Experts update

Removal of immunity

The decision of the Supreme Court in Jones v Kaney [2011] UKSC 13 was published on 30 March 2011 and it is too early to be sure of the consequences that flow from it. Some judges and commentators fear that the pool of experts willing to become involved in litigation will shrink as a result of the removal of their immunity. Professor Dominic Regan recently rubbished this argument, confident that experts are addicted to the high fee income their work generates.

In his keynote address at the annual conference of the Expert Witness Institute in October 2011, the Master of the Rolls, Lord Neuberger, appeared to have more sympathy with the argument than Professor Regan and the majority of the Supreme Court judges in Jones. Interestingly, he suggested that, if this were to happen, the existence of any power of the court to appoint its own expert may well come under scrutiny. Such an expert would owe no duty to the parties but only to the court, whereas a jointly appointed expert owes a duty to all the parties who instruct him or her.

The power of a court to appoint its own expert has been controversial: Lord Esher MR stated in Coulson v Disborough [1894] 2 QB 316 that there was such a power at common law but this was then doubted by the Court of Appeal in Re Enoch and Zaretsky, Bock & Co's Arbitration [1910] 1 KB 327. Clearly, much water has flowed under the bridge since 1910 and in our brave new world the courts may prefer Lord Esher's view of the common law. An unintended consequence of Jones may be the rise of the court-appointed expert and an associated increase in this aspect of inquisitoriality in our still adversarial system.

A matter of weeks after the publication of the decision in Jones, the Court of Appeal heard the appeal in Ridgeland Properties Ltd v Bristol City Council [2011] EWCA Civ 649, which challenged the award by the Upper Tribunal (Lands Chamber) of compensation payable upon the compulsory acquisition of an office property in Bristol. After the publication of the tribunal's draft judgment awarding £4.5m compensation, the appellant had applied to reopen the hearing and adduce further evidence that three offers, ranging between £15.3m and £21m, had been made to it before the compulsory purchase order, but their expert had simply forgotten to refer to these at the earlier hearing. The Court of Appeal dismissed the appeal for a number of reasons, including the fact that, following Jones, the appellant was potentially able to recover from its expert and/or solicitor, which was 'a powerful reason'¦ for not permitting the appellant to mount an entirely new valuation case before the tribunal'.

Hot tubbing pilot

Hot tubbing, or concurrent evidence, is currently the subject of a pilot study in Manchester which began in June 2011. The proponents of this approach argue that it saves time and cost and improves the quality of the evidence through increasing the prospect that each expert's preconceptions, theories and working assumptions are challenged and debated, under cross-examination and the immediate scrutiny of the other experts, before the court. It is argued that traditional sequential cross-examination of experts is artificial and susceptible of being unfairly manipulated by clever advocates.

The pilot is entirely voluntary; it only applies to proceedings where the judge, the experts, the lawyers and the parties consent. The manner in which such an approach is adopted is flexible. It is even possible for experts to attend a round table meeting, with solicitors and counsel, chaired by the judge.

According to Lord Neuberger, in his October speech to the Expert Witness Institute, the first two cases to which it has applied have now reached final judgment. In those cases, it appears to have reduced costs and the parties and their legal representatives seem to have been generally happy with the process. If successful, the pilot will be first extended to other courts and then introduced formally within the CPR.

Overstepping the mark

In Charnock & Ors v Rowan & Ors [2012] EWCA Civ 2, the Court of Appeal rejected any suggestion that it is part of an examining doctor's job to make out a case, if there is a case, for disbelieving a claimant's account of how he or she came to suffer injury, or of the injury he or she has suffered. While there are cases where the doctor is driven, for clinical or related reasons, to advance such an opinion, the doctor's routine role is not that of a sleuth. Sir Stephen Sedley noted that forensic medical practice had been disfigured in the past by practitioners who took on such a role. He praised the doctor in the case before the court for simply recording those divergences that emerged from his own interviews and the records supplied to him without taking on the task of deciding who was to be believed himself.

Fingerprints

The approach to fingerprint evidence in the UK has been criticised as too cosy and out of date. In R v Peter Kenneth Smith [2011] EWCA Crim 1296, the Court of Appeal made a number of observations.

In particular, the judges noted that, while most forensic science services are independent of police forces, 'fingerprint experts are organised in fingerprint bureaux which fall within the organisational structure of each police force'. There is no opportunity for a person outside a police fingerprint bureau to become fully qualified as a fingerprint expert by training in England and Wales or for having that person's competence recognised by the police forces, and police forces do not recognise the qualifications or competence of those who obtained their qualifications overseas.

The court stressed that it is for the judge to decide whether a person is a competent expert, not the police. The judges were critical of the quality of the reports and the lack of detailed written notes kept by the fingerprint experts, which 'reflected standards that existed in other areas of forensic science some years ago and not the vastly improved standards expected in contemporary forensic science'. Furthermore, the presentation of the fingerprint evidence both to the Crown Court and to the Court of Appeal was poor, there being no attempt to use modern methods.

In Scotland in December 2011 Sir Anthony Campbell provided a report following a public inquiry into the identification and verification of fingerprints associated with the case of HM Advocate v McKie in 1999. In this case, a police officer had been prosecuted for perjury after denying in evidence at a murder trial that she had entered the house where the murder had taken place. The officer was acquitted after obtaining support from American fingerprint experts. The inquiry found that two marks had been misidentified by the Scottish Criminal Record Office fingerprint examiners due to human error rather than anything more sinister. The misidentifications exposed weaknesses in the methodology of fingerprint comparison and in particular where it involves complex marks.

Fingerprint examiners are presently ill-equipped to reason their conclusions as they are accustomed to regarding their conclusions as a matter of certainty and are seldom challenged. There is no reason to suggest that fingerprint comparison in general is an inherently unreliable form of evidence but practitioners and fact-finders alike must give due consideration to the limits of the discipline. Fingerprint evidence should be recognised as opinion evidence, not fact, and those involved in the criminal justice system need to assess it as such on its merits. Examiners should receive training that emphasises that their findings are based on personal opinion, and that this opinion is influenced by the quality of the materials that are examined, their ability to observe detail in mark and print reliably, the subjective interpretation of observed characteristics, the cogency of explanations for any differences and the subjective view of 'sufficiency'.

Features on which examiners rely should be demonstrable to a lay person, with normal eyesight, as observable in the mark. Explanations for any differences between a mark and a print are required to be cogent if a finding of identification is to be made. A finding of identification should not be made if there is an unexplained difference between a mark and a print. A process should be developed to ensure that complex marks are examined with even greater rigour. An emphasis needs to be placed on the importance not only of learning and practising the methodology of fingerprint work, but also of engaging with members of the academic community working in the field.

Foreign experts

In December 2011 the Family Justice Council published guidelines for the instruction of medical experts from overseas in family cases. Before permitting the instruction of such an expert the judge should be satisfied that the expert has something genuinely exceptional to offer, is still in active clinical practice or very recently retired, is in good standing with his or her Medical Royal College or overseas equivalent and any relevant regulatory body, and is up to date with continuing professional development. The judge should also establish before deciding whether to allow the instruction whether the proposed expert has received training in the role of the expert witness in the last five years, and what experience the expert has in giving evidence over the same period. The judge should ask whether the expert is aware of and willing to comply with the 2008 practice direction on expert evidence and is aware of the consequences of failing to comply with it.