The Role Of The Expert Witness - Jaiyesimi

UNIVERSITY OF NORTHUMBRIA SCHOOL OF LAW LLM (Medical Law)

DISSERTATION

THE ROLE OF THE EXPERT WITNESS

Rotimi A. K. Jaiyesimi

August 2007

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

Project Supervisor: Dr. Michael Stockdale

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

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CONTENTS Page

List of Cases

6

List of Statutes

10

Acknowledgment

11

Introduction

12

CHAPTER 1

The Expert Witness

14

The Judicial System

14

Duties of an Expert Witness

18

Who is an Expert Witness

21

Expert Evidence

24

Choice of Expert

35

CHAPTER 2

The Woolf Reforms and The Auld’s Report

The Civil Procedure Rules

42

The Single Expert Witness

44

Criticisms of Woolf Reforms

47

The Auld‘s Report and Criminal Procedure Rules

47

CHAPTER 3

51

Pitfalls of being an Expert Witness

Partisanship

51

Conflict of Interests

54

Area of Expertise

55

Expert Immunity and Liability

58

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CONTENTS Page

CHAPTER 4

Training and Regulation of Expert Witnesses

Training

62

Accreditation

64

Sanctioning

68

CHAPTER 5

The Expert Witness: the future

70

Accreditation and Admissibility

71

Peer Review

71

New Roles

72

CHAPTER 6

Conclusion

79

APPENDICES

82

BIBLIOGRAPHY

98

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List of Cases 1. Anderson v R [1972] AC 100. 2. Anglo Group plc v. Winter Brown & Co. Ltd. [2000] England and Wales High Court (Technology and Construction Court) Decisions. March. 3. Armstrong & Connor v First York [2005] EWCA Civ 277. 4. Arthur J.S. Hall & Co v Simons ([2000] 3 All ER 673) 5. Autospin (Oil Seals) Ltd -v- Beehive Spinning [1995] RPC 683. 6. Beaudoin c. Banque de developpement du Canada, [2004] J.Q. no 705 (translated). 7. Cala Homes (South) Ltd and Others -v- Alfred McAlpine Homes East Ltd [1995] FSR 818. 8. Campbell v. News Group Newspapers Ltd [2002] E.M.L.R. 43 [2002] EWCA Civ 1143 CA. 9. Casey v Cartwright [2006] EWCA Civ 1280. 10. Causton v. Mann Egerton (Johnsons) Ltd [1974] 1 W.L.R. 162, 170. 11. Cipla v Glaxo [2004] RPC 43. 12. Cooper Payen Ltd v Southampton Container Terminal Ltd [2003] EWCA.Civ.1223. 13. Daniels v Walker (2000) 1 WLR 1382. 14. Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579 (1993). 15. Davis v Edinburgh Magistrates Court (1953) SC 34. 16. Derby & Co Ltd. and Others -v- Weldon & Others The Times, 9th November 1990. 17. Dietrich v R (1992) 177 CLR 292, 335. 18. Dover District Council v Sherred and Another (CA, 5 February). 19. English Exporters (Ldn) Ltd v Eldonwall Ltd [1973] Ch 415. 20. E S (By her Mother & Litigation Friend D S) V Chesterfield & North Derbyshire Royal Hospital NHS Trust [2003] EWCA Civ 1284 (C.A) 21. Evans v London Hospital Medical College [1981] 1 W.L.R. 184. 22. Folkes v Chadd [1782] 3 Douglas KB 157.

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

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

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

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List of Statutes

1. Civil Procedure Rules 1999

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

3. Civil Procedure Rules Part 35 Practice Direction

4. Civil Procedure Rules, Part 35 Experts and Assessors

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

6. Civil Evidence Act 1972.

7. Civil Evidence Act 1995

8. County Court Rules 1981

9. Criminal Justice Act 2003

10. Criminal Procedure Rules 2005

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

12. Federal Rules of Evidence

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

1999

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Acknowledgement

Sincere appreciation to my supervisor, Dr. Michael Stockdale, for the light shed on to this topic and for his invaluable help in preparing this dissertation.

Thanks to:

My teachers on the LLM programme for inspiring knowledge

My colleagues on the programme (Kemi, Obi, Alex) for acting as sounding boards

The LLM (Medical Law) Office Staff for making it a smooth journey

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INTRODUCTION

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

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

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

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

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

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

Chapter 4 provides a discussion on the areas pertaining to the training, registration, accreditation and regulation of expert witnesses.

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

Chapter 6 provides a conclusion to the dissertation.

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CHAPTER 1

THE EXPERT WITNESS

The adversarial system is based on the assumption that the fairest and most effective method of determining the truth of a matter is to allow the parties to put their respective cases in their own way. This assumption depends upon the parties being able to identify their own interests and fight their own battles. The extent to which a party can do that will depend upon their own qualities and resources and those of their legal representatives and experts.5 It was seen as a contest between adversaries, with the judge being neutral, and independent, with the rules of the contest being the rules of evidence.6 The purpose of expert evidence in contemporary litigation is to assist the judge and jury, or a judge sitting alone, to reach the right decision. The courts seek the help of the expert witness when the resolution of disputes entails technical or specialised evidence. The earliest records of using experts date back to the 14th century, and involve cases in which surgeons were summoned to establish such things as whether a wound was fresh. Cases from the 16th and 17th centuries also show that surgeons were summoned to give expert opinion on the cause of death.7 The seminal case of Folkes v Chadd8 accepted that the evidence of expert witnesses was an exception to the general rule prohibiting mere opinion evidence. The expert witness, as such is allowed to give their opinion in criminal and civil proceedings in relation to an issue if the court requires the expert‘s assistance in order to form its opinion. Admissibility of the evidence is determined by the judge and the court can assert inferences 5

Dietrich v R (1992) 177 CLR 292, 335. 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. 6

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

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

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

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

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

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

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

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

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The role of the expert witness The principle regarding the need for expert testimony in courts is set in R v. Turner: “Expert witness testimony is admissible to furnish the court with… information which is likely to be outside the experience and knowledge of a judge or jury”.19

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

The ultimate issue rule was designed to ensure expert witnesses did not usurp the function of the jury, whose task is to draw the necessary inferences from the evidence. It ensures that the jury is not swayed into easy acceptance of a convincingly argued opinion. The rule was abolished in 1972, but remained in force in English law more in name than in practice. R v Doheny20 demonstrated that the rule was undergoing a revival. The expert in this case, having given evidence as to DNA profiles obtained from a stain left at the scene of the crime which matched that of the defendant, and the statistics involved in that profile being shared with other persons, was directed not to give his opinion that the defendant was therefore the offender, because this involves factors other those within his area of expertise. R v Toner21 showed that expert testimony was still necessary in technical matters. The English courts operate within the scope of the Civil Procedure Rules 1999,22 which allow the court to decide whether expert evidence is needed. The parties have no right to rely on expert evidence without the court‘s permission, and all expert witnesses, regardless of who calls them, 19

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

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

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

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

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Howlin N. (2004) Special Juries: A solution to the expert witness?, Vol. 12. 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. 24

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Lord Cresswell J in the Ikarian Reefer27 shed light on the duties of the expert witness, in stating: “The duties and responsibilities of expert witnesses in civil cases include the following: “ 1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.28 2. An expert witness should provide independent assistance to the Court by way of objective, unbiased opinion in relation to matters within his expertise.29 An expert witness should never assume the role of an advocate. 3. An expert should state facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion. 4. An expert witness should make it clear when a particular question or issue falls outside his area of expertise. 5. If an expert‟s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. 6. In cases where an expert witness, who has prepared a report, could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.30 7. If, after exchange of reports, an expert witness changes his views on a material matter having read the other side‟s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court. 8. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.”

