UNIVERSITY OF NORTHUMBRIA

SCHOOL OF LAW

LLM (Medical Law)

DISSERTATION

THE ROLE OF THE EXPERT WITNESS

Rotimi A. K. Jaiyesimi

August 2007
 This dissertation paper is presented in part fulfilment of the
requirements for the award of the degree, LLM [Medical Law]

Project Supervisor: Dr. Michael Stockdale

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Dedicated to my wife, Morenike, and children Tayo and Deji
Thanks for your love and constant encouragement

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 CONTENTS
Page

List of Cases 6

List of Statutes 10

Acknowledgment 11

Introduction 12

CHAPTER 1 The Expert Witness 14

The Judicial System 14

Duties of an Expert Witness 18
Who is an Expert Witness 21
Expert Evidence 24
Choice of Expert 35

CHAPTER 2 The Woolf Reforms and The Auld’s Report

The Civil Procedure Rules 42

The Single Expert Witness 44
Criticisms of Woolf Reforms 47
The Auld‘s Report and Criminal Procedure Rules 47

CHAPTER 3 Pitfalls of being an Expert Witness 51

Partisanship 51
Conflict of Interests 54
Area of Expertise 55
Expert Immunity and Liability 58

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 CONTENTS
Page

CHAPTER 4 Training and Regulation of Expert Witnesses

Training 62
Accreditation 64
Sanctioning 68

CHAPTER 5 The Expert Witness: the future 70

Accreditation and Admissibility 71

Peer Review 71
New Roles 72

CHAPTER 6 Conclusion 79

APPENDICES 82

BIBLIOGRAPHY 98

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 List of Cases

1. Anderson v R [1972] AC 100.

2. Anglo Group plc v. Winter Brown & Co. Ltd. [2000] England and
Wales High Court (Technology and Construction Court) Decisions.
March.
3. Armstrong & Connor v First York [2005] EWCA Civ 277.
4. Arthur J.S. Hall & Co v Simons ([2000] 3 All ER 673)
5. Autospin (Oil Seals) Ltd -v- Beehive Spinning [1995] RPC 683.
6. Beaudoin c. Banque de developpement du Canada, [2004] J.Q. no
705 (translated).
7. Cala Homes (South) Ltd and Others -v- Alfred McAlpine Homes
East Ltd [1995] FSR 818.
8. Campbell v. News Group Newspapers Ltd [2002] E.M.L.R. 43
[2002] EWCA Civ 1143 CA.
9. Casey v Cartwright [2006] EWCA Civ 1280.
10. Causton v. Mann Egerton (Johnsons) Ltd [1974] 1
W.L.R. 162, 170.
11. Cipla v Glaxo [2004] RPC 43.
12. Cooper Payen Ltd v Southampton Container Terminal Ltd [2003]
EWCA.Civ.1223.
13. Daniels v Walker (2000) 1 WLR 1382.
14. Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579 (1993).
15. Davis v Edinburgh Magistrates Court (1953) SC 34.
16. Derby & Co Ltd. and Others -v- Weldon & Others The Times, 9th
November 1990.
17. Dietrich v R (1992) 177 CLR 292, 335.
18. Dover District Council v Sherred and Another (CA, 5 February).
19. English Exporters (Ldn) Ltd v Eldonwall Ltd [1973] Ch 415.
20. E S (By her Mother & Litigation Friend D S) V Chesterfield &
North Derbyshire Royal Hospital NHS Trust [2003] EWCA Civ
1284 (C.A)
21. Evans v London Hospital Medical College [1981] 1 W.L.R. 184.
22. Folkes v Chadd [1782] 3 Douglas KB 157.

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23. Frye v United States 293F.1013 (1923).
24. Gareth Pearce v Ove Arup Partnership [2001] EWHC 455 (Ch).
25. General Medical Council with Her Majesty‟s Attorney General v
Professor Sir Roy Meadow. [2006] EWCA Civ 1390.
26. GW & PW v Oldham Metropolitan Borough Council and another.
[2005] EWCA Civ 1247.
27. H v Schering Chemicals [1983] 1 All ER 849.
28. Harmony Shipping Co S.A. v Saudi Europe Line [1979] 1 WLR
1380 1386G
29. Ikarian Reefer [1993] 2 Lloyds Rep. 68.
30. Joyce v Yoemans [1981] 2 All ER 21.
31. J S Hall & Co. v Simons (2002 1 AC 615 HL)
32. Kearsley v Klarfeld [2006] 2 All ER 303.
33. Kirkman v Euro Exide Corporation (CMP Batteries Ltd), In: Times
Online, February 6, 2007.
34. Main v Andrew Wormald Ltd 1988 SLT 141.
35. Meadow v General Medical Council [2006] EWHC 146 (Admin).
36. National Justice Compania Naviera SA v Prudential Assurance Co.
Ltd. (Ikarian Reefer) (1993) The Times, 5 March, [1993] 2 LL R 68
37. Oldham MBC v GW & Ors [2007] EWHC 136 (Fam)
38. Osman v United Kingdom [2000] 29 EHRR 245
39. Phillips &Others v Symes & Others (2004 EWHC 1887 (Ch)).
40. Phillips v Symes [ 2004] EWHC 2330 (Ch).
41. Polivitte Ltd. v Commercial Union Assurance Co Plc [1987] 1
Lloyds Rep 379.
42. R v. Abadom [1983] 1 W.L.R. 126, CA.
43. R. v. Adams ([1996] 2 Cr App Rep 467).
44. R v Bonython [1984] SASR 45.
45. R v Bowman (Thomas Damien) [2006] EWCA Crim 417.
46. R v. Cannings [2004] EWCA Crim.1.
47. R v Clark [2003] EWCA Crim1020.
48. R v Clarke [1995] 2 Cr App R 425.
49. R v. Dallagher [2003] 1 Cr. App. R. 12 [2002] EWCA Crim 1903
CA (Crim Div)

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50. R v Doheny [1997] 1 Cr App R 369
51. R v Emery [1993] 14 Cr.App.R (S) 394.
52. R v Gerrard Francis Luttrell and others (2004) EWCA Crim 1344
53. R v Gilfoyle (No 2) [2001] 2 Cr App R 57.
54. R v Gilfoyle, Case No:990180053, Court of Appeal (Criminal
Division), 20th December 2000
55. R v Harris [2005] EWCA Crim 1980.
56. R v Inch [1989] 91 Cr App R 51
57. R v Jennion [1962] 1 WLR 317.
58. R v Lanfear [1968] 2 QB 77.
59. R v Momodou and Limani [2005] ECWA Crim 177; [2005] 1 WRL
3442
60. R v Oakley (1979) 70 Cr App R 7.
61. R v Robb (1991) 93 Cr App R 161.
62. R -v- Sally Clark [2003] EWCA Crim 1020.
63. R v Silverlock [1894] 2 QB 766
64. R v Skinner (1763) Lofft 54, [1558-1774] All ER Rep 321.
65. R. v Stockwell [1993] 97 Cr App R 260.
66. R v Tilley [1961] 1 WLR 1309.
67. R v Toner [1991] Crim LR 627.
68. R v Turner [1975] 1 QB 834 (CA).
69. R v Turner [1975] 1 All. ER 70.
70. Raiss v Paimano [2000] All ER (D) 1266.
71. Re AB (Child Abuse: Expert Witnesses) [1995] 1 FLR 181.
72. Re B (sexual abuse: expert‟s report) [2000] 1 FLR 871, CA.
73. Re M and R (Minors) (Expert Opinion Evidence) [1996] 2 FCR 617
74. Re M and R (Minors) [1996] 4 All ER 239.
75. Re N (a minor) (child abuse:evidence) [1996] 2 FLR 214.
76. Re S and B (Child Abuse: Evidence) [1990] 2 FLR 489
77. Rochdale Borough Council v A [1991] 2FLR 192 at 208-10.
78. Simms v Birmingham Health Authority [2001] Lloyd‘s Law Reports
382. 4.19.
79. Stanton v Callaghan [1999] 2 WLR 745
80. Stanton v Callaghan [2000] QB 75, [1998] 4 All ER 961.

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81. Stevens v Gullis [2000] 1 All ER 527.
82. Strudwick and Merry (1993) 99 Cr App R 326
83. Takenaka (UK) Limited and Brian Corfe v David Frankl [2000
Civil Procedures Rules] (Unreported. 11th October 2000 –
HQ0000328)
84. Toth v Jarman [2006] EWCA Civ 1028.
85. Whitehouse v Jordan [1981] 1 WLR 246.
86. X (Minors) v Bedfordshire CC [1995] 2 A.C.633.
87. X YZ v Schering Health Care Ltd [2002] All ER (D) 437 (Jul).

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 List of Statutes

1. Civil Procedure Rules 1999

2. Civil Procedure Rules. Practice Direction - Experts and Assessors

3. Civil Procedure Rules Part 35 Practice Direction

4. Civil Procedure Rules, Part 35 Experts and Assessors

5. Civil Procedure (Amendment No. 5) Rules 2001

6. Civil Evidence Act 1972.

7. Civil Evidence Act 1995

8. County Court Rules 1981

9. Criminal Justice Act 2003

10. Criminal Procedure Rules 2005

11. Criminal Procedure (Amendment No. 2) Rules 2006

12. Federal Rules of Evidence

13. Magistrates‘ Courts (Hearsay Evidence in Civil Proceedings) Rules

1999

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 Acknowledgement

Sincere appreciation to my supervisor, Dr. Michael Stockdale, for the light

shed on to this topic and for his invaluable help in preparing this
dissertation.

Thanks to:

My teachers on the LLM programme

for inspiring knowledge

My colleagues on the programme (Kemi, Obi, Alex)

for acting as sounding boards

The LLM (Medical Law) Office Staff

for making it a smooth journey

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 INTRODUCTION

The civil and criminal justice systems were reviewed in 1994 and1999
respectively. The review led to the promulgation of the Civil Procedure
Rules 1998 and Criminal Justice Act 20031 respectively. The Civil
Procedure Rules 1998 defined the duty of expert witnesses to the courts
rather than to the instructing parties. It was a move from the adversarial
system to a more inquisitorial system, with the emergence of a stronger
case management of experts.

This dissertation, referring to case law, rules of the court and other
materials, reviews the role of the expert witness and what constitutes expert
witness testimony. It explores the efforts to reform the expert witness
process and goes on to identify the pitfalls of expert witnesses and their
evidence. Suggestions to improve the credibility of the expert witness and
recommendations for training, credentialing and regulation of the expert
witness process are presented.

Chapter 1 of this dissertation will explore the role of the expert witness in
the Civil and Criminal Justice systems.

Chapter 2 explores what situations led to the Woolf reforms and how this
has shaped the role of the expert witness. The new Civil Procedure Rules 2,
a result of Lord Woolf‘s review, came into force in 1999, and established
the role of the expert witness. The appointment of single joint expert by the
courts is discussed. Justice Auld undertook a review of the Criminal Justice
system and his report culminated in the White paper, Justice for All3 and the
Criminal Procedure Rules Part 33 (Expert Evidence),4 which relates to
expert witnesses. The effect of Part 33 in relation to expert witnesses is
explored.

1
Criminal Justice Act, 2003
2
Civil Procedure Rules 1999.
3
Justice for All. CM5563. Published by the Stationery Office. 2002.
4
Criminal Procedure Rules, Part 33 (Expert Evidence), 2006.

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Chapter 3 describes the potential pitfalls that expert witnesses may
encounter.

Chapter 4 provides a discussion on the areas pertaining to the training,

registration, accreditation and regulation of expert witnesses.

Chapter 5 looks into what the future holds for expert witnesses with
regards to expanding roles within the judicial system.

Chapter 6 provides a conclusion to the dissertation.

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 CHAPTER 1

THE EXPERT WITNESS

The adversarial system is based on the assumption that the fairest and most
effective method of determining the truth of a matter is to allow the parties
to put their respective cases in their own way. This assumption depends
upon the parties being able to identify their own interests and fight their
own battles. The extent to which a party can do that will depend upon their
own qualities and resources and those of their legal representatives and
experts.5 It was seen as a contest between adversaries, with the judge being
neutral, and independent, with the rules of the contest being the rules of
evidence.6

The purpose of expert evidence in contemporary litigation is to assist the

judge and jury, or a judge sitting alone, to reach the right decision. The
courts seek the help of the expert witness when the resolution of disputes
entails technical or specialised evidence. The earliest records of using
experts date back to the 14th century, and involve cases in which surgeons
were summoned to establish such things as whether a wound was fresh.
Cases from the 16th and 17th centuries also show that surgeons were
summoned to give expert opinion on the cause of death.7

The seminal case of Folkes v Chadd8 accepted that the evidence of expert
witnesses was an exception to the general rule prohibiting mere opinion
evidence. The expert witness, as such is allowed to give their opinion in
criminal and civil proceedings in relation to an issue if the court requires
the expert‘s assistance in order to form its opinion. Admissibility of the
evidence is determined by the judge and the court can assert inferences

5
Dietrich v R (1992) 177 CLR 292, 335.
6
Archer, P. The Queen's Courts, Second edition, Penguin Books, London, 1968.
7
L Hand, ―Historical and Practical Considerations Regarding Expert Testimony‖ (1901) 15
Harvard Law Review 40; C T Moodie, ―Expert Testimony – Its Past and Its Future‖ (1937)
11 Australian Law Journal 210; C Jones, (1994) Expert Witnesses: Science, Medicine and
the Practice of Law (Clarendon Press, Oxford) at 35-38; J H Wigmore, A Treatise on the
Anglo-American System of Evidence in Trial at Common Law (3rd edition, Little Brown
and Company, Boston, 1940) Vol 7 at para 1917.
8
Folkes v Chadd [1782] 3 Douglas KB 157.

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from what they know and from the views of witnesses9. Though expert
witnesses give evidence, they do not decide the ultimate issue of the case as
that is the role of the jury10. Expert opinion will only be admissible in civil
proceedings in relation to an ultimate issue, if the court requires the
assistance of an expert in order to reach an informed decision in relation to
the relevant matter which falls within the ambit of the expert‘s expertise.11
Section 3(2), (3) of the Civil Evidence Act 197212 permits a non-expert
witness to state his opinion on an ultimate issue in civil proceedings. The
current status of the ultimate issue rule in criminal and civil proceedings is
discussed further under the role of the expert witness. The judicial system is
served by the judge, jury and the expert witnesses. Each component has
well defined roles as is explained below.

The role of the Judge

The vast majority of civil trials do not involve a jury. The judge hears them
on his or her own, deciding them by establishing facts, applying the
relevant law, and then giving a reasoned judgment. The role of the judge, is
stated in XYZ v Schering Health Care Ltd,13 and includes selecting the
issues that appear to matter, evaluating the evidence and making clear to the
jury that they were not bound by an expert witness‘s opinion. The weight to
be attached to the evidence of an expert witness is entirely a matter for the
tribunal of fact as in Davis v Edinburgh Magistrates Court.14 Reaffirmation
that judges are not bound to accept the expert evidence placed before them
came in Dover District Council v Sherred and Another15. The court
dismissed an appeal from the order of a county court judge quashing a
notice of repair that Dover District Council had served on the trustees
responsible for one of its properties. Counsel for the council argued that in a
case which depended on technical issues, the judge should have decided it

9
Aronson M & Hunter J Litigation: Evidence and Procedure 5th ed, Butterworths 1995,
955 referring to Freckelton, I. & Selby, H. Expert Evidence Law Book Company Looseleaf
Service chap 2.
10
Phipson on Evidence (1980) 12th ed., Sweet & Maxwell, at 486.
11
Re M and R (Minors) [1996] 4 All ER 239.
12
Civil Evidence Act 1972.
13
XYZ v Schering Health Care Ltd [2002] All ER (D) 437 (Jul).
14
Davis v Edinburgh Magistrates Court (1953) SC 34.
15
Dover District Council -v- Sherred and Another (CA, 5 February).

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in accordance with the expert evidence before him and not substituted his
own opinion of the matter.

Evans LJ confirmed that where expert evidence was admissible to help a

judge reach a properly informed decision on a technical matter, then he
could not set his own lay opinion against the expert evidence that had been
produced. On the other hand, he was not bound to accept the evidence even
of an expert witness if there was a proper basis for rejecting it in other
evidence he had heard or – as in this case – the expert evidence was such
that, taking into account his own knowledge of contemporary affairs, the
judge was not convinced by it.

The jury’s role

The role of the jury is expressed succinctly by Thompson: “The English
common law rests upon a bargain between the Law and the People. The
jury box is where people come into the court; the judge watches them and
the jury watches back. A jury is the place where the bargain is struck. The
jury attends in judgment, not only upon the accused, but also upon the
justice and humanity of the law”16

The judicial task is to make a decision in the light of all the evidence. The
jury may also take into account the demeanour of the expert witness,
though this is not as important as with other witnesses.17 Juries are under a
solemn duty to return a verdict, and their verdict only, in accordance with
the evidence. When the evidence of experts differs on a trial by jury, the
latter must decide the issue.18 The judge must make the jury aware that they
can ignore the evidence by the expert witnesses and must give its reasons
when it does so.

16
Thompson, EP. (1980). Writing by Candlelight, 1980. Humanities Press Intl.
17
Joyce v Yoemans [1981] 2 All ER 21.
18
R v Jennion [1962] 1 WLR 317.

16
The role of the expert witness
The principle regarding the need for expert testimony in courts is set in R v.
Turner:

“Expert witness testimony is admissible to furnish the court with…

information which is likely to be outside the experience and knowledge of a
judge or jury”.19

While one may expect that expert witness evidence may have an influence
on the outcome of each case, the general common law rule provides
limitation regarding the ultimate issue.

The ultimate issue rule was designed to ensure expert witnesses did not
usurp the function of the jury, whose task is to draw the necessary
inferences from the evidence. It ensures that the jury is not swayed into
easy acceptance of a convincingly argued opinion. The rule was abolished
in 1972, but remained in force in English law more in name than in
practice.

R v Doheny20 demonstrated that the rule was undergoing a revival. The

expert in this case, having given evidence as to DNA profiles obtained from
a stain left at the scene of the crime which matched that of the defendant,
and the statistics involved in that profile being shared with other persons,
was directed not to give his opinion that the defendant was therefore the
offender, because this involves factors other those within his area of
expertise.

