In 2002, Dame Elizabeth Butler-Sloss wrote an article for the Journal of the Royal Society of Medicine on Expert Witnesses, Courts and the Law (volume 95, September 2002). In it she made the following interesting comment:

“Expert medical witnesses are a crucial resource. Without them, we [the judges] could not do our job. I hope that recent developments have allayed some of the concerns about this work, and the coming years will see many more in the medical profession offering their skills to the courts”.

While her remarks were obviously aimed at the medical profession it would not be out of place to suggest that they would be equally applicable to expert witnesses in other fields. The “recent developments” to which she referred included Lord Woolf’s final report “Access to Justice”, the implementation of the Civil Procedure Rules in April 1999 and the publication of the Code of Guidance on Expert Evidence, which would support the thesis that her views should have a wider application.

Yet, sad to say, almost three years on from that article the concerns of expert witnesses, far from being allayed have, if anything, escalated. How has this come about? Bearing in mind also that on 22 June 2005 the Master of the Rolls launched the new “ Protocol for the Instruction of Experts to give evidence in civil claims” and expressed his thanks to Mr Justice Bean and His Honour Judge Nic Madge, who had drafted the Protocol, “on producing this succinct and clear document which I am sure will be of great help to experts in the future”, one might reasonably assume that this is a further example that the judiciary are very supportive of the role of the expert witness. However, paradoxically it would seem that the judiciary and the legal profession generally must accept some responsibility for the present situation, which has seen action groups and the media in general fuelling the widespread criticism.

By a singular co-incidence of ill-timing, scarcely a month later from the publication of the Experts’ Protocol, the Fitness to Practice Panel of the General Medical Council having considered private allegations against Professor Sir Roy Meadow, concluded that he had given erroneous and misleading statistical evidence in court, which was outwith his expertise as a consultant paediatrician and accordingly he was guilty of serious professional misconduct. His name was ordered to be erased from the medical register. While there is no doubt that Sir Roy Meadow did go outside his expertise the severity of the Panel’s finding has dismayed much of the medical profession, although the various action groups and the media have seized on it enthusiastically. Paediatricians are increasingly becoming unwilling to accept instruction which would involve an appearance in court; and there is evidence that the same concerns have extended to other medical professionals. The President of the Royal College of Paediatrics and Child Health, Sir Alan Craft, has indicated that this is not only a serious problem for the proper administration of justice, but it carries even more critical implications for the future of child care.

The new Experts’ Protocol makes it clear that the expert must not stray outside his expertise and indeed this was emphasized in the predecessor document, the Code of Guidance on Expert Evidence. So any infringement of this would be likely to be regarded extremely adversely by the courts. Judges are not hesitant in criticising experts who display an ignorance of their responsibilities and obligations as expert witnesses. One has only to recall the case of SPE International Limited v PPC (UK) Limited and John Glen, Chancery Division 10 May 2002 where Rimmer J expressed the view: “Mr Dean’s main difficulty is that he has no relevant expertise. I doubt if there has often been an expert less expert than he. He is an ex RAF officer, who no doubt has a specialised knowledge and experience of many fields of human endeavour, but they do not include the field of shot blasting (the subject of the case)”.

The judges have made it clear in the past that the duty of the expert witness is to assist the court and not to usurp the role of the judge (National Justice Campania Narviera SA v Prudential Assurance Co Ltd – The Ikarian Reefer, 1993 and Anglo Group Plc v Winther Brown & Co Ltd, 2000). These cases, of course, were heard in the civil courts and not in the criminal jurisdiction. But, even allowing for this distinction, by no stretch of the imagination can it be said that Sir Roy Meadow had failed to meet his responsibilities in this respect and, indeed, the Fitness to Practice Panel of the GMC accepted that he did not deliberately set out to mislead the court. He may have put forward his views in an inappropriate fashion but expert evidence is still the expression on the expert’s opinion. It is the court which has the responsibility to decide what weight to put upon it and indeed what evidence to admit in the first place and it is the lawyers on both sides, in both criminal cases and civil litigation, to consider what evidence they wish to adduce and to obtain the approval of the Judge in the pre-trial case management meetings. In the case of Sir Roy Meadow it would seem that the control of his evidence left something to be desired.

If the legal practitioners were aware Sir Roy Meadow had overstepped the mark it does not seem that they regarded it as the critical factor in the conviction of Sally Clark. The new Experts’ Protocol makes it clear that the court will exercise draconian sanctions to control participants, which term includes expert witnesses, even to the extent of making a wasted costs order, but this is no more than a recent updating of the powers of the court. The judges have in the past exercised their case management powers robustly. In the Sally Clark case however there was no suggestion that Sir Roy Meadow’s behaviour as an expert witness warranted any sanctions, although his evidence was assessed by the Court of Appeal. In its judgment on October 2000 the court considered the directions given by the trial judge to the jury concerning Sir Roy Meadow’s evidence, in which he said:

“I should I think, members of the jury, just sound a note of caution about the statistics. However compelling you may find those statistics to be, we do not convict people in these courts on statistics”.

The conclusions of the Court of Appeal were:

“We considered that there was an overwhelming case against the appellant at trial. If there had been no error in relation to the statistics at trial, we are satisfied that the jury would still have convicted on each count….the point on statistics was of minimal significance and there is no possibility of the jury having been misled so as to reach verdicts they might not otherwise have reached… The errors of approach towards statistical evidence….did not render the conviction unsafe.”

Subsequently, as is now well known, further undisclosed evidence came into the public domain and in July 2002 the Criminal Cases Review Commission referred the matter back to the Court of Appeal. In allowing the appeal the Court dealt peremptorily with the statistical evidence:

“Finally we should say a little about the statistical evidence led before the jury. The matter was the subject of only brief argument before us and we certainly heard none of the statistical evidence…. The Court [of Appeal] was misled by the absence of the evidence of the microbiological results as were the jury before it. We are quite satisfied that if the evidence in its entirety, as is now known, had been known to the Court it would never have concluded that the evidence pointed overwhelmingly to guilt.”

One cannot help feeling that Sir Roy Meadow has been publicly castigated for deficiencies in the legal system itself. The management of cases, under both criminal and civil procedure rules, rests squarely in the hands of the court. It is surprising, to say the least, that the GMC should extend its regulatory functions beyond the medical realm into the legal arena where the judiciary already have full authority. In the meantime Sir Roy Meadow has decided to appeal and it will be interesting to see how this is handled in the High Court.

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Brian Thompson
Secretary
The Expert Witness Institute

Note: Professor Sir Roy Meadow is not a member of The Expert Witness Institutey.