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Ikarian Reefer [1993] 2 LILR 68, at 81-82. 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. 28

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Mr Justice Laddie reiterated the duties of the expert witness in Cala Homes (South) Ltd and Others v Alfred McAlpine Homes East Ltd,31 stating, “The function of a court of law is to discover the truth relating to the issues before it. In doing that it has to assess the evidence adduced by the parties. ……. That some witnesses of fact, driven by a desire to achieve a particular outcome to the litigation, feel it necessary to sacrifice truth in pursuit of victory is a fact of life. The court tries to discover it when it happens. But in the case of expert witnesses the court is likely to lower its guard. Of course the court will be aware that a party is likely to choose as its expert someone whose view is most sympathetic to its position. Subject to that caveat, the court is likely to assume that the expert witness is more interested in being honest and right than in ensuring that one side or another wins. An expert should not consider that it is his job to stand shoulder-to-shoulder through thick and thin with the side that is paying his bill..” There have been case laws supporting these principles in Anglo Group plc v Winther Brown & Co. Ltd32 and R v Bowman.33 In the latter, the Court of Appeal emphasised that both defence and prosecution experts ―should maintain professional objectivity and impartiality at all times‖.

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

Expert witnesses should retain everything, including physical, written and electronically captured material, until otherwise instructed and the investigator has indicated the appropriate action to take. In addition, experts 31

Cala Homes (South) Ltd and Others v Alfred McAlpine Homes East Ltd [1995] FSR 818 Anglo Group plc v. Winter Brown & Co. Ltd. [2000] England and Wales High Court (Technology and Construction Court) Decisions. March. 33 R v Bowman (Thomas Damien) [2006] EWCA Crim 417. 34 R v Harris [2005] EWCA Crim 1980. 35 Ikarian Reefer [1993] 2 Lloyds Rep. 68 at p 81. 32

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should commence to keep records at the time instructions are received and should continue for the whole of the time the expert is involved. The expert should keep records of all the work carried out and any findings made in relation to the investigation. It is a necessary and important part of the disclosure obligations for experts to make the Prosecution Team aware of all the material in their possession in relation to the investigation. This will then enable them to make informed decisions, as to what material is relevant, and what material satisfies the disclosure test. Amendments to the Criminal Procedure Rules 200536 [Appendix A] sees a new Part 33 (expert evidence) substituting the existing Part 33, which sets out the duty of an expert to the court and the content of an expert‘s report. It allows the court to direct that defence evidence will be given by a single joint expert. The amendment expressly defines the duty of expert witnesses, outlined in Part 33.2 of the Criminal Procedure Rule:37

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

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

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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.

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experience of the court because he has the experience to give an informed opinion.38 An expert as Lord Russell CJ said in R v Silverlock39 is ―someone who is skilled and has adequate knowledge in an area of expertise‖. Qualifications of an expert ‗may have been acquired through study, training or experience.‟40 One can question whether study and experience gives a witness‘s opinion an authority over the opinion of an expert witness who has not undergone such study and experience. Current legislation gives judges the power to determine if an expert witness has undertaken the prerequisite course of study, or possesses expertise to render him an expert. In R v Inch,41 a medical orderly with experience in the treatment of cuts and lacerations was considered to be insufficiently qualified to express an opinion as to whether an inch long cut to the head had been caused by a blunt instrument rather than a head butt. Lawton LJ in Turner42 expounded that the qualifications of the expert constitute an indicium‘s of being permits that is skilled, but ―this does not make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves.‖43 In R v Oakley,44 a police officer with qualifications and training in accident investigation, was permitted to give evidence as to how the crash had occurred, on a charge of causing death by dangerous driving.

There are times when the expertise of the expert is disputed as in R v Robb.45 The evidence of a voice identification expert who was well qualified by training and experience was admissible, despite the fact that he relied on a technique accepted by much of professional opinion to be unreliable. The court was alive to the risk that if the prosecution were 38

Reay, R (2001) Evidence. (3rd ed). Old Bailey Press, London. p.304 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. 39

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

Cases arise in which a very high level of expertise is required, as in the diagnosis of sexual abuse and domestic violence. For the court to rely on opinion evidence in these cases or to admit it, the qualifications of the witness must extend beyond the experience gained as a social worker. The expert witness is such cases will be required to have clinical experience akin to that of a child psychologist or psychiatrist.47 R v Emery,48 was the first reported appellate case specifically approving of domestic violence expert witnesses testimony within the trial court in English criminal proceedings. This was a landmark case in which a mother was charged with the offence of cruelty to a child for failing to protect her child from the child‘s father. She claimed duress as defence, alleging that the child‘s father had routinely and severely abused the child as well as herself. She claimed to be afraid of the child‘s father and had been unable to act to protect her daughter.49

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

46

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

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

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

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

What is expert evidence? The purpose of expert evidence is to provide the court with scientific or technical information that is likely to be beyond the knowledge and experience of the judge or jury. Expert evidence may be given as opinion evidence or evidence of fact. While lay witnesses may give evidence of fact, the expert witness is expected to assist the court in reaching its decision with technical analysis and opinion inferred from factual evidence. 51

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

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

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

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

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

Hearsay evidence is not admissible in criminal proceedings unless on application by either party, the court decides that certain conditions, contained in S114-117 of the Criminal Justice Act 200358 are satisfied. Section 114, Subsections (1)-(3) set out the circumstances in which a statement which is not made in oral evidence during criminal proceedings 54

Expert Witness Factsheet 2 Expert Evidence. J S Publications 2006. 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). 55

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

The rule of expert evidence under Section 118 of the Criminal Justice Act (CJA) permits an expert to give evidence of any relevant matter which forms part of his professional expertise, although not acquired through personal experience, and to draw upon technical information widely used by members of the expert‘s profession. It is also acceptable for the expert witness to refer to any works of authority, papers and results of experiments that may assist in reaching an opinion. Hearsay evidence admissible include, among others, Res gestae, public information such as published works; public documents; records of certain courts; reputation as to character and the rule of expert evidence. When expert opinion is based on hearsay it must be verified by admissible evidence. In H v Schering Chemicals,60 the expert referred to results of research into the effect of the drug, Primados and letters and articles about it. These were admissible for the very limited purpose of assisting the court to assess the weight of the expert evidence, though they were not admissible in their own right as that would be hearsay. Lord McDonald stated in Main v Andrew Wormald Ltd:61 “It is, in my opinion, clear that an expert witness may in the course of his evidence, make reference to passages from a published work and adopt these as part of his evidence …. There are, however, limits to this practice. 59

Criminal Justice Act 2003.S114. H v Schering Chemicals [1983] 1 All ER 849. 61 Main v Andrew Wormald Ltd 1988 SLT 141. 60

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One is that the expert witness must first have testified specifically to his own direct experience in the field in question. Having done that he is entitled to supplement his evidence by reference to recognised published works…. It is essential, however, that the introduction of the literature be preceded by firm evidence from the expert as to his personal experience in the specialist field concerned. If this is not so there is a real danger that the literature becomes the primary evidence and is given a status it should not acquire unless spoken to by a witness directly responsible for its contents.” The admissibility of expert opinion evidence when the opinion of the expert witness was based on statistical evidence compiled by other experts who did not testify was the bone of contention in R v Abadom.62 Evidence was provided by expert witnesses for both parties. The counsel for the appellant argued that it was dependent upon hearsay evidence and as such inadmissible. Kerr LJ at p. 368H said: “Once the primary facts on which their opinion is based have been proved by admissible evidence they are entitled to draw on the work of others as part of the process of arriving at their conclusion.”

