You are here

Appeal judge warns against retired medical experts

29 June 2010

Lord Justice Moses has described the evidence of medical experts still in practice as a “far more reliable source” than that of those who have retired.

Moses LJ said retired experts were usually “engaged only in reviewing the opinion of others” and had “lost the opportunity, day by day, to learn and develop from continuing experience”.

His comments came as he delivered judgment on behalf of the Court of Appeal in R v Henderson, R v Butler and R v Oyediran [2010] EWCA Crim 1269, three cases involving shaken baby syndrome.

The court laid down guidelines to help judges direct juries in cases of shaken baby syndrome, which often depend entirely on expert evidence.

Moses LJ said the possibility of an unknown cause for the death of a baby alleged to have been killed by shaking must not be overlooked.

He said the correct management of expert evidence was of crucial importance and a conviction could only be regarded as safe if it proceeded on a “logically justifiable basis”.

Unless evidence was properly prepared before juries were sworn in, Moses LJ said it was unlikely that proper directions could be given by the judge.

“Proper and robust pre-trial management is essential. Without it, real medical issues cannot be identified,” he said.

“Absent such identification, a judge is unlikely to be able to prevent experts wandering into unnecessary complicated and confusing detail. Unless the real medical issues are identified in advance, avoidable detail will not be avoided.”

Lord Justice Moses said that the fact a medical expert was in clinical practice at the time he made his report was significant.

“Clinicians learn from each case in which they are engaged,” he said. “Each case makes them think and as their experience develops so does their understanding.

“Continuing experience gives them the opportunity to adjust previously held opinions, to alter their views. They are best placed to recognise that that which is unknown one day may be acknowledged the next.”

Moses LJ concluded that judges should not ignore the “realistic possibility of an unknown cause” and juries should be instructed that unless the evidence “leads them to exclude any realistic possibility of an unknown cause they cannot convict”.

The lord justice said juries needed directions on how to approach conflicting expert evidence.

“An overall impression can never be the substitute for a rational process of analysis,” he said. “The jury are not required to produce reasons for their conclusion. Nevertheless, the judge should guide them by identifying those reasons which would justify either accepting or rejecting any conflicting expert opinion on which either side relies.”

Mark Solon, managing director of expert witness training company Bond Solon, said all experts had a “sell by date”.

He went on: “In fast-developing fields, not being currently engaged can be fatal. Solicitors must be wary of retired experts before sending instructions.

“Vigorous cross-examination on recent experience can render the expert’s opinion unreliable and reflect on the choice of expert.”

Disposing of the three cases, Lord Justice Moses, Mrs Justice Rafferty and Mr Justice Hedley dismissed the appeal by Keran Henderson, a childminder, against her manslaughter conviction. The same trio allowed Ben Butler’s appeal against his convictions for GBH and cruelty regarding his baby daughter. Moses LJ, Rafferty J and Mr Justice Sharp rejected Oladapo Oyediran’s appeal against a conviction for murdering his baby son.

Categorised in:

Legal Aid Expert witness Courts & Judiciary