The quality of expert evidence in court is variable, and with no benchmark standard in place, the credibility of experts and their evidence is left for jurors to decide.  Steven Raeburn meets Iain McKie as he tries to create a positive legacy out of the wreckage from the Shirley Mckie fingerprint debacle.

When did a court last throw out the testimony of an expert witness?
This is the question driving Iain Mckie’s challenge to the Shirley McKie fingerprint inquiry, and which may yet form the backbone of that affair’s legacy on Scots justice. McKie’s determination is driven by the persistent testimony of four fingerprint officers from the Scottish Criminal Records Office, who have argued ‘black’ over a period of twelve years, whilst experts worldwide -perhaps free of the pressure the members of the SCRO might feel- argue ‘white’. In court, hearing such conflicting evidence, how is a lay jury to determine whom to believe? And where in Scotland can you go to get a second opinion on a fingerprint, if the tiny coterie relied upon by the Crown -and who in turn rely on the Crown for their livelihood- have a deep, vested interest to protect? It is McKie’s view  -and he is now reluctantly among the most well informed on the subject of expert witnesses-  that experts and their evidence in any area of specialism are not subject to sufficient quality and other controls in Scotland, as they are for instance in the US, and that this creates the danger of causing miscarriages of justice.

Shirley McKie’s misery at the hands of fingerprint experts is only one high profile tip of what is potentially a huge iceberg. Solicitor Sally Clark’s is another, demonstrating the ease with which a jury can be persuaded by expert evidence which is ultimately unreliable. An English jury convicted her of murdering her two infant sons after being told that the chances of the babies dying natural deaths was one in 73 million, a statistic later demonstrated to have “grossly” misrepresented the chance of two sudden deaths within the same family. Despite the conviction being overturned, Clark never recovered and was found dead in 2007.

The English legal framework has taken steps to address the problem, something the Scots legal system - once rightly revered as a worldwide beacon of excellence, but whose credentials for dispensing justice have been called into question with greater frequency- is reluctant and unwilling to address.  The Law Commission for England and Wales opened a consultation in April which proposes to set out “a clear admissibility test for expert evidence”, which would be admissible “only if it is sufficiently reliable” to be considered by a jury. Professor Jeremy Horder, the commissioner leading the project, said: “The parties in criminal trials are relying increasingly on the evidence of expert witnesses. Expert evidence, particularly scientific evidence, can have a very persuasive effect on juries. We want to ensure the criminal courts have the means to authenticate expert evidence and be satisfied the information before them is sound.”

Whilst there are difficulties in establishing such criteria, it is at least an effort to establish a benchmark standard. In Scotland at the moment, a suitably polished performance from a fairground charlatan could be admitted as expert evidence in a murder trial at the behest of any counsel willing to take a chance on chicanery and a weak cross-examination. It is, McKie says, a problem that Scotland has no excuse to resist solving.

“It appears to me that no-one is taking responsibility for the integrity and competency of expert witnesses and organisations like the Faculty of Advocates are opting out of their responsibility to their members by not demanding that the Crown make full disclosure on such matters,” McKie says.

“Only last month the CRFP, the sole organisation responsible for the accreditation of forensic experts in the UK, folded.

“Some are competent enough witnesses, but the side of expert witnesses which worries me more is those who are not competent, not properly accredited, haven’t taken any courses for years, don‘t undertake regular training, aren‘t up to date with techniques and technologies, but are called in by SCRO or the police, and more or less rubberstamp what they want. There are genuine experts, who may be ‘friendly’, and then there are incompetent experts, and this is not challenged.

“With the legal aid situation being what it is just now, you get a lot of evidence which is agreed between prosecution and defence beforehand which is never called in court. I am hearing of more and more cases where forensic evidence has not got to court. Expert evidence is costly. It needs to be fair to defenders, but at the end of the day are the ones without the money. It is OK for the prosecution, with all their resources. In my experience, defenders’ cases often fall down because they cannot afford the expertise they need to prove their case. That is not justice. Often, evidence is agreed which should never have been agreed, and it should be argued through in court. With our system being adversarial, this is very important. It is different in inquisitorial systems, where the court evaluates every piece of forensic evidence, which I favour.

“The Law Society won’t take this on board, the Crown Office won’t, the Faculty won’t. What they say is, it is up to the court to decide on the credibility of expert witnesses. Yet the court has no ability to decide on the credibility of expert witnesses.”

McKie has engaged at length with the Scottish Government, Crown Office, Law Society and Faculty of Advocates in the twelve years since his daughter Shirley’s fingerprint was incorrectly identified at a murder scene, an identification that was steadfastly defended by officialdom all the way through the Court system against Shirley Mckie, until the day her action for damages was due to be heard, when a payment of £750,000 was made to her and their defence dropped. Since the inquiry into the fiasco was initiated, he has continued to press for the creation of a recognised method for accrediting expert witnesses, to avoid such a scenario being repeated.

“There is a case to be made for changing our system, giving the judge much more say in the forensic evidence which is called. I don’t think that is an area that should be open to this play acting that goes on between lawyers,” he says.

“Before any expert gives evidence in court, they should have to come to a standard which is totally acceptable to the court. What are the current standards for experts before courts? We don’t have a system for accrediting experts. When was the last time the court challenged an expert? The Sally Clark case in England is a classic example. The jury were totally swayed, but the experts’ assessment was totally wrong.

“At the Faculty of Advocates there is total apathy. How can they not get involved? It is a problem for their members. They are all passing the parcel hoping the music won’t stop with them. They don’t want to know. I am asking the Faculty to see that their members are informed about the fact that these “experts” are not experts, when they are defending their clients, in their courts. They don’t have a panel of expertise, and they don’t even have a list of authorised fingerprint experts.

“For years we have proceeded as though expert evidence was infallible in the courts. It is not infallible. How can the Faculty, the Crown Office and the Law Society walk away from the possibility that, working within an organisation are three experts who have already attested to two wrong fingerprints? How can they say it is nothing to do with them?

“We need to look at our whole criminal justice system. They are playing first aid with it. This is a major change I am talking about, a different way of judging and accepting expert evidence in court. Police experts work for the police, who should have nothing to do with forensics. There should be no pressure put on experts to get a conviction. The only way we have of controlling that is to not have police experts, or defence experts. Have court experts, qualified to give evidence in court on their terms, not police terms, and on central government quality assurance. We are losing out on both ends. The innocent are being convicted and the guilty are not going to jail, because of the quality of the evidence.”
 
Scottish justice collectively appears to be waiting for the inquiry to conclude before taking any steps to address the concerns about forensic expertise that became acute during the Shirley McKie investigation. The tendrils of that case perhaps unsurprisingly link directly to the provenance of the forensics applied in the Lockerbie investigation, which perhaps hints at the reason for the reluctance to look too closely under the rock. In the meantime, the courts continue to operate the system which has demonstrably raised serious questions about the reliability of forensic evidence, and therefore increased the risk of executing a miscarriage of justice. Under such circumstances, apathy is surely an unacceptable option.