Though technically hearsay, the Court of Appeal held admissible, the expert opinion claiming that there was only a four per cent chance that glass found in fragments on the shoes of the accused would be identical in composition to glass broken at the scene of a burglary, notwithstanding that the statistics on which the expert‘s opinion was premised, was collated by persons other than the expert. It was admissible as helping to form the expert‘s opinion. Section 127 of the Criminal Justice Act 200363 which is in force, addresses the problem that arises where information relied upon by an expert witness is outside the personal experience of the expert and cannot be proved by other admissible evidence. The purpose is that the rules about advance notice of expert evidence will be amended so as to require advance notice of the name of any person who has prepared information on which the expert has relied. It is expected that any other party to the proceedings will 62 63

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

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

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

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

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

64

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

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

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

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

67

Whitehouse v Jordan [1981] 1 WLR 246. 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 68

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

In Criminal proceedings, Part 33 of the Criminal Procedure Rules, provides guidance as to the form and content of expert‘s reports [Appendix A]. An expert‘s report must among other issues in Appendix A include, (a) give details of the expert‘s qualifications and relevant experience; (b) give details of any literature or other material which the expert has relied on in making the report; (c) contain a statement setting out the substance of all facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based; (d) make clear which of the facts stated in the report are within the expert‘s own knowledge; Witness of fact or Expert Evidence? This aspect is best represented by the area of low speed impact argument in road traffic accident (RTA) cases. The claimant‘s case is based on witness evidence as to the speed, force and occupant movement. A medical report is produced as to the injuries sustained following an examination by a medical expert. However, the defendant‘s team tends to challenge the medical expert on the basis that they are not suitably qualified to give evidence as to causation of injuries in RTAs and seek the expertise of forensic engineers to prove their case. The controversy arises when the expert engineer decides that no injuries could have been sustained as a result of the accident.

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

73

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

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

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

The traditional test governing admissibility of expert testimony is its relevancy and helpfulness to the trier of fact. A body of evidence would be deemed helpful, if it added to the trier of fact‘s knowledge and understanding of the case.75 R v Turner76 remains the leading case on the reception of expert evidence in England and Wales. If expert evidence would not help the jury or a judge, it would be discountenanced and held inadmissible, notwithstanding its relevancy. In R v Turner the defendant, charged with the murder of his girlfriend, wished to call expert evidence that he was not mentally disturbed, and that he had a deep emotional relationship with her which was likely to lead to an explosive outburst of anger if told that she had been unfaithful, and that he was suffering profound grief. Justice Lawton noted that “Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness 74

Cooper Payen Ltd v Southampton Container Terminal Ltd [2003] EWCA.Civ.1223. 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). 75

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

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

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

There is no longer any reason why material on which an expert supports his opinion should either be excluded or given limited evidential effect in consequence of its hearsay nature.79 In Criminal cases section 127 of the Criminal Justice Act 2003 allows experts to base their opinions on statements of fact made by other for the purpose of the proceedings but subject to certain conditions. A scientist may give opinions drawing from the work of others. Complex scientific procedures often involve laboratory staff working as a team. Where an expert relies on the existence or nonexistence 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. Ibid 79 Murphy, P. (2005) Murphy on evidence. (9th ed) Oxford University. Press, Oxford 78

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

The court also has a discretionary power to exclude admissible evidence Under s.5 (3) of the 1972 Act. However, the statute did not define that power. A number of flawed expert evidence as in Rochdale Borough Council v A81 and Re AB (Child Abuse: Expert Witnesses)82 led to some judges being wary of accepting the evidence of experts at face value. This is understandable, as it is essential that a court approaches the evidence of an expert witness with an open mind, and that the judge rejects, or gives little weight to expert evidence where there is good reason to doubt the witness‘s competence and credibility, or where the evidence flies in the face of powerful evidence to the contrary. It is always the duty of the judge, and of the judge alone, to make up his or her mind on the facts, and that function cannot be usurped by an expert witness. Until recently the courts followed obiter dicta in the Court of Appeal in Re S and B (Child Abuse: Evidence)83 which stated that it is not admissible for the expert to give a direct expression of opinion about whether a witness is telling the court the truth. In Re M and R (Minors)84 these remarks were found to have been made per incuriarn because no reference was made to section 3 of the Civil Evidence Act 1972. The Court of Appeal held that section 3 allows the reception of expert opinion evidence on an issue which could be the ultimate issue in a case, for example whether the child was telling the truth. However, the expert must be qualified to give such an opinion otherwise his opinion is irrelevant. Furthermore, the ultimate issue is for the judge to decide and all questions of weight and relevance are for him.85

80

The admissibility of expert evidence is presently governed by case law, Section 30 of the Criminal Justice Act 1988, the Crown Court (Advance Notice of Expert Evidence) Rules 1987 and the Magistrates Court (Advance Notice of Expert Evidence) Rules 1997. . 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.

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The recent Court of Appeal decision in Casey v Cartwright86 provided strict directions to follow in such cases as in low speed impact whiplash claims. A district judge had granted permission to admit evidence of a joint expert on orthopaedic aspects in a claim for personal injury by the claimant David Cartwright. This decision was revoked by Judge Holman in the Manchester County Court. An appeal by the defendant was dismissed in a Court of Appeal hearing. In deciding, Dyson LJ referred to guidance in Kearsley v Klarfeld87 on the correct approach to the permissibility of expert evidence on causation in low-impact cases. There has been a wide divergence of approach between different courts since Kearsley. The interpretation of the guidance is that if a defendant wished to raise the causation issue he should (a) notify all other parties in writing within three months of letter of claim that he intended to do so, (b) expressly raise the issue in the defence and within 21 days of serving a defence, and (c) serve a witness statement clearly identifying the grounds for raising the issue. If the witness statement satisfied the court that the issue had been properly identified, permission would generally be given for the claimant to be examined by the defendant‘s medical expert. If the expert‘s evidence showed the issue had a real prospect of success, the defendant would generally be allowed to rely on the evidence at trial. None the less, in situations where the evidence was disproportionately complex given the size of the claim the court might refuse to let in the evidence if the overriding objective required it. Single joint experts should not be used at least until some test cases were decided at High Court level. This ruling reasserted that Low Speed Impact defences uniquely require that the Defendant should be permitted to obtain their own expert evidence.

Admissibility of new scientific techniques As the number of legal cases raising complex scientific and technical issues has increased, along with the financial consequences to individuals and businesses, courts have struggled to find a clear standard by which to admit 86 87

Casey v Cartwright [2006] EWCA Civ 1280. Kearsley v Klarfeld [2006] 2 All ER 303.

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expert evidence. Expert testimony regarding a given field is admissible under English law, where it is “sufficiently well-established to pass the ordinary tests of relevance and reliability.” This principle was illustrated in R v. Dallagher,88 where the technique of ear print comparison was admitted into evidence through the use of expert evidence despite being a relatively new scientific identification technique. Though there was an appeal, neither the appeal nor the eventual outcome undermined or challenged the use of expert witness or the science. Kennedy, LJ in R v. Dallagher,89 agreed with Lord Taylor‘s comment in R. v Stockwell,90 that: “one should not set one‟s face against fresh developments, provided that they have a proper foundation.‖91 This ruling further approved this new use of expert evidence. Similarly, the introduction of lip reading expert testimony regarding the interpretation of a supposedly dubbed videotape was approved in Campbell v News Group Newspapers Ltd.92

Choice of expert witnesses In civil cases the two sides engage the services of experts who highlight those aspects of their evidence which are favourable to the client‘s case. However, these experts are under the same obligation to the court, to be truthful as to fact, thorough in technical reasoning, honest as to opinion and complete in their coverage of relevant matters. An expert‘s primary duty is towards the court, and not to the party calling him. The Civil Procedure Rules93 and Criminal Procedure Rules94 give the court the power to order that, experts from both sides should meet with a view to streamlining the technical issues that are in dispute between the parties. Under the Rules, the Court has the power to direct that evidence on an issue is to be given by one expert only. Where the parties cannot agree who that expert should be, the 88

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

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court may select the expert from a list prepared by the parties or direct that the expert be selected in another way, for example, by the President of the appropriate professional body. Similarly, the court has the power to debar an expert witness from giving evidence as in Stevens v Gullis95 where the expert did not understand the duty imposed on an expert by the CPR. Number of expert witnesses Part 35 of the Civil Procedure Rules (Appendix B) deals with experts and assessors and limits expert evidence to what is reasonably required to resolve the proceedings in issue. The following rules are particularly relevant in this context: ―35.1 Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings. 35.4(1) No party may call an expert or put in evidence an expert‘s report without the court‘s permission‖

In E S (By her Mother & Litigation Friend D S) V Chesterfield & North Derbyshire Royal Hospital NHS Trust,96 Master Ungley made a case management direction that the evidence in the claimant‘s clinical negligence claim should be limited to a report from one expert in the field of obstetrics on each side. Master Ungley stated that he had been told that to ensure equality of arms he should permit the claimant to call a second expert. He commented: “The application fails to take into account the difference between witnesses of fact and expert witnesses. Although it is inevitable that a witness who happens to be a professional will give evidence of his actions based upon his or her professional experience and expertise, the vital question of whether those decisions fell short of the required standard is addressed by the expert witnesses. It was also mentioned that the claimant has already instructed a second obstetric expert, but that has no bearing on whether he should be permitted to give evidence. The application is therefore refused.”

