Art vs Craft Expert: Evidence in the England and Wales Criminal Justice System

Abstract

Standards for expert testimony in England & Wales have long been described as laissez-faire and in desperate need of reform, with decisions about admissibility being left entirely to the trial judge (Turner 2009) and numerous calls for legislation going unheeded. Rules for the methods and content of an expert’s written and oral evidence therefore derive entirely from common law together with the publications of the Forensic Science Regulator (FSR). With extensive reference to a recent murder trial involving determining the meaning of a particular Urban British English lexical item where I had the rare opportunity to watch an opposing expert in action, this paper discusses current requirements and the obstacles these may present for the delivery of justice. The implications of admitting expertise in the form of unstructured, unquantifiable art alongside that which adopts a rigorous, replicable craft-like approach are drawn out in relation to this case and to the law as it stands. The paper concludes with a two-pronged solution for addressing these issues. Firstly, a dedicated training programme or system of guidance to enable judges to identify reliable expertise is proposed. Secondly addressing the ‘widespread ignorance’ (Heydon 2020) in the legal system of lesser-known fields of scholarship (such as forensic linguistics) is identified as a key strategy for improving standards of expert evidence. Keywords: Expert evidence, determining meaning, standards, drill