R v Toner21 showed that expert testimony was still necessary in technical

matters. The English courts operate within the scope of the Civil Procedure
Rules 1999,22 which allow the court to decide whether expert evidence is
needed. The parties have no right to rely on expert evidence without the
court‘s permission, and all expert witnesses, regardless of who calls them,

19
Dennis, IH. The Law of Evidence (Sweet & Maxwell 1999) at p. 660, citing R v. Turner,
[1975] 1 All. ER 70.
20
R v Doheny [1997] 1 Cr App R 369.
21
R v Toner [1991] Crim LR 627.
22
Civil Procedure Rules, 1999

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have an overriding duty to the court. This was a key development that
buttressed what the ultimate issue rule set out to achieve. The expert must
not venture an opinion on the legal points in the case and the court is not
bound to adopt the opinion of the experts.23

In determining the continuing significance of the ultimate issue rule, it is

important to note the following comments in, Archbold‘s Criminal
Pleading, Evidence and Practice: “An expert is now permitted to give his
opinion on what has been called the ultimate issue, but the judge should
make it clear to the jury that they are not bound by the expert‟s opinion,
and that the issue is for them to decide”.24 This is a laudable safeguard
because if experts were deemed capable of providing definitive opinions
conclusive of certain issues, the dawn of trial by the experts will not be far
away. The value of expert testimony depends on a rigorous scientific
demonstration of its validity and a degree of flexibility needed to satisfy the
twin exigencies of valid scientific expert information and the structures of
the law. The ultimate issue rule defines the boundaries for the expert and
the rule still has on going relevance in both criminal and civil proceedings.

The duties of an Expert Witness

The duties of an expert in court is supported by case law in The Ikarian
Reefer25 judgement and expanded in Anglo Group plc, Winther Brown&
Co. Ltd v Winter Brown & Co. Ltd26. The Ikarian Reefer involved a vessel
that ran aground and caught fire; the insurers argued that the vessel was the
subject of arson by the owners, and in this regard they relied on expert
evidence. Mr Justice Cresswell‘s guidance has largely been incorporated
into the Civil Procedure Rules. Part 35 of these Rules encapsulates the
duties of the expert.

23
Howlin N. (2004) Special Juries: A solution to the expert witness?, Vol. 12.
24
Archbold‘s Criminal Pleading, Evidence and Practice (2003) London, Sweet &
Maxwell.
25
National Justice Compania Naviera SA v Prudential Assurance Co. Ltd. (Ikarian Reefer)
(1993) The Times, 5 March, [1993] 2 LL R 68 at 81-82 cited with approval by Otton LJ in
Stanton v Callaghan [1999] 2 WLR 745 at 774.
26
Anglo Group plc v. Winter Brown & Co. Ltd. [2000] England and Wales High Court
(Technology and Construction Court) Decisions. March.

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Lord Cresswell J in the Ikarian Reefer27 shed light on the duties of the
expert witness, in stating:

“The duties and responsibilities of expert witnesses in civil cases include

the following:
“ 1. Expert evidence presented to the court should be, and should be seen to
be, the independent product of the expert uninfluenced as to form or content
by the exigencies of litigation.28

2. An expert witness should provide independent assistance to the Court by

way of objective, unbiased opinion in relation to matters within his
expertise.29 An expert witness should never assume the role of an advocate.

3. An expert should state facts or assumptions upon which his opinion is

based. He should not omit to consider material facts which could detract
from his concluded opinion.

4. An expert witness should make it clear when a particular question or

issue falls outside his area of expertise.

5. If an expert‟s opinion is not properly researched because he considers

that insufficient data is available, then this must be stated with an
indication that the opinion is no more than a provisional one.

6. In cases where an expert witness, who has prepared a report, could not
assert that the report contained the truth, the whole truth and nothing but
the truth without some qualification, that qualification should be stated in
the report.30

7. If, after exchange of reports, an expert witness changes his views on a

material matter having read the other side‟s report or for any other reason,
such change of view should be communicated (through legal
representatives) to the other side without delay and when appropriate to the
court.

8. Where expert evidence refers to photographs, plans, calculations,

analyses, measurements, survey reports or other similar documents, these
must be provided to the opposite party at the same time as the exchange of
reports.”

27
Ikarian Reefer [1993] 2 LILR 68, at 81-82.
28
Whitehouse v Jordan [1981] 1 WLR 246
29
Polivitte Ltd. v Commercial Union Assurance Co Plc [1987] 1 Lloyds Rep 379
30
Derby & Co Ltd. and Others v Weldon & Others The Times, 9th November 1990 per
Lord Justice Staughton.

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Mr Justice Laddie reiterated the duties of the expert witness in Cala Homes
(South) Ltd and Others v Alfred McAlpine Homes East Ltd,31 stating,
“The function of a court of law is to discover the truth relating to the issues
before it. In doing that it has to assess the evidence adduced by the parties.
…….

That some witnesses of fact, driven by a desire to achieve a particular

outcome to the litigation, feel it necessary to sacrifice truth in pursuit of
victory is a fact of life. The court tries to discover it when it happens. But in
the case of expert witnesses the court is likely to lower its guard.

Of course the court will be aware that a party is likely to choose as its
expert someone whose view is most sympathetic to its position. Subject to
that caveat, the court is likely to assume that the expert witness is more
interested in being honest and right than in ensuring that one side or
another wins. An expert should not consider that it is his job to stand
shoulder-to-shoulder through thick and thin with the side that is paying his
bill..”

There have been case laws supporting these principles in Anglo Group plc v
Winther Brown & Co. Ltd32 and R v Bowman.33 In the latter, the Court of
Appeal emphasised that both defence and prosecution experts ―should
maintain professional objectivity and impartiality at all times‖.

Expert witnesses in Criminal Proceedings

Gage, LJ, Gross, J and Mc Farlane, J in R v Harris34 affirmed that the
guidance on the obligations of experts given by Cresswell J in the Ikarian
Reefer35 are very relevant to criminal proceedings and should be kept in
mind by both prosecution and defence. It is important that expert witnesses
understand the obligations placed upon them by this status. These
obligations relate to disclosure and key actions of retaining, recording and
revealing.

Expert witnesses should retain everything, including physical, written and

electronically captured material, until otherwise instructed and the
investigator has indicated the appropriate action to take. In addition, experts
31
Cala Homes (South) Ltd and Others v Alfred McAlpine Homes East Ltd [1995] FSR 818
32
Anglo Group plc v. Winter Brown & Co. Ltd. [2000] England and Wales High Court
(Technology and Construction Court) Decisions. March.
33
R v Bowman (Thomas Damien) [2006] EWCA Crim 417.
34
R v Harris [2005] EWCA Crim 1980.
35
Ikarian Reefer [1993] 2 Lloyds Rep. 68 at p 81.

20
should commence to keep records at the time instructions are received and
should continue for the whole of the time the expert is involved. The expert
should keep records of all the work carried out and any findings made in
relation to the investigation. It is a necessary and important part of the
disclosure obligations for experts to make the Prosecution Team aware of
all the material in their possession in relation to the investigation. This will
then enable them to make informed decisions, as to what material is
relevant, and what material satisfies the disclosure test.

Amendments to the Criminal Procedure Rules 200536 [Appendix A] sees a

new Part 33 (expert evidence) substituting the existing Part 33, which sets
out the duty of an expert to the court and the content of an expert‘s report. It
allows the court to direct that defence evidence will be given by a single
joint expert. The amendment expressly defines the duty of expert witnesses,
outlined in Part 33.2 of the Criminal Procedure Rule:37

1. An expert must help the court to achieve the overriding objective by

giving objective, unbiased opinion on matters within his expertise
2. This duty overrides any obligation to the person from whom he receives
instructions or by whom he is paid
3. This duty includes an obligation to inform all parties and the court if the
expert‟s opinion changes from that contained in a report served as evidence
or given in a statement under Part 24 or Part 29.

Who is an expert witness?

It is imperative that expert witnesses who have the privilege to give an
opinion on the ultimate issue should be qualified and equipped to act as
such. It follows that one should define who an expert is, what qualifies one
to be such and to expect an unbiased report from the expert. An expert is
person who may give expert opinion evidence on a matter outside the

36
Statutory Instrument 2006 No. 2636: Expert evidence: The Criminal Procedure
(Amendment No. 2) Rules 2006.
37
The Criminal Procedure Rules 2005. Statutory Instrument 2005 No. 384 (L.4). Crown
Copyright.

21
experience of the court because he has the experience to give an informed
opinion.38

An expert as Lord Russell CJ said in R v Silverlock39 is ―someone who is

skilled and has adequate knowledge in an area of expertise‖. Qualifications
of an expert ‗may have been acquired through study, training or
experience.‟40 One can question whether study and experience gives a
witness‘s opinion an authority over the opinion of an expert witness who
has not undergone such study and experience. Current legislation gives
judges the power to determine if an expert witness has undertaken the
prerequisite course of study, or possesses expertise to render him an expert.
In R v Inch,41 a medical orderly with experience in the treatment of cuts and
lacerations was considered to be insufficiently qualified to express an
opinion as to whether an inch long cut to the head had been caused by a
blunt instrument rather than a head butt.

Lawton LJ in Turner42 expounded that the qualifications of the expert

constitute an indicium‘s of being permits that is skilled, but ―this does not
make his opinion on matters of human nature and behaviour within the
limits of normality any more helpful than that of the jurors themselves.‖43
In R v Oakley,44 a police officer with qualifications and training in accident
investigation, was permitted to give evidence as to how the crash had
occurred, on a charge of causing death by dangerous driving.

There are times when the expertise of the expert is disputed as in R v

Robb.45 The evidence of a voice identification expert who was well
qualified by training and experience was admissible, despite the fact that he
relied on a technique accepted by much of professional opinion to be
unreliable. The court was alive to the risk that if the prosecution were

38
Reay, R (2001) Evidence. (3rd ed). Old Bailey Press, London. p.304
39
R v Silverlock [1894] 2 QB 766.
40
Keane, C. (2000) The Modern Law of Evidence, 5th Ed. Butterworths, at pp.503-504.
41
R v Inch (1989) 91 Cr App R 51.
42
R v Turner [1975] 1 QB 834 (CA).
43
R v Turner [1975] QB 834 at 841.
44
R v Oakley (1979) 70 Cr App R 7.
45
R v Robb (1991) 93 Cr App R 161.

22
allowed to rely on an expert with some, but tenuous, expertise, the burden
of proof might shift imperceptibly and a burden cast on the defendant to
rebut a case which should not have been before the jury, but decided that
that was not the case.46

Cases arise in which a very high level of expertise is required, as in the

diagnosis of sexual abuse and domestic violence. For the court to rely on
opinion evidence in these cases or to admit it, the qualifications of the
witness must extend beyond the experience gained as a social worker. The
expert witness is such cases will be required to have clinical experience
akin to that of a child psychologist or psychiatrist.47

R v Emery,48 was the first reported appellate case specifically approving of

domestic violence expert witnesses testimony within the trial court in
English criminal proceedings. This was a landmark case in which a mother
was charged with the offence of cruelty to a child for failing to protect her
child from the child‘s father. She claimed duress as defence, alleging that
the child‘s father had routinely and severely abused the child as well as
herself. She claimed to be afraid of the child‘s father and had been unable
to act to protect her daughter.49

The court permitted two witnesses to testify on behalf of the mother as

experts on the issue of domestic violence. One expert‘s was a trained and
experienced psychiatrist who specialised in people‘s response to domestic
violence. The other expert witness was a trained and licensed psychologist,
with experience working with abused women. They both testified on behalf
of the child‘s mother with regards to the effects of serious and sustained
violence and abuse, especially of a woman by her partner.50 They were

46
E:\evidence\uwe.opinion.htm. Evidence. The Bar vocational course, Bristol Institute of
legal practice; University of West of England, Bristol.
47
Re N (a minor) (child abuse:evidence) [1996] 2 FLR 214.
48
R v Emery [1993] 14 Cr.App.R (S) 394.
49
R v Emery [1993] 14 Cr.App.R (S) 394.at p.395.
50
ibid

23
allowed to testify that domestic violence victims often excuse and minimise
the violence in order to cope with the situation.51

The court also permitted an expert to testify on behalf of the prosecution to

counter the evidence of the defence. The prosecution expert‘s was a
psychiatrist with experience in domestic violence. The prosecution expert‘s
testified that, though the child‘s father abused the mother, this abuse did not
undermine her autonomy and independence of action. The prosecution
expert‘s testimony was apparently persuasive to the jury, and they rejected
the mother‘s defence of duress. R v Emery, thus set was what would qualify
one to act as an expert witness in cases of domestic violence and on the
impact domestic violence has upon its victim.

Expert witnesses become competent through formal study, training,

experience, or both. The expert is required to provide impartial,
independent and unbiased evidence. He or she is expected to be truthful as
to fact, thorough in technical reasoning, honest as to opinion and complete
in coverage of relevant matters. This applies to both written reports and oral
evidence, and irrespective of whether the expert witness is on oath. The
expert‘s overriding duty is ―to help the court in matters within his
expertise‖ and ―this duty overrides any obligation to the person from whom
he has received instructions or by whom he may be paid,‖52 ―where there is
a range of opinion on the matters dealt with in the report, the expert shall
summarise the range of opinion and give reasons for his own opinion‖53.

What is expert evidence?

The purpose of expert evidence is to provide the court with scientific or
technical information that is likely to be beyond the knowledge and
experience of the judge or jury. Expert evidence may be given as opinion
evidence or evidence of fact. While lay witnesses may give evidence of
fact, the expert witness is expected to assist the court in reaching its
decision with technical analysis and opinion inferred from factual evidence.

51
R v Emery [1993] 14 Cr.App.R (S) 394.
52
CPR Part 35 rule 35.3.
53
CPR Part 35 Practice Direction.

24
To achieve this, expert evidence must provide as much detail as is
necessary to convince the judge that the expert‘s opinions are well founded.
It follows, then, that it will often include:

(1) factual evidence obtained by the witness that requires expertise in its
interpretation and presentation (2) factual evidence which, while it may not
require expertise for its comprehension, is inextricably linked to evidence
that does (3) explanations of technical issues (4) hearsay evidence of a
specialist nature, as well as (5) opinions based on facts adduced in the case.
It is then the function of the court, judge or jury, to decide the case.54

Factual Evidence
Where the expert witness‘s evidence is based on fact, those facts must be
proved independently. If the witness has no personal knowledge of the
facts, his evidence as to them will amount to inadmissible hearsay as in
English Exporters (Ldn) Ltd v Eldonwall Ltd.55 However, The Civil
Evidence Act 199556 abolished the rule against the admission of hearsay
evidence in civil proceedings in England and Wales.

The Act provides that evidence which is otherwise admissible should not be
excluded because it is hearsay. It applies to all civil proceedings in courts
and tribunals, but subject to compliance with the Magistrates‘ Courts
(Hearsay Evidence in Civil Proceedings) Rules 199957 which require the
party wishing to rely on hearsay evidence to provide written notice to the
other party and the court at least 21 days before the hearing.

Hearsay evidence is not admissible in criminal proceedings unless on

application by either party, the court decides that certain conditions,
contained in S114-117 of the Criminal Justice Act 200358 are satisfied.
Section 114, Subsections (1)-(3) set out the circumstances in which a
statement which is not made in oral evidence during criminal proceedings

54
Expert Witness Factsheet 2 Expert Evidence. J S Publications 2006.
55
English Exporters (Ldn) Ltd v Eldonwall Ltd [1973] Ch 415.
56
Civil Evidence Act 1995 s.1(4)
57
Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999.
58
Criminal Justice Act 2003 (c.44).

25
can be used as evidence of the facts stated within it. For example, if B was
charged with robbery of a jewellers, the prosecution might want A to testify
that B told her that he was ―outside the jewellers at midday on Monday‖ in
order to prove that B was outside the jewellers at the relevant time. As these
subsections remove the common law rule against the admission of such
hearsay evidence, this out-of court statement will be admissible in A‘s
testimony, provided it comes under one of the following heads: (i) It is
admissible under a statutory provision; (ii) It is admissible under a common
law rule preserved by this Chapter of Part 11 of the Act; (iii) The parties
agree that it can go in; or the court gives leave to admit the statement.59

The rule of expert evidence under Section 118 of the Criminal Justice Act
(CJA) permits an expert to give evidence of any relevant matter which
forms part of his professional expertise, although not acquired through
personal experience, and to draw upon technical information widely used
by members of the expert‘s profession. It is also acceptable for the expert
witness to refer to any works of authority, papers and results of experiments
that may assist in reaching an opinion. Hearsay evidence admissible
include, among others, Res gestae, public information such as published
works; public documents; records of certain courts; reputation as to
character and the rule of expert evidence. When expert opinion is based on
hearsay it must be verified by admissible evidence.

In H v Schering Chemicals,60 the expert referred to results of research into

the effect of the drug, Primados and letters and articles about it. These were
admissible for the very limited purpose of assisting the court to assess the
weight of the expert evidence, though they were not admissible in their own
right as that would be hearsay.

Lord McDonald stated in Main v Andrew Wormald Ltd:61

“It is, in my opinion, clear that an expert witness may in the course of his
evidence, make reference to passages from a published work and adopt
these as part of his evidence …. There are, however, limits to this practice.
59
Criminal Justice Act 2003.S114.
60
H v Schering Chemicals [1983] 1 All ER 849.
61
Main v Andrew Wormald Ltd 1988 SLT 141.

26
One is that the expert witness must first have testified specifically to his
own direct experience in the field in question.

Having done that he is entitled to supplement his evidence by reference to

recognised published works…. It is essential, however, that the introduction
of the literature be preceded by firm evidence from the expert as to his
personal experience in the specialist field concerned. If this is not so there
is a real danger that the literature becomes the primary evidence and is
given a status it should not acquire unless spoken to by a witness directly
responsible for its contents.”

The admissibility of expert opinion evidence when the opinion of the expert
witness was based on statistical evidence compiled by other experts who
did not testify was the bone of contention in R v Abadom.62 Evidence was
provided by expert witnesses for both parties. The counsel for the appellant
argued that it was dependent upon hearsay evidence and as such
inadmissible. Kerr LJ at p. 368H said:

“Once the primary facts on which their opinion is based have been proved
by admissible evidence they are entitled to draw on the work of others as
part of the process of arriving at their conclusion.”

