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All Experts Must Comply with the Admissibility Test

Special Reports

Even the most eminent expert must comply with the admissibility rules, says Mark Solon.

The Judgment of DJ Zani handed down in Westminster Magistrates’ Court on 13/04/18 in extradition case of Bucharest Appeal Court, Romania v. Alexander Adamescu provides some interesting insight into what is allowed as expert evidence.

Part of the evidence in the case was “expert evidence” from Lord Carlile. This was entitled An Expert Report in relation to UK Extradition Proceedings, by SC Strategy Ltd. This company is an international strategic consultancy founded in 2012 by Sir John Scarlett KCMG OBE and Lord Carlile of Berriew CBE QC. Sir John, as a former Head of MI6, should know a thing or two about international affairs and Lord Carlile, as a leading expert on issues of fraud and corruption ostensibly formed the expert dream team. Their first report considered events relating to a conspiracy against The TNG Group and its officers who were actors in the case. The second report accompanied various statements from anonymous witnesses. Sir John would clearly know about the need for anonymity and the report explained the reasons these witnesses required anonymity and the personal risks they faced if they lost anonymity.

Despite all of this, the reports from SC Strategy were held inadmissible as incapable of satisfying the test for admissibility in Bonython, and insofar as it was based on anonymous sources was in conflict with B & ors v. Westminster Magistrates’ Court [2015] AC 1195.

The main lesson from the case for all instructing solicitors is that however eminent and learned the experts they use, the experts must still comply with the basic rules around expert evidence.

The Basics

Let’s look at some of those rules. It is an established legal principle that the hearsay provisions of the Criminal Justice Act 2003 do not apply in extradition proceedings (see, Friesel v USA (2009) EWHC 1659 (Admin). It has also been established that extradition proceedings are to be treated as criminal proceedings (see R v Governor of Brixton Prison ex parte Levin (1997) UKHL AC 741.) The Report released by the Law Commission on 21 March 2011 is an important document that deals with Expert Evidence and needs to be considered. This Report helpfully sets out a number of relevant factors to be taken into account:

The Current Law Admissibility Test

(i) Assistance:

In accordance with the leading case of R v Turner (1975) QB 834, an expert’s opinion … ‘is admissible to furnish the court with … information which is likely to be outside the experience of a judge and jury.’

(ii) Relevant Experience:

“The individual claiming expertise must be an expert in the relevant field. This was described in the South Australian case of Bonython as a requirement that the individual ‘has acquired by study or experience sufficient knowledge of the subject to render his (or her) opinion of value’, a description which has found favour in England and Wales. Against those points, however, it should be noted that the threshold cannot (we suggest) be any lower than a requirement of proof on the balance of probabilities: secondly, that amateurs are not qualified to give some types of expert evidence, and thirdly, that explicit guidelines for determining expertise are now being formulated for certain scientific fields”.

The Report continues “A recent judicial comment suggests, moreover, that the threshold for demonstrating expertise is quite low (see (Doughty v Ely Magistrates Court (2008) EWHC (Admin) at paragraph 24 … ‘whether the claimant is a good expert or not is neither here nor there. The quality of his report is neither here nor there… These matters are not a sufficient basis for having ruled the claimant to be simply not competent to give expert evidence at all”.

(iii) Impartiality:

The expert must be able to provide impartial, objective evidence on matters within his or her field of expertise.

(iv) Evidentiary Reliability:

The expert’s opinion must in other respects satisfy a threshold of acceptable reliability.

DJ Zani said: “The relationship between the limbs (i) to (iv) above was set out at point 2.17of the Law Commission Report. Once the Turner test regarding its probative value has been resolved, the purpose of the other 3 limbs is said to be “to ensure that such expert evidence is admitted in criminal proceedings only when it satisfies a minimum threshold of general reliability, what might be called ‘reliability in the round’.”

The authors of the Law Commission Report recommended that primary legislation should provide that expert evidence in criminal proceedings should only be admitted if;

(1) the ‘Turner test’ is satisfied and

(2) it is proved on the balance of probabilities that the individual claiming expertise is qualified to give such evidence.

Furthermore, Part 19 of the Criminal Procedure Rules was amended (as from October 2015) to include a new rule about an expert’s duty to the court. It confirmed that an expert must help the court to achieve the overriding objective by giving opinion which is (i) objective and unbiased, and (ii) within the expert’s area or areas of expertise.

The judge found that the SC Strategy reports and Lord Carliles’ oral evidence did not satisfy the admissibility test for a number of reasons including that Lord Carlile was not an expert in Romanian politics, he had little first-hand knowledge of the factual matters in the report, he referred to sources of expert opinion on matters he was not an expert in and the sources of much of the material were anonymous. The “expert evidence” didn’t help poor Mr Adamescu who was extradited. So make sure that the admissibility test is satisfied before calling an expert.

Mark Solon, Chairman,

Wilmington Legal and

Founder, Bond Solon E:

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W. www.bondsolon.comMr

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