THE INDEPENDENT MAGAZINE FOR LEGAL PROFESSIONALS
feature archives



 

 


Guidance For Experts In Criminal Trials

By Mark Solon, Solicitor, Bond Solon Training


Experts currently have very little guidance in the criminal courts, unlike their counterparts in civil courts. The Civil Procedure Rules came into force in 1999 and give thorough guidance in Part 35, Practice Directions and Protocols which set out the role of the expert and the way the expert must work within the courts. In addition experts can refer to codes of guidance from the Expert Witness Institute and Academy of Experts as well as any code issued by their professional body. Experts in civil cases now have clear directions on matters such as their duty to the court, not going outside their field of expertise, how the courts can control expert evidence, discussions between experts, the form of their reports and narrowing the issues in dispute.There have been several high profile cases in the past few months where the competence and independence of experts has been brought into question and reveal how the lack of proper court rules and guidance can lead to injustice.

Sally Clark, who was found guilty of murder, was in part convicted on expert testimony. New evidence emerged in 2000 that there was an infection that had spread as far as her child's cerebral spinal fluid. The prosecution pathologist Dr Alan Williams, who had carried out post mortems on both babies, had known about this evidence since February 1998 and microbiological test results demonstrated one child had probably died suddenly in reaction to the bacteria. The information was not communicated.
Lord Justice Kay criticised Dr Williams, saying the medical evidence was not disclosed because of his "failure... to share with other doctors investigating the cause of death information that a competent pathologist ought to have appreciated needed to be assessed before any conclusion was reached. The Court of Appeal on the previous occasion reached their conclusions wholly unaware of this aspect of the matter. We have no doubt that the resulting convictions are, therefore, unsafe and must be quashed."
Experts in criminal cases need to understand that their role places on them a personal duty of full disclosure analogous to the duty of experts in civil cases to disclose all material facts and instructions, give any range of opinion and to disclose any matter later identified which might affect their earlier opinion.
Another medical expert cited rather dubious statistics about the likelihood of cot death prompting the Royal Statistical Society to issue a statement, expressing its concern at the misuse of statistics in the courts. The expert had given opinion evidence outside his field of knowledge"…a expert witness drew on published studies to obtain a figure for the frequency of sudden infant death syndrome (SIDS, or "cot death") in families having some of the characteristics of the defendant's family. He went on to square this figure to obtain a value of 1 in 73 million for the frequency of two cases of SIDS in such a family. This approach is, in general, statistically invalid….The well-publicised figure of 1 in 73 million thus has no statistical basis. Its use cannot reasonably be justified as a "ballpark" figure because the error involved is likely to be very large, and in one particular direction. The true frequency of families with two cases of SIDS may be very much less incriminating than the figure presented to the jury at trial…The Society does not tolerate doctors making serious clinical errors because it is widely understood that such errors could mean the difference between life and death. The case of R v. Sally Clark is one example of a medical expert witness making a serious statistical error, one which may have had a profound effect on the outcome of the case. Although many scientists have some familiarity with statistical methods, statistics remains a specialised area. The Society urges the Courts to ensure that statistical evidence is presented only by appropriately qualified statistical experts, as would be the case for any other form of expert evidence."
Experts in criminal cases should understand that they owe a duty to the court not to purport to give evidence outside their expertise.

Similar problems around expert evidence arose in the Trupti Patel case. Professor Peter Fleming said the evidence suggested that Trupti Patel's two sons Amar and Jamie and her daughter Mia, had died because their bodies could not metabolise properly and they became very ill, while appearing to be well.

At the trial at Reading Crown Court he said he could find "no clear evidence" to suggest that any of Patel's three babies had been smothered or deliberately suffocated.


