were set up to provide easy, very cheap access to justice for anyone who felt they’d been wronged at work. Similarly, the small claims court was designed to enable customers and others obtain redress for small wrongs (eg raincoats that failed to protect against the rain).
Neither system works any longer. Court fees are so high it’s not worth taking most cases to court. Most individuals can’t now afford the cost of losing a case (but most corporates can). Most sources of free legal advice (eg CAB) and support no longer exist in wide areas of the UK.
All very fine and large to ‘fund ‘properly’ the legal system. But I would feel more comfortable if I felt the system was efficient and effective. That probably means making it more intrusive and capable of demanding any and all information from anyone however high or low on pain of long imprisonment.
What we have seems slow and expensive and seems to allow ‘clever’ people to walk away free when we can all see they were guilty as hell. Then our system seems to catch minnows and let whales go free.
As my lawyer101 manual says ‘a courtroom is not a place to discover the truth’. Seems to me we hobble our system with the ability not to incriminate oneself. Phooey, we no longer hang people, admission of guilt and the truth right up front seems de rigueur. Let early admission up front or very soon be the difference between mere punishment and devastating punishment.
Then punishment, we can’t afford to do much about minor miscreants and we seem to let big political and corporate miscreants off with a paltry few £ thousands. The certainty of company-breaking fines and long imprisonment for concealing government and corporate wrong-doing would seem beneficial. Up end the power structure a little.
Can someone please please help me and confirm is this justice SYSTEM acting unlawful/illegal in holding ipp prisoner over tariffs Probation acting unlawful in recalling ipp as this was abolished my understanding is if Abolished no contract exists. How do I find a DNA expert to re examine findings the evidence is there just police choose not to find.
Also self defence or manslaughter provocation intruders in own home .
Can someone please point me in right direction to have those questions answered kind regards kath Kelly
“To an extent the situation is alleviated by the obligation of the prosecution to disclose relevant evidence, and not just the evidence on which they are relying on.”
Whether it’s relevant to the case is different to relevant to the prosecution. All evidence held by the prosecution should be disclosed whether or not they intend to rely on it in court.
The Guardian recently called Bayes Theorem “obscure”. This is the attitude of Britain’s elite to pretty basic high school maths. So it’s taught at A-level, and journalists and their ilk can’t be relied on even to understand GSCE-level maths and science. But obscure it is not.
https://www.theguardian.com/world/2021/apr/18/obscure-maths-bayes-theorem-reliability-covid-lateral-flow-tests-probability?utm_source=pocket-newtab-global-en-GB
But such issues come up fairly rarely.
The more basic problem is that the police are aiming to construct a case that stands a fair chance of getting a guilty verdict. They have powers and funding to obtain evidence. The accused does not often have such powers or funding to fully evidence their case. Usually the best they can do is look through the evidence the police disclose, which is often done incompletely and late. I’m sure the police often believe that they have got the right person. And then they suffer from confirmation bias, and fail to look at the other side. So they put it in front of the court, and the defence don’t have a chance. What the PO did, knowing the case was holed, was even more immoral. But that probably happens quite a bit too.
Meadows also illustrates a potential wider problem with expert witnesses. They are supposed to be neutral. But the prosecutors may have a tendency to choose people who will give a particular interpretation of facts. Various questions over the neutrality and expertise of some repeatedly used expert witnesses have been rehearsed in Private Eye over the years.
I don’t know how many GCSE and A level students are au fait with Bayes’ theorem nowadays, but some 30 or so years ago I don’t recall coming across it in my maths and science A levels, or science undergraduate degree (unlike say Fourier and Laplace transforms, partial differential equations, vector calculus, or group theory). Not until colleagues were discussing their work with artificial neural networks when I was a postgraduate. So I guess that makes it reasonably obscure.
But in the context of The Guardian, “obscure” just means the PPE, history and English graduate writing the newspaper had not heard of it. How would they classify something as basic as Maxwell’s equations, or CRISPR? Compared to say the Schleswig-Holstein Question.