Confronting confrontation

The right to confront adverse witnesses has brought the English courts into conflict with the European Court of Human Rights. Drawing on confrontation doctrine in Europe and the United States, this paper argues that there is no convincing rationale for the sort of strong confrontation right found under the ECHR and the US constitution. A more pragmatic approach to confrontation, based on the best evidence principle, is advocated

Forensic science evidence in question

How should forensic scientists and other expert witnesses present their evidence in court? What kinds and quality of data can experts properly draw on in formulating their conclusions? In an important recent decision in R. v T1 the Court of Appeal revisited these perennial questions, with the complicating twist that the evidence in question incorporated quantified probabilities, not all of which were based on statistical data. Recalling the sceptical tenor of previous judgments addressing the role of probability in the evaluation of scientific evidence,2 the Court of Appeal in R. v T condemned the expert’s methodology and served notice that it should not be repeated in future, a ruling which rapidly reverberated around the forensic science community causing consternation, and even dismay, amongst many seasoned practitioners.3 At such moments of perceived crisis it is essential to retain a sense of perspective. There is, in fact, much to welcome in the Court of Appeal’s judgment in R. v T, starting with the court’s commendable determination to subject the quality of expert evidence adduced in criminal litigation to searching scrutiny. English courts have not consistently risen to this challenge, sometimes accepting rather too easily the validity of questionable scientific techniques.4 However, the Court of Appeal’s reasoning in R. v T is not always easy to follow, and there are certain passages in the judgment which, taken out of context, might even appear to confirm forensic scientists’ worst fears. This article offers a constructive reading of R. v T, emphasising its positive features whilst rejecting interpretations which threaten, despite the Court of Appeal’s best intentions, to diminish the integrity of scientific evidence adduced in English criminal trials and distort its probative value

Hearsay and human rights: Al-Khawaja in the Grand Chamber

This note analyses the European Court of Human Rights' Grand Chamber judgment in Al-Khawaja and Tahery v United Kingdom, and gives it a cautious welcome. The note suggests how English Courts might respond to the judgment and concludes by assessing justifications for strong confrontation rights and the wider political context of the Grand Chamber's decision

The Law Commission's character convictions

This article assesses the proposals made by the Law Commission for England and Wales in its recent report on bad character evidence. Rather than looking at the technical details of the Commission's proposed admissibility scheme, it concentrates on the foundational principles behind it. The Commission does not propose wholescale reform of this area of the law. It recommends retaining the general rule that evidence of a defendant's bad character is prima facie inadmissible. It also proposes an exception to this general rule, allowing bad character evidence to be used to attack a defendant's credibility if the defendant runs his defence in a particular way. This, too, mirrors the current law, though the Commission's exception would be more tightly drawn than the present rule. Another exception to the general rule of exclusion relates to similar fact evidence. Here, the Commission recommends replacing the current rule with a more carefully structured one. It is suggested that the Commission offers no cogent justification for any of these proposals. </jats:p