Expert Witness – Time to get it right

There was an article in The Law Society Gazette today following on from the recent collapse of the carbon credits fraud trial. The collapse of the case was due to disclosure issues and the fact that the ‘expert witness’ was found not to be qualified.

It is stated that experts will undergo intensive assessment from June 2019.
The issue of ‘expert witness’ is nothing new. In fact, most of the hard work has already been done, I will explain in due course. However, it is worrying that proposals may simply create a register of witnesses who have been through an ‘intensive assessment’.

I draw your attention to the document prepared by the Criminal Law Commission (No. 325) which was released in 2011. The extensive document (more than 200 pages) explores and considers everything that is key to the recent situation that has escalated this last few days. Additionally, it deals with issues that do not fall in to the scope of accreditation, the expert themselves. Alone or alongside a relevant accreditation program then the credibility of an expert witness would be more valued.

It was unfortunate that the ‘325’ paper was not encompassed into legislation. If it had been, then many ‘rogue experts’ may have been exposed in recent years. There is no doubt that currently self-certifying ‘experts’ are claiming a status well above their station and continue to damage the industry in many ways. It is also reassuring that Dr Gillian Tulley, the Forensic Science Regulator, recently commented herself as to the values of the Law Commission report.

It is my interpretation that the report addresses key issues that you may think was a basic requirement of any expert witness. The first issue is that the potential witness will have specifically worked in the industry to which the evidence is related to. It is clear and simple; to have worked in a position with relevant responsibilities, control of, hands on experience etc. This is not someone in an associated company or office. It is not someone who has attended a two-week course or read a book (or even watched a documentary!). It is also not a person who has read part 19 of the Criminal Procedure Rules, or any other Part they refer to. The role of an expert is drawn from the foundation of their work and experience in the field in which they can provide testimony. It cannot be ignored that qualifications can also be of relevance, but these are supportive, not better than or in replacement of ‘real experience’.

It is a witness with experience in a field of interest who may qualify as being an ‘expert witness’, in that subject. The providing of their testimony in that discipline affords them the status of an expert witness, in that specific discipline. It is not transferable to other matters, without the appropriate experience. Accordingly, an expert witness does not require a history of court appearances or the interest of continuing to provide future service to the courts.

There are far too many ‘pseudo experts’ providing services to both prosecution and defence. Many defence providers, I expect, are keen to attract an income from the Legal Aid Agency and by their own existence dilute the credibility of many others and in doing so operate at sub-standard levels and often with lesser financial values. The spiral is cancerous.

There is no watchdog. It is therefore essential that this opportunity is taken to rid the circuit of charlatans and those who falsify or enhance their background and experience to suit. I do have concerns as to the possibility of ‘intensive assessment’ being the benchmark. The redundant Law Commission report would be an excellent place to start, after all is was prepared for good reason and would probably have deterred the most recent failed witness from giving evidence.

The full Law Gazette article can be read here