Speech to the Expert Witness Institute annual conference 2013: from silting harbours to hot tubbing
The shifting legal landscape and the imminent effect on solicitors and their experts
Thank you for inviting me to address you at this conference and in this conference centre. As a Member of Parliament I am reminded at once that this Hoare Memorial Hall played host to meetings of the House of Commons during much of the Second World War. In this room Winston Churchill made many of his fine speeches to the House of Commons. I am afraid I cannot promise a speech to match that great man but I hope I can share with you some thoughts about expert witnesses in legal proceedings and say something about the importance of expert witnesses and some recent reforms that have been brought in.
Firstly, speaking to you today gives me the opportunity to pay tribute to the work done by expert witnesses in civil cases, criminal cases and family cases and the work that the Expert Witness Institute does in supporting that work and maintaining standards.
Experts in all legal disciplines are facing challenging times. Change is taking place in the civil and criminal justice systems. Crime is falling. Public budgets are lower. There are changes in legal aid. There have been changes in some of the Procedure Rules.
Many of you may feel downhearted by these changes but I think that there are many reasons to be optimistic about the future of expert witnesses and the lawyers who instruct them. The independence and expertise of expert witnesses in the United Kingdom is a great asset to this country. The English legal system and the lawyers that work in it have an international reputation for fairness and excellence. We are a hub for international law and lawyers, and for the settling of commercial disputes. Expert witnesses have a vital role to play in many of these sorts of cases.
The history of expert witnesses is a long and distinguished one. As you will no doubt know it is traditionally said that the first person to give evidence as an expert witness in legal proceedings in an English court was Charles Smeaton, a civil engineer, who gave evidence in 1782 about the silting up of Wells harbour in Norfolk.
In 1901 Scotland Yard formed its first fingerprint branch and in 1905 Albert and Alfred Stratton were convicted of murder, in part because of Alfred’s fingerprints on a cashbox from which money had been stolen at the time of the murder. The police officers giving evidence about the fingerprint were, of course, cross-examined about it.
The defence called their own expert, a certain John George Garson, a doctor, to deal with the fingerprints. He was in agreement with some parts of the police’s evidence, but not with all of it. He did not agree that he could be satisfied that the fingerprint belonged to Alfred.
He was, of course, cross-examined by the prosecution on his evidence. He said that he had written to the Director of Public Prosecutions and offered to give evidence for the Crown because he felt that how the police were using fingerprint comparisons in this case could bring the system into disrepute.
We do not have a transcript of the questions and answers of that court hearing but the records that we do have show the witness saying explicitly, perhaps because his independence was challenged:
I am an independent witness. If I had had to give evidence for the Treasury - as the prosecution was often called in those days - it would have been precisely the same. I have given evidence for the Treasury in many cases, and I have had to give reports to them which have altered totally their procedure.
This is a theme I will come back to later but it is an early illustration of something which is exceptionally important - the independence of the expert witness with an overriding duty to the Court and not to those who are instructing them. Those who pay most definitely do not ‘call the tune’ so far as expert witnesses are concerned.
Expert evidence was still not seen as widespread but was brought starkly into public focus in the case of Dr John Bodkin Adams in 1957. Dr Adams was originally to be prosecuted for the murders of two of his patients, although he was suspected of many more, often benefitting from their wills. There were to be two trials, prosecuted by Attorney General Reginald Manningham-Buller.
The first trial indicted Dr Adams for the murder of his patient Edith Morrell by administering drugs to her. In his summing up to the jury the judge referred to the central and most difficult part of the case as being whether the death was caused as the natural result of Mrs Morrell’s illness or whether it was by the administration of the drugs. There were expert witnesses called by both sides to help the jury decide this issue although even one of the prosecution experts said that he could not rule out natural causes - another example of the independence of expert witnesses.
Perhaps not surprisingly given that comment, the prosecution experts must have been less than convincing - the jury acquitted Dr Adams of murder in under three-quarters of an hour. The trial had lasted 17 days. The Attorney General took the decision not to proceed with the second murder prosecution - a ‘nolle prosequi’ was used.
The number and types of expert witnesses in criminal proceedings have increased - accident investigations, facial mapping and, of course, the increase in the use of DNA evidence. All these - and many others - play a large part in many criminal trials. Experts have a particular responsibility for making difficult issues and concepts understandable - this is especially so in criminal cases where juries have to understand complex issues in cases in the Crown Court. I know that this afternoon there is to be a session on the expert witness and fraud - a complex issue which juries and lawyers! - have to understand if defendants are to have a fair trial. Expert witnesses making these issues understandable to lawyers, judges and juries play an important part in the administration of justice.
The quality of the expert witness can have a decisive effect on the trial. Their evidence can lead to the conviction or acquittal of the defendant. This is why the independence of the expert is important. Experts quite properly disagree but their duty to the court means that their loyalty should not be in question.
But the criminal trial is not the only home of the expert witness. You also appear in civil proceedings and in family proceedings.
That value in very great part stems from the independence that I mentioned earlier but the high quality of expert witnesses also plays a part and the work that this Institute does on training and in its professional conduct guidance is also of great importance in maintaining quality.
The Criminal Procedure Rules, The Civil Procedure Rules and the Family Procedure Rules are all clear - the duty to the Court overrides the duty to the person that instructs you. That must be right. The outcome of any judicial process should be the doing of justice. Expert evidence allows the court or the jury to reach decisions about things that are likely to be outside their area of expertise. It is right that the expert’s duty is first and foremost to the court.