Though technically hearsay, the Court of Appeal held admissible, the expert
opinion claiming that there was only a four per cent chance that glass found
in fragments on the shoes of the accused would be identical in composition
to glass broken at the scene of a burglary, notwithstanding that the statistics
on which the expert‘s opinion was premised, was collated by persons other
than the expert. It was admissible as helping to form the expert‘s opinion.

Section 127 of the Criminal Justice Act 200363 which is in force, addresses
the problem that arises where information relied upon by an expert witness
is outside the personal experience of the expert and cannot be proved by
other admissible evidence. The purpose is that the rules about advance
notice of expert evidence will be amended so as to require advance notice
of the name of any person who has prepared information on which the
expert has relied. It is expected that any other party to the proceedings will

62
R v Abadom [1983] 1 W.L.R. 126, CA.
63
Criminal Justice Act 2003.

27
be able to apply for a direction that any such person must give evidence in
person but a direction will only be given if the court is satisfied that it is in
the interests of justice.

The hearsay provisions of the Criminal Justice Act 2003 also revolutionised
the law relating to the admissibility and status of out-of court statements
made by witnesses. Anything said by a witness prior to oral testimony now
has the potential to be adduced in evidence to establish the factual truth of
what was said earlier or, even, to act as an effective substitute for statement
made in the witness box.64 In R v Momodou and Limani,65 the Court of
Appeal set an essential benchmark for the avoidance of coaching of
witnesses in criminal cases. In essence, witness training or witness coaching
is prohibited. However, the principle does not prohibit the training of expert
witnesses in the technique of giving evidence of a specialist kind to a jury.
The training could also include developing the ability to resist pressure to
go further in evidence than matters covered by the witnesses‘ specific
expertise. However, training of this kind should not be arranged in the
context of any forthcoming trial.

The principles set out in R v Momodou and Limani apply in criminal

proceedings. However, there is currently no authority on these matters in
relation to civil proceedings. Until such authority emerges, it would be
prudent to proceed on the basis that the general principles set out in R v
Momodou and Limani also apply to civil proceedings.66

Content of Expert Evidence

In civil cases, expert witnesses owe a duty to the court to give independent
and unbiased evidence that has not been written to favour the cause of the

64
Witness Testimony: Psychological, Investigative and Evidential Perspectives. (2006)
(Eds: Heaton-Armstrong, A, Shepherd, E. Gudjonsson, GH, Wolchover, D. Oxford
University Press, pxii.
65
R v Momodou and Limani [2005] ECWA Crim 177; [2005] 1 WRL 3442.
66
Witness Preparation - Momodou and Limani. Bar Standards Board.
http://www.barstandardsboard.org.uk/standardsandguidance/codeguidance/witnesspreparat
ion-momodouandlimani/

28
instructing party. Lord Wilberforce‘s judgment in Whitehouse v Jordan67
provides the classic definition of the expert‘s responsibility:
―... it is necessary that expert evidence presented to the court should be,
and should be seen to be, the independent product of the expert,
uninfluenced as to form or content by the exigencies of litigation.‖

Another requirement of expert witnesses is that where there is a range of

possible opinions, the expert must set out what these are and explain why it
is that he has formed a particular opinion.68 The precise extent of this duty
is not clear. Where there is a difference in methodology, an expert would
seem to be required to explain why he prefers one method of analysis over
another. What is the effect of this rule where experts might differ in the
application of one methodology to the facts of the case? Must an expert
imagine how another expert might apply the relevant theory to the facts? 69
My view is that the rule gives the judge and juries an opportunity to be
aware of the differing options that exist and may help determine what
weight to place on the expert evidence or whether to seek further
clarification.

The content of expert evidence may also be influenced by directions given

by the court. The expert may file a written request with the court for
directions to assist in carrying out the expert witness functions under Rule
35.14 (1).70 Rules 35.8(3) (b) and 35.12(2)71 – “the court may specify the
issues which the experts must discuss” enables the court to give directions
to experts as to how to prepare their reports and as to the framework for
their discussions. The expert may also seek directions as to the extent to
which she or he is bound to answer inquiries raised by a party to the
proceedings, an entitlement given to parties under Rule 35.6.72 One may
argue that the expert witness should be completely independent and should

67
Whitehouse v Jordan [1981] 1 WLR 246.
68
CPR Part 35 Practice Direction, paragraph 2.2(6).
69
Phipson on Evidence, (2005) 16th Edition, at 33.26 (page 991).
70
Civil Procedure Rules, Part 35 Experts and Assessors. Civil Procedure (Amendment No.
5) Rules 2001 (Notes).
71
Ibid
72
Ibid

29
not seek directions from the court. I am not aware of any legal cases that
have explored this assumption.

In Criminal proceedings, Part 33 of the Criminal Procedure Rules,

provides guidance as to the form and content of expert‘s reports [Appendix
A]. An expert‘s report must among other issues in Appendix A include,

(a) give details of the expert‘s qualifications and relevant

experience;
(b) give details of any literature or other material which the expert
has relied on in making the report;
(c) contain a statement setting out the substance of all facts and
instructions given to the expert which are material to the opinions
expressed in the report or upon which those opinions are based;
(d) make clear which of the facts stated in the report are within the
expert‘s own knowledge;

Witness of fact or Expert Evidence?

This aspect is best represented by the area of low speed impact argument in
road traffic accident (RTA) cases. The claimant‘s case is based on witness
evidence as to the speed, force and occupant movement. A medical report is
produced as to the injuries sustained following an examination by a medical
expert. However, the defendant‘s team tends to challenge the medical
expert on the basis that they are not suitably qualified to give evidence as to
causation of injuries in RTAs and seek the expertise of forensic engineers to
prove their case. The controversy arises when the expert engineer decides
that no injuries could have been sustained as a result of the accident.

Who do the courts then believe? The witness of fact or the expert evidence?
The Court of Appeal (CA) provided answers in the case of Armstrong &
Connor v First York,73 where the trial judge stated:
“I cannot reconcile the evidence of the expert witness with the witness of
fact. I can only say that there must be a possible error in Mr. Child‟s
evidence, and I make a considered choice because of my clear and
unequivocal impression of the claimants as witnesses.”

73
Armstrong & Connor v First York [2005] EWCA Civ 277.

30
The CA referred to Cooper Payen Ltd v Southampton Container Terminal
Ltd74 where Mr. Justice Lightman commented that
“there is no rule of law or practice in such a situation requiring the
judge to favour or accept the evidence of the expert or the evidence
of a witness of fact.”
This decision reaffirmed that judges can judge a case based on the evidence
presented at court and do not have to decide a case simply on the evidence
of an expert witness. In effect the witness report may be preferred to the
expert opinion.

The admissibility of expert evidence and the ultimate issue continues to

generate debate. Expert witnesses are allowed to give opinion evidence, as
an exception to the normal exclusionary rule. The admissibility of expert
evidence in civil litigation is dealt with in Civil Evidence Act 1972, S.3(1):
“where a person is called as a witness in any civil proceedings his opinion
on any relevant matter on which he is qualified to give expert evidence
shall be admissible in evidence.”

The traditional test governing admissibility of expert testimony is its

relevancy and helpfulness to the trier of fact. A body of evidence would be
deemed helpful, if it added to the trier of fact‘s knowledge and
understanding of the case.75 R v Turner76 remains the leading case on the
reception of expert evidence in England and Wales. If expert evidence
would not help the jury or a judge, it would be discountenanced and held
inadmissible, notwithstanding its relevancy. In R v Turner the defendant,
charged with the murder of his girlfriend, wished to call expert evidence
that he was not mentally disturbed, and that he had a deep emotional
relationship with her which was likely to lead to an explosive outburst of
anger if told that she had been unfaithful, and that he was suffering
profound grief. Justice Lawton noted that “Jurors do not need psychiatrists
to tell them how ordinary folk who are not suffering from any mental illness

74
Cooper Payen Ltd v Southampton Container Terminal Ltd [2003] EWCA.Civ.1223.
75
Raitt, FE (1998) A New Criterion for the Admissibility of Scientific Evidence: The
Metamorphosis of Helpfulness. Law and Science, Current Legal Issues Volume 1, Oxford
University Press, at 153-156.
76
R v Turner [1975] 1 QB 834 (CA).

31
are likely to react to the stresses and strains of life”. It follows from these
comments that even though the doctor is called as an expert, the court is
under no obligation to accept the evidence given. The Court of Appeal held
that how normal men react under the stresses and strains of life is within the
experience of the jury.

The application of the hearsay rule may be considered in relation to the

evidence of opinion given by experts.77 In a situation where an expert relies
on or based his opinion on the work or research of other experts within
similar area of expertise such expert opinion has been challenged on the
basis that conclusions drawn from such work or research by experts are not
admissible because they are considered to be hearsay.78

In civil cases under Section 1 of the Civil Evidence Act 1995, evidence is
no longer inadmissible because it might be considered to be hearsay
statement. The Act states that:
“In a civil proceedings evidence shall not be excluded on the ground that it
is hearsay.”

There is no longer any reason why material on which an expert supports his
opinion should either be excluded or given limited evidential effect in
consequence of its hearsay nature.79 In Criminal cases section 127 of the
Criminal Justice Act 2003 allows experts to base their opinions on
statements of fact made by other for the purpose of the proceedings but
subject to certain conditions. A scientist may give opinions drawing from
the work of others. Complex scientific procedures often involve laboratory
staff working as a team. Where an expert relies on the existence or non-
existence of some fact as to work done in the laboratory, then the expert can
give that evidence she performed the work, or did it again after the initial
work of another. However, if the work was done under her supervision,
then it must be established that she was exercised a sufficient degree of

77
Reay, R (2001) Evidence. 3rd edition. Old Bailey Press, London.
78
Ibid
79
Murphy, P. (2005) Murphy on evidence. (9th ed) Oxford University. Press, Oxford

32
control to enable the court to be satisfied that the supervision was real and
effective.80

The court also has a discretionary power to exclude admissible evidence

Under s.5 (3) of the 1972 Act. However, the statute did not define that
power. A number of flawed expert evidence as in Rochdale Borough
Council v A81 and Re AB (Child Abuse: Expert Witnesses)82 led to some
judges being wary of accepting the evidence of experts at face value. This is
understandable, as it is essential that a court approaches the evidence of an
expert witness with an open mind, and that the judge rejects, or gives little
weight to expert evidence where there is good reason to doubt the witness‘s
competence and credibility, or where the evidence flies in the face of
powerful evidence to the contrary. It is always the duty of the judge, and of
the judge alone, to make up his or her mind on the facts, and that function
cannot be usurped by an expert witness. Until recently the courts followed
obiter dicta in the Court of Appeal in Re S and B (Child Abuse: Evidence)83
which stated that it is not admissible for the expert to give a direct
expression of opinion about whether a witness is telling the court the truth.

In Re M and R (Minors)84 these remarks were found to have been made per
incuriarn because no reference was made to section 3 of the Civil Evidence
Act 1972. The Court of Appeal held that section 3 allows the reception of
expert opinion evidence on an issue which could be the ultimate issue in a
case, for example whether the child was telling the truth. However, the
expert must be qualified to give such an opinion otherwise his opinion is
irrelevant. Furthermore, the ultimate issue is for the judge to decide and all
questions of weight and relevance are for him.85

80
The admissibility of expert evidence is presently governed by case law, Section 30 of the
Criminal Justice Act 1988, the Crown Court (Advance Notice of Expert Evidence) Rules
1987 and the Magistrates Court (Advance Notice of Expert Evidence) Rules 1997.
<Archbold 10-61, 10-62>.
81
Rochdale Borough Council v A [1991] 2FLR 192 at 208-10.
82
Re AB (Child Abuse: Expert Witnesses) [1995] 1 FLR 181.
83
Re S and B (Child Abuse: Evidence) [1990] 2 FLR 489.
84
Re M and R (Minors) (Expert Opinion Evidence) [1996] 2 FCR 617.
85
Hayes, M. (1997) Reconciling protection of children with justice for parents in cases of
alleged child abuse. Legal Studies, Vol. 17, No 1.

33
The recent Court of Appeal decision in Casey v Cartwright86 provided strict
directions to follow in such cases as in low speed impact whiplash claims.
A district judge had granted permission to admit evidence of a joint expert
on orthopaedic aspects in a claim for personal injury by the claimant David
Cartwright. This decision was revoked by Judge Holman in the Manchester
County Court. An appeal by the defendant was dismissed in a Court of
Appeal hearing.

In deciding, Dyson LJ referred to guidance in Kearsley v Klarfeld87 on the

correct approach to the permissibility of expert evidence on causation in
low-impact cases. There has been a wide divergence of approach between
different courts since Kearsley. The interpretation of the guidance is that if
a defendant wished to raise the causation issue he should (a) notify all other
parties in writing within three months of letter of claim that he intended to
do so, (b) expressly raise the issue in the defence and within 21 days of
serving a defence, and (c) serve a witness statement clearly identifying the
grounds for raising the issue.
If the witness statement satisfied the court that the issue had been properly
identified, permission would generally be given for the claimant to be
examined by the defendant‘s medical expert. If the expert‘s evidence
showed the issue had a real prospect of success, the defendant would
generally be allowed to rely on the evidence at trial. None the less, in
situations where the evidence was disproportionately complex given the
size of the claim the court might refuse to let in the evidence if the
overriding objective required it. Single joint experts should not be used at
least until some test cases were decided at High Court level. This ruling re-
asserted that Low Speed Impact defences uniquely require that the
Defendant should be permitted to obtain their own expert evidence.

Admissibility of new scientific techniques

As the number of legal cases raising complex scientific and technical issues
has increased, along with the financial consequences to individuals and
businesses, courts have struggled to find a clear standard by which to admit
86
Casey v Cartwright [2006] EWCA Civ 1280.
87
Kearsley v Klarfeld [2006] 2 All ER 303.

34
expert evidence. Expert testimony regarding a given field is admissible
under English law, where it is “sufficiently well-established to pass the
ordinary tests of relevance and reliability.” This principle was illustrated in
R v. Dallagher,88 where the technique of ear print comparison was admitted
into evidence through the use of expert evidence despite being a relatively
new scientific identification technique. Though there was an appeal, neither
the appeal nor the eventual outcome undermined or challenged the use of
expert witness or the science. Kennedy, LJ in R v. Dallagher,89 agreed with
Lord Taylor‘s comment in R. v Stockwell,90 that:

“one should not set one‟s face against fresh developments, provided that
they have a proper foundation.‖91
This ruling further approved this new use of expert evidence. Similarly, the
introduction of lip reading expert testimony regarding the interpretation of a
supposedly dubbed videotape was approved in Campbell v News Group
Newspapers Ltd.92

Choice of expert witnesses

In civil cases the two sides engage the services of experts who highlight
those aspects of their evidence which are favourable to the client‘s case.
However, these experts are under the same obligation to the court, to be
truthful as to fact, thorough in technical reasoning, honest as to opinion and
complete in their coverage of relevant matters. An expert‘s primary duty is
towards the court, and not to the party calling him. The Civil Procedure
Rules93 and Criminal Procedure Rules94 give the court the power to order
that, experts from both sides should meet with a view to streamlining the
technical issues that are in dispute between the parties. Under the Rules, the
Court has the power to direct that evidence on an issue is to be given by one
expert only. Where the parties cannot agree who that expert should be, the

88
R v. Dallagher [2003] 1 Cr. App. R. 12 [2002] EWCA Crim 1903 CA (Crim Div)
(reversed on other grounds).
89
R v. Dallagher [2003] 1 Cr. App. R. 12 [2002] EWCA Crim 1903 CA (Crim Div).
90
R. v Stockwell [1993] 97 Cr App R 260.
91
R v. Dallagher [2003] 1 Cr. App. R. 12 [2002] EWCA Crim 1903 CA (Crim Div)
92
Campbell v. News Group Newspapers Ltd [2002] E.M.L.R. 43 [2002] EWCA Civ 1143
CA.
93
Civil Procedure Rules Part 35
94
Criminal Procedure Rules Part 33

35
court may select the expert from a list prepared by the parties or direct that
the expert be selected in another way, for example, by the President of the
appropriate professional body.
Similarly, the court has the power to debar an expert witness from giving
evidence as in Stevens v Gullis95 where the expert did not understand the
duty imposed on an expert by the CPR.

Number of expert witnesses

Part 35 of the Civil Procedure Rules (Appendix B) deals with experts and
assessors and limits expert evidence to what is reasonably required to
resolve the proceedings in issue. The following rules are particularly
relevant in this context:
―35.1 Expert evidence shall be restricted to that which is reasonably
required to resolve the proceedings.
35.4(1) No party may call an expert or put in evidence an expert‘s report
without the court‘s permission‖

In E S (By her Mother & Litigation Friend D S) V Chesterfield & North

Derbyshire Royal Hospital NHS Trust,96 Master Ungley made a case
management direction that the evidence in the claimant‘s clinical
negligence claim should be limited to a report from one expert in the field
of obstetrics on each side. Master Ungley stated that he had been told that
to ensure equality of arms he should permit the claimant to call a second
expert. He commented:

“The application fails to take into account the difference between witnesses
of fact and expert witnesses. Although it is inevitable that a witness who
happens to be a professional will give evidence of his actions based upon
his or her professional experience and expertise, the vital question of
whether those decisions fell short of the required standard is addressed by
the expert witnesses. It was also mentioned that the claimant has already
instructed a second obstetric expert, but that has no bearing on whether he
should be permitted to give evidence. The application is therefore refused.”

95
Stevens v Gullis [2000] 1 All ER 527.
96
E S (By her Mother & Litigation Friend D S) v Chesterfield & North Derbyshire Royal
Hospital NHS Trust [2003] EWCA Civ 1284 (C.A)

36
The claimant sought to appeal and in E S (By her Mother & Litigation
Friend D S) v Chesterfield & North Derbyshire Royal Hospital NHS
Trust,97 the Court of Appeal held that it was just and proportionate to allow
the claimant to call two expert obstetricians in a case where the defendants
would be able to obtain expert evidence from two consultant obstetricians
who were witnesses of fact in addition to an independent expert. The
obstetricians involved were now both consultants and would be able to give
expert evidence to assist the defendants as well as factual evidence. The
three witnesses for the defence would cover a much wider spectrum of
personal experience than the single expert permitted to the claimant would
have. It was inevitable and appropriate for a witness of fact who happened
to be a professional to give evidence of his actions based on his
professional experience and expertise.

