Workshop report: Introductionof “cultural expertise” inEnglish courts

Eighteen anthropologists and sociologists, legalacademics and legal practitioners came together in a one-day workshop on the Introduction of “cultural expertise” inEnglish Courts held on April 28, 2011 at the Institute ofAdvanced Legal Studies. The workshop was co-organised byDr Roger Ballard, Director of the Centre for Applied AsianStudies (CASAS), Professor Werner Menski of the Schoolof Oriental and African Studies (SOAS), and Dr PrakashShah of the Department of Law, Queen Mary, University ofLondon. It was supported by the EU FP7 projectRELIGARE, the IALS, the Centre for Ethnic MinorityStudies (CEMS) at SOAS, and CASAS.

The spur for the workshop was the discussion in early2011 on the Pluri-Legal e-mail group (on JISC mail) aboutthe Mbulawa case that was tried in Leicester Crown Courtin late 2010-early 2011. The trial led to a young woman ofZimbabwean origin being convicted of malicious woundingunder the Offences Against the Person Act 1861. Evidenceindicated that, through an act of “witchcraft”, she hadbeen “instructed” by her grandmother and paternal auntwhile in a trance to kill her mother. The trial proceedingshad also involved expert evidence submitted by twoanthropologists one of whom attended the workshop. Theworkshop was intended to address a number of questionsabout the role of anthropologists and other “cultural”experts in court proceedings in the UK as follows:

1. In what kinds of cases have “experts” found themselvesinstructed, or have solicitors considered instructingexperts?

2. What kinds of issues did those instructions invite theirrecipient to address?

3. How far did those instructions make sense to therecipients from a specialist anthropological and/or legalpoint of view?

4. What challenges did solicitors encounter in instructing“experts” in this field?

5. How far did it prove possible to renegotiate thoseinstructions?

6. On what materials were experts expected to rely inpreparing their reports?

7. What are our experiences of issues of admissibilitybeing raised (a) By instructing counsel? (b) By counselfor the other side? (c) By the judge?

8. How can the character of the evidence which it isappropriate to set before the court in thesecircumstances best be defined?

9. Just what are the limits within which reports in thisfield must remain if they are to remain admissible?

10.From a legal perspective, just where are the stickingpoints when it comes to the introduction of evidence ofthis kind?

11.How frequently did we find ourselves giving evidence inperson during the course of the proceedings, and whatwas our experience of doing so?

The workshop was addressed by Professor Menski andDr Ballard. Both have been instructed as cultural expertsmany times in British courts and tribunals. ProfessorMenski focused on the plural structure of law by presentinga four-cornered kite model that incorporates state law,international law, the religious, ethical and moral, as well asthe socio-cultural dimensions of law. While this model isbeing tested continuously, it represents a novel way ofexploring the complex make-up of law and can potentiallyalso act as a way of testing the legitimacy of legal decision-making in different contexts, whether by legislatures,judges, individuals or experts providing opinions in courts.

Dr Ballard focused on the consequences of transnationaldiasporic populations, and the associated “transgressiveconsequences of globalization from below”, which areamong the contemporary factors disturbing modernnotions of jurisdictional certainty within nation-states. Thismeans that experts are faced with working within acontested field as they navigate between the demands andprocedures of official courts while attempting to representan emic perspective to explain what has occurred beforecases end up in the courts. They are most often made senseof by explaining the dynamics of kinship and family inminority contexts and, contrary to what is often assumed,rarely involve simply ‘religious’ issues. The cases aboutwhich experts are asked to provide opinions tend to arise insituations of conflict between the often individualisticallygrounded expectations of the dominant cultural and legalorder, and the networks of trust and reciprocity based onkinship and family within minority contexts, althoughevidently they also arise among contending partiesbelonging to minority ethnic communities when they evokedifferent bases to ground their claims.

Case studiesFour case studies were presented during the workshop,

shedding light on the range of issues that can potentiallyarise within the courts – from family matters and the bestinterests of children, to complex criminal trials involvingcharges relating to violence or murder. This range of cases,on the one hand, reveals that minority cultural issues cropup in virtually all legal fields and, on the other hand, showsthat legal practitioners can potentially request expertevidence in all such fields with their varying procedures,rules of evidence, and expectations on each party to thelegal proceedings. From the evidence of the case studiespresented, and other examples introduced during thegeneral discussion, it is evident that providing an expertreport may or may not result in an issue being resolved 13

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satisfactorily. Sometimes a settlement may be soughtbetween the parties in a civil or family dispute once theexpert has provided their view. At other times, an expertmay wait to be called to provide evidence in personwithout actually doing so, perhaps because of the tacticspursued by one side or the other. This could have the resultthat vital information from a particular angle is missed bythe court increasing the chances of a miscarriage of justice.