But these are times of change. Expert witnesses cannot be immune from this process and the changes are affecting all participants in the justice system. Public funds are being reduced in the justice system in the same way as they have had to be in other areas of government; the costs of proceedings more generally are under ever greater scrutiny. This is unavoidable. The challenge is to see how justice can continue to be done in this changing environment.
Changes to legal aid expert witnesses payments will have impacted those undertaking this important work. First, a new set of fixed fees and hourly rates was introduced in late 2011 that codified for the first time the rates that could be paid to individual expert witness types. These codified rates were based on the benchmark rates that the then Legal Services Commission confirmed were routinely being paid to specified experts at that time reduced by 10%, in line with the general reduction applied to all legal aid rates following the first legal aid reform consultation.
Changes in how and when expert evidence is obtained and presented have taken place in family, criminal and civil proceedings. The movement is towards reaching agreement as far as possible so that the issues for the judge or the jury to decide are narrowed. There are likely to be cost savings in all of this but it is also in the interests of justice – which must be everyone’s consideration. It serves nobody’s interests if litigation gets delayed by irrelevant issues. It is certainly not in the interest of the litigant in the family court wondering whether they will get their child back; to the applicant in a personal injury claim wondering whether they will get compensation; to the victim in a criminal trial wondering if their attacker will be convicted, or the innocent defendant wondering if he will be convicted.
In family proceedings, the government is working to make more appropriate use of experts and trying to raise quality and standards of expert reports. As you may know, one issue of concern, raised by the Family Justice Review, is that was the fact that experts were sometimes unnecessarily and inappropriately instructed in family proceedings leading to increased complications and delay. Clearly this could create uncertainty for families, especially children whose interests should be at the heart of family proceedings. There have been changes to the Family Procedure Rules which came into force in January 2013. These are a precursor to some of the provisions of the Children and Families Bill currently going through Parliament with the aim of making more appropriate use of experts to reduce delay in family proceedings.
The Government agreed with the recommendation of the Family Justice Review about the need to set a clear time limit for care proceedings, ensuring that decisions are child-focused and reducing duplication in the system. That is why we are taking forward provisions in the Children and Families Bill that will introduce a maximum 26 week time limit for completing care and supervision proceedings.
As part of the work to reduce delay in care proceedings we have brought forward measures to ensure that expert witnesses are used more appropriately. The Bill reinforces the Rules to ensure that expert evidence should be commissioned only where necessary to resolve the case. The court should seek material from an expert witness only when that information is not available, and cannot properly be made available, from parties already involved. Independent social workers should be employed only exceptionally.
Change is often difficult but these changes are fair. The requirement that the expert evidence must be necessary to assist the court to resolve the proceedings justly safeguards against miscarriages of justice. The test to adduce expert evidence appropriately secures the need, in the circumstances of each case, to balance the interests of the parents and those of the child and meets the requirements of article 6 of the ECHR. It will continue to be for the judge to decide whether to give permission for expert evidence to be put before the court in line with the test.
The Family Justice Review also recommended that agreed quality standards should be developed for expert witnesses in the family courts. Government officials have been working with the Family Justice Council, experts groups and other interested parties to develop quality standards. As you may know the standards have recently been subject to consultation and the Ministry of Justice is currently analysing the responses. The government’s response to the consultation will be announced in due course.
In criminal proceedings, the criminal procedure rules and the overriding objective have led to the narrowing of issues and the focusing of expert evidence on the relevant issues.
In civil justice outside of family proceedings changes have been made, many as a result of Lord Justice Jackson’s report into civil litigation costs. The response to that report by the government has sought to ensure that justice continues to be done but that claims are proportionate and that the costs are not out of proportion to the issues involved. Whilst the report was specifically looking at the costs of litigation, as Sir Rupert pointed out in his report one of the principal complaints about expert witnesses was that many expert reports were too long and often addressed irrelevant issues.
There have been a number of approaches to streamlining expert evidence in civil proceedings. The Civil Procedure Rules restrict expert evidence to that which is reasonably required to resolve the proceedings and expert evidence can be restricted by the Court. Again these are subject to judicial oversight and in the interests of justice.
One significant measure which has been introduced is the issue of concurrent expert evidence which was piloted in Manchester from December 2010. This envisages the judge getting all the experts together and asking questions of them about issues in dispute. Whilst the parties can also ask questions, in general a full cross-examination or re-examination is neither necessary nor appropriate. This is a major change but there is no reason why such a procedure should not help the judge decide which expert evidence to rely on. It is early stages and the procedure is still perhaps most well-known by its slang name – coined I think in Australia - hot tubbing!
But as I said at the outset, change can be difficult and I entirely understand that people are feeling nervous about the future. However I think that there is a good future for expert witnesses.
Britain is an international hub for law. For decades – centuries even – English law has been seen as fair and free. Many contracts specify English law for the settlement of disputes. Many disputes, not just contractual ones, are highly technical requiring the services of competent and impartial expert witnesses. Witnesses whose duty is to the Court and not to those who instruct them. Experts who want to see justice done. This is one of the reasons that litigants use British courts and one that expert witnesses in all disciplines are able to play a full part in.
But it is not just domestically that experts can play a part. Many expert witnesses are outstanding in their fields and in demand all over the world. Legal services have made a major contribution to UK exports over recent years.
So change has happened and more is to come. Part of this is the inevitable result of the economic measures we have had to take because of the financial situation that we inherited when we came in to office. But as I hope I have made clear the changes are also in the interests of justice. So far as expert evidence is concerned we have tried to ensure that expert evidence addresses the important issues in the case and serves the interests of justice. Those expert witnesses in this room today and those lawyers who instruct or call them to give evidence play your full part in that process.
Thank you very much.