The claimant contended that there was a significant risk that the view of a
single practitioner on the range of decisions that represented the spectrum
of reasonably acceptable clinical choices might not be wholly
representative of the profession as a whole, particularly when the defence
would be giving evidence from the two obstetricians involved plus an
independent expert. This would have meant that the most important of the
considerations in CPR 1.1(2) that the parties should be on an equal footing
would not be met. The Master took the view that the evidence from the
obstetricians involved could be isolated from the evidence on whether the
medical treatment fell short of the required standard.

The Court of Appeal believed that the presence of three consultants on the
defendants‘ side constitutes such an exceptional feature and allowed the
claimant‘s appeal. It was held that the additional cost and added length to
the trial of allowing the claimant to call a second expert was proportionate
and just. However, it stressed that nothing in the judgment must be taken to
give any sort of green light to the calling of two experts in a single
discipline in any case which does not have exceptional features. Would a

97
E S (By her Mother & Litigation Friend D S) V Chesterfield & North Derbyshire Royal
Hospital NHS Trust [2003] EWCA Civ 1284 (C.A)

37
court appointed expert or a single expert witness have been an alternative in
this case? The principles of these roles will be discussed in the next chapter.

In Kirkman v Euro Exide Corporation (CMP Batteries Ltd,)98 it was held

that a judge had erred in refusing to admit the evidence of a surgeon who
had treated the claimant in a personal injury action, on the basis that, to
admit the evidence would have exceeded a limit on expert witnesses
allowed at trial. The trial judge refused permission to adduce the statement
on the basis that it was expert opinion, not evidence of fact, and the order
had been that each party could rely on only one expert medical witness.

The Court of Appeal stated on January 25, 2007, that there was no absolute
requirement as to equality of arms in the Civil Procedure Rules. Lady
Justice Smith said that the equality of arms aspiration need not result in an
absolute rule requiring equal numbers of expert witnesses on each side.
Such matters as proportionality were relevant and on some occasions it
could be right to give way. In any event, the challenged evidence amounted
to a statement of fact, not further expert opinion evidence. The appeal was
allowed.

When experts disagree

Medicine and other sciences are not always exact. This leads to situations
where more than one explanation or causes for a disease process exists.
This could result in legal proceedings where experts on both sides could
present conflicting opinions that are apparently within mainstream and
orthodox schools of thoughts.

In Oldham MBC v GW & Ors99 both eminent radiologists maintained their

opposed opinions and Justice Ryder directed that a third expert in paediatric
neuroradiology be instructed. The expert identified was Professor
Flodmark, a Paediatric Neuroradiologist from Sweden. Following

98
Kirkman v Euro Exide Corporation (CMP Batteries Ltd), In: Times Online, February 6,
2007, From The Times, No rule for equality.
99
Oldham MBC v GW & Ors [2007] EWHC 136 (Fam).

38
discussions between all four experts, agreement was obtained on a number
of issues including the likely cause of brain injury in baby K.

Justice Ryder, recommended that ―once instructed, experts in their advice to

the court should conform to the best practice of their clinical training and,
should describe their own professional risk assessment process and, or the
process of differential diagnosis that has been undertaken, highlighting
factual assumptions, deductions there from and unusual features of the case.
They should set out contradictory or inconsistent features and identify the
range of opinion on the question to be answered, giving reasons for the
opinion they hold‖.

The impasse in the case may not have arisen if the expert witnesses had
indicated that this was a complex and unusual case and or if the experts had
held meetings to discuss the issues. Lord Woolf considered that orders for
experts to meet was the most promising of practices aimed at narrowing the
issues between experts.100 He recommended that such meetings should
normally be held in private, without the attendance of the parties or their
legal advisers.101 Furthermore, he recommended that, where opposing
experts are appointed, they should adopt a co-operative approach and that,
wherever possible, this should include a joint investigation and a single
report, highlighting areas of disagreement.102

Competence
An expert witness is competent and compellable, being lawfully required to
give evidence like any other witness. In principle, every person who is
competent to be a witness is compellable. An expert witness who has
provided a report to a client can be subpoenaed to give evidence by the
other side and cannot decline to answer questions as to her or his factual
findings and opinion thereon. This is as in Harmony Shipping Co S.A. v
Saudi Europe Line,103 where a handwriting expert was inadvertently

100
Woolf interim report, 183.
101
Woolf final report, rec 172.
102
Woolf final report, rec 172.
103
Harmony Shipping Co S.A. v Saudi Europe Line [1979] 1 WLR 1380 1386G, per Lord
Denning M.R.

39
instructed by both sides and it was ruled that there is no property in the
opinion of an expert witness.

In Causton v. Mann Egerton (Johnsons) Ltd,104 which concerned the

disclosure of medical reports in a personal injury action, Roskill L.J. said:
„I am clearly of the view that this court has no power to order production of
privileged documents . so long as we have an adversary system, a party is
entitled not to produce documents which are properly protected by
privilege if it is not to his advantage to produce them, and even though their
production might assist his adversary.‟

Weight of the expert witness evidence

It is the jury who must decide what weight is to be given to the evidence of
an expert witness, making their own independent judgment from the facts
and principles proved in evidence. This principle should operate where
there is conflicting expert evidence but also the case where there is no
conflict. Judges are not expected to direct the jury to accept inevitably the
evidence of an expert, even where that evidence is not contradicted or invite
them to disregard it in favour of their own unaided lay opinion.

An expert may be cross-examined and contradicted, and cross-examined as

to credit. It is a misdirection to tell the jury that his evidence must be
accepted unless he himself betrays a reason for rejecting it.105 Case law in
Anderson v R106 established that it is wrong to tell the jury that they may
ignore uncontradicted expert evidence and in R v Tilley,107 wrong to tell a
jury to content themselves with unaided observation on a matter calling for
expertise.

The judge, jury and expert witness have well defined roles to play in civil
and criminal proceedings. It is essential that each stay within their
boundaries to ensure a fair and just system. The review of the civil justice

104
Causton v. Mann Egerton (Johnsons) Ltd [1974] 1 W.L.R. 162, 170.
105
R v Lanfear [1968] 2 QB 77.
106
Anderson v R [1972] AC 100.
107
R v Tilley [1961] 1 WLR 1309.

40
system108 and criminal justice system109 led to the defining of the role and
duties of the expert witness.

108
Woolf, H.K. (1996) Access to Justice. Final Report to the Lord Chancellor on the civil
justice system in England and Wales, HMSO, London.
109
Review of the Criminal Courts of England and Wales by The Right Honourable Lord
Justice Auld September 2001. http://www.criminal-courts-review.org.uk/ccr-11.htm.

41
 CHAPTER 2

THE WOOLF REFORMS and THE AULD REPORT

Lord Woolf, one of Britain‘s most senior judges, was appointed in 1994 to
review existing rules and procedures of the civil justice system in England
and Wales. In his Interim and Final Reports, Lord Woolf found the existing
system to be too expensive for litigants; slow in bringing cases to a
conclusion; inequitable in favouring wealthy litigants over those who are
under-resourced; and too complex and incomprehensible for many litigants.
He also said that the system was too adversarial in approach, allowing the
110
parties, rather than the courts, effectively to run cases. Lord Woolf
recommended that the court should have ―complete control‖ over the
calling of expert evidence. In a similar vein, Lord Justice Auld undertook a
review of the criminal courts procedures in England and Wales.111

The Civil Procedure Rules (CPR)

Proceedings in the civil courts In England and Wales are subject to The
Civil Procedure Rules (―CPR‖). The Rules were introduced in 1999 in
England and Wales, in response to Lord Woolf‘s report Access to Justice.
The central tenets of the Woolf Report are the independence, impartiality,
objectivity and overall role of the expert as an aide to the court, rather than
as an advocate for the instructing party. The report revolutionises the civil
justice system in England and Wales and represents a major advance in the
management of civil disputes. The report reaffirms the qualities,
responsibilities and standards of conduct required of experts in litigation,
already laid down as a matter of law in a number of cases, and argues for a
more open and co-operative approach to litigation. Part 35 of the Civil
Procedure Rules governs the activities of Experts and Assessors
(Appendix B).

110
Woolf, H.K. Access to Justice (Final Report to the Lord Chancellor on the civil justice
system in England and Wales, HMSO, London, 1996) at 2. See also H K Woolf, Access to
Justice (Interim Report to the Lord Chancellor on the civil justice system in England and
Wales, HMSO, London, 1995) at 7-17.
111
Review of the Criminal Courts of England and Wales by The Right Honourable Lord
Justice Auld September 2001. http://www.criminal-courts-review.org.uk/ccr-11.htm.

42
These reforms also represent an attempt to speed up the lengthy judicial
process, reduce the cost and codify the role of the expert witness. The new
rules provide that ‗expert evidence shall be restricted to that which is
reasonably required to resolve the proceedings‘, and there is a presumption
that it will be provided, wherever possible, by a single expert jointly
appointed by the parties. Statistics released in 2001 showed that joint
experts are now used in 46% of all trials involving expert evidence.112
Strangely, the number of trials in which experts are used has actually
increased. It is unlikely that this was a trend envisaged or intended by Lord
Woolf. Indeed, in Daniels v Walker,113 Lord Woolf said that there was now
a new duty on the courts to restrict expert evidence. Furthermore, expert
evidence is limited to written reports, unless, that is, the court directs
otherwise.114

Court appointed expert

The appointment of court-appointed experts has been one of the ideas put
forward to help the courts. This could be in addition to the parties
appointing their own experts. However, the appointment by the court of its
own expert witness is comes across as being contrary to the fundamental
premise of the adversarial system. The parties should have the right to
present their own case and to call witnesses of their own choice to support
their case. The argument of Justice Sperling against court appointed experts
is that they may be unable to deal satisfactorily with a situation where more
than one acceptable expert view of the matter in question is held in the
professional community.115

He also argues that the court might place undue reliance on the evidence of
the court expert, with the result that it will be the expert rather than the

112
Cited in: Further Findings. A continuing evaluation of the Civil Justice Reforms.
August 2002. Department of Constitutional Affairs.
http://www.dca.gov.uk/civil/reform/ffreform.htm.
113
Daniels v Walker (2000) 1 WLR 1382.
114
Woolf, H.K. Access to Justice (Final Report to the Lord Chancellor on the civil justice
system in England and Wales, HMSO, London, 1996)
115
Justice H. D. Sperling, Expert evidence: the problem of bias and other things. Supreme
Court of New South Wales Annual Conference. Terrigal, 3-4 September 1999.
http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_sperli
ng_030999.

43
judge who decides the case; that, if the parties are permitted to call their
own experts in order to reduce that concern, the appointment of a court
expert may cause delay and an increase in costs without any countervailing
benefit; and that, even if parties are precluded from calling their own
experts, they would still have to incur the cost of retaining experts to advise
on the likely outcome of the proceedings and to assist in preparation for
cross-examination of the court expert, so that the saving in costs might be
less than anticipated.116

Lord Woolf in his report on the civil justice system in England and Wales
recognised the limited value of the court appointing an expert, if the parties
were also at liberty to call expert evidence of their own. He advanced the
idea of a ―single expert‖ rather than of a court-appointed expert. While
acknowledging that the appointment of single experts may give rise to
additional costs, he did not consider this to be a sufficient ground for
rejecting their use. He emphasised that a single expert is much more likely
to be impartial than an expert called by a party. Any additional expense
involved in calling a single expert could therefore be justified by the
objective assistance the expert would be able to offer the court. To
safeguard the quality and reliability of the single expert‘s evidence, he
proposed that the parties be allowed to cross-examine the expert and to call
their own expert witnesses, but only if the scale of the case justified it.117

Single Expert Witness

Lord Woolf‘s recommendations118 have now been substantially
incorporated in Part 35 of the Civil Procedure Rules 1999 of the High
Court. Rule CPR 35.7 (1) provides as follows:

116
Justice H. D. Sperling, Expert evidence: the problem of bias and other things. Supreme
Court of New South Wales Annual Conference. Terrigal, 3-4 September 1999.
http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_sperli
ng_030999.
117
Woolf, Access to Justice (Final report to the Lord Chancellor on the Civil Justice
System in England and Wales, HMSO, London, July 1996) (―the Woolf report‖) at pp.140-
142; Woolf, Access to Justice (Interim report to the Lord Chancellor on the Civil Justice
System in England and Wales, HMSO, London, June 1995) (―the Woolf interim report‖) at
pp.186-187.
118
The Woolf Report, Chapter 13, recommendations 1&2.

44
35.7(1) ―Where two or more parties wish to submit expert evidence on a
particular issue, the court may direct that the evidence on that issue is to be
given by one expert only‖…and
35.7(3) ―Where the instructing parties cannot agree who should be the
expert, the court may –
(a) select the expert from a list prepared or identified by the instructing
parties; or
(b) direct that the expert be selected in such other manner as the court may
direct.‖

The parties are jointly and severally liable for payment of the expert‘s fees
and expenses, unless the court otherwise directs. The Practice Direction
annexed to the rules states that, ―where there are a number of disciplines
relevant to the issue on which a single expert is to be appointed, a leading
expert in the dominant discipline should be identified as the single expert
and should prepare the general part of the report; and that the single expert
should be responsible for annexing or incorporating the contents of any
relevant reports from experts in other disciplines‖.

It is envisaged that the appointment of single expert witness (SEW) will

address the problems caused by partisanship in the adducing of expert
evidence. It also has cost benefits and reduces the need for decision makers
to choose between conflicting expert views.119 The use of SEW may not be
considered appropriate as in Simms v Birmingham Health Authority.120 The
claimant claimed substantial damages from the defendant for negligent
management of his delivery at birth, which resulted in cerebral palsy. The
first instance court had ordered a single joint expert to prepare opinion
evidence on liability and causation. The appeal court overturned the order
because the case was extremely complex and the issues covered in the
expert‘s report were so important to the likely outcome of the case that the
parties should be entitled to instruct their own experts.

119
Woolf final report rec 167-168.
120
Simms v Birmingham Health Authority [2001] Lloyd‘s Law Reports 382. 4.19.

45
Problems associated with the use of single expert witness
There are dangers inherent in the use of single expert witnesses as was the
case in, GW & PW v Oldham Metropolitan Borough Council and another121
in which the judge relied on the evidence of a single expert. The appellant
parents (W) appealed against an order made in care proceedings brought by
the Oldham Metropolitan Borough Council in relation to their son. After the
conclusion of the first part of a ―split‖ hearing, the judge had held that the
son had suffered a non-accidental brain injury as a result of a shaking
episode, that the injury had been caused by one of K‘s parents, and that the
threshold criteria under the Children Act 1989 s.31 were satisfied.

The judge relied on the evidence of a single expert witness in paediatric

neuro-radiology and had dismissed applications by W to instruct a second
expert. The report of a second expert, when it was obtained, had expressed
a clear and fundamental disagreement with the first expert and supported
the parents‘ case that their son‘s injuries were not the result of any
deliberate infliction of harm. The local authority did not initially object to a
second opinion being sought by the parents but did oppose the application
when it became clear that the provision of that second opinion would delay
the hearing.

There had been no real consensus or agreement between medical

practitioners in the proceedings on what was on any footing the major
medical issue in the case in this case because they had all deferred to the
single expert witness. In the circumstances, the parties had agreed that the
judge‘s findings could not stand and that the case would have to be remitted
to another family judge for re-hearing.

It is hard to see how a single expert, whose experience is limited to an

approach or field and who holds or believes in one school of thought in a
particular subject, could fairly put alternatives to the law courts, to assist the
courts in reaching an unbiased decision.

121
GW & PW v Oldham Metropolitan Borough Council and another. [2005] EWCA Civ
1247.

46
Criticisms of Woolf
The most important aim of Lord Woolf‘s report was to avoid litigation
wherever possible, by making claimants consider the merits and costs of
their case at an early stage and by encouraging them to settle out of court.
There were a number of criticisms of the Woolf report. It was believed the
goals were too ambitious. Much of it had to do with the case management
aspect rather than that pertaining to expert witnesses. Michael Zander, QC,
Professor of Law at the London School of Economics believed the
imposition of a strict timetable for the pre-trial stages of each case, backed
by sanctions could not work. He gave in support of this, the chaos caused
by Order 17 of the County Court Rules,122 under which about 20,000 cases
have been struck out in the past 7 years because plaintiffs have failed to
take certain steps within time limits prescribed by the rule. Professor
Zander was of the opinion that if the threat of sanctions so signally failed in
their cases, how could it be expected to succeed under the proposition by
Woolf.123

Ten years after the publication of Lord Woolf‘s Access to Justice report,
recent research revealed that the Woolf reform has succeeded in reducing
the number of civil cases from over 100,000 in 1999 to about 50,000 in
2005. However, it is considered that the reform has failed in its objective to
make litigation less complex and more accommodating, with shorter, more
predictable timescales and more affordable costs for those with limited
financial means.124

THE AULD REPORT AND THE CRIMINAL PROCEDURE RULES

Following on from the review of civil justice undertaken by Lord Woolf,

Lord Justice Auld undertook a review of the operation of the criminal
courts in England and Wales in 1999 to 2001, producing a report known as

122
County Court Rules 1981
123
Your Witness, Issue 9, September 1997.
http://www.jspubs.com/Experts/yw/yw_09.htm#YW903.
124
Herman, M. Success of Woolf reforms limited, research claims. Times Online, July 26,
2006.

47
the ―Auld Report‖.125 The government‘s response to Auld took the form of
a White Paper, Justice for All126 in 2002. Elements of the Auld
recommendations were included in the Criminal Justice Act, 2003,127 and
has helped shape the Criminal Procedure Rules128. Areas pertaining to
expert witnesses and expert evidence included competence, accreditation
and objectivity among others.

The new provisions set in Part 33 (Expert Evidence),129 (Appendix A), are
the first Criminal Procedure Rules on expert evidence, coming into force in
November 2006. The rules set out the duty of an expert to the court in Rule
33.2 and deals with the content of an expert‘s report as discussed in Chapter
1 (Content of Expert Evidence). They require a party to inform the expert
when they have served the expert‘s report on another party, or on the court.
They provide explicitly for pre-trial discussion between experts and they
allow the court to order that a single, joint defence expert should give
expert evidence for the defence. The rules specify that a party may not
introduce expert evidence without the court‘s permission, if the expert has
not complied with a direction of the court.