95

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

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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)

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court appointed expert or a single expert witness have been an alternative in this case? The principles of these roles will be discussed in the next chapter. In Kirkman v Euro Exide Corporation (CMP Batteries Ltd,)98 it was held that a judge had erred in refusing to admit the evidence of a surgeon who had treated the claimant in a personal injury action, on the basis that, to admit the evidence would have exceeded a limit on expert witnesses allowed at trial. The trial judge refused permission to adduce the statement on the basis that it was expert opinion, not evidence of fact, and the order had been that each party could rely on only one expert medical witness.

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

When experts disagree Medicine and other sciences are not always exact. This leads to situations where more than one explanation or causes for a disease process exists. This could result in legal proceedings where experts on both sides could present conflicting opinions that are apparently within mainstream and orthodox schools of thoughts. In Oldham MBC v GW & Ors99 both eminent radiologists maintained their opposed opinions and Justice Ryder directed that a third expert in paediatric neuroradiology be instructed. The expert identified was Professor Flodmark, a Paediatric Neuroradiologist from Sweden. Following

98

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

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discussions between all four experts, agreement was obtained on a number of issues including the likely cause of brain injury in baby K. Justice Ryder, recommended that ―once instructed, experts in their advice to the court should conform to the best practice of their clinical training and, should describe their own professional risk assessment process and, or the process of differential diagnosis that has been undertaken, highlighting factual assumptions, deductions there from and unusual features of the case. They should set out contradictory or inconsistent features and identify the range of opinion on the question to be answered, giving reasons for the opinion they hold‖.

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

Competence An expert witness is competent and compellable, being lawfully required to give evidence like any other witness. In principle, every person who is competent to be a witness is compellable. An expert witness who has provided a report to a client can be subpoenaed to give evidence by the other side and cannot decline to answer questions as to her or his factual findings and opinion thereon. This is as in Harmony Shipping Co S.A. v Saudi Europe Line,103 where a handwriting expert was inadvertently 100

Woolf interim report, 183. 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. 101

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instructed by both sides and it was ruled that there is no property in the opinion of an expert witness. In Causton v. Mann Egerton (Johnsons) Ltd,104 which concerned the disclosure of medical reports in a personal injury action, Roskill L.J. said: „I am clearly of the view that this court has no power to order production of privileged documents . so long as we have an adversary system, a party is entitled not to produce documents which are properly protected by privilege if it is not to his advantage to produce them, and even though their production might assist his adversary.‟

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

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

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

104

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

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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.

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CHAPTER 2

THE WOOLF REFORMS and THE AULD REPORT Lord Woolf, one of Britain‘s most senior judges, was appointed in 1994 to review existing rules and procedures of the civil justice system in England and Wales. In his Interim and Final Reports, Lord Woolf found the existing system to be too expensive for litigants; slow in bringing cases to a conclusion; inequitable in favouring wealthy litigants over those who are under-resourced; and too complex and incomprehensible for many litigants. He also said that the system was too adversarial in approach, allowing the parties, rather than the courts, effectively to run cases.

110

Lord Woolf

recommended that the court should have ―complete control‖ over the calling of expert evidence. In a similar vein, Lord Justice Auld undertook a review of the criminal courts procedures in England and Wales.111

The Civil Procedure Rules (CPR) Proceedings in the civil courts In England and Wales are subject to The Civil Procedure Rules (―CPR‖). The Rules were introduced in 1999 in England and Wales, in response to Lord Woolf‘s report Access to Justice. The central tenets of the Woolf Report are the independence, impartiality, objectivity and overall role of the expert as an aide to the court, rather than as an advocate for the instructing party. The report revolutionises the civil justice system in England and Wales and represents a major advance in the management of civil disputes. The report reaffirms the qualities, responsibilities and standards of conduct required of experts in litigation, already laid down as a matter of law in a number of cases, and argues for a more open and co-operative approach to litigation. Part 35 of the Civil Procedure Rules governs the activities of Experts and Assessors (Appendix B). 110

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

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

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

He also argues that the court might place undue reliance on the evidence of the court expert, with the result that it will be the expert rather than the 112

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

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

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

Single Expert Witness Lord

Woolf‘s

recommendations118

have

now

been

substantially

incorporated in Part 35 of the Civil Procedure Rules 1999 of the High Court. Rule CPR 35.7 (1) provides as follows:

116

Justice H. D. Sperling, Expert evidence: the problem of bias and other things. Supreme Court of New South Wales Annual Conference. Terrigal, 3-4 September 1999. http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_sperli ng_030999. 117 Woolf, Access to Justice (Final report to the Lord Chancellor on the Civil Justice System in England and Wales, HMSO, London, July 1996) (―the Woolf report‖) at pp.140142; 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.

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

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

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

119 120

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

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

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

There had been no real consensus or agreement between medical practitioners in the proceedings on what was on any footing the major medical issue in the case in this case because they had all deferred to the single expert witness. In the circumstances, the parties had agreed that the judge‘s findings could not stand and that the case would have to be remitted to another family judge for re-hearing.

It is hard to see how a single expert, whose experience is limited to an approach or field and who holds or believes in one school of thought in a particular subject, could fairly put alternatives to the law courts, to assist the courts in reaching an unbiased decision. 121

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

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

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

THE AULD REPORT AND THE CRIMINAL PROCEDURE RULES

Following on from the review of civil justice undertaken by Lord Woolf, Lord Justice Auld undertook a review of the operation of the criminal courts in England and Wales in 1999 to 2001, producing a report known as 122

County Court Rules 1981 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. 123

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the ―Auld Report‖.125 The government‘s response to Auld took the form of a White Paper, Justice for All126 in 2002. Elements of the Auld recommendations were included in the Criminal Justice Act, 2003,127 and has helped shape the Criminal Procedure Rules128. Areas pertaining to expert witnesses and expert evidence included competence, accreditation and objectivity among others. The new provisions set in Part 33 (Expert Evidence),129 (Appendix A), are the first Criminal Procedure Rules on expert evidence, coming into force in November 2006. The rules set out the duty of an expert to the court in Rule 33.2 and deals with the content of an expert‘s report as discussed in Chapter 1 (Content of Expert Evidence). They require a party to inform the expert when they have served the expert‘s report on another party, or on the court. They provide explicitly for pre-trial discussion between experts and they allow the court to order that a single, joint defence expert should give expert evidence for the defence. The rules specify that a party may not introduce expert evidence without the court‘s permission, if the expert has not complied with a direction of the court.

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

125

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

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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

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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.

