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  'Sell by date' for expert witnesses

An appeal in three shaken baby cases calls use of retired experts into question

The use of expert evidence in cases involving infant death has long been an area that has excited controversy and debate. Miscarriages of justice in cases of Sudden Infant Death Syndrome (SIDS) and Shaken Baby Syndrome have been, if not numerous, then certainly of high public profile.

In June 2010 three cases involving expert evidence in ‘shaken baby’ cases came before the Court of Appeal. These cases had similar features, and the appeals were heard consecutively (Louise Henderson, Ben Butler and Oladapo Oyediran, see Henderson -v- The Crown [2010] EWCA Crim 1269). The expert evidence in these cases had been complex, appeared conflicting and, in some cases, involved ‘cutting edge’ medical theories and techniques.

The three cases highlighted a particular feature: where it is alleged a baby has been shaken in the care of a single adult when no other person is present. In such cases, the evidence to prove guilt may consist of expert evidence alone. It must never be forgotten, said Moses LJ, that expert evidence is relied upon to prove that the individual defendant is lying in the account he gives, either at the time or at trial. The correct management of such evidence is, therefore, of crucial importance.

Sell by dates

The Court identified a need to find a correct approach to such evidence, and said that, if a conviction is to be based merely on the evidence of experts, then that conviction can be regarded as safe only if the case proceeds on a logically justifiable basis. We will look at this in more detail in the next e-wire. But, this time we wanted to draw your attention to another of Moses LJ's comments, that of an expert witness’s sell by date.

Moses LJ said:

“Courts should be familiar with the Report on Sudden Unexpected Death in Infancy: The Report of a Working Group Convened by the Royal College of Pathologists and The Royal College of Paediatrics and Child Health chaired by Baroness Kennedy QC published in September 2004. The Kennedy report cautions against doctors using the courtroom to ‘fly their personal kites or push a theory from the far end of the medical spectrum’. It recommends a checklist of matters to be established by the trial judge before expert evidence is admitted, including:-

  1. Is the proposed expert still in practice?
  2. To what extent is he an expert in the subject to which he testifies?
  3. When did he last see a case in his own clinical practice?
  4. To what extent is his view widely held?

“We emphasise the third, which was of importance in these appeals. The fact that an expert is in clinical practice at the time he makes his report is of significance. Clinical practice affords experts the opportunity to maintain and develop their experience. Such experts acquire experience which continues and develops. Their continuing observation, their experience of both the foreseen and unforeseen, the recognised and unrecognised, form a powerful basis for their opinion. Clinicians learn from each case in which they are engaged. 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. Such clinical experience, demonstrated, for example, by Dr Peters in the case of Henderson, may provide a far more reliable source of evidence than that provided by those who have ceased to practise their expertise in a continuing clinical setting and have retired from such practice. Such experts are, usually, engaged only in reviewing the opinions of others. They have lost the opportunity, day by day, to learn and develop from continuing experience.”

Squaring the circle

All very laudable, but do practical matters impose themselves on this issue? For the courts to have access to experienced experts, called to court from their busy professional practice on an occasional basis, one might think the court would accept that such people should be paid fairly, treated with respect, not subject to serious professional risk and not be liable for damages from disgruntled litigants.

Yet we are currently faced with

  • efforts at the Ministry of Justice (MoJ) to cap expert witness fees
  • a court timetabling system that leaves expert witnesses with little notice of cancelled court dates, playing havoc with a busy professional schedule (and the MoJ refusing to sanction payment of cancellation fees)
  • the potentially very serious consequences to an expert’s livelihood of a professional disciplinary hearing arising from his occasional forensic work and, now,
  • potential loss of immunity to claims for damages.

Should all this reduce the supply of expert witnesses to the court, as experts use their time for better paid and less contentious work, Moses LJ may find he becomes far less troubled by experts, whether or not they are retired!

Lord Justice Moses is the keynote speaker at the forthcoming Bond Solon conference - see Conference notice in this issue of the e-wire.

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Issue 63
October 2010

LSC comes to audit
'Sell by date' for expert witnesses
Conference notice


Current issue
November 2017

A witness summons too far
Handling a potential conflict of interest
Joint and several liability
Conference news
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