Competence and accreditation

Justice Auld was of the opinion that there should be ―one self-governing
professional body within England and Wales responsible the role of setting,
or overseeing the setting, of standards and of conduct for forensic scientists
of all disciplines, the maintenance of a register of accreditation for them
and the regulation of their compliance with its conditions of accreditation;
and for those purposes, the several existing expert witness bodies providing
for all or most forensic science disciplines should consider amalgamation
with, or concentration of their resources in, the Council for the Registration
of Forensic Practitioners‖.

125
A Review of the Criminal Courts of England and Wales by The Right Honourable Lord
Justice Auld September 2001. http://www.criminal-courts-review.org.uk/ccr-11.htm.
126
Justice for All. CM5563. Published by the Stationery Office. 2002.
127
Criminal Justice Act, 2003
128
Criminal Procedure Rules 2005
129
Criminal Procedure Rules – Part 33 – Expert Evidence

48
Objectivity
As with the principle in the civil jurisdiction by Civil Procedure Rules, Part
35.3, which directs that the overriding duty of expert witnesses is to provide
the court with objective evidence, Justice Auld recommended that:
“the new Criminal Procedure Rules should contain a rule in the same or
similar terms to that in Part 35.3 of the Civil Procedure Rules that an
expert witness‟s overriding duty is to the court”

Other recommendations are that criminal courts‘ should be given the power
to control the admission of experts‘ evidence. With regards to the use of
single expert witnesses, he recommended that
“where there is an issue on a matter of importance on which expert
evidence is required, the court should not have a power to appoint or select
an expert, whether or not it excludes either party from calling its own
expert evidence; and

“where there is no issue, there is or one in which the parties are content
that the matter should be resolved by a single expert, they should be
encouraged to deal with it in that way, agreeing his report or a summary of
it as part of the evidence in the case”.

The Criminal Procedure Rules 2005 contained nothing explicit about how
the overriding objective in Part 1, to deal with cases justly, should be
applied to an expert witness. The Rules did not contain anything about the
form in which expert evidence should be introduced, or about the use of the
court‘s case management powers to identify exactly what was in issue
between experts. When the Criminal Procedure Rules were initially made,
the Committee anticipated that explicit Rules about expert evidence would
be made fairly soon and the Rules were arranged accordingly, setting aside
Part 33 for those provisions.130

130
The Criminal Procedure (Amendment No. 2) Rules 2006. SI number 2636 of 2006.
Guide for Court Users, Staff and Practitioners, October 2006.
http://www.opsi.gov.uk/si/si20062636.htm

49
The Woolf and Auld reforms have modified the role of expert witnesses in
the adversarial court system, so that experts can metaphorically wear their
laboratory or clinical coats rather than advocates‘ robes. The reforms also
state in very clear terms the role and duties of the expert witness. The
initiatives are likely make the common law system less adversarial.

50
 CHAPTER 3

PITFALLS OF BEING AN EXPERT WITNESS

Credibility is critical, and ―hired gun‖ accusations anathema, to expert

witnesses. 45 derogatory references to testifying psychiatrists or
psychologists as ―hired guns,‖ ―whores,‖ or ―prostitutes,‖ most in criminal
matters and most by prosecutors were found in court transcripts in a
study.131 Though judges disapproved of such remarks, they did not reverse
convictions because of them, often citing juries‘ ability to sort out
testimony in the adversarial environment. This chapter describes factors
that can make expert witnesses breach their duty to the courts.

Troster132 in a review of 10 cases of adverse judgements identified lack of

objectivity, lack of substance or reality that do not appear reasonable,
inappropriate speculation, conclusions and assumptions not supported by
evidence at trial, results not appearing reasonable based on common sense,
flaw in methodology and the other side‘s expert being more credible as
reasons why judges reject the evidence of expert witness. An expert witness
can be discredited for being partisan, as a result of previous mistakes made,
previous misconduct or the use of unsubstantiated facts.

Partisanship and Bias

In an adversarial system, the natural tendency will be for an expert to be
drawn into an adversarial role in favour of the instructing party. None the
less, independence, objectivity and integrity, and competence in a particular
sphere of expertise, are essential qualities of an expert witness. The Civil
Procedure Rules (Part 35) and the ―Protocol for the instruction of experts to
give evidence in civil claims‖ emphasise an expert‘s primary duty to the

131
Mossman, D. (1999) Journal of the American Academy of Psychiatry and the Law,
27(3), pp.414-425 cited in Reid, WH. ―Hired guns‖ and expert witnesses
http://www.reidpsychiatry.com/updates.html.
132
Troster S. 2005 Court critique of expert witness testimony: Reasons and
recommendations. Research Project for Emerging issues/advanced topics course. Diploma
in investigative and forensic accounting program, University of Toronto, June 20, 2005.
mgmt.utoronto.ca/difa/PDF/Research_Projects.

51
court. The expert must give his or her independent expert opinion. This
means that there must be no bias or conflict of interest.

Expert witnesses have been criticised in court if their evidence was biased
towards the instructing party. In Beaudoin c. Banque de developpement du
Canada,133 the judge perceived a lack of objectivity:
“…[DE02] could not bring to his work the distance and independence
needed by an expert who presents an impartial study to the Court to assist it
in rendering judgement….it was plain he had adopted his client‟s
position….All objectivity was set aside”

A Court of Appeal judgment, in Toth v Jarman,134 sets out detailed

guidance that relates to the issue of potential bias and conflicts of interest.
The Court of Appeal considered that there should be a new requirement for
experts to identify potential bias or conflicts of interest. These are that:

1. If there are any possible grounds for bias or doubt about the
independence of the expert, the court should be notified as soon as possible.
A long term relationship such as a retainer agreement with the party calling
the evidence, or membership of an associated professional organisation,
might put the expert‘s independence in doubt.
2. The expert must identify possible conflicts and their effect on the
expert‘s suitability as a witness. This should be by: setting out his or her
CV in the report; including in the CV details of any employment or activity
that might indicate potential conflicts or bias; and signing a declaration
relating to conflicts of interest. The text of the additional declaration in the
expert‘s report is in Appendix C

In the Cala Homes case,135 the judge, finding for the defendants, ruled that
the evidence of the plaintiff‘s expert was so partisan as to be of no
assistance to the court. If loss of the case was not bad enough, judicial

133
Beaudoin c. Banque de developpement du Canada, [2004] J.Q. no 705 (translated),
Paragraph 271. 280. 281.
134
Toth v Jarman [2006] EWCA Civ 1028 (19 July 2006)
135
Cala Homes (South) Ltd and Others v Alfred McAlpine Homes East Ltd [1995] FSR
818.

52
criticism may be accompanied by additional penalties. This was the case in
Autospin (Oil Seals) Ltd v Beehive Spinning.136 The plaintiff company
alleged infringement of copyright, and one of the issues on which expert
evidence was called was whether copyright subsisted in a coding system it
used. The plaintiff‘s expert made no effort to find out what coding systems
were used by other companies and lent his weight to this claim without
satisfying himself that it was appropriate to do so. Justice Laddie awarded
indemnity costs against the firm, in part because its expert had failed to
discharge properly his duty to the court. The plaintiff lost on all counts.137
These cases go on to buttress the need for expert witnesses to remain
neutral and objective and is well stated by Justice Alliott in Takenaka (UK)
Limited and Brian Corfe v David Frankl,138 and endorsed by the Appeal
Court:

“Mr Shipley correctly reminded me that this is a trial by judge alone, not a
trial by expert. But a judge tries the case upon the evidence, and in this
case the expert evidence is of the highest quality in an arcane field in which
the judge must be guided by that expert evidence. Mr. Bates embarked upon
his investigation from an entirely neutral base, instructed both by the
claimant and the defendant. There could be no question of partisan bias,
which is not unknown in the world of experts. Both in his written reports
and in his oral evidence he provided compelling evidence, which despite the
defendant‟s vehement denial I unhesitatingly accept.”

Most expert witnesses are astute at recognising potential conflicts and

avoiding bias, so the new guidance in Toth v Jarman139 need not cause any
undue alarm. However, experts should now make an early assessment of
the risk that their evidence might give rise to a perception of bias and
discuss this with the lawyers instructing them. There should be full
disclosure of the relevant facts to the opposing party and/or to the court, so
that the issue can be addressed before any challenge is raised. The guidance

136
Autospin (Oil Seals) Ltd v Beehive Spinning [1995] RPC 683.
137
Expanding choice: our response to Woolf. Your Witness, Issue 6, December 1996.
http://www.jspubs.com/Experts/yw/yw_06.htm.
138
Takenaka (UK) Limited and Brian Corfe v David Frankl [2000 Civil Procedures Rules]
(Unreported. 11th October 2000 – HQ0000328)
139
Toth v Jarman [2006] EWCA Civ 1028 (19 July 2006)

53
in Toth v Jarman140 amounts to a practice direction, pending a review by
the Civil Procedure Rule Committee.

Conflict of interests
Where there is a potential for conflict of interests or if one party is
concerned that the other side‘s expert has a conflict of interest, which party
should make an application for the matter to be dealt with in open court. In
Cipla v Glaxo,141 the expert for Cipla had in the past, received research
funding from Glaxo. The Glaxo team believed that he had been involved in
discussions about Glaxo‘s confidential developments and was therefore
conflicted from advising Cipla. Pumfrey J, said that ‗any pressure, and any
act which might have the effect of placing pressure, on a witness may be a
contempt of court and dealt with accordingly‘.

The courts are extremely sensitive to any suggestion that a witness has been
subject to undue pressure and expert witnesses should decline acting as
witnesses in situations where there is a potential for conflict of interest.

Credibility
Mr Jim Bates, a computer analyst who has given expert testimony in highly
sensitive court cases is being investigated by the Child Exploitation and
Online Protection (CEOP) centre, an affiliation of the Serious Organised
Crime Agency over concerns about his credibility. He had misled a court
about his qualifications. This resulted in the Crown Prosecution Service
advising its prosecutors to challenge his credibility in cases where he
appears as a defence witness, and to counsels being reluctant to employ him
directly because of his questionable integrity.142

An expert witness, Gene Morrison was convicted and jailed in 2007. He

had presented himself as an expert forensic psychologist and proffered
opinion in over 700 cases over 27 years. He was found out to have

140
Toth v Jarman [2006] EWCA Civ 1028 (19 July 2006)
141
Cipla v Glaxo [2004] RPC 43.
142
http://news.bbc.co.uk/1/hi/england/london/6124616.stm.

54
purchased his qualifications from a website and had no authentic academic
or forensic psychology skills.

Treating physicians acting as expert witnesses

One can see how easy it is for an expert treating a patient and acting as an
expert witness can cross the divide between these roles. It is imperative that
expert witnesses must not cross or mix the role of the expert to treat and
provide an impartial opinion.143 The Intercollegiate Working Groups of the
Royal Colleges of Pathologists and of Paediatrics and Child Health,
convened after controversial appeals in both criminal and family matters144
recommended that:
“paediatricians involved in the acute management of patients should not be
expected to give expert testimony in cases involving those patients....doctors
treating patients develop partnerships with them.....

This will inevitably result in a degree of intimacy and therefore subjectivity

when evaluating the case as a whole. This is the opposite of what is
required of the expert witness, who should be objective, impartial and
detached”.

However, there are situations where the treating doctor may be able to
make a forensic contribution, such as the history of presentation and clinical
diagnosis. An independent expert witness should then comment on the
issues such as suggestibility and reliability.145

Giving an opinion outside ones’ area of expertise (Professor Meadow)

Expert witnesses may testify to their own findings, the findings of others, to
the scientific or other principles relevant to the case and draw relevant
inferences from such findings. These opinions must be restricted to their
field of expertise. The case, R v Clark146 will be used to throw light on this
subject.

In 1999, Mrs Clark was tried for the murder of her two sons. In the
prosecution of Sally Clark, Professor Meadow gave evidence to the fact that
143
Re B (sexual abuse: expert‟s report) [2000] 1 FLR 871, CA.
144
R v. Cannings [2004] EWCA Crim.1.
145
Lowe, N, White, R. and Carr, AP. (2002) The Children Act in Practice, 3rd Edition.
Butterworths Law.
146
R v Clark [2003] EWCA Crim1020.

55
the chances of two babies suffering cot death within an affluent family was
1 in 73 million and referred in his testimony to his much disputed
―Meadow‘s law‖ on cot deaths: ―one in a family is a tragedy, two is
suspicious and three is murder‖. Professor Meadow refuted the proposition
that Mrs Clark‘s children may have died from Sudden Infant Death
Syndrome or cot death. Mrs Clark was convicted of murder.

Mrs Clark appealed against her conviction and her appeal was upheld in
January 2003 on the ground that the verdicts were unsafe because of non-
disclosure of material by the Crown‘s pathologist. The court indicated that
the appeal would ―in all probability‖ have been allowed on the ground that
Professor Meadow‘s evidence using debatable statistics was wrong.

In view of the immunity enjoyed by witnesses, Sally Clark‘s father sought

redress by reporting Professor Meadow to the medical regulatory body, the
General Medical Council (GMC). She complained that the evidence
Professor Meadow gave to the criminal courts had been badly flawed,
particularly in the misuse of statistics. This was considered to be serious
professional misconduct. The complainant wanted Professor Meadow to be
prevented from acting as an expert in child protection cases and did not
seek his removal from the medical register.

The GMC‘s Fitness to Practice panel found that Professor Meadow failed in
his duty as an expert witness to explain the limited relevance of his
findings. It turned out that these findings were wrong. Professor Meadow
was not an expert in statistics and should have abided by the fourth
principle in The Ikarian Reefer,147 that an expert should make it clear where
a particular issue lies outside his expertise.

Though the panel found that he had acted in good faith and had not
intended to mislead the court and that there was no evidence of any
calculated or wilful failure to use his best endeavours to provide evidence,

147
National Justice Compania Naviera SA v Prudential Assurance Co. Ltd. (Ikarian
Reefer) (1993) The Times, 5 March, [1993] 2 LL R 68 at 81-82 cited with approval by
Otton LJ in Stanton v Callaghan [1999] 2 WLR 745 at 774.

56
Professor Meadow was found guilty of serious professional misconduct and
struck off the medical register.

This case led to a furore and outcry in both the medical and legal circles.
One could argue that expert evidence given in good faith should not lead to
punitive measures. It seemed excessive that this measure was going to
debar him from his mainstay profession, the practice of paediatrics. His
source of livelihood was in effect taken away. One could consider that this
was unfair. Should he have had his expert witness practice restricted? The
GMC has a range of sanctions, including placing conditions on ones‘
practice. I believe that imposing restrictive conditions on his expert witness
practice would have been appropriate. The effect of this decision on expert
witness work was that Paediatricians no longer wanted to undertake child
protection duties.

Professor Meadow appealed to the High Court in February 2006. The case
raised the question as to whether immunity from suit should be extended to
provide immunity from disciplinary proceedings and, if so, whether there
are any qualifications which are appropriate if that extension is in principle
justified.148 This issue of immunity is dealt with below.

Collins J was of the opinion that the complaint against Professor Meadow
should not have been pursued in that the complaint was based upon expert
evidence given in court, for which he had immunity. Collins J stated that
the GMC should not have heard the complaint. The allegations did not
touch on the appellant‘s skills as a doctor nor did they impugn his
conclusions which were based on the pathological findings. He also stated
at paragraph 56 that giving of honest albeit mistaken evidence could save in
an exceptional case, be said to amount to serious professional misconduct.
He allowed his appeal and quashed the order of the GMC of serious
professional misconduct.

148
Meadow v General Medical Council [2006] EWHC 146 (Admin).

57
The GMC, joined by the Attorney General, launched an appeal against this
decision in General Medical Council v Meadow (Attorney General
intervening)149 There were two distinct parts of the appeal:

1. Should an expert witness be entitled to immunity from disciplinary,

regulatory or Fitness to Practise proceedings (FTP proceedings) in relation
to statements made or evidence given by him in or for the purpose of legal
proceedings. The Attorney General intervened in connection with only the
first issue and joined in the action.

2. Was Professor Meadow not guilty of serious professional misconduct, a

decision made by the judge? The GMC sought to restore the finding of the
FTP that Meadow was guilty of serious professional misconduct, but not
seek to uphold the penalty of erasure from the medical register.
These issues will now be explored.

Expert Immunity and Liability

It is a well-established rule of law that anyone involved directly in legal
proceedings is immune from civil action for anything he or she may say or
do in court.150 That immunity applies as much to an expert witness and to
any other witness as in X (Minors) v Bedfordshire CC..151 The immunity
extends to any civil proceedings brought against a defendant which are
based on the evidence which he gives to a court. It extends to any statement
which the witness makes for the purpose of giving evidence. The rule in
relation to immunity of witnesses depends upon the proposition that,
without it, witnesses would be more reluctant to assist the court.

In Stanton v Callaghan152 the Court of Appeal held that an expert witness

could not be sued for agreeing to a joint expert‘s statement in terms the
client considered to be detrimental to his or her interests. This was

149
General Medical Council v Meadow (Attorney General intervening) [2006] EWCA Civ
1390.
150
R v Skinner (1763) Lofft 54, [1558-1774] All ER Rep 321.
151
X (Minors) v Bedfordshire CC [1995] 2 A.C.633 approving Evans v London Hospital
Medical College [1981] 1 W.L.R. 184.
152
Stanton v Callaghan [2000] QB 75, [1998] 4 All ER 961.

58
postulated on the general principle of witness immunity: that the
administration of justice would be adversely affected if witnesses felt
unable to give their evidence freely and without fear. Otton LJ affirmed that
an expert witness owes a duty to the court that overrides that to his or her
client, and accordingly should not be vulnerable to claims from disgruntled
clients. Chadwick LJ in Stanton v Callahan153 said:
“It seems to me that the following propositions are supported by authority
binding on this court: (1) an expert witness who gives evidence at trial is
immune from suit in respect of anything which he says in court and the
immunity will extend to the contents of the report which he adopts as, or
incorporates in, his evidence; (2) where an expert witness gives evidence at
a trial the immunity which he would enjoy in respect of that evidence is not
to be circumnavigated by a suit based on the report itself”

The immunity that expert witnesses enjoy extends to dishonest statements

made by an expert under cross-examination.154 However, the immunity
enjoyed by witnesses has being challenged. It is argued that expert
witnesses choose to be witnesses and that they are paid, professional and
uncompellable. There have been cases to demonstrate a shift away from
expert immunity. In J S Hall & Co. v Simons,155 the immunity for barristers
was removed. The courts have agreed that, whilst there is a need for
witnesses to give their evidence freely, this right is paramount but not
absolute. This blanket immunity was discouraged by the European Court of
Human Rights in Osman v United Kingdom.156

It is anticipated that each case will now be considered on its own merits.
Witnesses can be prosecuted for perjury if they tell lies, and can be said to
be in contempt of court if they sign a false declaration of truth to a witness
statement. What is currently prohibited is litigation seeking damages or
other remedy arising out of the evidence itself. The call for removal of
expert immunity became louder in the light of the public and high profile
case of Professor Meadow, the expert witness in R v Sally Clark.157

153
Stanton v Callahan (1999) 2 WLR 745.
154
Raiss v Paimano [2000] All ER (D) 1266.
155
J S Hall & Co. v Simons (2002 1 AC 615 HL).
156
Osman v United Kingdom [2000] 29 EHRR 245.
157
R v Sally Clark 2003 EWCA Crim 1020.

