The Law Commission's proposal on expert opinion evidence: an onerous demand upon judges

In April 2009, prompted by recent miscarriages involving expert witnesses, the Law Commission published Consultation Paper 190: 'The Admissibility of Expert Evidence in Criminal Proceedings in England and Wales: A New Approach to the Determination of Evidentiary Reliability'. The consultation paper recommends that only reliable expert opinion evidence be admitted into court. Reliability is assessed, by trial judges, by recourse to specific criteria identified by the Commission. This article suggests that whilst these criteria are clearly articulated applying them to actual forensic disciplines is fraught with difficulty. If the criteria are interpreted too strictly exclusion of forensic testimony may become too widespread. If interpreted too liberally, the criteria will provide inadequate safeguards against admission of erroneous evidence. The criteria based approach, towards admission, is, subsequently, rejected. It is suggested, instead, that forensic science