Experts and pretenders: Examining possible responses to misconduct by experts in criminal trials in England and Wales

Publication Date01 Apr 2020
DOI10.1177/1365712720913336
AuthorElaine Freer
SubjectArticles
Article
Experts and pretenders:
Examining possible responses
to misconduct by experts in
criminal trials in England and Wales
Elaine Freer
Robinson College, University of Cambridge, Cambridge, and 5 Paper Buildings, London, UK
Abstract
Much academic literature explores the reliability of expert evidence in criminal proceedings in
England and Wales. However, almost no attention has been paid to misconduct by experts
giving evidence in criminal cases. Whilst rare, its serious impact on the administration of justice
and public trust in it means that this area requires analysis. This article explores possible
responses to expert witness misconduct occurring in the context of criminal proceedings in
England and Wales, noting particularly the differences in responses available, depending firstly
upon whether the expert is a registered professional, and secondly whether the expert has
stepped outside of their expertise; did not have relevant expertise at all, or was dishonest.
Professional disciplinary procedures focus on ‘fitness to practise’, and it is argued that this is
sufficient where a registered professional has overstepped their expertise, but has not dis-
played mala fides. On the contrary, where someone gives evidence purporting to have
expertise that they do not, or lies about their conduct as an expert in the case, criminal
sanctions are available, appropriate, and should be used. These include contempt of court;
perverting the course of justice; fraud by false representation, and perjury.
Keywords
contempt of court, criminal evidence, criminal procedure, exclusion of evidence, expert
evidence, fraud, perjury, perverting the course of justice
Expert evidencehas long enjoyed special statusin the English criminal justicesystem. Unlike witnesses of
fact, who can only report on what they directly saw, heard or experienced, expert witnesses are
permitted to give opinion evidence on matters within their professional purvi ew.
1
The relationship
Corresponding author:
Elaine Freer, Robinson College, University of Cambridge, Grange Rd, Cambridge CB3 9AN, UK.
E-mail: ef269@cam.ac.uk
1. Turner (1975) QB 834, applying the exception in Folkes vChadd (1782) 3 Dougl. 153.
The International Journalof
Evidence & Proof
2020, Vol. 24(2) 180–207
ªThe Author(s) 2020
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DOI: 10.1177/1365712720913336
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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.
2
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.
Introduction
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.
In Sulley,
3
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,
4
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.
Freer 181

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