59
The GMC‘s appeal was upheld in General Medical Council with Her
Majesty‟s Attorney General v Professor Sir Roy Meadow.158 Lord Justice
Thorpe stated that ―the judge would in all cases consider and appraise the
quality of any expert evidence, with that part of his judgement,
subsequently transcribed, being made available to the GMC in the event of
any complaint being received.‖ A paradigm shift took place with this
decision and one awaits its aftermath.

Unlike the case of Professor Meadow, where the family of Sally Clark
reported to the GMC, trial judges have been instrumental in reporting
experts to their professional bodies when they are thought to have breached
the protocols. Dr Paterson, a pathologist appeared as an expert witness for
parents accused of injuring their children. He told the court he believed the
children‘s fractures were due to temporary brittle bone disease, a condition
he first described,159 but which many specialists say does not exist. His
evidence was criticised and described as woeful by the judge.

Dr Paterson was reported to the GMC and the GMC found that he ignored
crucial evidence to advance his own controversial theories on bone
disease.160 The GMC found that he had failed in his duties as an expert
witness in the trials of two sets of parents accused of harming their children.
His evidence was considered partisan and he was struck off from the
Medical Register.

The expert witness in Gareth Pearce v Ove Arup Partnership161 was

reported to his professional body, Royal Institute of British Architects.
(RIBA), for breaking his Part 35 duty. The professional body ruled that he
had not acted improperly.

In addition to being reported to one‘s professional body, other sanctions

may be imposed against erring expert witnesses. In Phillips &Others v

158
General Medical Council with Her Majesty‟s Attorney General v Professor Sir Roy
Meadow. [2006] EWCA Civ 1390.
159
Paterson, C. (1990) Journal of the Royal Society of Medicine,83:72-4.
160
Dyer O. (2004) BMJ;328:604 (13 March), doi:10.1136/bmj.328.7440.604-a.
161
Gareth Pearce v Ove Arup Partnership [2001] EWHC 455 (Ch).

60
Symes & Others,162 the application of costs sanctions was considered
against experts who are considered to be negligent or to have signally failed
in their duty to the court. Justice Smith gave a summary of the sanctions
available to the courts as they currently stand, that:
“an expert can be said to be in contempt of court, or even guilty of perjury,
depending on the extent of their dereliction and that, it might be possible, in
an appropriate case, to order that the expert‟s costs be disallowed. In this
context the costs can be either those between the expert‟s “client” and
another party to the litigation, or those between the client and the expert”.

It was argued that the position of expert witnesses is similar to that of

advocates, who are subject to sanctions as regards wasted costs orders. In
his ruling, Justice Smith pointed out that the immunity previously enjoyed
by advocates flows from the more general immunity of witnesses. Those
immunities, he said, have now diverged and, since the decision in J S Hall
& Co. v Simons,163 there is no longer any immunity from suit for advocates
in respect of things done in court or in close proximity to the court.

The current view taken by the courts appears to be that, having regard to the
clearly defined duties enshrined in CPR 35 and its Practice Direction, 164 it
would be wrong for the court to remove from itself the power to make a
costs order against an expert who, by his or her evidence, causes significant
expense to be incurred and does so ―in flagrant, reckless disregard of his
duties to the Court‖.165

162
Phillips &Others v Symes & Others (2004 EWHC 1887 (Ch)).
163
Arthur J.S. Hall & Co v Simons ([2000] 3 All ER 673).
164
Civil Procedure Rules. Practice Direction - Experts and Assessors. Ministry of Justice.
© Crown Copyright 2007.
165
Phillips v Symes [ 2004] EWHC 2330 (Ch).

61
 CHAPTER 4

TRAINING AND REGULATION OF EXPERT WITNESSES

This Chapter will expound on the areas pertaining to the training,

registration, accreditation and regulation of medical expert witnesses.
Despite the critical importance of the expert witness, no uniform standards
on credentialing or regulatory body currently exist. This has been the
weakness cited by critics of the expert witness testimony system.166

Training
Lord Justice Auld in his review of criminal courts commented that there
was no legal requirement for any expert to have any particular qualification
or level of expertise. The case of Gene Morrison demonstrates the instances
of charlatans masquerading as experts without having acquired real skills.
We also have situations in which there is variance in opinion between two
or more experts as exemplified in Munang et al,167 No formal training exists
for expert witnesses and most expert witnesses develop their skills through
experience and are largely self-taught. Currently, it is for the judge to
determine if an expert witness has undertaken the prerequisite course of
study, or possesses expertise to render him an expert. In R v Inch,168 a
medical orderly with experience in the treatment of cuts and lacerations was
considered to be insufficiently qualified to express an opinion as to whether
an inch long cut to the forehead had been caused by a blunt instrument
rather than a head-butt.

There is no guide to the courts in the form of a professional register of

accreditation to which courts or parties may have recourse when
considering the suitability of proposed expert witnesses. The question of
who will accredit such experts remains a moot point. The General Medical

166
McAbee, GN. (1994) Peer review of medical expert witnesses. J Child Neurol. 9:216 –
217.
167
Munang, LA, Leonard, PA, Mok, JK. (2002) Lack of agreement on colour description
between clinicians examining childhood bruising, J Clin Forensic Med, 9(4):171–4.
168
R v Inch (1989) 91 Cr App R 51.

62
Council‘s publication ―A licence to Practise and Revalidation‖169 did not
address whether doctors needed to be licensed to act as expert witnesses.
Comments attributed to the Head of Regulation and Policy in 2001 was that
expert witness work falls outside the scope of the revalidation process as
there is no medical specialty as expert witness. The Senior Policy Advisor
at the Registration Directorate of the GMC reaffirmed this in 2003 when he
stated that “I can confirm that the GMC takes the view that it is for the
courts, and for the solicitors who instruct expert witnesses, to decide on
whether medical experts need to be revalidated”.170

What we have witnessed over the past 10 years, is the establishment of a

number of expert witness organisations each with its own published Codes
of Practice. There is an increasing list of registers of experts that could
assist the legal profession in determining the competence of expert
witnesses. These include the Law Society Directory of Expert Witnesses,
the UK Register of Expert Witnesses, the Forensic Science Society and the
Academy of Experts, Society of Expert Witnesses, the Expert Witness
Institute and the Council for the Registration of Forensic Practitioners
(CRFP). Each maintains a membership list.

Training and accreditation of experts has resurfaced in the Legal Services

Commission‘s Consultation Paper on “The Use of Experts”171, and the
report of the Royal College of Pathologists and the Royal College of
Paediatrics & Child Health on “Sudden Unexpected Death in Infancy”.172
The effect of having many bodies fuels the confusion already in this arena.

169
General Medical Council (2003) A licence to practise and revalidation. London: GMC.
170
In: Pamplin C. Your Witness. Newsletter of the UK Register of Expert Witnesses;
2003; 34; 1.
171
The use of Experts: Quality, price and procedures in publicly funded cases.
www.legalservices.gov.uk
172
Sudden unexpected death in infancy: A multi-agency protocol for care and
investigation. The report of a working group convened by The Royal College of
Pathologists and The Royal College of Paediatrics and Child Health. 6 September 2004.

63
Accreditation
Training and accreditation of experts featured in Lord Justice Auld‘s review
of the criminal courts,173 published in 2001. He recognised that there had to
be a single body with the responsibilities of role of setting, or overseeing
the setting, of standards and of conduct for forensic scientists of all
disciplines, the maintenance of a register of accreditation for them and the
regulation of their compliance with its conditions of accreditation; The
body should have the following attributes: i. independent; ii. verifiable
standards of current competence; iii. code of conduct; and iv. disciplinary
powers of removal.

Models of Accreditation
There are two proposed models for accreditation of expert witnesses, by an
independent body such as the Council for the Registration of Forensic
Practitioners (CRFP) and by the Academy of Medical Royal Colleges. The
Legal Services Commission‘s Consultation Paper on “The Use of
Experts”,174 favoured the CRFP model, while the Royal College of
Pathologists and the Royal College of Paediatrics & Child Health favoured
accreditation by the Academy of Medical Royal Colleges or by speciality
associations.

The Council for the Registration of Forensic Practitioners (CRFP)

Model
The Council for the Registration of Forensic Practitioners is an independent
body of forensic practitioners that include practitioners who use their
professional skills to provide evidence in connection with cases which may
go to court.

173
Review of the Criminal Courts of England and Wales by The Right Honourable Lord
Justice Auld September 2001. http://www.criminal-courts-review.org.uk/ccr-11.htm.
174
The use of Experts: Quality, price and procedures in publicly funded cases.
www.legalservices.gov.uk.

64
Registration
Its Register includes forensic practitioners of all kinds and entry to the
Register is voluntary and following peer review of current competence
against agreed criteria.

Code of Conduct
Key to the success of the council is a Code of Conduct that all accredited
experts have to sign up to. The principles of the Code of Conduct are that:
i. overriding duty to the court and the administration of justice
ii. fairness, honesty, integrity and impartiality
iii. provision of expert advice and evidence only within limits of
professional competence, and only when fit to do so.

Fitness to Practice
The CRFP expects to have procedures to deal with complaints of
professional misconduct, poor performance or ill health, with the ultimate
disciplinary sanction of removal from the Register. It is hoped that the
courts will regard entry on the Register as an indicator of competence,
though of course they will retain the power to determine whether a witness
is qualified to give expert evidence on a case by case basis. The Crown
Prosecution Service and other prosecuting bodies, legal practitioners and
the courts should, in their various ways, encourage and support the Council
in its work.

Revalidation and re-accreditation

All experts registered with CRFP will be expected to undergo re-
accreditation every four years. This should suffice to demonstrate that
expert witnesses are constantly reviewing their capacity to practice,
learning from modern technologies and new techniques. It is hoped that this
model will offer the courts and the public the assurance and confidence they
crave for with the expert witness system.

65
The Academy of Medical Royal Colleges model
The Academy of Medical Royal Colleges (AMRC) is an organisation that
brings together each of the Medical Royal Colleges in the United Kingdom.
The Academy has issued guidance for medical expert witnesses175 (see
Appendix D). Unlike the CRFP, the Academy does not operate a register of
expert witnesses, nor does it nominate doctors as experts or vouchsafe those
who serve as experts.

The Academy has no formal role in training, accreditation or sanctioning of

expert witnesses, but plays a part in ensuring that doctors have appropriate
training opportunities for work as medical expert witnesses. This training
may be included as part of the core training programmes for specialist
registration or recognised and accredited as continuing professional
development, or both.

The Academy endorses the principles contained in Paragraph 51 in ―Good

Medical Practice‖176 that explains what is required of doctors serving as
expert witnesses:
“You must be honest and trustworthy when writing reports, completing or
signing forms, or providing evidence in litigation or other formal inquiries.
This means that you must take reasonable steps to verify any statement
before you sign a document. You must not write or sign documents which
are false or misleading because they omit relevant information. If you have
agreed to prepare a report, complete or sign a document or provide
evidence, you must do so without unreasonable delay.”

The Academy recommends that medical expert witnesses should ensure

that their statements, reports and verbal evidence are:
1. Straightforward, rather than intentionally misleading or biased
2. As objective as possible and not omitting material or information which
does not support the opinion expressed or conclusions reached
3. Properly and fully researched.

175
Medical Expert Witnesses. Guidance from the Academy of Medical Royal Colleges.
176
General Medical Council, Good Medical Practice.

66
Credentialing by the Academy of Medical Royal Colleges
The Academy through its Colleges and Faculties may provide the courts
with specialty-specific advice on recommended criteria for establishing the
expert credentials of doctors. The Academy recommends that these criteria
should be linked to the items set out in the Intercollegiate Report on Sudden
unexpected death in infancy177 which advises that, before a doctor gives
evidence that will be relied on as ―expert‖, the court should establish the
expert status and credentials of the doctor by using the prompts in
Appendix D:

The report of the Chief Medical Officer, “Bearing Good Witness:

Proposals for Reforming the Delivery of Medical Expert Evidence in
Family Law Cases”178 is meant to address the potential shortages of
medical experts in key areas, a sequelae of the Professor Meadow erasure
from the Medical Register. The key proposal is that in future the provision
of expert medical evidence in public law Children Act proceedings should
be delivered by the National Health Service (NHS) as a public service,
consistent with its duty to safeguard the welfare of children. This service is
expected to be provided through the establishment of teams of
paediatricians, child psychiatrists and other relevant specialists in local
NHS Trusts.

It was anticipated that giving expert evidence in court will eventually

become part of basic and postgraduate medical education, with a new
―National Knowledge Service‖ providing an evidence-based scientific
foundation for expert opinion in matters of child health. This novel idea
was meant to be influential in shaping the way expert witnesses are
appointed or function in future. Unfortunately, this has not come to fruition.

177
The Intercollegiate Report on Sudden unexpected death in infancy: a multi-agency
protocol for care and investigation (September 2004) was produced by a working party of
the Royal Colleges of Pathologists and of Paediatric & Child Health chaired by Baroness
Helena Kennedy.
178
Department of Health. (2006) ―Bearing Good Witness: Proposals for Reforming the
Delivery of Medical Expert Evidence in Family Law Cases”

67
University Accreditation Model
Cardiff Law School, in association with Bond Solon provides professional
training and accreditation for expert witnesses. It is the only university
accreditation and it leads to The Cardiff University Bond Solon Expert
Witness Certificate. This model offers training, and certification after
successfully completing testing process in providing written and oral
evidence in the context of the duties and responsibilities owed by expert
witnesses to the court.

Training
While the above models serve as credentialing and registration bodies, they
do not all undertake training of expert witnesses. It is desirable to establish
training of experts in providing expert evidence and on the legal system‘s
expectations of them. Lord Woolf supported the provision of training for
experts but did not favour an exclusive system of accreditation. A number
of bodies have risen to the occasion and provide training opportunities for
expert witnesses.

Sanctioning
The most appropriate deterrent approach of curbing irresponsible evidence
is to discipline expert witnesses whose opinions are deemed to be biased,
inaccurate, incomplete, or unscientific. Immunity of the expert witness and
disciplinary actions by professional regulatory bodies have already been
discussed elsewhere in this dissertation. Other sanctions have been
considered against erring expert witnesses. In Phillips &Others v Symes &
Others,179 the application of costs sanctions was considered against experts
who are considered to be negligent or to have signally failed in their duty to
the court.

It is argued that expert evidence should be treated as a scholarly activity

that is subject to peer review. Selected transcripts of the evidence, with
identifying characteristics of the defendant removed, should be published in
specialty-specific, peer-reviewed journals, with invited commentaries from

179
Phillips &Others v Symes & Others (2004 EWHC 1887 (Ch)).

68
one or more experts in the same field identified by the editorial boards of
the journals. Such invited experts would provide a conclusion regarding the
accuracy of the testimony, and the expert witness would be given a chance
to respond. The possibility of having transcripts of evidence published with
a written commentary from a peer in the same field would act as deterrent
for inauthentic evidence.180

Could any or all of these attempts at improving the quality of expert

testimony be effective and successful? If anything, it is better than having
no training and accreditation system in place. Should we have one
credentialing body or more? As the requirements of expert witnesses are the
same irrespective of what aspect of forensic science they represent, a single
body might be preferable. Rather than implement review panels to sanction
expert witnesses for providing irresponsible evidence or other processes that
can be as flawed and biased as the current use of expert witness testimony,
it may be more prudent for expert witness organisations to address the
problem through advocacy and education and training. Training of expert
witnesses could be undertaken by different bodies such as Expert Witness
Institute.

No system is perfect and an accreditation or vetting system would probably

have prevented the likes of Gene Morrison and Professor Meadow. The
future will tell as to the effectiveness of the emerging schemes of regulating
expert witnesses.

180
Christopher R. McHenry, CR. Biffl, WL, Chapman, WC,and Spain, DA. Expert witness
testimony: The problem and recommendations for oversight and reform. SUS position
paper. http://www.susweb.org/pdfs/05_SurgMcHenry_Expert_Witness.pdf.

69
 CHAPTER 5

THE EXPERT WITNESS: THE FUTURE

The reforms to the civil and criminal justice systems are welcome. They
have provided clear guidelines as to the duties of the expert witness. The
reforms have also created new roles such as the single joint expert witness
or court appointed witness. New opportunities such as acting as advisors
now exist.

The death or the dearth of Expert Witnesses?

The after effect of Professor Meadow being struck off from the Medical
Register was the reluctance of paediatricians to undertake expert witness
work. From the point of view of the scientist, the courtroom is ―someone
else‘s turf, where the rules are different and unfamiliar.‖ This was nicely
put by Judge Richard Levie:

“Here‟s the bottom line. When you ladies and gentlemen with your M.Ds
and Ph.Ds come into a courtroom, you are going to be forced to use the
court‟s language, you are going to have to follow the court‟s procedures.
Or put a little differently, you‟re going to be playing in my ballpark and by
my rules. It will not be a scientific meeting where one presenter gets up
after another with their power points and their overheads and presents
their paper. They get a few questions and then you move on to the next
person. It‟s a very, very different situation.‖181

The mode of debate in science traditionally leads to consensus, and it is not

perceived as defeat or victory. One reason scientists are uncomfortable in
the courtroom is that they are neither trained in nor comfortable with the
formalities of the legal adversary proceeding as a mechanism of resolving
scientific differences.