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CHAPTER 3

PITFALLS OF BEING AN EXPERT WITNESS Credibility is critical, and ―hired gun‖ accusations anathema, to expert witnesses. 45 derogatory references to testifying psychiatrists or psychologists as ―hired guns,‖ ―whores,‖ or ―prostitutes,‖ most in criminal matters and most by prosecutors were found in court transcripts in a study.131 Though judges disapproved of such remarks, they did not reverse convictions because of them, often citing juries‘ ability to sort out testimony in the adversarial environment. This chapter describes factors that can make expert witnesses breach their duty to the courts. Troster132 in a review of 10 cases of adverse judgements identified lack of objectivity, lack of substance or reality that do not appear reasonable, inappropriate speculation, conclusions and assumptions not supported by evidence at trial, results not appearing reasonable based on common sense, flaw in methodology and the other side‘s expert being more credible as reasons why judges reject the evidence of expert witness. An expert witness can be discredited for being partisan, as a result of previous mistakes made, previous misconduct or the use of unsubstantiated facts.

Partisanship and Bias In an adversarial system, the natural tendency will be for an expert to be drawn into an adversarial role in favour of the instructing party. None the less, independence, objectivity and integrity, and competence in a particular sphere of expertise, are essential qualities of an expert witness. The Civil Procedure Rules (Part 35) and the ―Protocol for the instruction of experts to give evidence in civil claims‖ emphasise an expert‘s primary duty to the 131

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

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

Expert witnesses have been criticised in court if their evidence was biased towards the instructing party. In Beaudoin c. Banque de developpement du Canada,133 the judge perceived a lack of objectivity: “…[DE02] could not bring to his work the distance and independence needed by an expert who presents an impartial study to the Court to assist it in rendering judgement….it was plain he had adopted his client‟s position….All objectivity was set aside” A Court of Appeal judgment, in Toth v Jarman,134 sets out detailed guidance that relates to the issue of potential bias and conflicts of interest. The Court of Appeal considered that there should be a new requirement for experts to identify potential bias or conflicts of interest. These are that:

1. If there are any possible grounds for bias or doubt about the independence of the expert, the court should be notified as soon as possible. A long term relationship such as a retainer agreement with the party calling the evidence, or membership of an associated professional organisation, might put the expert‘s independence in doubt. 2. The expert must identify possible conflicts and their effect on the expert‘s suitability as a witness. This should be by: setting out his or her CV in the report; including in the CV details of any employment or activity that might indicate potential conflicts or bias; and signing a declaration relating to conflicts of interest. The text of the additional declaration in the expert‘s report is in Appendix C In the Cala Homes case,135 the judge, finding for the defendants, ruled that the evidence of the plaintiff‘s expert was so partisan as to be of no assistance to the court. If loss of the case was not bad enough, judicial 133

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

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criticism may be accompanied by additional penalties. This was the case in Autospin (Oil Seals) Ltd v Beehive Spinning.136 The plaintiff company alleged infringement of copyright, and one of the issues on which expert evidence was called was whether copyright subsisted in a coding system it used. The plaintiff‘s expert made no effort to find out what coding systems were used by other companies and lent his weight to this claim without satisfying himself that it was appropriate to do so. Justice Laddie awarded indemnity costs against the firm, in part because its expert had failed to discharge properly his duty to the court. The plaintiff lost on all counts.137 These cases go on to buttress the need for expert witnesses to remain neutral and objective and is well stated by Justice Alliott in Takenaka (UK) Limited and Brian Corfe v David Frankl,138 and endorsed by the Appeal Court: “Mr Shipley correctly reminded me that this is a trial by judge alone, not a trial by expert. But a judge tries the case upon the evidence, and in this case the expert evidence is of the highest quality in an arcane field in which the judge must be guided by that expert evidence. Mr. Bates embarked upon his investigation from an entirely neutral base, instructed both by the claimant and the defendant. There could be no question of partisan bias, which is not unknown in the world of experts. Both in his written reports and in his oral evidence he provided compelling evidence, which despite the defendant‟s vehement denial I unhesitatingly accept.” Most expert witnesses are astute at recognising potential conflicts and avoiding bias, so the new guidance in Toth v Jarman139 need not cause any undue alarm. However, experts should now make an early assessment of the risk that their evidence might give rise to a perception of bias and discuss this with the lawyers instructing them. There should be full disclosure of the relevant facts to the opposing party and/or to the court, so that the issue can be addressed before any challenge is raised. The guidance

136

Autospin (Oil Seals) Ltd v Beehive Spinning [1995] RPC 683. 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) 137

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

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

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

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

An expert witness, Gene Morrison was convicted and jailed in 2007. He had presented himself as an expert forensic psychologist and proffered opinion in over 700 cases over 27 years. He was found out to have

140

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

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

Treating physicians acting as expert witnesses One can see how easy it is for an expert treating a patient and acting as an expert witness can cross the divide between these roles. It is imperative that expert witnesses must not cross or mix the role of the expert to treat and provide an impartial opinion.143 The Intercollegiate Working Groups of the Royal Colleges of Pathologists and of Paediatrics and Child Health, convened after controversial appeals in both criminal and family matters144 recommended that: “paediatricians involved in the acute management of patients should not be expected to give expert testimony in cases involving those patients....doctors treating patients develop partnerships with them..... This will inevitably result in a degree of intimacy and therefore subjectivity when evaluating the case as a whole. This is the opposite of what is required of the expert witness, who should be objective, impartial and detached”. However, there are situations where the treating doctor may be able to make a forensic contribution, such as the history of presentation and clinical diagnosis. An independent expert witness should then comment on the issues such as suggestibility and reliability.145

Giving an opinion outside ones’ area of expertise (Professor Meadow) Expert witnesses may testify to their own findings, the findings of others, to the scientific or other principles relevant to the case and draw relevant inferences from such findings. These opinions must be restricted to their field of expertise. The case, R v Clark146 will be used to throw light on this subject.

In 1999, Mrs Clark was tried for the murder of her two sons. In the prosecution of Sally Clark, Professor Meadow gave evidence to the fact that 143

Re B (sexual abuse: expert‟s report) [2000] 1 FLR 871, CA. 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. 144

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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 nondisclosure of material by the Crown‘s pathologist. The court indicated that the appeal would ―in all probability‖ have been allowed on the ground that Professor Meadow‘s evidence using debatable statistics was wrong.

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

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

Though the panel found that he had acted in good faith and had not intended to mislead the court and that there was no evidence of any calculated or wilful failure to use his best endeavours to provide evidence, 147

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

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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).

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

1. Should an expert witness be entitled to immunity from disciplinary, regulatory or Fitness to Practise proceedings (FTP proceedings) in relation to statements made or evidence given by him in or for the purpose of legal proceedings. The Attorney General intervened in connection with only the first issue and joined in the action.

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

Expert Immunity and Liability It is a well-established rule of law that anyone involved directly in legal proceedings is immune from civil action for anything he or she may say or do in court.150 That immunity applies as much to an expert witness and to any other witness as in X (Minors) v Bedfordshire CC..151 The immunity extends to any civil proceedings brought against a defendant which are based on the evidence which he gives to a court. It extends to any statement which the witness makes for the purpose of giving evidence. The rule in relation to immunity of witnesses depends upon the proposition that, without it, witnesses would be more reluctant to assist the court. In Stanton v Callaghan152 the Court of Appeal held that an expert witness could not be sued for agreeing to a joint expert‘s statement in terms the client considered to be detrimental to his or her interests. This was

