between the English courts and expert evidence has not been straightforward, however. The English
system has resisted requiring formal qualifications; anybody could therefore potentially be an expert
witness. Identifying those who are ‘expert enough’ when there is no formal threshold poses some diffi-
culties. With no reliable way for the parties to check the expertise of a witness who is not from a
professional group requiring registration (such as medical doctors), someone purporting to be an expert
when they are not is difficult to combat. This article discusses how such behaviour could be sanctioned,
and analyses whetherthose sanctions are appropriate and sufficient to protect the integrity of the criminal
justice process. For these purposes, the ‘integrity of the criminal justice process’ is taken to mean con-
viction of the guilty, acquittal of the innocent and maintaining public confidence.
I would argue that the
development of a peer-review college would be desirable, to allow assessment of expertise prior to the
expert’sinstruction. Currently sanctions operateafter the event, and their deterrenteffect can be questioned
in light of recent cases.
This article examines two types of expert misconduct. Firstly, it considers two recent fraud cases (Sulley
& Ors and Pabon) where the prosecuting authority had called people purporting to be financial experts.
it later transpired that the e xpert in fact had no qualifi cations at all. This having bee n
discovered during the trial, the judge was forced to discharge the jury and the prosecution had to offer
no evidence, leading to ‘not guilty’ verdicts being entered by the judge. In Pabon,
the expert did not
have the particular knowledge that he claimed to have, and was later discovered to have been seeking
assistance via text message from people with genuine expertise in the area during overnight adjourn-
ments in the trial.
Secondly, it looks at two older cases concerning medical experts who were subject to professional
disciplinary proceedings as a result of their evidence in criminal trials concerning the deaths of young
children allegedly caused by their parents or carers. In those cases both experts were genuine experts in
their fields, but did not deploy their expertise appropriately, or strayed outside of their specific area of
expertise. In one case, this likely contributed to the wrongful conviction of a mother for killing her infant
sons, though her appeal was allowed on unrelated grounds.
Having analysed these two types of conduct, which I argue are fundamentally distinct, the article
examines responses to expert misconduct. This analysis includes criminal and civil law responses to such
misconduct, as well as disciplinary proceedings by professional regulatory bodies. I analyse the suffi-
ciency of those responses in differing circumstances, but argue that they all share an inadequacy of being
available only ex post facto. This usually means that an accused person has been subjected to a criminal
trial (sometimes more than once) where, without that expert’s misconduct, they may not have been tried
at all, or might not have been tried mu ltiple times. I conclude that curr ent regulatory/professional
disciplinary responses are largely adequate for regulating the expert, but are unlikely to provide any
sufficient recourse for accused people convicted in trials where such evidence was utilised. Regulatory
and disciplinary responses are also not intended to punish the expert. Criminal sanctions would punish an
errant expert, and, as explored below, are applicable to all, not just those belonging to registered
professions. However, the relevant offences are serious offences against the administration of justice,
usually punished by imprisonment, to reflect high levels of culpability.
It is suggested that to avoid the waste of the significant cost of trials being stopped due to expert
misconduct, or appeals where the trials conclude with convictions, a peer review college should be set
up. This would allow review of the expertise of any expert not from a registered profession prior to their
2. As per the overriding objective in the Criminal Procedure Rules.
3. First instance, Southwark Crown Court, His Honour Judge Nicholas Loraine-Smith, 2019.