4. Have the report’s recommendations or the DRAFT CRIMINAL EVIDENCE (EXPERTS) BILL been implemented in British criminal law? The recommendations that were created by the DRAFT CRIMINAL EVIDENCE (EXPERTS) BILL haven’t been implemented into British criminal law as of yet although their last recommendations were published in 22nd March 2011. They are still awaiting the government’s response. Their main recommendation was the reform of how expert witness evidence could be made admissible within court. It was set up using a flow diagram of how this would work which can be seen below;
Questions completed by josh Describe briefly what the CCRC is, what its remit is and what relationship to the rest of the judiciary does it have? What role did the Criminal Cases Review Commission (CCRC) play in this case? The Criminal Cases Review Commission or CCRC is an organisation that has the ‘statutory responsibility for investigating alleged miscarriages of justice in England, Wales and Northern Ireland’. They were established by section 8 of the Criminal Appeal Act 1995. The CCRC doesn’t work for any branch of the court system including the police, prosecution or the people who’s cases they review they are an independent body so that they can stay unbiased from every side and are able to investigate alleged miscarriages of justice impartially. Their role is to investigate a case if someone has been convicted and lost their appeal of a criminal offence if they feel they have been wrongly convicted. They can investigate cases from ‘magistrates’ court, Crown Court, Court Martial or Service Civilian Court’. The CCRC can get information from any public body including ‘the police, the Crown Prosecution Service, social services, local councils and the NHS.’ They can do this using their powers granted from section 17 of the Criminal Appeal Act 1995 to obtain the information. If they require information from private organisations or individuals they can use section 18A of the Criminal Appeal Act 1995. Any of the evidence shared can only be done so if it can do so under the Criminal Appeal Act 1995 and the Data Protection Act 1998. For the CCRC to be able to have the case heard in an appeal court they must provide new evidence or a new issue regarding the case as they can not just do a ‘re-run’ of the trial. Within the Jill Dando case the CCRC began an investigation after Barry George’s appeal was repelled on the 29th July 2002. The CCRC then took on the case on the 5th November 2002 before submitting it to the court of appeal on the 19th May 2007 on the grounds that ‘New evidence calls into question the firearms discharge evidence at trial and the significance apparently attached to that evidence.’ The evidence was seen as high significance to the prosecution at the time of the case when it was of no probative value. They submitted the appeal to consider the new evidence that had come to light against the evidence of the FDR evidence that had been used in the previous conviction. The 2007 appeal and others make reference to the “Case Assessment and Interpretation (CAI)” technique. Explain what the Case Assessment and Interpretation technique is; consider its usefulness and applicability. The Case Assessment and Interpretation technique or CAI technique is a guide of the framework in which can be used to ‘enhance examination strategies and inform of the evidential analysis and interpretation to evidence in relation to any kind of expert evidence received in criminal proceedings’. (http://www.maths.ed.ac.uk/~cgga/Guide-4-WEB.pdf ) the CAI originated within ‘mainstream’ forensic disciplines and was created in the late 1990’s. It shows a logical and probabilistic approach in which to address evidence. its main focus is expert evidence and expert witness testimony in the way the evidence should be carried out and how it the evidence should be presented within criminal proceedings. The CAI allows scientists to see how to express data that comes from evidence as during the 1970’s and 80’s when some cases were first tried it was later shown that some of the scientific evidence was flawed as the strength of the evidence was overstated or misinterpreted. This then led to many convictions being overturned. This was also shown within the Jill Dando case as the FDR evidence was only carried out under one hypothesis and not also under the competing hypothesis. This meant that when the evidence went to court the evidence was shown as having a high evidential weight when in fact this was low. Without the CAI showing that the evidence should be carried out in a certain way under the logical or probabilistic approach then Barry George may never have been able to have his conviction overturned as the CAI showed that the evidence hadn’t been analysed correctly. It has been said that “many of the opinions expressed by scientists at the original trial about the FDR evidence could be classified as explanations at source level, e.g. ‘…consistent with having come from the cartridge used in the killing’. What is the “hierarchy of propositions” (consider sub-source to offence level) as far as forensic science is concerned and what might be the difficulties in dealing with activity level propositions as a forensic scientist? The hierarchy of propositions is the way in which evidence is considered. The hierarchy starts