Experts and the ultimate issue
What happens when the issues in a case are so narrow and so specialist that the expert’s opinion is, effectively, the only significant evidence in the case?
It had long been a general rule of evidence at common law that a witness should not give evidence in relation to what is termed the ‘ultimate issue’ in a case. The general rule was applied in both civil and criminal law and was based upon the principle that this is a matter for the jury or other arbiter to decide and is a function that should not be usurped. Sometimes, however, the issues in a case are so narrow and so specialist that the expert’s opinion is, effectively, the only significant evidence in the case and it will almost certainly decide the outcome.
A very well-publicised example of such a case was that of Football Association (FA) -v- Anelka. In this case the experts were asked to give their opinion on the meaning of a gesture made by a football player as part of a goal celebration during a match. Was the gesture abusive, indecent or insulting? This was, broadly speaking, the essential point in the proceedings and the ultimate issue the tribunal was required to decide.
Gradual erosion of the ultimate issue rule
Historically, although experts have been, unlike other witnesses, permitted to express an opinion on the facts, they, too, have been prohibited from expressing an opinion on the ultimate issue. By way of simple example, a fingerprint expert can state with varying degrees of certainty whether fingerprints found on a murder weapon are a match for those of the accused. However, he is not permitted to go beyond this and say that in his opinion the accused was the murderer. Guilt or innocence is a matter for the jury to decide, and the prohibition is designed to prevent trial by jury being supplanted by trial by expert.
This basic premise was outlined in 1999 by Cresswell J in the Ikarian Reefer case. An expert should only give evidence in relation to matters within his expertise and on issues not within the ordinary experience of the jury. If the jury is capable of forming an opinion without the assistance of an expert because the matter is within their own experience or knowledge, then expert opinion is not necessary.
For some time, however, there has been a steady weakening of the rule against expert opinion on the ultimate issue. The 1972 Civil Evidence Act made expert opinion on the ultimate issue admissible in civil cases, giving effect in section 3 to the 1970 Report of the Law Reform Committee on Evidence of Opinion and Expert Evidence that ‘a statement by an expert witness... shall not be inadmissible upon the ground only that it expressed his opinion on the issue in the proceedings...’. In criminal cases, the abolition of the rule was recommended by the Criminal Law Revision Committee in its Eleventh Report (Cmnd 4991 (1972) p. 155), but this recommendation was never put into effect. However, even in civil cases, there remained definite limits on the extent to which opinion on the ultimate issue would be admissible, and the common law rule continued to exert pressure in determining the line between what was and was not acceptable.
In Pride Valley Foods -v- Hall & Partners, an expert in a construction law case gave an opinion on what he would have done if he had been in a similar position to the defendant. In so doing, he was effectively directly addressing questions in relation to the ultimate issue. Toulmin J said these were not questions for experts but were matters for the court to decide. The expert, he said, purported to make findings of fact on matters that were for the judge to decide, and his report offended against the established basis on which experts should give their evidence.
However, with increasingly complex areas of evidence, and particularly those involving medical malpractice, fraud or forensic science, the boundaries between acceptable expert opinion and opinion that effectively addresses the ultimate issue have become uncertain.
In fraud cases, for example, expert accountants have given opinions stating that, in their view, there can be no rational, honest explanation for the transactions under consideration, thus inferring that the only remaining explanation is one of fraud. In the same year as the Ikarian Reefer case, Lord Taylor stated that:
‘... the rationale behind the supposed prohibition is that the expert should not usurp the functions of the jury. But since counsel can bring the witness so close to opining on the ultimate issue that the inference as to his view is obvious, the rule can only be a matter of form rather than substance.’
Medical malpractice cases offer another example. A medical expert cannot be asked to state, outright, whether a doctor’s behaviour has fallen short of that expected by a professional doctor. However, it is easy to see how a particular line of questioning by an advocate might elicit an inference from an expert that is not too far removed from an opinion on the ultimate issue.
Anelka and the ‘quenelle’
In March 2014 a ruling was made by the Football Association Regulatory Commission (the tribunal) in Football Association -v- Anelka. It concerned disciplinary proceedings against a professional footballer for misconduct involving a ‘quenelle’ gesture that was alleged to be abusive, indecent or insulting, and constituted an aggravated breach of the rules because it included reference to ethnic, racial or religious origin. (The quenelle is a gesture usually performed by pointing one arm diagonally downwards, palm down, while touching the shoulder with the opposite hand.)
Nicolas Anelka is a professional footballer who was contracted to play for West Bromwich Albion FC. It was alleged that, during the course of a game with West Ham United in December 2013, he made a gesture that was abusive and/ or indecent and/or insulting and/or improper, contrary to Rule E3(1) of the Rules of the FA (‘Charge 1’). Further, it was alleged that the misconduct was an ‘Aggravated Breach’ as defined by Rule E3(2) because it included a reference to ethnic origin and/or race and/or religion or belief (‘Charge 2’). Anelka denied both charges.
