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On good authority
Law Society Gazette – 5 March 2004

The furore surrounding Professor Sir Roy Meadow in the Sally Clark case showed shortcomings in the expert witness system. Mark Smulian reports on a crisis in public confidence

To the old question about law enforcement - 'who will guard the guardians?' - might nowadays be added: 'Who will say the experts are expert?'

Following the controversies around cases involving the paediatrician, Professor Sir Roy Meadow, expert witnesses are feeling uneasy about issues that command the attention of the public when they come to trial.

The reviews ordered by the government of cases involving Professor Meadow - involved in the multiple cot deaths cases of solicitor Sally Clark, Trupti Patel and Angela Cannings, which saw murder convictions overturned - have thrown an unaccustomed spotlight on expert witnesses, most of whom deal with highly technical matters that rarely surface in national newspapers.

But the whole point of expert witnesses is that their knowledge ought to be profound enough to be relied on by lawyers to explain complex technical or scientific issues to a court. If they cannot rely on an expert witness, who can they rely on? Another expert witness? The best of three?

The bodies that represent expert witnesses are well aware of the damage done to their members collectively by the Meadow affair.

Brian Thompson, secretary of the Expert Witness Institute, says: 'I have heard anecdotally that there are expert witnesses who are now declining to accept instructions because they are afraid of criticism. That applies generally post-Meadow, but in particular to pathologists.

'It is obvious that expert witnesses have had a lot of bad press recently.'

Bad enough indeed for the institute to have taken 'returning to confidence' as the theme for its annual conference in October, which is set to be addressed by Lord Justice Judge, the deputy Lord chief Justice. The programme is 'designed to help restore confidence among the public in expert witnesses', says Mr Thompson.

Lord Justice Judge gave the ruling in the Court of Appeal case of Angela Cannings in January. She was jailed after being convicted at Winchester Crown Court on two counts of murder of her children.

After making criticisms of Professor Meadow's evidence at the trial, some of which he declared 'simply wrong', Lord Justice Judge said: 'If the outcome of the trial depends exclusively, or almost exclusively, on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed.'

Finding the causes of cot deaths to be 'on the edges of known science', he noted that expert views change rapidly with fresh research.

Michael Cohen, chairman emeritus of the Academy of Experts, one of the other bodies active in the field, shares much of Mr Thompson's concern about the reputational effects of the fall-out from the Cannings judgment.

He says: 'People who know nothing will be concerned and people who know something and have a view may be even more concerned.

'I feel very strongly that there must be proper standards to select experts and they should have proper training. From what I have read, certain things appear to have gone badly wrong. If nothing is done it would be very disquieting.'

He says the academy requires practitioners to keep their knowledge up to date, and Mr Cohen says he is 'not very much in favour of people continuing to practise long after they have retired'.

Professor Meadow was also criticised by judges for 'manifestly wrong' evidence in the earlier case of Ms Clark, the solicitor convicted of murdering her two children before being cleared on appeal last year.

He told Ms Clark's trial that the chances of two babies dying of sudden infant-death syndrome in the same family was one in 73 million, and had advanced a concept known informally as Meadow's Law - that one cot death is a tragedy, two is suspicious and three is murder.

That sort of assertion sounds convincing when placed before a jury by someone presented as an authority on a subject about which most people know nothing. Ironically perhaps, after the conviction, the Royal Statistical Society said the case highlighted its concerns over the misuse of the statistics in court by insufficiently expert people. It attacked the one in 73 million figure, because it was reached by squaring the odds of one death happening, which did not take into account the possibility of genetic or environmental reasons that may make a second case within the same family much more likely. The Court of Appeal also highlighted this when overturning the conviction.

Professor Meadow, who now faces a General Medical Council hearing, recently told Channel 4 News that he wanted to clear up 'misunderstandings' but that confidentiality and legal advice prevented him from doing so at present. But how does one become an expert? The institute and the academy both keep lists of members, as does the separate Society of Expert Witnesses, a body mainly concerned with informing and representing experts.

The Council for the Registration of Forensic Practitioners (CRFP) maintains lists of experts in specific fields. It was set up by the Home Office partly to try to restore public confidence in forensic scientists after several controversial cases.

But one need not be a member of any of these bodies to claim to be an expert witness. Even the officially backed CRFP cannot insist that all experts in the disciplines it covers be members, as this could be seen as an interference with the discretion of a court to take evidence.

Membership of a professional body, academic standing or a record of learned research might all be evidence of expertise, but ultimately it is a subjective judgement.

All of which may pose problems for solicitors, as Mr Thompson points out. He draws attention to comments made by Lord Justice Jacob in 2001, when he said he had found an expert's evidence 'so biased and irrational... that I conclude he failed in his duty to the court', and complained that there was no specific sanction at a judge's disposal because there was no formal expert-accrediting body to whose attention the shortcomings could be notified.

Lord Justice Jacob added that he could see no reason why a judge who was dissatisfied with an expert's conduct should not complain to that expert's own professional institution. However, the bodies do not claim to validate an expert's ability to perform properly as a witness.

The institute says that if judges take this line with inadequate witnesses, it could mean that a solicitor would - if necessary - have to instruct an expert on the nature of his duty and attitude to the court. One area where some progress is expected is on a unified code for expert witnesses.

To date, the institute and the academy have operated different codes, to the exasperation of many involved, not least the Master of the Rolls, Lord Phillips of Worth Matravers, although both bodies have said there is merit in their approach.

A working group set up by the Civil Justice Council (CJC) is this month expected to issue a unified code. CJC secretary Bob Musgrove, who is also Lord Phillips' private secretary, says: 'The CJC very much welcomes news of the imminent publication of a single and agreed code of guidance for experts.'

Mr Thompson says the working party is 'well down the road now, but I don't know if the CJC will issue the results for further consultation'.

Meanwhile, the Lord Chancellor, Lord Falconer, is steadily pushing forward the cost-cutting measure of having single jointly instructed experts in trials.

This step would necessarily eliminate the problem of experts disagreeing with each other in court, but the very absence of the possibility of this challenge from one expert to another may heighten concern over who has validated the single expert's expertise.

Lord Falconer has said that almost half of all trials involving experts used single experts, 'delivering consequent reductions in costs and complexity' and that 90% of solicitors were happy with the quality of those concerned. A survey last year by the Law Society's civil litigation committee indicated that litigators were generally happy with single joint experts, at least in smaller cases.

Lord Falconer suggested that the CRFP should ensure standards and 'deal with' those who failed to make the grade.

Only when the reviews following on from the Meadow cases are complete will the potential scale of the problem be clear and so the scale of any collapse in public confidence.

But with such emotive subjects as child murders - and removal of children from their parents by social services - at stake, any public outcry might mean that the days of experts expecting to be automatically believed could be over.

Mark Smulian is a freelance journalist \