July-August  41
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
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
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


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