149

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

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postulated on the general principle of witness immunity: that the administration of justice would be adversely affected if witnesses felt unable to give their evidence freely and without fear. Otton LJ affirmed that an expert witness owes a duty to the court that overrides that to his or her client, and accordingly should not be vulnerable to claims from disgruntled clients. Chadwick LJ in Stanton v Callahan153 said: “It seems to me that the following propositions are supported by authority binding on this court: (1) an expert witness who gives evidence at trial is immune from suit in respect of anything which he says in court and the immunity will extend to the contents of the report which he adopts as, or incorporates in, his evidence; (2) where an expert witness gives evidence at a trial the immunity which he would enjoy in respect of that evidence is not to be circumnavigated by a suit based on the report itself” The immunity that expert witnesses enjoy extends to dishonest statements made by an expert under cross-examination.154 However, the immunity enjoyed by witnesses has being challenged. It is argued that expert witnesses choose to be witnesses and that they are paid, professional and uncompellable. There have been cases to demonstrate a shift away from expert immunity. In J S Hall & Co. v Simons,155 the immunity for barristers was removed. The courts have agreed that, whilst there is a need for witnesses to give their evidence freely, this right is paramount but not absolute. This blanket immunity was discouraged by the European Court of Human Rights in Osman v United Kingdom.156

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

153

Stanton v Callahan (1999) 2 WLR 745. 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. 154

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

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

Dr Paterson was reported to the GMC and the GMC found that he ignored crucial evidence to advance his own controversial theories on bone disease.160 The GMC found that he had failed in his duties as an expert witness in the trials of two sets of parents accused of harming their children. His evidence was considered partisan and he was struck off from the Medical Register. The expert witness in Gareth Pearce v Ove Arup Partnership161 was reported to his professional body, Royal Institute of British Architects. (RIBA), for breaking his Part 35 duty. The professional body ruled that he had not acted improperly.

In addition to being reported to one‘s professional body, other sanctions may be imposed against erring expert witnesses. In Phillips &Others v 158

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

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

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

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

162

Phillips &Others v Symes & Others (2004 EWHC 1887 (Ch)). 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). 163

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CHAPTER 4

TRAINING AND REGULATION OF EXPERT WITNESSES

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

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

There is no guide to the courts in the form of a professional register of accreditation to which courts or parties may have recourse when considering the suitability of proposed expert witnesses. The question of who will accredit such experts remains a moot point. The General Medical

166

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

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

What we have witnessed over the past 10 years, is the establishment of a number of expert witness organisations each with its own published Codes of Practice. There is an increasing list of registers of experts that could assist the legal profession in determining the competence of expert witnesses. These include the Law Society Directory of Expert Witnesses, the UK Register of Expert Witnesses, the Forensic Science Society and the Academy of Experts, Society of Expert Witnesses, the Expert Witness Institute and the Council for the Registration of Forensic Practitioners (CRFP). Each maintains a membership list.

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

169

General Medical Council (2003) A licence to practise and revalidation. London: GMC. 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. 170

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

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

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

173

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

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

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

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

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

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

The Academy has no formal role in training, accreditation or sanctioning of expert witnesses, but plays a part in ensuring that doctors have appropriate training opportunities for work as medical expert witnesses. This training may be included as part of the core training programmes for specialist registration or recognised and accredited as continuing professional development, or both. The Academy endorses the principles contained in Paragraph 51 in ―Good Medical Practice‖176 that explains what is required of doctors serving as expert witnesses: “You must be honest and trustworthy when writing reports, completing or signing forms, or providing evidence in litigation or other formal inquiries. This means that you must take reasonable steps to verify any statement before you sign a document. You must not write or sign documents which are false or misleading because they omit relevant information. If you have agreed to prepare a report, complete or sign a document or provide evidence, you must do so without unreasonable delay.”

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

175

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

176

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Credentialing by the Academy of Medical Royal Colleges The Academy through its Colleges and Faculties may provide the courts with specialty-specific advice on recommended criteria for establishing the expert credentials of doctors. The Academy recommends that these criteria should be linked to the items set out in the Intercollegiate Report on Sudden unexpected death in infancy177 which advises that, before a doctor gives evidence that will be relied on as ―expert‖, the court should establish the expert status and credentials of the doctor by using the prompts in Appendix D: The report of the Chief Medical Officer, “Bearing Good Witness: Proposals for Reforming the Delivery of Medical Expert Evidence in Family Law Cases”178 is meant to address the potential shortages of medical experts in key areas, a sequelae of the Professor Meadow erasure from the Medical Register. The key proposal is that in future the provision of expert medical evidence in public law Children Act proceedings should be delivered by the National Health Service (NHS) as a public service, consistent with its duty to safeguard the welfare of children. This service is expected to be provided through the establishment of teams of paediatricians, child psychiatrists and other relevant specialists in local NHS Trusts.

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

177

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

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

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

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

It is argued that expert evidence should be treated as a scholarly activity that is subject to peer review. Selected transcripts of the evidence, with identifying characteristics of the defendant removed, should be published in specialty-specific, peer-reviewed journals, with invited commentaries from 179

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

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

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

No system is perfect and an accreditation or vetting system would probably have prevented the likes of Gene Morrison and Professor Meadow. The future will tell as to the effectiveness of the emerging schemes of regulating expert witnesses.

180

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

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CHAPTER 5

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

The death or the dearth of Expert Witnesses? The after effect of Professor Meadow being struck off from the Medical Register was the reluctance of paediatricians to undertake expert witness work. From the point of view of the scientist, the courtroom is ―someone else‘s turf, where the rules are different and unfamiliar.‖ This was nicely put by Judge Richard Levie: “Here‟s the bottom line. When you ladies and gentlemen with your M.Ds and Ph.Ds come into a courtroom, you are going to be forced to use the court‟s language, you are going to have to follow the court‟s procedures. Or put a little differently, you‟re going to be playing in my ballpark and by my rules. It will not be a scientific meeting where one presenter gets up after another with their power points and their overheads and presents their paper. They get a few questions and then you move on to the next person. It‟s a very, very different situation.‖181 The mode of debate in science traditionally leads to consensus, and it is not perceived as defeat or victory. One reason scientists are uncomfortable in the courtroom is that they are neither trained in nor comfortable with the formalities of the legal adversary proceeding as a mechanism of resolving scientific differences.

The fall out from the miscarriage of justice as a result of flawed or poor expert evidence is the clamour for some form of regulatory machinery for 181

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

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

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

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

The use of peer review panels The key proposal in The Chief Medical Officer‘s report is that the NHS should establish teams of specialist doctors and other professionals within local NHS organisations to improve the quality of the medical expert witness service by introducing mentoring, supervision and peer review. 184 182

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

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

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

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

The use of expert witnesses as advisors to the parties that instruct them is likely to increase. Such experts are not allowed to write reports for the court or give evidence without the court‘s permission. Experts appointed by the 185

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

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

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

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

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

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

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

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

The Daubert Principle: Hearing before the admission of evidence The situation in which we have one expert opinion against another makes the tasks of the jury composed of non-scientists difficult. The use of single expert witnesses or court appointed witnesses has not changed things. Judge Igor in R v Cannings191 suggested that where an investigation into two or more sudden unexplained infant deaths was followed by a serious disagreement between reputable experts, then the prosecution should not be started or continued without additional cogent evidence. In the United States, a preliminary hearing takes place where the trial judge assesses the admissibility of expert evidence before allowing it to go to a jury. This is now known as the Daubert Test. This test stems from Daubert v Merrell Dow Pharmaceuticals, Inc192 in which the US Supreme Court directed federal judges to act as gatekeepers

189

R. v. Adams, [1996] 2 Cr App Rep 467. 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). 190

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

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

Accordingly, a judge who does not have expertise in dealing with scientific uncertainty, agreeing with a particular interpretation, understanding the full value or limit of currently used methodologies, or recognising hidden assumptions, biases, or the strengths of scientific inferences, may reach an incorrect

decision

on

the

reliability and

relevance

of

credible

evidence.193,194 A downside of the Daubert approach is that theories which have not been validated or widely accepted may be excluded, even though that they could be plausible. This is where the expert witness role becomes paramount.