The fall out from the miscarriage of justice as a result of flawed or poor
expert evidence is the clamour for some form of regulatory machinery for

181
The Age of Expert Testimony: Science in the Courtroom, Report of a Workshop (2002),
Science, Technology, and Law Panel, National Research Council. The National Academies
Press.

70
expert witnesses. One expects to see the establishment of credentialing and
regulatory bodies in the future.

Training
It is anticipated that giving expert evidence in court will eventually become
part of basic and postgraduate medical education. The Chief Medical
Officer‘s report „Bearing Good Witness: Proposals for reforming the
delivery of medical expert evidence in family law cases‟182 was the response
to the high profile court cases that called into question the quality of
medical expert witnesses in certain types of case. The report proposes a
new National Knowledge Service to provide and support the programme,
principally in the interpretation of research and statistical information,
providing evidence-based scientific foundation for expert opinion in matters
before the court. This is a novel idea and may be influential in shaping the
way expert witnesses are appointed or function in future.

Accreditation and admissibility

A development that has arisen out of the reforms to the civil and criminal
justice system is the introduction of the need to be an accredited and
registered as an expert witness. We may see in future that no expert
evidence will be permissible in criminal or civil cases unless that expert has
been accredited and appears on a centrally maintained register. The
provisions of the Civil Procedure Rules allow courts to appoint experts183
and it is unlikely that the court would in future appoint an unregistered or
unaccredited medical expert.

The use of peer review panels

The key proposal in The Chief Medical Officer‘s report is that the NHS
should establish teams of specialist doctors and other professionals within
local NHS organisations to improve the quality of the medical expert
witness service by introducing mentoring, supervision and peer review. 184

182
Department of Health. (2006) Bearing Good Witness: Proposals for reforming the
delivery of medical expert evidence in family law cases.
183
Stanton v Callaghan [1999] 2 WLR 745.
184
Department of Health. (2006) Bearing Good Witness: Proposals for reforming the
delivery of medical expert evidence in family law cases.

71
Codes of Conduct
Expert witnesses should expect to be judged by the quality of their work.
This will influence who is hired in future. There are increasing numbers of
codes of conducts issued by forensic societies and professional bodies. The
basis of these codes can be found in Whitehouse v Jordan185.where Lord
Wilberforce said:
“…. it is necessary that expert evidence presented to the court should be,
and should be seen to be, the independent product of the expert,
uninfluenced as to form of content by the exigencies of litigation. To the
extent that it is not, the evidence is likely to be not only incorrect but self
defeating.”

The underlying theme in this statement is that expert evidence should be the
objective opinion of the expert, uninfluenced by being retained for one side
or the other. The expert witness or anyone hoping to act in this role is
advised to adhere strictly to the Civil Procedure Rules 1999186 and Criminal
Procedure Rules 2005.187

New Roles for Expert Witnesses

Civil Procedure Rules (1999) introduced a new system of case management
that promoted court control of experts in litigation and the role of experts
under these rules. The use of single joint experts has been entrenched in
civil litigation, under these Rules. Though the Criminal Procedure Rules
Part 33 defines a single joint expert, their use is yet to take off in criminal
proceedings. It is important that those who undertake this role act
impartially. The use of single expert witnesses or court appointed experts
will not always guarantee that justice will be carried out fairly and may not
be an absolute panacea.

The use of expert witnesses as advisors to the parties that instruct them is
likely to increase. Such experts are not allowed to write reports for the court
or give evidence without the court‘s permission. Experts appointed by the

185
Whitehouse v Jordan [1981] 1 WLR 246 at 256-257.
186
Civil Procedure Rules 1999.
187
Criminal Procedure Rules 2005.

72
courts are not allowed to act as advisors under the Civil Procedure Rules
1999 and Criminal Procedure Rules 2005.

Joint Conferences
The Civil Procedure Rules (1999) and the Criminal Procedure Rules have
introduced the conference meetings between experts. The expert‘s role is no
longer a participatory role in the adversarial system of litigation, but to
partake in joint conferences as an alternative way of resolving disputes.

Alternative Dispute Resolution (ADR)

Lord Woolf‘s report ‗Access to Justice‘, identified the need for fair, speedy
and proportionate resolution of disputes. Those principles lay at the heart of
the Civil Procedure Rules. The civil procedure rules included references to
Alternative Dispute Resolution in rules of court and introduced pre-action
protocols, with their emphasis on settlement, even before court proceedings
are issued. The expert‘s opinion may be relied upon or needed for the
purpose of assisting parties who have embarked upon ADR procedures

The expert evidence and new science

The use or interpretation of scientific evidence in the justice system
continues to puzzle or perplex the jury who are mainly lay people and who
have the responsibility of deciding the facts of the case. Judicial
conceptions of science and of jury‘s capacities to understand scientific
evidence inform decisions in particular cases. Such decisions, in turn, act as
precedents that, for better or worse, embed judicial conceptions of public
understanding of science into the workings of the legal system. An example
is the use of DNA evidence.

The use of DNA analysis is a fairly new tool that provides scientific
evidence in criminal cases. In Regina v Adams,188 DNA evidence was used
to convict the defendant of rape. At stake was the difference between
scientific evidence and common sense evidence. The matching DNA
profiles provided the only substantial evidence against Adams. He provided

188
R. v Adams, [1996] 2 Cr App Rep 467.

73
other evidence that supported his defence. The jury was persuaded by the
DNA evidence and Adams was convicted in January 1995. He was
successful at his appeal but was convicted again at a second retrial.189 He
launched an unsuccessful second appeal. Prosecution experts expressed the
evidence in probabilistic terms, estimating a probability of one in 200
million that a DNA profile from a randomly chosen unrelated man in the
relevant population would match the profile developed from the crime
stain. The defense team presented a novel effort to counteract the
prosecution evidence by converting the non-DNA ―common sense‖
evidence into probability estimates. In its decisions, the Court reinstated a
boundary between the ―scientific‖ and ―common sense‖ evidence, arguing
that this boundary was necessary to preserve the jury‘s role as trier of
fact.190 As the frontiers of science expand one can safely assume that the
services of forensic scientists will continue to be required in matters that
come before the courts.

The Daubert Principle: Hearing before the admission of evidence

The situation in which we have one expert opinion against another makes
the tasks of the jury composed of non-scientists difficult. The use of single
expert witnesses or court appointed witnesses has not changed things. Judge
Igor in R v Cannings191 suggested that where an investigation into two or
more sudden unexplained infant deaths was followed by a serious
disagreement between reputable experts, then the prosecution should not be
started or continued without additional cogent evidence. In the United
States, a preliminary hearing takes place where the trial judge assesses the
admissibility of expert evidence before allowing it to go to a jury. This is
now known as the Daubert Test.

This test stems from Daubert v Merrell Dow Pharmaceuticals, Inc192 in

which the US Supreme Court directed federal judges to act as gatekeepers

189
R. v. Adams, [1996] 2 Cr App Rep 467.
190
Lynch M. and McNally R. ―Science,‖ ―common sense,‖ and DNA evidence: a legal
controversy about the public understanding of science Public Understand. Sci. 12 (2003)
83–103.
191
R v. Cannings [2004] EWCA Crim.1.
192
Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579 (1993).

74
by deciding whether to allow expert evidence to be presented to a jury. The
ruling expects judges to examine the scientific method underlying expert
evidence and to admit that which is both scientifically reliable and relevant
to the issue at hand. It is thought that it would eliminate scientifically
ungrounded opinions. In essence, the courts exercise a form of quality
control. The judge decides which experts are capable of giving evidence
and the areas where they are qualified to comment. This ensures that certain
basic thresholds are achieved, that the theory or technique employed can or
has been tested, subjected to peer-review or publication, scrutinised for any
known rate of error and identifies whether there is a consensus within the
scientific community.

Could this be a principle applicable to the English justice system? The

principle of Daubert has not been without its problems. Most scientific
conclusions in low impact crashes, medicine or forensic science are based
on interpretations of several sources of data, and absolute certainty may not
be achieved in each case. Judges are not scientists and as such are not best
placed to act in this role of gatekeeper. It is unrealistic to expect a judge
untrained in these areas to understand all of the underlying issues that might
impact the validity and relevance of data from each of forensic science
disciplines.

Accordingly, a judge who does not have expertise in dealing with scientific
uncertainty, agreeing with a particular interpretation, understanding the full
value or limit of currently used methodologies, or recognising hidden
assumptions, biases, or the strengths of scientific inferences, may reach an
incorrect decision on the reliability and relevance of credible
evidence.193,194 A downside of the Daubert approach is that theories which
have not been validated or widely accepted may be excluded, even though
that they could be plausible. This is where the expert witness role becomes
paramount.

193
Cranor C. (2005) Scientific inferences in the laboratory and the law. Am J Public
Health;95:S121–S128.
194
Wagner W. (2005) The perils of relying on interested parties to evaluate scientific
quality. Am J Public Health. 95:S99–S106.

75
Rose LJ in R v Gilfoyle195 indirectly referred to Daubert196 in reaching a
decision not to admit evidence from a psychologist as to the deceased‘s
state of mind. The judge referred to Frye v United States197 that evidence
based on a developing new brand of science or medicine is not admissible
until accepted by the scientific community as being able to provide accurate
and reliable opinion. This accords with the English approach as reflected in
Strudwick and Merry.198

However, in R v Gerrard Francis Luttrell and others199 the appellants

appealed against a decision allowing lip-reading evidence to be admitted at
their trials. They had been convicted of conspiracy to handle stolen goods.
A skilled lip-reader had given evidence for the prosecution at Mr. Luttrell‘s
trial, as to what was said at a meeting between Luttrell and another co-
accused and which had been recorded on CCTV. The judge had ruled that
this lip-reading evidence was admissible.

Mr. Luttrell submitted that the lip-reading evidence via video footage
should not have been admitted because it had not been shown to be reliable.
He further submitted that a special warning had been necessary, the judge‘s
directions had been inadequate and the prosecution had not disclosed all
material relevant to the lip-reader‘s expertise and reliability.

The Court of Appeal held that lip-reading evidence from a video, like facial
mapping, was a type of real evidence that was perfectly capable of passing
the ordinary tests of relevance and reliability. It was, therefore, potentially
admissible in evidence. Once ruled to be admissible, lip-reading evidence
did, however, require a special warning from the judge as to its limitations
and risks of error, because such evidence would usually be introduced
through an expert who might not be completely accurate. The precise terms

195
R v Gilfoyle (No 2) [2001] 2 Cr App R 57.
196
Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579 (1993).
197
Frye v United States 293F.1013 (1923).
198
Strudwick and Merry (1993) 99 Cr App R 326 cited in R v Gilfoyle, Case
No:990180053, Court of Appeal (Criminal Division), 20th December 2000
199
R v Gerrard Francis Luttrell and others (2004) EWCA Crim 1344

76
of the direction, said the court, would depend on the facts of the particular
case.

The judges in R v Dallagher,200 referred to the fact that Frye does not
represent the guiding principle in the United States. It had been superseded
by the adoption of the Federal Rules of Evidence which do not require that
a scientific technique be regarded as inadmissible unless the technique is
generally accepted as reliable in the relevant scientific community. Rule
702 provides:

“If scientific, technical or other specialised knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise”.201

As to the English approach the judges referred to Strudwick and Merry and
also to a number of other decisions, especially Clarke,202 from which the
analogy with Rule 702 is clear. It is said in Cross and Tapper203 after a
reference to Frye:

“The better, and now more widely accepted, view is that so long as the field
is sufficiently well-established to pass the ordinary tests of relevance and
reliability, then no enhanced test of admissibility should be applied, but the
weight of the evidence should be established by the same adversarial
forensic techniques applicable elsewhere.”

―We are satisfied that if a submission had been made to the trial judge that
the expert evidence upon which the Crown proposed to rely was
inadmissible, and if that evidence had been deployed on a voire dire,
whether with or without expert evidence called on behalf of the defence, the
trial judge could not possibly have concluded that the Crown‘s expert

200
R v Dallagher [2002] EWCA Crim 1903 at 29.
201
Federal Rules of Evidence
202
R v Clarke [1995] 2 Cr App R 425.
203
Tapper, C. (1999) Cross & Tapper on Evidence, LexisNexis UK; 9 th Rev Ed at 523.

77
evidence was irrelevant, or so unreliable that it should be excluded.
Accordingly, in our judgment the first ground of appeal fails‖.204

If the Daubert test had been applied in Luttrell and Dallagher there would
certainly have been an earlier evaluation of the expert evidence, and there is
also the possibility that such evidence would altogether fail to pass a test
similar to that applied in Daubert. It is unlikely that the Daubert principle
will be adopted in England.

204
R v Dallagher [2002] EWCA Crim 1903 at 29.

78
 CHAPTER 6

CONCLUSION

Civil and Criminal proceedings require the expertise of expert witnesses.

The primary duty of an expert witness is to the court – to be truthful as to
fact, thorough in technical reasoning, honest as to opinion and complete in
coverage of relevant matters and unbiased.

Auld LJ in his report said:

“the integrity of the criminal justice system is a higher objective than the
conviction of any individual”.205 But the concern for justice and for the
integrity of the system is too important to be entrusted solely to the judges.
The jury have a role in that regard too. To this, I would add, the expert
witness has a vital role in ensuring that justice is well dispensed.

Recent miscarriage of justice cases have thrown the search light on expert
witnesses. At present there are no formal credentials required to be an
expert witness or a regulatory body for expert witness. This situation has
led to bogus witnesses and provision of flawed evidence in courts, resulting
in miscarriage of justice.

The Woolf and Auld reforms were aimed at modifying the role of experts in
the adversarial system, so that they can metaphorically wear their
laboratory or clinical coats rather than advocates‘ robes. In carrying out
these functions one pleads to expert witnesses to be mindful of the fact that
their duty is to the courts and not to the instructing parties.

There is need to deal with expert witnesses who fall short of complying
with their duties. There should be a published code of conduct that outlines
the expectations regarding expert witness evidence, and the potential
sanctions for non-compliance. We are likely to see sanctions against expert

205
Auld, Sir Robin. 2001. ―A Review of the Criminal Courts of England and Wales.‖
(p.10, para.8). Department of Constitutional Affairs. Available online at
http://www.criminal-courts-review.org.uk/

79
witnesses who err. Theses may include referral to their professional bodies
or cost sanctions.

Expert witnesses who work according to the principles of the duty of

experts laid down by the Civil and Criminal Procedure Rules should have
nothing to fear. In Meadow v General Medical Council,206 Collins J held
that “expert evidence given honestly and in good faith in a court of law
would not normally merit a referral to the relevant professional
disciplinary body”.

To minimise the risk of flawed evidence, expert witnesses need to ensure

that they fulfil the expectations set out in the civil and criminal procedure
rules. This will be achieved through adequate training and adhering to the
prerequisite standards.

Expert witnesses play a vital role in delivering justice and the criminal and
civil justice systems cannot function without them. Michael Hoeflich,
Professor of Law, University of Kansas said:
“. science can sometimes get it wrong. .. Science is not always value-free,
and most importantly, .. when lawyers accept the validity of an established
scientific paradigm uncritically, they do risk making the same mistake as
scientists.”207

I will modify this by saying, expert witnesses can sometimes get it wrong;
expert evidence is not always value-free, and most importantly, when the
judge and jury accept the validity of expert evidence uncritically, they do
risk making the same mistake as expert witness. A concerted effort by the
three streams of the judicial system will augur well for a fair and just
system.

206
Meadow v General Medical Council [2006] EWHC 146 (Admin).
207
Hoeflich, M. Quoted in: The Age of Expert Testimony: Science in the Courtroom,
Report of a Workshop (2002), Science, Technology, and Law Panel, National Research
Council. The National Academies Press.

80
I submit that the time has come for a clear, regulatory structure with
obligatory protocols and guidelines to be established. This should
encompass training, accreditation and self regulation of expert witnesses.

The Civil and Criminal Procedure Rules have resulted in the pro-active case
management and evolving new roles for the expert witness. It has also seen
a departure from the adversarial system. The ―hired gun‖ philosophy of
expert witnesses has become a thing of the past. The expert witness should
strive to meet high professional standards, should be impartial, and should
adhere to the duties and responsibilities of the expert witness espoused in
the Civil Evidence Act, part 35 of the Civil Procedure Rules, Criminal
Procedure Rules and associated practice directions, the Code of Guidance
on Expert Evidence. The experts should make their expertise available to
the court on matters within their expertise. To do so will restore credibility
to the role of the expert witness, to the expert witness and in turn to the
judicial system.

81
APPENDICES

82
 APPENDICES

Appendix A

Expert evidence rules in criminal cases

Criminal Procedure Rules – Part 33 – Expert Evidence

The Criminal Procedure Rules as amended now include rules

concerned with expert evidence. Importantly, the Rules impose duties
directly on experts, unlike the Civil Procedure Rules.

On 6th November 2006 the second set of amendments to the Criminal

Procedure Rules came into force. Part 33 (Expert Evidence) reads:

33.1 Reference to expert

(1) A reference to an ‗expert‘ in this Part is a reference to a person who
is required to give or prepare expert evidence for the purpose of
criminal proceedings, including evidence required to determine
fitness to plead or for the purpose of sentencing.
[Note. Expert medical evidence may be required to determine fitness to
plead under section 4 of the Criminal Procedure (Insanity) Act 1964. It may
be required also under section 11 of the Powers of Criminal Courts
(Sentencing) Act 2000, under Part III of the Mental Health Act 1983 or
under Part 12 of the Criminal Justice Act 2003. Those Acts contain
requirements about the qualification of medical experts.]

33.2 Expert’s duty to the court

(1) An expert must help the court to achieve the overriding objective by
giving objective, unbiased opinion on matters within his expertise.

(2) This duty overrides any obligation to the person from whom he
receives instructions or by whom he is paid.

(3) This duty includes an obligation to inform all parties and the court if
the expert‘s opinion changes from that contained in a report served as
evidence or given in a statement under Part 24 or Part 29.