There was much discussion about the ways in whichlegal representatives and experts interacted. According toexperts, the types of instructions from legal representativescould vary a lot in terms of their detail, precision andrelevance to the family background or cultural context of acase. Among legal professionals, it is solicitors who mostoften have to frame instructions to experts. While somemay be aware of the culturally specific nature of thecontext their clients are faced with, most appear to possesslittle knowledge of this, thus establishing a difficult basisfor instruction and future interaction. Further, thoseinstructing the experts may not be the person under trialor a litigant, but instructions may also come from anofficial authority such as the prosecution or the children’sguardian. This increases the complexity of the potentialdynamics that come into play for experts. Still it wasconsidered important to engage with the lawyers orauthorities who are instructing experts so as to arrive atsome sort of understanding about the approach that wouldbe most worthwhile in enabling the court to be appraisedof the relevant aspects of the case when viewed from aculturally informed perspective. This may not always bepossible and experts’ reports can also be suppressed ifconsidered against the tactics that lawyers plan to adoptbefore the court.

Often very limited documentation about a case isprovided to an expert. This means the expert may have to“second guess” other dimensions that pertain to a case ormust demand further documentation which sheds furtherlight on an investigation or background factors. This flowof information may occasionally be blocked to an experteither because of rules of confidentiality or because oftactical reasons. However, there was a consensus that it isadvisable to ask for as much detail about a case as possible.

One participant noted that culturally relevant evidence ismost often demanded in official legal contexts but not asfrequently in other official settings such as social work,even though one might have expected the reverse to be thecase. This phenomenon may have to do with prevailinglegal aid structures. Once legal aid is reduced, as it isbound to be under current proposals, it may impact uponhow far expert evidence will be adduced in future. Asthings stand, experts expressed that they found itworthwhile to be involved in legal proceedings in some wayas that represents a way of their being able to apply theirskills and knowledge to a practically useful end, and therewas a consensus that experts can help the process of justicebe pushed further along by providing valuableinformational input without which decision makers wouldoften be in the dark about important aspects of a case. Itwas recognised that there is always a tension in wantingjustice to be done while being only one part of a complex

legal machine which demands that one restrict oneself to anarrow set of instructions, to the confines of the rules ofevidence, and to a role ascribed by the court procedures.

Role of expertsIt was emphasised that, while cultural experts can assist

in casting relevant light on certain facts of a case, they couldnot usurp the role of the court and become final arbiters offact. There was some discussion however about how muchof the expert’s role was to establish facts or to provide acertain light on how existing facts could be interpretedwhen set against the cultural context in which they tookplace. Certainly, when experts got involved in cases theycould enable the various actors within the court process tosee the facts in ways that they did not previouslyappreciate, and that could have a crucial role in reshapinga case. It was recognised that stepping over the boundarieswhich were being set for the expert’s role, however hazythose boundaries may be, could result in a report beingdeemed inadmissible. It may yet be the case that sometypes of culturally specific information, for example theuse of witchcraft, may be inherently difficult tocommunicate to a court given the boundaries of what isand is not considered acceptable with a particular culturalsetting including that of the court.

There was a consensus that some kind of ongoingnetwork of experts would be of help in exchanginginformation and for mutual support. Often culturalexperts are working in isolation from one another andhaving a sounding board could be a useful supportmechanism. It was also felt that future meetings wouldhelp in the ongoing multilogue in which this workshop wasa first step. An e-mail discussion group could, it wassuggested, also be set up to facilitate activities anddiscussions. It was also suggested that ways should befound to interact with the Judicial Studies Board as thatbody would have a natural interest in the kind of issuesbeing discussed. A recently published book is one of thefirst to chart some of the workshop’s themes within awider comparative context, with several of the workshopparticipants having written chapters for it. Those interestedshould look out for Livia Holden (ed), Cultural expertise andlitigation: Patterns, conflicts, narratives (London: Routledge,2011). Clearly this is a critical and underexplored issue andone that will not go away given the consequences of rapidcultural pluralisation of Western countries.

