Tried and tested

In the past few years health and safety in the workplace has become one of the most highly regulated areas. There are serious penalties for businesses that breach health and safety regulations or ignore their legal responsibilities. The consequences could lead to company officials receiving hefty fines, possible disqualification orders and, in serious cases, prison sentences.

While the Health and Safety Commission (HSC) is responsible for health and safety regulation, it is the Health and Safety Executive (HSE), Environment Agency (EA) and local authorities which are the enforcing authorities that bring prosecutions against individuals and businesses.

Differences between civil and criminal cases

Nowadays, expert witnesses are playing an increasingly important role in both civil and criminal cases, helping lawyers to investigate the facts and issues and to identify the strengths and weaknesses of cases and prepare reports for court and give oral evidence.

While the use of expert witnesses is commonplace in civil cases, their role in the health and safety arena, which is dealt with by the criminal courts, has been more limited.

In civil cases, parties often instruct experts at the outset. Often the expert's view can bea deciding factor in whether or not to proceed with a claim. Whereas, in health and safety cases, the use of experts is mainly limited to the larger 'headline' prosecutions or, generally, where a company faced with prosecution wishes to defend the same.

However, for the majority of companies who enter a guilty plea on prosecution, the question of expert evidence may not arise.

Types of expert

We all know that an expert witness is an individual who, by virtue of his qualifications, training, skill, ability and relevant experience, is considered an expert sufficient enough that others may rely upon.

For the prosecution, any such expert is likely to be a specialist inspector who might be involved in the relevant investigation either directly (as part of the investigation team) or as an independent expert witness appointed by the HSE or EA.

The specialist knowledge of any such inspector may then make it appropriate for the same to be called as an expert witness for the prosecution.

The defence, on the other hand, will prefer to instruct an independent expert to provide a report on all sorts of matters ranging from safe systems of work in a particular area, or experts that deal with test results, samples or test analysis.

When are experts used?

Experts can be used by the prosecution either at the investigative stage or to attend any hearings or trial and give evidence.

However, the defence may choose to instruct an expert only where they are entering a not guilty plea. In doing so, they must serve the expert evidence on the prosecution as soon as practicable.

In addition, the Health and Safety Commission may appoint an expert (or experts) to undertake an independent investigation and where there has been a major incident (such as the recent Buncefield Oil Depot case) a board of senior experts may be appointed under specific terms of reference to investigate the incident, the contributing facts and role of the prosecuting bodies and to make recommendations for future action which may involve appropriate changes to policy or guidelines.

Expert advisers can be appointed by any party to assist in the preparation of a party's case. In such cases, the expert adviser's duty is to the party instructing rather than the court.

The advantage of appointing an expert adviser, in particular at an early stage of the proceedings, is that this may help the prosecution or defence establish the strength of their case.

In addition, businesses facing prosecution by the HSE may use the expert adviser to decide whether it is worthwhile contesting the case. Furthermore, an expert adviser can assist a defendant in preparing and arguing mitigating circumstances.

On the other hand, the role of the expert witness is to assist the court or jury on matters where their ordinary, everyday experience does not enable them to adequately consider the issues in the case. The duty of such witness is to the court.

What are the duties of an expert?

The duties of an expert witness have evolved over the years. Historically, there was a tendency for expert witnesses to be more favorable to the party that instructed them and indeed paid their fees!

These days, it is paramount that an expert's opinion is both objective and unbiased. Whether an expert witness is instructed by either the prosecution or the defence, they are under a duty in a health and safety case (as in all cases) to act in the interests of justice.

The main duties and responsibilities of an expert witness are:

• To present evidence which is independent and that has not been influenced by the case.
• To provide independent assistance to the court in relation to matters within the expert's expertise and not to assume the role of an advocate.
• To state the facts or assumptions upon which his/her opinion is based and to consider all material facts (including those that are not relied upon) in drawing his/her conclusions.
• To make it clear when a particular question or issue falls outside his/her expertise.
• Where there is insufficient data to come to a final conclusion, the expert should state that his/her opinion is provisional.
• Any change of opinion on a material matter should be communicated to the other party without delay.
• Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.

This will vary significantly depending on the facts of the case. In many health and safety cases, it is appropriate for the expert witness to undertake a site visit to examine the scene of the incident on which the prosecution is brought. This is particularly relevant where the condition of the site or an item such as a piece of machinery or structure is in issue.

This will enable the expert to either take samples or photographs and/or assess whether further tests should be undertaken. However, it is essential that an expert maintains his professional distance from any investigation in order to maintain (and be seen to maintain) his objectivity.

Expert witnesses will usually prepare two types of written report although some reports may be a combination: a laboratory report which deals with clearly measurable matters such as the results of analysis and tests; and a consultant's report which covers broader matters of opinion, such as safe systems of work.

The expert will be expected to give evidence at court. This is a critical part of the process as the whole case could hinge on the expert's testimony.

How can experts assist?

In the main, the use of experts and expert evidence has assisted the courts and juries in reaching the right decision. The contribution made by experts in many court cases has more often than not proven to be invaluable, particularly in health and safety cases where the plethora of legislation is likely to lead to confusion and ambiguity to the uninitiated. Their opinions and ability to explain, in layman terms, highly complex technical issues and the application of technical regulatory and legislative provisions has no doubt avoided numerous miscarriages of justice.

Nevertheless, we are all familiar with a number of high-profile cases in which expert evidence has led to wrongful convictions.

Although not a health and safety case, the most troubling case in recent years was that of solicitor Sally Clark who was convicted of murdering her two infant sons after a jury heard from an expert witness that the chances of the babies dying natural deaths was one in 73 million.

That statistic was later shown to have 'grossly' misrepresented the chance of two sudden deaths within the same family from unexplained but natural causes.

As a result of this, the Law Commission of England and Wales published a consultation paper that sets out a number of preliminary proposals to prevent a repeat of such cases and to ensure that the role of experts is not brought into disrepute.

There is an increasing concern that expert evidence is sometimes admitted too readily and that parties in criminal trials are relying increasingly on the evidence of expert witnesses. Expert evidence, particularly scientific evidence, can have a very persuasive effect on juries.

These proposals intend to introduce tough new rules that will give judges greater powers to test the credibility of experts and, where necessary, exclude their evidence from juries. The proposals also discuss the merits for a court-appointed assessor to help the judge establish the reliability of and credibility of the expert testimony and the establishment of a regulatory framework for expert witnesses. The Law Commission is to put forward its recommendations by the end of 2010.

It is clear, however, that an expert's role can be crucial in any health and safety prosecution and it is, therefore, fundamental for any party seeking to appoint a relevant expert to undertake thorough research before instructing an expert. Hundreds of 'health and safety consultants' have sprung up over the last few years and, while many of these offer general health and safety advice, others are more specific and have been set up by former professionals in their given field.

However, the quality of many of these 'consultants' may well be untested and in order to ensure that the right expert is chosen for the right case any potential expert's credentials need to be investigated prior to instructing him. Questions such as: 'What is the expert's experience and qualifications?' 'How many times has he provided reports for court use?' 'Has he ever given evidence in court as a witness and has he been put under the pressures of cross-examination?' need to be asked.

If the answer to any of these questions (particularly the last one) is no, serious reconsideration as to such an 'expert's' appointment should be made.

With the advent of the relatively new corporate manslaughter legislation, including higher penalties and publicity orders, there is an expectation that expert witnesses will be called upon on a more regular basis.

There is little doubt that there will be a greater need for the use of experts and expert advisers in health and safety cases in the future, and if used wisely and appropriately they will play a key role in future prosecutions.