The approach to such charges had been considered previously by the Regulatory Commission in a case against Luis Suarez. It was agreed that Charge 1 required an objective analysis of the gesture used. Therefore the question for the tribunal on that charge was whether Anelka’s use of the quenelle was, objectively speaking, abusive, indecent, insulting and/or improper.
Rule E3(2) provides that in the event of any breach of Rule E3(1), including a reference to, amongst other things, a person’s ethnic origin, colour or race, the Commission should consider the imposition of an increased sanction.
The FA’s primary argument on Charge 2 was that, as a matter of fact, the player’s use of the quenelle included a reference to anti-Semitism. There was disagreement between counsel for both sides as to whether, if the tribunal did not agree, it would then be necessary to consider Anelka’s ’state of mind’ at the time he used the gesture – in other words, whether he had intended the gesture to have this additional prohibited meaning.
The tribunal considered, however, that the wording of Rule E3(2) is clear. It is a question of fact whether a breach of Rule E3(1) includes a reference to the protected characteristics. Consequently, the tribunal decided that there was no question of subjective intention in relation to Charge 2. But in applying the objective test and asking whether, in the assessment of the tribunal, the words or behaviour were abusive or insulting, it was necessary to view the matter in context, taking account of all relevant facts and circumstances.
How to interpret a gesture – ask an expert!
The difficulty in this case concerned the interpretation of the gesture. It is one that is used commonly in France (Anelka’s home country) and, in some contexts, is analogous to the English ‘V’ sign – it might be said to merely convey the abusive epithet ‘up yours’! However, it also has the more sinister interpretation of a kind of inverted Nazi salute with anti-Semite overtones. In this context, it has been associated with the French comedian and political activist Dieudonné M’bala M’bala (Dieudonné), who is said to be a friend of Anelka’s. It is claimed the gesture was invented by Dieudonné and is said by him not to be anti-Semite, simply antiestablishment.
The quenelle has become so closely associated with Dieudonné that it has become almost akin to his trademark. In this, then, there was a third interpretation of the gesture – Anelka’s claim that it was merely a ‘special dedication’ to his comedian friend. As explained by one of the experts, a Nazi salute is a Nazi salute and there is a universal agreement about its meaning, whereas the quenelle is a totally invented, recent gesture, and even the French public cannot agree on its meaning. Accordingly, it was not merely the meaning of the gesture but the meaning that was likely, in the particular circumstances, to be ascribed by an observer (in both England and France) that the tribunal had to decide.
To that end, the tribunal received expert evidence on the quenelle. The FA instructed a professor of French Studies at the University of Warwick and Anelka instructed a professor of French and European Politics at University College London. In advance of the hearing the experts met and produced a joint statement. Both gave evidence before the tribunal and were cross-examined.
The evidence given by the experts was extraordinarily comprehensive and went into considerable academic detail concerning the history of the quenelle in France and the understanding of the French people in relation to its interpretation and meaning. So complex was the question of meaning and interpretation that it was effectively a case in which the tribunal was entirely in the hands of the experts. Indeed, the consensus of the evidence would speak to the ultimate issue and, effectively, decide the case.
Following closing submissions from the parties, and after extensive deliberations, the tribunal found both charges proved. On the balance of the expert opinion it was concluded that the quenelle was strongly associated with Dieudonné, that Dieudonné was strongly associated with anti-Semitism, and, as a result, that the quenelle was strongly associated with anti-Semitism. The tribunal agreed with the FA that it is not possible to divorce that association from the gesture. As to the second charge, however, it was not found that Anelka was or is an anti-Semite, or that he intended to express or promote anti-Semitism by his use of the quenelle.
This case follows the trend set by other recent cases on, for example, childhood memory and facial mapping in which experts have been permitted to give an opinion on the ultimate issue. All the leading authorities now agree that, provided the judge makes it clear to a jury that they are not bound to follow the expert’s opinion, he or she should be permitted to opine on the ultimate issue.
In unusual cases, such as the interpretation of a gesture which, at the time, was almost unknown in the UK, it is easy to see why expert opinion becomes the deciding factor.
- Football Association -v- Anelka unreported March 3, 2014 ISLR 2014, 2, SLR21- SLR32.
- National Justice Compania Naviera SA -v- Prudential Assurance Co Ltd (the Ikarian Reefer) (No 1)  2 Lloyd’s Rep 68.
- Pride Valley Foods Ltd -v- Hall & Partners  ABC LR 05/04.