Prakash Shah

Department of Law, Queen Mary, University of London

IALS joins Free Access to LawMovement

The Institute of Advanced Legal Studies – in the shapeof “IALS Information Projects” and through thedevelopment of IALS Digital Collections – has just becomea member of the worldwide Free Access to Law Movement.14

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FALM is a loose alliance of over 30 institutes andorganisations which subscribe to the Declaration on FreeAccess to Law and collaborate in the free provision of legalinformation and on global policy issues.

The declaration (which appears athttp://www.worldlii.org/worldlii/declaration/) also lists themember organisations based in countries and regions such asAustralia, Canada, Cyprus, Hong Kong, India, Italy, PacificIslands, Philippines, Southern Africa, Uganda, and the USA.

Professor Graham Greenleaf of the University of NewSouth Wales and a co-founder of the Australasian LegalInformation Institute, the first of its kind, will be a visitingfellow at IALS during the Summer 2011 as inauguralCommonLII Fellow working to develop the CommonwealthLegal Information Institute (http://www.commonlii.org/).

New research role for ProfessorSherrProfessor Avrom Sherr, Woolf Professor of Legal Educationand Director of the Institute of Advanced Legal Studies,has been given an important new role as a member of theReview Research Team in the major review of legaleducation and training (“Review 2020”) announced by theSolicitors Regulation Authority (SRA), the Bar StandardsBoard (BSB) and ILEX Professional Standards (IPS), theregulator of the Institute of Legal Executives.

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All events take place at the Institute of Advanced LegalStudies except where otherwise indicated. CPDaccreditation is provided with many events. Lecturesand seminars free unless specified. If you wish toattend an event please RSVP to Belinda Crothers,Academic Programmes Manager, IALS, 17 RussellSquare, London WC1B 5DR (tel: 020 7862 5850;email: IALS.Events@sas.ac.uk). Belinda should alsobe contacted for CPD enquiries and all other queries.See also our website for further information(http://www.sas.ac.uk/events/list/ials_events)

Sunday 4 September – Sunday 11 September

Cambridge InternationalSymposium on Economic Crime2011Jesus College, Cambridge

Responsibility for risk

The 29th symposium will focus primarily on theresponsibility of those who look after other people’swealth, or who advise or oversee those who do, to identifyand manage risk. The symposium will concentrate inparticular on risks resulting from criminal and subversiveactivity and, perhaps perversely, those thrown up by lawsand regulatory initiatives designed to attack criminalactivity. There will be a focus on the identification andcontrol of real threats confronting the financial system, andin particular financial institutions, from those who engagein self-dealing, corrupt practices and fraud, or who assistand facilitate the crimes of others by laundering criminalproperty or evading taxation. The regulatory andenforcement environment has changed in manyjurisdictions as a result of the financial crisis, and theperimeters of responsibility and therefore liability havebecome even less clear.

The full programme for ‘Responsibility for risk’ is availableon the symposium website (www.crimesymposium.org).For further information, contact the Symposium Manager,mrs Angela Futter, at Jesus College, Cambridge CB5 8BL(tel: + 44 (0) 1223 872160; email: info@crimesymposium.org).

Monday, 5 September, 11am – 4pm

SeminarPlaying the numbers game? Understanding thecoalition’s immigration policy

The seminar will provide an opportunity for reflection onthe coalition’s immigration policy to date. How is its focuson targets and caps within immigration control to beexplained? Is it defensible to use numbers in this way,either normatively or practically? Which other objectives,or consequences, may be identified in coalitionimmigration policy, particularly in the currentconsultations on settlement and family reunion?

Introductory remarks from BERNARD RYAN, LawSchool, University of Kent

The programme will feature two sessions withcontributions from BRIDGET ANDERSON, the Centrefor Migration Policy and Society (COMPAS), University ofOxford; MARTIN RUHS, COMPAS; HINA MAJID,Legal Policy Director, Joint Council for the Welfare ofImmigrants; DON FLYNN, Migrant Rights Network;KATHERINE CHARSLEY, School of Sociology,University of Bristol; MARISSA BEGONIA, Justice forDomestic Workers.

