Noticeboard

Surveillance—Australia

Justice and Community Safety Directorate, Review of ACT Civil Surveillance Regulation, Report, August 2016, available at <www.justice.act.gov.au/review/view/45/title/review-of-civil-surveillance-in>

This independent review by a law academic into the regulatory framework for non-government surveillance in the Australian capital examines a rule barring the admission of evidence obtained through the use of a listening device either unlawfully, unintentionally or for a use other than one that made the use reasonably necessary to protect the user’s lawful interests. The review recommends giving courts a discretion to allow the admission of evidence obtained to protect the user’s lawful interests, even if the use was not reasonably necessary.

Child abuse evidence—Australia

Cashmore et al., The Impact of Delayed Reporting on the Prosecution and Outcomes of Child Sexual Abuse Cases, Report for Royal Commission into Institutional Responses to Child Sexual Abuse, August 2016, available at <www.childabuseroyalcommission.gov.au/policy-and-research/our-research/published-research/the-impact-of-delayed-reporting-on-the-prosecution>

Powell et al., An Evaluation of How Evidence is Elicited from Complainants of Child Sexual Abuse, Report for Royal Commission into Institutional Responses to Child Sexual Abuse, August 2016, available at <www.childabuseroyalcommission.gov.au/policy-and-research/our-research/published-research/how-evidence-is-elicited-from-complainants-of-chil>

These research reports for a national inquiry into institutional child abuse examine the impact of delayed reporting of child sexual abuse (through a study of police and court records from two Australian states) and how evidence is elicited from child sexual abuse complainants (through interviews with criminal justice professionals and a representative sample of prosecution case files, trial transcripts and appeal reports from three Australian states).

The findings of the report on delayed reporting include: that reporting trends have been consistent in the past two decades, but are affected by publicity associated with public inquiries; and that, contrary to expectations, overall, historical complaints are more likely to result in prosecution, conviction and imprisonment than complaints by children.

The findings of the report on eliciting evidence include: that alternative methods are now being used as a matter of course with child complainants, but not adult complainants; and that continuing (but fixable) difficulties included technological problems, police interview methods not aligned with evidence-based practice, complex and extensive questioning by judges and lawyers, limited access for adults to alternative methods, and delays in prosecution.

Royal Commission into Institutional Reponses to Child Sexual Abuse, Criminal Justice, Consultation Paper, September 2016, available at <www.childabuseroyalcommission.gov.au/policy-and-research/our-policy-work/criminal-justice>

This consultation by a national inquiry into institutional child sexual abuse seeks responses on proposals for reforms to the criminal justice system. Issues that the report seeks input on include: whether any limitation periods or immunities associated with child sexual abuse should be retained; possible options for addressing delay (including specialist courts, early allocation of prosecutors, encouraging guilty pleas, abolishing committal hearings, case management and review of listing processes); the use of special measures, intermediaries and interpreters; whether the law on jury directions should be codified (and whether particular directions should no longer be given, and whether other methods to educate jurors should be used); and whether appeal laws should be reformed in relation to interlocutory prosecution appeals, inconsistent verdicts and whether complainants’ evidence should be recorded for use in any retrial.

The consultation also examines the law on tendency and coincidence evidence, and joint trials, and seeks views on: whether that law should be reformed; if so, whether there is any reason not to adopt the present law in England and Wales; whether the test should be limited to relevance, whether any discretion should favour admissibility or inadmissibility; who should bear the burden of persuasion on admissibility; whether issues of concoction, etc. should be considered for admissibility; whether prior convictions should be admissible; and whether evidence about past acquittals should be admissible.

Criminal appeals—Jersey

Jersey Law Commission, Criminal Appeals Against Conviction, Consultation Scoping Paper, July 2016, available at <https://jerseylawcommission.org/criminal_appeals_scoping_consultation/>

This paper from Jersey’s law reform body asks ‘scoping questions’ as the first stage of a review of the island’s law on criminal appeals. The present law (in Article 26(1), Court of Appeal (Jersey) Law, 1961) is based on s. 4(1) of the Criminal Appeals Act 1907 (UK), which was repealed in 1968. The questions include whether England’s current approach is simpler and fairer; whether the present test is more difficult to satisfy and risks more miscarriages of justice; whether the existing law is unclear or incorrectly stated by the courts; whether an alternative to the present English approach is preferable; whether the ‘proviso’ should be preserved; and whether other Commonwealth approaches, such as the Australian approach, should be adopted.

Forensic evidence—United States

National Commission on Forensic Science, Views on Statistical Statements in Forensic Testimony, August 2016, available at <www.regulations.gov/document?D=DOJ-LA-2016-0018-0005>

This document presents the views of the United States’ peak advisory group on forensic science on what statements about probability should be included in experts’ presentation of forensic science tests to courts. The Commission’s views include: that experts need to justify the choices they make as to which form of statistical statement they use in court; that experts must report on the uncertainty associated with any statistical statement and must present and describe the similarities and differences in the questioned and known data; that experts should not state that a specific individual or object is the source of a trace without explaining that it is possible that other individuals or objects could have left a similar set of observed features; and that experts should confine themselves to speaking of the weight of the evidence, rather than opining on the claims made about that evidence.

President’s Council of Advisors on Science and Technology, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, September 2016, available at <www.whitehouse.gov/sites/default/files/microsites/ostp/PCAST/pcast_forensic_science_report_final.pdf>

This report by an executive-appointed group of scientists and engineers making policy recommendations on science, technology and innovation issues is a response to a 2015 request by the nation’s President about additional scientific steps that could be taken in response to the 2009 report of the National Research Council, Strengthening Forensic Sciences in the United States: The Path Forward. The President’s Council advocates testing ‘feature comparison’ forensic sciences for:

foundational validity: empirical testing that is repeatable, reproducible and provides valid estimates of accuracy; objective methods tested by studying their individual steps; and subjective methods evaluated with ‘black box studies’; and

The Council observed that ‘neither experience, nor judgment, nor good professional practices (such as certification programs and accreditation programs, standardized protocols, proficiency testing, and codes of ethics) can substitute for actual evidence of foundational validity and reliability.’

The report applies these criteria to various forensic comparison methods:

single-source and simple-mixture DNA analysis (foundational validity is established; validity as applied demands improved proficiency testing);

The Council’s recommendations include:

the federal Attorney-General should: ensure that expert testimony about forensic feature-comparison methods meets the scientific standards for scientific validity; evaluate whether it is appropriate to present in court conclusions based on subjective methods; support black box studies of such methods; revise the Department of Justice’s proposed ‘Uniform Language for Testimony and Reports’; direct experts that reports should either state error rates or, if there are no studies, either not testify or state in court that there are no studies, and clearly state in court that errors can and do occur due to feature similarities and human mistakes;

According to The Wall Street Journal, the Attorney-General immediately responded by stating: “We remain confident that, when used properly, forensic science evidence helps juries identify the guilty and clear the innocent, and the department believes that the current legal standards regarding the admissibility of forensic evidence are based on sound science and sound legal reasoning. While we appreciate their contribution to the field of scientific inquiry, the department will not be adopting the recommendations related to the admissibility of forensic science evidence.”: see <www.wsj.com/articles/white-house-advisory-council-releases-report-critical-of-forensics-used-in-criminal-trials-1474394743>.