Keeping your witnesses about you

July-August  41

...UNTO

ITSELF

LAW

n a recent case, a student from a

Taiwanese background brought

proceedings to challenge the Leaving

Certificate course in Mandarin

Chinese. The issue was that the school

course taught the ‘simpliﬁed’ characters

used predominantly in China, rather than the

‘traditional’ characters, used mainly in

Taiwan. The marking scheme for the Leaving

Certiﬁcate was weighted towards students

who used the simpliﬁed characters.

An expert witness for the applicant

claimed that the weighting towards

simpliﬁed characters was “discriminatory

and exclusionary”. Another expert said it

was “unfair, discriminative [sic] and

counterproductive” for the Department to

“refuse” to correct answers in the traditional

characters.

However, as pointed out by Mr Justice

Garrett Simons, the question of whether the

weighting was discriminatory was not a

matter for an expert witness. This is a matter

that the judge should be in a position to

determine once he or she understands the

issues. In this case, the issues requiring

expert assistance were: (a) the practical

distinction between simpliﬁed characters

and traditional characters; and (b) the

logistics of teaching Mandarin Chinese by

reference to the two script systems. The

question of what system was to be used had

been a decision for the Minister for

Education, and the court could only interfere

if the decision was made in an unlawful or

irrational manner. As the Leaving Certiﬁcate

Mandarin Chinese course was aimed at

pupils who were not native speakers of the

language, it did not unfairly discriminate

against a student from a background that

used a dierent script.

The relationship between courts and

expert witnesses has long been problematic.

There are issues in large numbers of cases

that cannot be determined without the

assistance of an expert. Engineering experts

are needed to explain road trac accidents

and accidents in the workplace. Accountants

and actuaries are needed to explain complex

ﬁnancial matters. Pathologists and other

medical practitioners are needed in

homicide and rape cases.

It does not take much reﬂection to realise

that a judge or jury considering such a case

requires the expert witnesses to be objective

and unbiased. If experts only consider the

facts that suit their own client’s case, or

present their specialist knowledge in

relation to one theory rather than another,

the court does not properly have the beneﬁt

of their expertise.

A litany of familiar miscarriages of criminal

justice have had faulty expert evidence at

their hearts: the Dreyfus aair (handwriting

experts); the Birmingham Six and Judith

Ward cases (chemistry); the Guildford Four

(forensic testing of nitroglycerine); Sally

Clark (paediatrics and pathology); Amanda

Knox (DNA); and Barry George (ballistics). In

the recent Post Oce prosecutions in the UK

concerning the Horizon computer network,

it has transpired that there was systematic

misconduct among lawyers and computer

experts that gave rise to several hundred

wrongful convictions.

If the experts in any of these cases had

acted independently, presenting the science

in an objective manner, it is likely that the

wrongful convictions would not have

occurred. Even where there was also

misconduct by police investigators or

prosecution lawyers, they generally relied

on the scientiﬁc evidence to secure the

convictions.

It can be dicult for experts to understand

their duty of independence and objectivity if

it is not explained to them in clear language

by their instructing legal team. The Irish

courts have long bemoaned the practice of

experts whose evidence “all too often

appeared to correspond too favourably with

the interests of the parties who retained

them” (comments by Ms Justice Mary Irvine

in the 2017 case of Byrne v Ardenheath).

Keeping your

witnesses about you

Expert winesses nd heir duy o

he jusice sysem

By Mrk Toenhm