193

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

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Rose LJ in R v Gilfoyle195 indirectly referred to Daubert196 in reaching a decision not to admit evidence from a psychologist as to the deceased‘s state of mind. The judge referred to Frye v United States197 that evidence based on a developing new brand of science or medicine is not admissible until accepted by the scientific community as being able to provide accurate and reliable opinion. This accords with the English approach as reflected in Strudwick and Merry.198 However, in R v Gerrard Francis Luttrell and others199 the appellants appealed against a decision allowing lip-reading evidence to be admitted at their trials. They had been convicted of conspiracy to handle stolen goods. A skilled lip-reader had given evidence for the prosecution at Mr. Luttrell‘s trial, as to what was said at a meeting between Luttrell and another coaccused and which had been recorded on CCTV. The judge had ruled that this lip-reading evidence was admissible.

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

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

195

R v Gilfoyle (No 2) [2001] 2 Cr App R 57. 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 196

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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. 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. 201

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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.

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CHAPTER 6

CONCLUSION

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

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

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

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

There is need to deal with expert witnesses who fall short of complying with their duties. There should be a published code of conduct that outlines the expectations regarding expert witness evidence, and the potential sanctions for non-compliance. We are likely to see sanctions against expert 205

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

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

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

To minimise the risk of flawed evidence, expert witnesses need to ensure that they fulfil the expectations set out in the civil and criminal procedure rules. This will be achieved through adequate training and adhering to the prerequisite standards.

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

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

206

Meadow v General Medical Council [2006] EWHC 146 (Admin). 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. 207

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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.

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APPENDICES

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APPENDICES Appendix A Expert evidence rules in criminal cases Criminal Procedure Rules – Part 33 – Expert Evidence The Criminal Procedure Rules as amended now include rules concerned with expert evidence. Importantly, the Rules impose duties directly on experts, unlike the Civil Procedure Rules. On 6th November 2006 the second set of amendments to the Criminal Procedure Rules came into force. Part 33 (Expert Evidence) reads: 33.1

Reference to expert

(1)

A reference to an ‗expert‘ in this Part is a reference to a person who is required to give or prepare expert evidence for the purpose of criminal proceedings, including evidence required to determine fitness to plead or for the purpose of sentencing.

[Note. Expert medical evidence may be required to determine fitness to plead under section 4 of the Criminal Procedure (Insanity) Act 1964. It may be required also under section 11 of the Powers of Criminal Courts (Sentencing) Act 2000, under Part III of the Mental Health Act 1983 or under Part 12 of the Criminal Justice Act 2003. Those Acts contain requirements about the qualification of medical experts.]

33.2

Expert’s duty to the court

(1)

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

giving objective, unbiased opinion on matters within his expertise.

(2)

This duty overrides any obligation to the person from whom he

receives instructions or by whom he is paid.

(3)

This duty includes an obligation to inform all parties and the court if

the expert‘s opinion changes from that contained in a report served as evidence or given in a statement under Part 24 or Part 29.

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33.3

(1)

Content of expert’s report

An expert‘s report must

(a) give details of the expert‘s qualifications, relevant experience and accreditation; (b) give details of any literature or other information which the expert has relied on in making the report; (c) contain a statement setting out the substance of all facts given to the expert which are material to the opinions expressed in the report or upon which those opinions are based; (d) make clear which of the facts stated in the report are within the expert‘s own knowledge; (e) say who carried out any examination, measurement, test or experiment which the expert has used for the report and – (i) give the qualifications, relevant experience and accreditation of that person, (ii) say whether or not the examination, measurement, test or experiment was carried out under the expert‘s supervision, and (iii) summarise the findings on which the expert relies; (f) where there is a range of opinion on the matters dealt with in the report – (i) summarise the range of opinion, and (ii) give reasons for his own opinion; (g) if the expert is not able to give his opinion without qualification, state the qualification; (h)

contain a summary of the conclusions reached;

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

contain the same declaration of truth as a witness statement

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

33.4

Expert to be informed of service of report

A party who serves on another party or on the court a report by an expert must, at once, inform that expert of that fact.

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33.5

Pre-hearing consideration of expert evidence

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

33.6

Failure to comply with directions

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

33.7

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

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

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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.

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APPENDICES Appendix B

Civil Procedure Rules Duty to restrict expert evidence 35.1

Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.

Interpretation A reference to an ‗expert‘ in this Part is a reference to an expert who has been instructed to give or prepare evidence for the purpose of court proceedings. Experts – overriding duty to the court 35.2

35.3

(1) It is the duty of an expert to help the court on the matters within his expertise. (2) This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid. Court’s power to restrict expert evidence 35.4

(1) No party may call an expert or put in evidence an expert‘s report without the court‘s permission. (2) When a party applies for permission under this rule he must identify – (a) the field in which he wishes to rely on expert evidence; and (b) where practicable the expert in that field on whose evidence he wishes to rely. (3) If permission is granted under this rule it shall be in relation only to the expert named or the field identified under paragraph (2). (4) The court may limit the amount of the expert‘s fees and expenses that the party who wishes to rely on the expert may recover from any other party. General requirement for expert evidence to be given in a written report 35.5

(1) Expert evidence is to be given in a written report unless the court directs otherwise. (2) If a claim is on the fast track, the court will not direct an expert to attend a hearing unless it is necessary to do so in the interests of justice. Written questions to experts 35.6

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

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(b) the expert does not answer that question, the court may make one or both of the following orders in relation to the party who instructed the expert – (i) that the party may not rely on the evidence of that expert; or (ii) that the party may not recover the fees and expenses of that expert from any other party. Court’s power to direct that evidence is to be given by a single joint expert 35.7

(1) Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to given by one expert only. (2) The parties wishing to submit the expert evidence are called ‗the instructing parties‘. (3) Where the instructing parties cannot agree who should be the expert, the court may – (a) select the expert from a list prepared or identified by the instructing parties; or (b) direct that the expert be selected in such other manner as the court may direct. Instructions to a single joint expert 35.8

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

Power of court to direct a party to provide information 35.9

Where a party has access to information which is not reasonably available to the other party, the court may direct the party who has access to the information to – (a) prepare and file a document recording the information; and (b) serve a copy of that document on the other party. Contents of report 35.10

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

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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. Use by one party of expert’s report disclosed by another 35.11

Where a party has disclosed an expert‘s report, any party may use that expert‘s report as evidence at the trial. Discussions between experts 35.12

(1) The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to – (a) identify and discuss the expert issues in the proceedings; and (b) where possible, reach an agreed opinion on those issues. (2) The court may specify the issues which the experts must discuss. (3) The court may direct that following a discussion between the experts they must prepare a statement for the court showing – (a) those issues on which they agree; and (b) those issues on which they disagree and a summary of their reasons for disagreeing. (4) The content of the discussion between the experts shall not be referred to at the trial unless the parties agree. (5) Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement. Consequence of failure to disclose expert’s report 35.13

A party who fails to disclose an expert‘s report may not use the report at the trial or call the expert to give evidence orally unless the court gives permission. Expert’s right to ask court for directions 35.14

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

Assessors 35.15

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

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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. © Crown Copyright 2007 Published by TSO on behalf of HM Courts Service with the permission of the Ministry of Justice.

Practice Direction 35 (supplements CPR 35) Practice Direction 35 is supplementary and complementary to CPR 35. The document sets out the following: 1. The experts report must be uninfluenced by the pressures of litigation 2. The experts must not assume the role of advocate 3. The exerts must state all facts including those which might detract from opinion 4. The expert must not act outside the area of the exerts expertise 5. The procedure where the expert has a changing of view.

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APPENDICES Appendix C

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

208

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

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APPENDICES Appendix D

Medical Expert Witnesses Guidance from the Academy of Medical Royal Colleges

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

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

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

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

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4. The Academy endorses the professional conduct principles set out in the General Medical Council‘s Good Medical Practice. Paragraph 51 in Good Medical Practice is particularly relevant to doctors serving as expert witnesses: “You must be honest and trustworthy when writing reports, completing or signing forms, or providing evidence in litigation or other formal inquiries. This means that you must take reasonable steps to verify any statement before you sign a document. You must not write or sign documents which are false or misleading because they omit relevant information. If you have agreed to prepare a report, complete or sign a document or provide evidence, you must do so without unreasonable delay.” To fulfil these principles, the Academy recommends that medical expert witnesses should ensure that their statements, reports and verbal evidence are: • straight forward, rather than intentionally misleading or biased; • as objective as possible and not omitting material or information which does not support the opinion expressed or conclusions reached; • properly and fully researched.