83
33.3 Content of expert’s report

(1) An expert‘s report must

(a) give details of the expert‘s qualifications, relevant experience and

accreditation;
(b) give details of any literature or other information which the expert
has relied on in making the report;
(c) contain a statement setting out the substance of all facts given to the
expert which are material to the opinions expressed in the report or upon
which those opinions are based;
(d) make clear which of the facts stated in the report are within the
expert‘s own knowledge;
(e) say who carried out any examination, measurement, test or
experiment which the expert has used for the report and –

(i) give the qualifications, relevant experience and accreditation

of that person,
(ii) say whether or not the examination, measurement, test or
experiment was carried out under the expert‘s supervision, and
(iii) summarise the findings on which the expert relies;

(f) where there is a range of opinion on the matters dealt with in the
report –
(i) summarise the range of opinion, and
(ii) give reasons for his own opinion;

(g) if the expert is not able to give his opinion without qualification,
state the qualification;

(h) contain a summary of the conclusions reached;

(i) contain a statement that the expert understands his duty to the court,
and has complied and will continue to comply with that duty; and

(j) contain the same declaration of truth as a witness statement

(2) Only sub-paragraphs (i) and (j) of rule 33.3(1) apply to a summary
by an expert of his conclusions served in advance of that expert‘s report.

33.4 Expert to be informed of service of report

A party who serves on another party or on the court a report by an expert

must, at once, inform that expert of that fact.

84
33.5 Pre-hearing consideration of expert evidence
(1) This rule applies where more than one party wants to introduce expert
evidence.
(2) The court may direct the experts to –
(a) discuss the expert issues in the proceedings; and
(b) prepare a statement for the court of the matters on which they agree and
disagree, giving their reasons.
(3) Except for that statement, the content of that discussion must not be
referred to without the court‘s permission.

33.6 Failure to comply with directions

A party may not introduce expert evidence without the court‘s permission if
the expert has not complied with a direction under rule 33.5.
[Note. At a pre-trial hearing a court may make binding rulings about the
admissibility of evidence and about questions of law under section 7 of the
Criminal Justice Act 1987(10); sections 31 and 40 of the Criminal
Procedure and Investigations Act 1996(11); and section 45 of the Courts
Act 2003(12).]

33.7 Court’s power to direct that evidence is to be given by a single

joint expert
(1) Where more than one defendant wants to introduce expert evidence on
an issue at trial,
the court may direct that the evidence on that issue is to be given by one
expert only.
(2) Where the co-defendants cannot agree who should be the expert, the
court may –
(a) select the expert from a list prepared or identified by them; or
(b) direct that the expert be selected in such other manner as the court may
direct.

85
33.8 Instructions to a single joint expert
(1) Where the court gives a direction under rule 33.7 for a single joint
expert to be used, each of the co-defendants may give instructions to the
expert.
(2) When a co-defendant gives instructions to the expert he must, at the
same time, send a copy of the instructions to the other co-defendant(s).
(3) The court may give directions about –
(a) the payment of the expert‘s fees and expenses; and
(b) any examination, measurement, test or experiment which the expert
wishes to carry out.
(4) The court may, before an expert is instructed, limit the amount that can
be paid by way of fees and expenses to the expert.
(5) Unless the court otherwise directs, the instructing co-defendants are
jointly and severally liable for the payment of the expert‘s fees and
expenses.

86
 APPENDICES
Appendix B

Civil Procedure Rules

Duty to restrict expert evidence

35.1 Expert evidence shall be restricted to that which is reasonably required to

resolve the proceedings.
Interpretation

35.2 A reference to an ‗expert‘ in this Part is a reference to an expert who has

been instructed to give or prepare evidence for the purpose of court
proceedings.
Experts – overriding duty to the court

35.3 (1) It is the duty of an expert to help the court on the matters within his
expertise.
(2) This duty overrides any obligation to the person from whom he has
received instructions or by whom he is paid.
Court’s power to restrict expert evidence

35.4 (1) No party may call an expert or put in evidence an expert‘s report
without the court‘s permission.
(2) When a party applies for permission under this rule he must identify –
(a) the field in which he wishes to rely on expert evidence; and
(b) where practicable the expert in that field on whose evidence he
wishes to rely.
(3) If permission is granted under this rule it shall be in relation only to
the expert named or the field identified under paragraph (2).
(4) The court may limit the amount of the expert‘s fees and expenses that
the party who wishes to rely on the expert may recover from any other
party.
General requirement for expert evidence to be given in a written report

35.5 (1) Expert evidence is to be given in a written report unless the court
directs otherwise.
(2) If a claim is on the fast track, the court will not direct an expert to
attend a hearing unless it is necessary to do so in the interests of
justice.
Written questions to experts

35.6 (1) A party may put to –

(a) an expert instructed by another party; or
(b) a single joint expert appointed under rule 35.7,
written questions about his report.
(2) Written questions under paragraph (1) –
(a) may be put once only;
(b) must be put within 28 days of service of the expert‘s report; and
(c) must be for the purpose only of clarification of the report,
unless in any case –
(i) the court gives permission; or
(ii) the other party agrees.
(3) An expert‘s answers to questions put in accordance with paragraph (1)
shall be treated as part of the expert‘s report.
(4) Where –
(a) a party has put a written question to an expert instructed by another
party in accordance with this rule; and

87
 (b) the expert does not answer that question,
the court may make one or both of the following orders in relation to
the party who instructed the expert –
(i) that the party may not rely on the evidence of that expert; or
(ii) that the party may not recover the fees and expenses of that
expert from any other party.

Court’s power to direct that evidence is to be given by a single joint expert

35.7 (1) Where two or more parties wish to submit expert evidence on a
particular issue, the court may direct that the evidence on that issue is
to given by one expert only.
(2) The parties wishing to submit the expert evidence are called ‗the
instructing parties‘.
(3) Where the instructing parties cannot agree who should be the expert,
the court may –
(a) select the expert from a list prepared or identified by the instructing
parties; or
(b) direct that the expert be selected in such other manner as the court
may direct.
Instructions to a single joint expert

35.8 (1) Where the court gives a direction under rule 35.7 for a single joint
expert to be used, each instructing party may give instructions to the
expert.
(2) When an instructing party gives instructions to the expert he must, at
the same time, send a copy of the instructions to the other instructing
parties.
(3) The court may give directions about –
(a) the payment of the expert‘s fees and expenses; and
(b) any inspection, examination or experiments which the expert
wishes to carry out.
(4) The court may, before an expert is instructed –
(a) limit the amount that can be paid by way of fees and expenses to
the expert; and
(b) direct that the instructing parties pay that amount into court.
(5) Unless the court otherwise directs, the instructing parties are jointly
and severally liable (GL) for the payment of the expert‘s fees and
expenses.

Power of court to direct a party to provide information

35.9 Where a party has access to information which is not reasonably available
to the other party, the court may direct the party who has access to the
information to –
(a) prepare and file a document recording the information; and
(b) serve a copy of that document on the other party.
Contents of report

35.10 (1) An expert‘s report must comply with the requirements set out in the
relevant practice direction.
(2) At the end of an expert‘s report there must be a statement that –
(a) the expert understands his duty to the court; and
(b) he has complied with that duty.
(3) The expert‘s report must state the substance of all material
instructions, whether written or oral, on the basis of which the report
was written.
(4) The instructions referred to in paragraph (3) shall not be privileged
(GL) against disclosure but the court will not, in relation to those
instructions –
(a) order disclosure of any specific document; or
(b) permit any questioning in court, other than by the party who

88
 instructed the expert,
unless it is satisfied that there are reasonable grounds to consider the
statement of instructions given under paragraph (3) to be inaccurate or
incomplete.

Use by one party of expert’s report disclosed by another

35.11 Where a party has disclosed an expert‘s report, any party may use that
expert‘s report as evidence at the trial.
Discussions between experts

35.12 (1) The court may, at any stage, direct a discussion between experts for
the purpose of requiring the experts to –
(a) identify and discuss the expert issues in the proceedings; and
(b) where possible, reach an agreed opinion on those issues.
(2) The court may specify the issues which the experts must discuss.
(3) The court may direct that following a discussion between the experts
they must prepare a statement for the court showing –
(a) those issues on which they agree; and
(b) those issues on which they disagree and a summary of their reasons
for disagreeing.
(4) The content of the discussion between the experts shall not be referred
to at the trial unless the parties agree.
(5) Where experts reach agreement on an issue during their discussions,
the agreement shall not bind the parties unless the parties expressly
agree to be bound by the agreement.
Consequence of failure to disclose expert’s report

35.13 A party who fails to disclose an expert‘s report may not use the report at
the trial or call the expert to give evidence orally unless the court gives
permission.
Expert’s right to ask court for directions

35.14 (1) An expert may file a written request for directions to assist him in
carrying out his function as an expert.
(2) An expert must, unless the court orders otherwise, provide a copy of
any proposed request for directions under paragraph (1)–
(a) to the party instructing him, at least 7 days before he files the
request; and
(b) to all other parties, at least 4 days before he files it.
(3) The court, when it gives directions, may also direct that a party be
served with a copy of the directions.
Assessors

35.15 (1) This rule applies where the court appoints one or more persons (an
‗assessor‘) under section 70 of the Supreme Court Act 1981(1) or
section 63 of the County Courts Act 1984(2).
(2) The assessor shall assist the court in dealing with a matter in which the
assessor has skill and experience.
(3) An assessor shall take such part in the proceedings as the court may
direct and in particular the court may –
(a) direct the assessor to prepare a report for the court on any matter at
issue in the proceedings; and
(b) direct the assessor to attend the whole or any part of the trial to
advise the court on any such matter.
(4) If the assessor prepares a report for the court before the trial has begun
–
(a) the court will send a copy to each of the parties; and
(b) the parties may use it at trial.
(5) The remuneration to be paid to the assessor for his services shall be
determined by the court and shall form part of the costs of the
proceedings.

89
 (6) The court may order any party to deposit in the court office a specified
sum in respect of the assessor‘s fees and, where it does so, the assessor
will not be asked to act until the sum has been deposited.
(7) Paragraphs (5) and (6) do not apply where the remuneration of the
assessor is to be paid out of money provided by Parliament.

FOOTNOTES
1 1981 c.54.
2 1984 c.28. Section 63 was amended by S.I. 1998/2940.

© Crown Copyright 2007

Published by TSO on behalf of HM Courts Service with the permission of the Ministry of
Justice.

Practice Direction 35 (supplements CPR 35)

Practice Direction 35 is supplementary and complementary to CPR 35. The

document sets out the following:
1. The experts report must be uninfluenced by the pressures of litigation
2. The experts must not assume the role of advocate
3. The exerts must state all facts including those which might detract from
opinion
4. The expert must not act outside the area of the exerts expertise
5. The procedure where the expert has a changing of view.

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 APPENDICES

Appendix C

Expert witness bias and conflicts of interest

The Court of Appeal judgment, in Toth v Jarman,208 sets out detailed
guidance that relates to the issue of potential bias and conflicts of interest.
The Court of Appeal considered that there should be a new express
requirement for experts to identify potential bias or conflicts of interest.
These are that:
1. If there are any possible grounds for bias or doubt about the
independence of the expert, the court should be notified as soon as possible.
A long term relationship such as a retainer agreement with the party calling
the evidence, or membership of an associated professional organisation,
might put the expert‘s independence in doubt.
2. The expert must identify possible conflicts and their effect on the
expert‘s suitability as a witness. This should be by: setting out his or her
CV in the report; including in the CV details of any employment or activity
that might indicate potential conflicts or bias; and signing a declaration
relating to conflicts of interest.
“(a) I have no conflict of interest of any kind, other than any which I have
disclosed in my report
(b) I do not consider that any interest I have disclosed affects my suitability
as an expert witness on any issue on which I have given evidence
(c) I will advise the party by whom I am instructed if, between the date of
my report and the trial, there is any change in circumstances which affects
my answers to (a) or (b).”

208
Toth v Jarman [2006] EWCA Civ 1028 (19 July 2006)

91
 APPENDICES
Appendix D

Medical Expert Witnesses

Guidance from the Academy of Medical Royal Colleges

1. This guidance is intended for:

• Medical Royal Colleges — to set out their role in relation to medical
expert witnesses;
• Medically-qualified doctors209 — to help ensure that they are sufficiently
well prepared to serve as expert witnesses;
• The legal profession and the courts — to assist in establishing the
appropriateness of medically-qualified doctors who serve as expert
witnesses.

2. The Academy recommends that this guidance should apply in civil

litigation (e.g. medical negligence, personal injury), in family courts and in
criminal courts. Although the standards of proof differ between civil and
criminal courts210, the Academy suggests that the expertise and testimony
offered by medically-qualified doctors should be of the same high standard
of reliability.

3. In contrast to those individuals who personally witnessed or participated

in the event in question, medical expert witness are recognised as such by
courts because they have either relevant credentials or relevant professional
experience, or a combination of both. In common with all other witnesses,
the duty of medical expert witnesses is to the court rather than to the party
who instructs them.

209.Some constituents of the Academy include members (e.g. clinical scientists, dental
practitioners) who are not medically-qualified. Although this document primarily addresses
medically-qualified doctors, the Academy believes that the principles could be applied to
all healthcare, scientific and medical expert witnesses.
210
In essence, “on the balance of probabilities” and “beyond reasonable doubt”
respectively.

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4. The Academy endorses the professional conduct principles set out in the
General Medical Council‘s Good Medical Practice. Paragraph 51 in Good
Medical Practice is particularly relevant to doctors serving as expert
witnesses:

“You must be honest and trustworthy when writing reports, completing or

signing forms, or providing evidence in litigation or other formal inquiries.
This means that you must take reasonable steps to verify any statement
before you sign a document. You must not write or sign documents which
are false or misleading because they omit relevant information. If you have
agreed to prepare a report, complete or sign a document or provide
evidence, you must do so without unreasonable delay.”

To fulfil these principles, the Academy recommends that medical expert

witnesses should ensure that their statements, reports and verbal evidence
are:
• straight forward, rather than intentionally misleading or biased;
• as objective as possible and not omitting material or information which
does not support the opinion expressed or conclusions reached;
• properly and fully researched.

5. The high quality and reliability of the scientific and medical testimony
provided by doctors should be complemented by appropriate professional
demeanour. Communication skills of medical expert witnesses should
include the careful use of wording that might be regarded as pejorative or
pre-judgmental.

6. The Intercollegiate Report211 on Sudden unexpected death in infancy: a

multi-agency protocol for care and investigation (September 2004)
emphasised that it is the responsibility of courts to decide whether an
individual doctor is competent to give evidence as an expert witness. The
Intercollegiate Report advises that, before a doctor gives evidence that will

211
3 The Intercollegiate Report on Sudden unexpected death in infancy: a multi-agency
protocol for care and investigation (September 2004) was produced by a working party of
the Royal Colleges of Pathologists and of Paediatric & Child Health chaired by Baroness
Helena Kennedy. The full text is available under ‗Publications‘ at www.rcpath.org

93
be relied on as ―expert‖, the court should establish the expert status and
credentials of the doctor by using these prompts:
• What is the expert‘s area of practice?
• Is the doctor still in practice?
• What is the doctor‘s area of expertise?
• To what extent is the witness an expert in the subject to which the doctor
testifies?
• When did the doctor last see a case in their own clinical practice?
• Is the doctor in good standing with their medical Royal College?
• Is the doctor up-to-date with continuing professional development?
• Has the doctor received training in the role of the expert witness in the last
five years?
• To what extent is the doctor‘s view widely held?

The Academy recommends that these tests should be applied to medical

expert witnesses in all situations. There are, however, some caveats:

a. “Is the doctor still in practice?”: The Academy advises that, particularly
in cases of alleged clinical negligence, the court should consider whether
there could be merit in relying on evidence from a doctor who, though no
longer in active practice, can provide testimony relevant to the period
during which the alleged clinical negligence occurred.
b. “Is the doctor in good standing with their medical Royal College?”: It
should be noted that not all medically-qualified doctors have medical Royal
College affiliation. Many non-UK trained doctors are not members or
fellows of medical Royal Colleges; for these individuals, the ―in good
standing‖ test cannot be applied. Furthermore, for those doctors who are
members or fellows of medical Royal Colleges, ―in good standing‖ often
means nothing more that being up-to date with membership subscriptions
and actively participating in a continuing professional development scheme.

7. Thus, the definition of a doctor as an ―expert‖ in the context of court

proceedings is a matter solely for the court. The mere inclusion of a
doctor‘s name on a list of ―experts‖ may not be sufficient for the specific

94
aspects of a particular case. Conversely, many doctors not listed in registers
or databases of experts may, nevertheless, be sufficiently qualified, trained
and experienced to serve as expert witnesses. Several organisations
maintain databases or registers of experts (none of which is endorsed
formally by the Academy) with varying degrees of rigour determining
eligibility for entry. These include:
• The Society of Expert Witnesses
• The Academy of Experts
• The Expert Witness Institute
• The Law Society
• The UK Register of Expert Witnesses
• The Council for the Regulation of Forensic Practitioners212,

8. Neither the Academy of Medical Royal Colleges nor its constituent

Colleges and Faculties operate or endorse registers of expert witnesses, nor
do they nominate doctors as experts or vouchsafe those who serve as
experts. The roles of the Colleges and Faculties are:
a. To ensure that doctors have appropriate training opportunities for work as
medical expert witnesses. This training may be included as part of the core
training programmes for specialist registration or recognised and accredited
as continuing professional development, or both.
b. To advise on the criteria (such as those matching the items in paragraph
6) that might be applied by the courts and by others before relying on
medical expert evidence and testimony.

9. Therefore, the Academy recommends:

a. Colleges and Faculties should advise their members that, before
presenting themselves as expert witnesses or agreeing to appear as expert
witnesses, they should ensure that they clearly understand the
responsibilities and duties which they are undertaking. Such information

212
Launched in October 2000, this is a professional regulatory body independent of
government, but currently subsidized by the Home Office pending financial self-
sufficiency. It maintains a register of “currently competent forensic practitioners”. The
medical specialists currently eligible for registration are ―physicians (police surgeons and
paediatricians)‖. See: www.crfp.org.uk

95
and understanding is best obtained by attending a relevant course or courses
approved for continuing professional development.
b. Doctors presenting themselves as expert witnesses should ensure that
they have induction into expert witness work, particularly in those
specialties frequently called upon to assist the courts.
c. Rather than operating and maintaining registers of experts, Colleges and
Faculties should consider providing the legal profession and the courts with
specialty-specific advice on recommended criteria for establishing the
expert credentials of doctors. The Academy recommends that these criteria
should be linked to the items set out in paragraph 6 above.
d. This guidance will be kept under review by the Academy to ensure that
the principles set out in it continue to serve the needs of courts.

Academy of Medical Royal Colleges

1 Wimpole Street
London
W1G 0AE
www.aomrc.org.uk
25 July 2005

96
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