Jointly organised by Bridget Anderson on behalf ofCOMPAS and Bernard Ryan on behalf of the MigrationLaw Network, with funding from COMPAS. The seminaris an invitation-only event, and anyone who would like torequest an invitation should contact Ida Persson(communications@compas.ox.ac.uk).

IALS Events

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Thursday, 8 September, 6pmSAM GURNEY

Policy Officer, European and International RelationsDepartment, TUCInternational labour standards – how effective is the current system?Arranged with the Solicitors International Human RightsGroup (SIHRG) and the Society for Advanced Legal Studies(SALS)

Monday, 3 October, 4pmHamlyn Seminar 2011

Lawyers and the public goodAuthor: PROFESSOR ALAN PATERSON OBEDiscussants: PROFESSOR DAME HAZEL GENN,UCL; PROFESSOR DAVID FELDMAN QC, Universityof Cambridge; PROFESSOR RICHARD MOORHEAD,University of Cardiff;The book of the 2010 Hamlyn lectures by CambridgeUniversity press will be launched at the seminar.

Wednesday 5 October, 6pmPROFESSOR CHRISTOPHER MILLARD

Centre for Commercial Law Studies, Queen Mary,University of LondonCloud computing: identifying and managing legal risksThe Cloud Legal Project was initiated in October 2009 withsupport from Microsoft Corporation, and a team of specialistsat the Centre for Commercial Law Studies, Queen Mary, isinvestigating a range of cloud-related legal and regulatory issues(see http://cloudlegalproject.org for further information).

Tuesday, 18 October, 6pmPROFESSOR IAN WALDEN

Centre for Commercial Law Studies, Queen Mary,University of LondonCloud computing and law enforcement access to confidential dataThe Cloud Legal Project was initiated in October 2009with support from Microsoft Corporation, and a team ofspecialists at the Centre for Commercial Law Studies,Queen Mary, is investigating a range of cloud-related legaland regulatory issues (see http://cloudlegalproject.org forfurther information).

Wednesday, 19 October, 6pmED VULLIAMYSenior Correspondent, The Observer/The Guardian

Bosnia – an overview of the historical and current situation

Friday 21 October, 2.00 - 5.40pm

SymposiumEU defence rightsSpeakers: DR SIMONE WHITE, OLAF; DRMARIANNE WADE, University of Birmingham; JODIEBLACKSTOCK, Justice; DANIEL MANSELL, Fair TrialsInternational; PROFESSOR JOHN SPENCER,University of Cambridge

Conference organised by the IALS, University ofBirmingham, European Criminal Law Association (UK), FairTrials International and Justice. Event free, but those wishingto attend must register in advance (IALS.Events@sas.ac.uk)

Thursday, 27 October, 6pmAINA KHAN

Senior Consultant Solicitor, Family Law Department,Russell Jones & Walker

Islamic family law in legal practice

Monday, 31 October, Senate House, 6pmSir William Dale Memorial Lecture 2011

ELEANOR SHARPSTON QC

Advocate General at the European Court of Justice

Chair: Hon Mr Justice SALES

Drafting comprehensible legislation in a multi-lingual, multi-legal-system environment

(title tbc)

Tuesday, 1 November, 6pmDR JULIA HORNLE and KUAN HON

Centre for Commercial Law Studies, Queen Mary,University of London

Data protection jurisdiction in cloud computing and internationaldata transfers

The Cloud Legal Project was initiated in October 2009 withsupport from Microsoft Corporation, and a team of specialistsat the Centre for Commercial Law Studies, Queen Mary, isinvestigating a range of cloud-related legal and regulatory issues(see http://cloudlegalproject.org for further information).

Wednesday, 16 November, 6pmALEH VOLCHEK and HARRY POGINIAJLO

Human rights lawyers, Belarus

The situation in Belarus – is there any hope for democracy?

Arranged with the Solicitors International Human RightsGroup (SIHRG) and the Society for Advanced Legal Studies(SALS).

Thursday 17 November, 5.00 -7.00pm

SeminarThe European Investigation Order: progress update

Speakers: KENNY BOWIE and SARA KHAN, JudicialCo-operation Unit, Home Office

Chair: PROFESSOR JOHN SPENCER, President,European Criminal Law Association

Monday, 5 December 6pmSIMON PIRANISenior Research Fellow, Oxford Institute of Energy Studies

Russia: the view of the economy under Putin and the relationshipbetween economy and politics16

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