with sub-source level evidence which would say if something is present or not present. After sub-source level evidence there is source evidence which would say that the evidence came from that thing such as a glass fragment coming from the window or the glass fragment coming from a different window. After source level evidence comes activity level evidence which states that the person in question would have smashed the window or they didn’t smash the window. Activity level evidence is the level in which a forensic scientist should aim to achieve when analysing their evidence as they can then say that it is very likely that the person in question did commit the offence, but they can’t say for definite leaving the final level for the jury to decide. After activity level evidence comes offence level which says that the person is the offender, or the person isn’t the offender. This job is for the jury to decide not the forensic scientists and they should never say whether the person is the offender or not. Within the Jill Dando case the FDR evidence was said to have come from that bullet as the FDR particle matched that of the FDR particles from the bullet that killed Jill Dando. Although this is only source level activity as it is said that the FDR particles came from the particular bullet but that is it. As well as coming from that particular bullet it could have also come from any other bullet with the same composition. This evidence although narrowing it down to the same composition of bullet doesn’t say that Barry George shot Jill Dando with the gun that killed her as he had only one FDR particle in his pocket that matched the FDR found on Jill Dando. He was also known for collecting guns which could explain the FDR evidence found within his pocket although this was never considered. There can be problems when dealing with activity level propositions as a forensic scientist due to the defence and prosecution fallacy. The prosecution fallacy can occur when an expert witness expresses the evidence in a way to make the defendant look guilty of the crime. This could be an expert witness saying that the knife that killed someone was the defendants knife so then they committed the crime. The same can occur if the defence fallacy is committed if an expert witness expresses that the knife belonged to someone else so someone else committed the crime and not the defendant which would then make them seem innocent. According to Mr Keeley what was the significance of finding just one particle of FDR and how did this differ to the opinion offered by Dr Lloyd? Mr Keeley believed that the finding of only one FDR particle wasn’t significant and isn’t unusual to see. Although he also stated that FDR wouldn’t be found on ‘ordinary members of the public unless they had been associated with firearms’ (http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2007/2722.html&query=(jill)+AND+(dando) ). Mr Keeley stated that the FDR particle was consistent from coming from the cartridge used in the killing of Jill Dando. Dr Lloyd however had said it shouldn’t have been relied on and the fact that it did was ‘incredible’. He also stated that due to the small size of the FDR particle it ‘casts doubts on where it came from’ (http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2007/2722.html&query=(jill)+AND+(dando) ). And could have come down to ‘casual contamination’. Dr Lloyd also states that die to the flawed procedures carried out by the police as the armed police searched Barry’s house could have led to contamination of the FDR particle within his jacket pocket. He also says that the contamination could have occurred before Jill Dando was even killed and that it shouldn’t have been taken as reliable evidence. he also says that it shouldn’t have been taken as evidence that Barry George had fired a gun. When asked to carry out analysis on the probability of the FDR being contamination Dr Lloyd stated ‘I am not going to attempt a statistical probability of this happening by reason of innocent contamination. We submit that it is so unlikely that you can safely ignore the possibility of innocent contamination.’ (http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2007/2722.html&query=(jill)+AND+(dando) ). From the various trials and appeals do you consider that the FDR evidence was presented properly and fairly? The FDR evidence within the trial was presented improperly as during the trial the evidence was only considered under one hypothesis that it was from firing a gun that had the same FDR particles from the casing as the one used to kill Jill Dando. As it was only presented under one hypothesis and not the competing hypothesis meant that the statistics showed that it had a fairly high evidential value as being from the gun that killed Jill Dando whereas if it was presented properly it would have been stated that it was just as likely to be from something else which would have rendered the evidence as having no significance. As this was the only physical evidence that could have potentially linked Barry George to killing Jill Dando it was relied on heavily as there wasn’t much other evidence other than Barry George making false alibis, lying during an interview and an eyewitness saying they saw someone who looked like him around the house of Jill Dando hours before the murder.