Imposter syndrome: choosing your witnesses wisely
Following the collapse of a case concerning a Â£7m carbon credit fraud this week, Mark Solon reflects on the importance of calling credible expert witnesses
This week saw the collapse of a multi-million-pound fraud trial at Southwark Crown Court due to the appointment of a witness patently unqualified for the role. So how could this happen?
Andrew Ager, who was posing as a carbon credit expert, was clearly “not an expert of suitable calibre”, in the words of the judge, Nicholas Loraine-Smith.
“He had little or no understanding of the duties of an expert. He had received no training and attended no courses. He has no academic qualifications. His work has never been peer-reviewed”, the judge said.
All expert witnesses need two sets of skills: first they must have the relevant qualifications and experience in the professional field in which they work and second, they must have the skills to be an expert witness.
This includes how to write a court compliant report, give oral evidence and understand the law and procedures that applies to experts. Any lawyer needing to use an expert witness must exercise due diligence to ensure that the expert has these skills.
All experts must be checked thoroughly before being instructed. It seems that in the Ager case, the expert had been used on many occasions in previous cases and that whoever instructed him didn’t exercise the necessary care in making sure that he was up to scratch.
There are several lessons from this case for solicitors who instruct experts in whatever legal forum. It is really important to ask the potential expert for an up to date CV.
Be curious and suspicious when you read this and then follow up with a phone call. You should discuss with the expert their qualifications and experience as these need to be appropriate for the issues in the matter before the court, as an expert needs to be specific to the case.
Ask for further evidence of their skills if you think appropriate. Make sure they have been trained as an expert witness so their report will be court compliant and they understand how to deal with cross examination and that their duty is to the court.
Some solicitors ask for references and anonymised reports from previous cases that the expert has been involved in and also may check articles they list in an report appendix.
Clearly the amount of due diligence exercised will depend on the quantum in dispute or seriousness of the matter in order to keep costs proportionate.
These steps are really important as the instructing solicitor is potentially liable in negligence if they have not exercised reasonable care in the selection and instruction of their expert.
What is interesting in criminal matters is that the Crown Prosecution Service does not hold a list of approved experts but recommends contacting the National Crime Agency (NCA).
It is not clear how the NCA approves the names they hold and perhaps this needs to be reviewed in the light of this disastrous prosecution collapse. It may be that Ager was used merely because he had been used in the past for some 20 cases.
However, he continued to make the same mistakes, just with greater confidence each time. This was not noticed until the defence teams in this case attacked his credibility and all was revealed in some excellent cross examination. An expert must be an expert not an incompetent amateur.
Let’s look at the Ager case. Narita Bahra QC and John Carl Townsend of 2 Hare Court exposed the many problems with this expert.
The prosecution had asserted that Ager was an expert in the carbon credits market. Narita Bahra called Dr Marius Cristian Frunza as an expert for the defence. Frunza holds a PhD from Sorbonne University and lectures in respect of the carbon credit markets. Ager attempted to dissuade Frunza from giving evidence. This resulted in the defence cross-examining Ager in a voir dire.
Bahra and Townsend uncovered a raft of evidence to prove that Ager was not up to the job, including not having any academic qualifications or reading any books on the subject he alleged to be an expert in.
He admitted lying during joint expert meetings and said that he did he did not consider it his duty to bring facts to the court’s attention that might assist the defence.
On top of which he said he had kept no records of evidence provided to him by police and had even lost material relating to the case. In short, he showed no understanding whatsoever of the seriousness of his role.
At the conclusion of the voir dire the prosecution abandoned Ager as their expert and said he had been removed from the NCA’s list of approved experts. The trial judge commented that Ager should never be permitted to give expert evidence again.
Mark Solon is a solicitor and founder of expert witness training company Bond Solon Training bondsolon.com