Guarding the Gate: Some Problems in Expert Evidence in Scots Law

Abstract

Until recently Scots law had not explicitly developed a test on the reliability of expert evidence as a precondition for its admissibility. The court of appeal in HM Advocate v. Young (2014), building upon earlier decisions in Liehne (2011) and Hainey (2013), has now set out criteria for determining whether expert evidence is based on a science or other organised discipline in order for the evidence to be admissible. This paper considers the approach of Scots law before and after Young and provides a critical examination of the court's approach in that case. It argues that the judgment fails to deal with many relevant issues, such as those canvassed in the US Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc (1983) and by the Law Commission for England and Wales in its recent report on expert evidence.