Professional Documents
Culture Documents
SCHOOL OF LAW
DISSERTATION
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]
2
Dedicated to my wife, Morenike, and children Tayo and Deji
Thanks for your love and constant encouragement
3
CONTENTS
Page
List of Cases 6
List of Statutes 10
Acknowledgment 11
Introduction 12
Partisanship 51
Conflict of Interests 54
Area of Expertise 55
Expert Immunity and Liability 58
4
CONTENTS
Page
Training 62
Accreditation 64
Sanctioning 68
CHAPTER 6 Conclusion 79
APPENDICES 82
BIBLIOGRAPHY 98
5
List of Cases
6
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)
7
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.
8
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).
9
List of Statutes
1999
10
Acknowledgement
Thanks to:
11
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.
12
Chapter 3 describes the potential pitfalls that expert witnesses may
encounter.
Chapter 5 looks into what the future holds for expert witnesses with
regards to expanding roles within the judicial system.
13
CHAPTER 1
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 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.
14
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.
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).
15
in accordance with the expert evidence before him and not substituted his
own opinion of the matter.
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:
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.
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
17
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
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.
18
Lord Cresswell J in the Ikarian Reefer27 shed light on the duties of the
expert witness, in stating:
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
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.
19
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.
…….
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‖.
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.
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
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
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
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.
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.
26
One is that the expert witness must first have testified specifically to his
own direct experience in the field in question.
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.
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.‖
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.
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.
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.
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
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.
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
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.
“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.
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.
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.
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.
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
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
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
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
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‖.
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.
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
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.
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
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”
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.”
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
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.
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
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.
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:
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”
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.
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”.
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
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.
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
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.
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.
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.
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:
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.
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
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 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.
“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 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.
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
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.
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.
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.
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
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
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 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
(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
(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;
(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
(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.
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.
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
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
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.
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.
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
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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.
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.
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(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.
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APPENDICES
Appendix C
208
Toth v Jarman [2006] EWCA Civ 1028 (19 July 2006)
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APPENDICES
Appendix D
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.
92
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:
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.
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?
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.
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,
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.
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BIBLIOGRAPHY
REPORTS
June 1995).
1996)
97
8. The Intercollegiate Report on Sudden unexpected death in infancy:
mgmt.utoronto.ca/difa/PDF/Research_Projects.
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JOURNALS
9. Moodie, CT. (1937) Expert Testimony – Its Past and Its Future; 11
Australian Law Journal 210.
99
―Hired guns‖ and expert witnesses.
http://www.reidpsychiatry.com/updates.html.
11. 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.
13. Raitt, FE. (1998) A New Criterion for the Admissibility of Scientific
Evidence: The Metamorphosis of Helpfulness. Law and Science:
Current Legal Issues Volume 1, 153-156.
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BOOKS
101
18. Wigmore, J H. (1940) A Treatise on the Anglo-American System of
Evidence in Trial at Common Law. 3rd edition, Little Brown and
Company, Boston.
19. Witness Testimony: Psychological, Investigative and Evidential
Perspectives (2006) (Eds: Heaton-Armstrong, A, Shepherd, E.
Gudjonsson, GH, Wolchover, D.) Oxford University Press.
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WEB RESOURCES
3. http://news.bbc.co.uk/1/hi/england/london/6124616.stm.
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