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In cases which fail the Turner [37] test, judges may rule expert evidence inadmissible on the grounds that the jury may be unduly influenced by the status of the expert and defer to a “more highly qualified” authority [38] 39. This “aura of infallibility” may be particularly significant where the expert is introduced as “Professor” or “Sir” [40] .

In the Canadian case of R. v. Mohan [41] , the Judge found: “There is a danger that expert evidence will be misused and will distort the fact-finding process. Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves.” and, in the amicus curiae brief in Kumho Tire v. Carmichael [42] : “.....juries are frequently incapable of critically evaluating expert testimony, are easily confused, give inordinate weight to expert evidence, are awed by science [and] defer to the opinions of unreliable experts.”

Conclusion

The admission of expert evidence remains very much at the whim of the Judge, resulting in inconsistencies and egregious errors.

Consider two cases of child pornography:

In R. v. Land [43] , Judge, LJ ruled:” The purpose of expert evidence is to assist the court with information which is outside the normal experience and knowledge of the judge or jury. ............ and the jury is as well placed as an expert to assess ....... that the person depicted in the photograph is under 16 years”.

Whereas in R. v. Cuddeford [44] , Kay, LJ, admitted the expert evidence of a consultant paediatrician who attested: “The age of the children seemed to be about 10 years, but some were younger than that.”

In R v Horncastle [45] Baron Phillips of Worth Matravers QC, PC, PSC, confirmed that: “Jury trials are presided over by a judge who acts as gatekeeper as to what is and what is not permitted to be placed before the jury as evidence”. However, it is evident from the cases of R v Baluchi [46] and R. v Morrison (Gene) [47] that the judiciary are conspicuously failing in this role.

Baluchi a former taxi driver with no medical qualifications, held himself out to be an expert counsellor, neuropsychiatrist, plastic surgeon and even a professor who had trained at Harvard and Oxford. He is understood to have given expert testimony at least 1,500 Immigration Appeals Tribunal and received over ￡1.5 million in taxpayer funding [48] .

Morrison, who left school with no qualifications and downloaded sham degrees from a fictitious U.S. university set himself up as an expert investigator, was convicted in 2007 on 23 counts of deception, obtaining property by deception, perverting the course of justice and perjury. In 2009 he was further convicted of raping two girls under 13, six counts of indecent assault, four counts of engaging in sexual activity with a child and one count of perverting the course of justice. The court heard that Morrison had infiltrated the lives of those he abused over nearly 30 years, All the victims were aged under 16 at the time [49] . During the same period, Morrison had appeared before judges as an “expert” in over 700 trials for which he was paid at least ￡250,000 of taxpayers’ money [50] .

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