The role and use
of expert witnesses has come under increasing critical scrutiny
following the recent high profile cases involving the possibility
of the Sudden Infant Death Syndrome. Certain experts have been publicly
castigated for their perceived role in convicting “innocent”
mothers.
In an environment where the interpretation
of the facts can only properly be advanced by specialists in the
relevant field, and where the lawyers and judiciary are by comparison
“amateurs”, the burden placed on the expert is indeed
onerous. But is it reasonable to place all the responsibility for
the outcome of the trial on the expert witness? Within the legal
profession one can already discern a more rational approach.
The judgment of Lord Justice Judge, giving
the court’s reasons for clearing Angela Cannings of the murder
of her two baby sons shone a welcome balanced and humane light on
criminal court procedure. The Court of Appeal in effect confirmed
that when experts of repute disagree over a decision to prosecute
a parent for killing their child, the case should only proceed if
there was additional evidence available. To quote the judgment:
“If the outcome of the trial depends exclusively, or almost
exclusively, on a serious disagreement between distinguished and
reputable experts, it will often be unwise, and therefore, unsafe
to proceed...Unless we are sure of guilt, the dreadful possibility
always remains that a mother already brutally scarred by the unexplained
deaths of her babies, may find herself in prison for life for killing
them when she should not be there at all.”
The judgment produced an almost instant knee-jerk
reaction from the Attorney General who announced that all criminal
cases involving cot death over the last ten years are to be reviewed
and this was subsequently extended to cases heard by the Family
Division. Even then he could not refrain from pointing the finger:
“Such cases are likely to involve a number of causes of death
and a variable level of expert involvement and it will be important
to identify those where expert witnesses were crucial to securing
the conviction.”
However, it is good to note that a more balanced view of the problem
which faces the criminal courts is now emerging. A sensible and
constructive discussion with Anthony Scrivener QC and Professor
Peter Fleming was broadcast by the BBC in their Sunday morning programme
“Broadcasting House”, the essence of which was that
it was incumbent upon the legal teams to identify experts who, in
an adversarial situation, could objectively put their views to the
court and in such a way that the court could understand the issues
and could reach a fair and just decision. This idea was developed
more recently by Lord Justice Jacob speaking at a seminar organised
by the Commercial Litigators Forum. He suggested that the onus was
on the lawyers to understand the evidence and this also extended
to the judge. He said that as a patent barrister and judge he has
had to understand various bits of esoteric scientific knowledge.
In many cases, when at the Bar, this involved a short crash course
on the subject - he had to understand the expert evidence and its
basis for only then could its strength or weakness be evaluated.
There is a real danger that if lawyers do not understand expert
evidence then it will not be properly tested.
The problem with cases involving SIDS is,
as Lord Justice Judge pointed out, medical science is still at the
frontiers of knowledge. There is clearly a dichotomy between the
requirements of the lawyers who are looking for a black or white
opinion from the expert, and the scientist who cannot provide more
than a range of conclusions. Lord Justice Judge recognised this
but accepted the consequences:
“We recognise that justice may not be done in a small number
of cases where, in truth, a mother has deliberately killed her baby
without leaving any identifiable evidence of the crime. That is
an undesirable result, which, however, avoids an even worse one.
with Home Office backing, has already accredited more than 1000
scientists. The system of accreditation which has been adopted by
the CRFP is one of peer review. But even that has its flaws. If
the eminent practitioners involved in the prominent SIDS cases,
who are now being investigated by the GMC, had put themselves forward
for accreditation by the CRFP it is suggested they would have had
no difficulty in achieving registration. Accreditation, by itself,
cannot be the answer and one comes back again to the legal teams.
With the arrival on the statute book of the
Criminal Justice Act 2003 and the Courts Act 2003 the opportunity
arises to introduce a more effective procedure in the criminal courts.
Much of the thinking behind this legislation is derived from applying
lessons from the civil courts following the introduction of the
Woolf Reforms. In April this year the Civil Procedure Rules will
have been in force for five years and it must be acknowledged that
they have had considerable impact on the way expert evidence is
being used. Not all the innovations in CPR will be relevant for
the new criminal court procedure, for example the use of a single
joint expert is clearly undesirable. But the power of the court
to order the experts on opposing sides to meet together to discuss
the issues and identify areas of agreement and disagreement is one
that could well be worth pursing.
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At the time of
the Sally Clark second appeal, the Expert Witness Institute applied
for leave to intervene on the basis that the appeal demonstrated
a need for a new approach to expert evidence in criminal cases.
The request was not granted as it became clear that the Court of
Appeal was more concerned with the immediate facts of the case and
did not wish to prolong the hearing unnecessarily. However the recommendations
put forward by the Institute still have a relevance, particularly
as procedure rules under the Court Act 2003 are to be considered.
The Governors of the Institute support the way the court now manages
proceedings in civil litigation and drawing on this experience suggested
that in criminal cases the judge should hold a pre-trial meeting
to review the expert evidence. This would involve a greater degree
of transparency between the parties and up front disclosure. Indeed
the Institute’s Governors suggested that expert evidence,
being opinion evidence based on given data (for example, a post-mortem
report in a homicide case) ought to be available to the court whether
its provenance is the Crown or the defence. There should not be
any proprietorial interest in any experts’ reports: they belong
to the criminal court of trial, irrespective of their origins. Indeed,
experts’ reports should, wherever possible, be advanced by
way of opinions written for the purpose of the court, and not for
the parties. Lawyers nurtured on the legal battle implicit in an
adversarial system of justice may not like this. However if new
Criminal Procedure Rules introduce the concept of the expert’s
overriding duty to the court, as is the case now in civil litigation,
experts will, of necessity, have to be impartial and objective.
Many experts who do both civil and criminal work already carry over
this approach in civil cases into the criminal courts, something
which singularly has been not acknowledged. We now have an opportunity
in criminal procedure to restore public confidence in the standards
of British Justice. It is important that it is taken.
Brian Thompson
Secretary
The Expert Witness Institute
The Expert Witness Institute’s Annual Conference on 15 October
2004 has as its main theme restoring public confidence in expert
witnesses. Lord Justice Judge will deliver the keynote address.
For more details contact the Institute at : infor@ewi.org.uk |