"I can find no convincing evidence that the deaths were caused by applied or imposed injury…I can find considerable evidence that points in the direction of a metabolic disorder, which is compatible with the picture that occurred in all three cases…The most likely explanation is that these children died as a consequence of a metabolic disorder." This was in contrast to the original experts views.
In his Review of the Criminal Courts of England and Wales(http://www.criminal-courts-review.org.uk/) Lord Auld makes various comments on the place of experts. Choosing a competent expert in the first place can be an onerous task for a solicitor. There are many directories that list the names of experts some that require letters for reference from solicitors who have used the experts listed in the past. Unfortunately some directories are no more than glorified classified ads. Experts need to be competent in two roles: firstly as a professional in their chosen field and secondly as an expert who understands how to construct a court compliant report, how to give oral evidence and the framework of law and procedure they are working within. Proper training in this second role is essential. Cardiff University and Bond Solon launched a unique expert witness certificate in November 2002 that requires experts to submit reports for assessment, analysis of cross examination on video and examinations in law and procedure. Experts who have passed such a programme should give at least some comfort to solicitors who have to select an expert.
In relation to forensic scientists, Lord Auld suggested "consideration should be given to concentrating in one self-governing professional body within England and Wales 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." The Council for the Registration of Forensic Practitioners (http://www.crfp.org.uk) seems the obvious candidate for this but proper funding is essential. Until such a body is fully functioning, lawyers will have to rely on their own databases of tried and tested experts. Any code of guidance should insist an expert not take on a case outside his field.

The Civil Procedure Rules, Part 35.3,states that
It is the duty of an expert to help the court on the matters within his expertise and that
This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid".

This clear statement of the duty to the court should equally apply in the criminal courts and Lord Auld recommends the new Criminal Procedure Rules should contain a rule in the same or similar terms and any witness statement or report prepared by an expert witness for the assistance of the court should contain at its head a signed declaration to that effect. This seems good common sense and codifies what should be current good practice anyway.


Lord Woolf wrote about the "expert witness industry" in Access to Justice. He was concerned about too many experts being called and the cost of such evidence. Lord Auld took a similar view. He also calls for the criminal courts to have the power to control the admission of experts' evidence and that this be formalised in new Criminal Procedure Rules. Expert should be involved where they are reasonably required to resolve any issue of importance in the proceedings. However, where a court directs an expert is needed, that direction should constitute authorisation for the expenditure of public money on an expe rt at a specified rate if the defendant is legally aided. Single Joint Experts are unlikely to find favour in the criminal courts, although they have been very successful in the civil courts.


A recent survey of 500 experts that we conducted indicated that a single joint expert is being appointed in about 40% of cases. In the civil jurisdiction there may not be any Article 6 difficulties.Auld has recommended the prosecution and defence should normally arrange for their experts to discuss and jointly to identify at the earliest possible stage before the trial those issues on which they agree and those on which they do not agree, and to prepare a joint statement for use in evidence indicating the measure of their agreement and a summary of the reasons for their disagreement and failing such arrangement, the court should have power to direct such a discussion and identification of issues and preparation of a joint statement for use in evidence and to make any consequential directions as may be appropriate in each case. This should avoid the problems mentioned above in the Clarke case where information was not communicated between experts.Perhaps the possibility of differences between experts being considered by the trial judge alone in a pre-hearing review should also be considered.

He has also recommended greater use by legal practitioners of video-conferencing and other developing new technology for communicating and conferring with experts in preparation for trial. The general improvement in the use of technology to avoid unnecessary travelling is to be encouraged. Often medical experts are involved and involvement in courts cases can take the medic away form seeing patients. This ties into the use of video-link facilities to enable experts to give evidence. Many experts are very frustrated when they take time off from their professional work to attend court only to find they are not called.
Lord Auld has made several useful suggestion that address the gaps in guidance and bring criminal experts more in line with experts in the civil courts. These recommendations are to be welcomed.
Mark Solon
Solicitor
Bond Solon Training
13 Britton Street
London
EC1M 5SX
bondsolon.com
020 7253 7053

Mark Solon
   
Search WWW Search The Barrister