5. The high quality and reliability of the scientific and medical testimony provided by doctors should be complemented by appropriate professional demeanour. Communication skills of medical expert witnesses should include the careful use of wording that might be regarded as pejorative or pre-judgmental. 6. The Intercollegiate Report211 on Sudden unexpected death in infancy: a multi-agency protocol for care and investigation (September 2004) emphasised that it is the responsibility of courts to decide whether an individual doctor is competent to give evidence as an expert witness. The Intercollegiate Report advises that, before a doctor gives evidence that will

211

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

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

The Academy recommends that these tests should be applied to medical expert witnesses in all situations. There are, however, some caveats: a. “Is the doctor still in practice?”: The Academy advises that, particularly in cases of alleged clinical negligence, the court should consider whether there could be merit in relying on evidence from a doctor who, though no longer in active practice, can provide testimony relevant to the period during which the alleged clinical negligence occurred. b. “Is the doctor in good standing with their medical Royal College?”: It should be noted that not all medically-qualified doctors have medical Royal College affiliation. Many non-UK trained doctors are not members or fellows of medical Royal Colleges; for these individuals, the ―in good standing‖ test cannot be applied. Furthermore, for those doctors who are members or fellows of medical Royal Colleges, ―in good standing‖ often means nothing more that being up-to date with membership subscriptions and actively participating in a continuing professional development scheme. 7. Thus, the definition of a doctor as an ―expert‖ in the context of court proceedings is a matter solely for the court. The mere inclusion of a doctor‘s name on a list of ―experts‖ may not be sufficient for the specific

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

8. Neither the Academy of Medical Royal Colleges nor its constituent Colleges and Faculties operate or endorse registers of expert witnesses, nor do they nominate doctors as experts or vouchsafe those who serve as experts. The roles of the Colleges and Faculties are: a. To ensure that doctors have appropriate training opportunities for work as medical expert witnesses. This training may be included as part of the core training programmes for specialist registration or recognised and accredited as continuing professional development, or both. b. To advise on the criteria (such as those matching the items in paragraph 6) that might be applied by the courts and by others before relying on medical expert evidence and testimony.

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

212

Launched in October 2000, this is a professional regulatory body independent of government, but currently subsidized by the Home Office pending financial selfsufficiency. 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

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

Academy of Medical Royal Colleges 1 Wimpole Street London W1G 0AE www.aomrc.org.uk 25 July 2005

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BIBLIOGRAPHY REPORTS 1. Department of Health. Bearing Good Witness: Proposals for reforming the delivery of medical expert evidence in family law cases. 30 October 2006.

2. Review of the Criminal Courts of England and Wales by The Right Honourable Lord Justice Auld. September 2001.

3. Woolf, HK Access to Justice (Interim report to the Lord Chancellor on the Civil Justice System in England and Wales, HMSO, London, June 1995).

4. Woolf, H.K. Access to Justice (Final Report to the Lord Chancellor on the civil justice system in England and Wales, HMSO, London, 1996)

5. Further Findings: A continuing evaluation of the Civil Justice Reforms. August 2002. Department of Constitutional Affairs.

6. Justice for All. CM5563. Published by the Stationery Office. 2002.

7. 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. 97

8. The Intercollegiate Report on Sudden unexpected death in infancy: A multi-agency protocol for care and investigation. (2004). The Royal College of Pathologists and The Royal College of Paediatrics and Child Health.

9. 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.

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JOURNALS 1. Cranor, C. (2005) Scientific inferences in the laboratory and the law. Am J Public Health.;95:S121–S128.

2. Dyer, O. (2004) BMJ; 328:604 (13 March) doi:10.1136/bmj.328.7440.604-a.

3. Expert Witness Factsheet 2 Expert Evidence (2006) J S Publications. 4. Hand, L. (1901) ―Historical and Practical Considerations Regarding Expert Testimony‖ 15 Harvard Law Review 40.

5. Hayes, M. (1997)Reconciling protection of children with justice for parents in cases of alleged child abuse. Legal Studies, Vol17 No 1 March.

6. Herman, M. (2006) Success of Woolf reforms limited, research claims. Times Online, July 26, 2006.

7. Lynch, M. and McNally, R. (2003) Science, common sense, and DNA evidence: a legal controversy about the public understanding of science Public Understand. Sci. 12 83–103.

8. McAbee, GN. (1994) Peer review of medical expert witnesses. J Child Neurol; 9: 216 –217. 9. Moodie, CT. (1937) Expert Testimony – Its Past and Its Future; 11 Australian Law Journal 210.

10. Mossman, D.(1999) Journal of the American Academy of Psychiatry and the Law, 27(3), pp.414-425 cited in Reid, WH.

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―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.

12. Paterson, C. (1990) Journal of the Royal Society of Medicine 1990;83:72-4.

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.

14. Your Witness. (2003) Newsletter of the UK Register of Expert Witnesses; 34; 1.

15. Wagner, W. (2005) The perils of relying on interested parties to evaluate scientific quality. Am J Public Health.; 95:S99–S106.

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BOOKS 1. Archer, P. (1968) The Queen‘s Courts, Second edition, Penguin Books, London. 2. Archbold‘s Criminal Pleading, Evidence and Practice (2003) London, Sweet & Max. 3. Aronson M & Hunter J (1995) Litigation: Evidence and Procedure 5th ed, Butterworths. 4. Dennis, IH. (1999) The Law of Evidence, Sweet & Maxwell. 5. General Medical Council (2003) A licence to practise and revalidation. London. 6. General Medical Council, Good Medical Practice. 7. Howlin N. (2004) Special Juries: A solution to the expert witness? Vol. 12. 8. Jones, C. (1994) Expert Witnesses: Science, Medicine and the Practice of Law, Clarendon Press, Oxford. 9. Keane, C. (2000) The Modern Law of Evidence 5th Ed. Butterworths, at pp.503-504. 10. Lowe, N, White, R. and Carr, AP. (2002) The Children Act in Practice, 3rd Edition. Butterworths Law. 11. Murphy, P. (2005) Murphy on evidence. 9th Edition, Oxford University. Press, Oxford. 12. Phipson on Evidence (1980) 12th Edition, Sweet & Maxwell. London. 13. Phipson on Evidence (2005) 16th Edition, Sweet & Maxwell. London. 14. Reay. R (2001) Evidence. 3rd ed. Old Bailey Press, London. p304. 15. Stockdale, M. (2005) Criminal and Civil Evidence, 6th Edition. Northumbria Law Press. 16. Taper, C. (1999), Cross & Tapper on Evidence, 9th Rev Ed. LexisNexis UK. 17. Thompson, EP. (1980) Writing by Candlelight. Humanities Press Intl.

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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 1. 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 . 2. Evidence. The Bar vocational course, Bristol Institute of legal practice; University of West of England, Bristol. E:\evidence\uwe.opinion.htm.

3. http://news.bbc.co.uk/1/hi/england/london/6124616.stm.

4. Sperling, HD (1999) 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/pag es/SCO_speech_sperling_030999.

5. The use of Experts: Quality, price and procedures in publicly funded cases. www.legalservices.gov.uk

6. Your Witness, Issue 6, December 1996. Expanding choice: our response to Woolf. http://www.jspubs.com/Experts/yw/yw_06.htm

7. Your Witness, Issue 9, September 1997. http://www.jspubs.com/Experts/yw/yw_09.htm#YW903.

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