Expert witness — Disciplinary proceedings relating to evidence given in criminal trial — Finding of serious professional misconduct — Whether immunity from disciplinary proceedings — Extent of immunity — Appeal allowed in part
The appellant was an eminent paediatrician who, from the 1980s, had been involved as an expert witness in numerous family proceedings and some criminal cases relating to child abuse. He retired in 1998, and the same year he published a paper on unnatural sudden infant death. He was subsequently retained as an expert witness in a criminal prosecution concerning the deaths of two children. As a result of his findings, the children’s mother was convicted of murder. That conviction was subsequently overturned on appeal.
The woman’s family complained to the respondent disciplinary body, alleging serious professional misconduct on the part of the appellant. It was contended that his evidence to the criminal court had been badly flawed, particularly with regard to statistical evidence. The respondent’s Fitness to Practise Panel (FPP) found the appellant guilty of serious professional misconduct and ordered that his name be erased from the register of practitioners.
The appellant appealed. The proceedings raised issues of principle as to the general duties of expert witnesses in all professions and the jurisdiction of regulatory bodies in disciplining such witnesses in respect of evidence given by them. The High Court allowed the appeal and quashed the respondent’s order: see [2006] EWHC 146 (Admin); [2006] 09 EG 182 (CS).
The respondent appealed raising the issue of, inter alia, whether an expert witness should be entitled to immunity from disciplinary, regulatory or fitness to practise proceedings with regard to statements made or evidence given by him in, or for the purpose of, legal proceedings.
Held: The appeal was allowed in part.
It was wrong in principle for the court to impliedly limit the powers of a professional disciplinary body by extending immunity from civil suit to professional disciplinary proceedings.
An expert who gave evidence of opinion or otherwise on matters within his own professional knowledge and experience had an overriding duty to the court to assist it objectively on matters within his expertise. He was also bound by the ethical code and generally accepted standards of his profession: National Justice Compania Naviera SA Prudential Assurance Co Ltd: The Ikarian Reefer [1993] 2 EGLR 183; [1993] 37 EG 158 considered.
Where conduct of an expert was alleged to amount to a professional offence and was under scrutiny by his professional disciplinary body, then if that conduct arose out of evidence that he had given to a court or other tribunal, it was important that that body should fully understand and assess his conduct in the forensic context in which it arose. The important considerations were the circumstances in which he came to give the evidence, the way in which he gave it, and its potential effect, if any, upon the proceedings and their outcome.
If the disciplinary body lacked information to enable it properly to assess the expert’s conduct in the forensic context, or failed properly to take it into account, a court reviewing the determination was likely to introduce important insights of its own, not least an appreciation of the isolation of an expert witness in the alien confines of the witness box in an adversarial contest. It was for the judge, as final arbiter of relevance and admissibility, to ensure that an expert was assisted or encouraged to keep within the limits of his expertise, bearing in mind the issues upon which he was there to assist.
On the other hand, the expert was not absolved from responsibility for professional or forensic impropriety in the presentation and form of his evidence. As an expert he should know his limits and, in most cases, his knowledge and instincts in his particular field should alert him to confining his evidence to those limits and the true issues identified for the court by the parties’ lawyers.
Roger Henderson QC and Adam Heppinstall (instructed by Field Fisher Waterhouse) appeared for the appellant; Nicola Davies QC, Ian Winter and Kate Gallafent (instructed by Hempsons, of Manchester) appeared for the appellant; Lord Goldsmith QC, Jonathan Crow and Benjamin Watson (instructed by the Legal Secretariat to the Law Officers) appeared for the Attorney General, as intervener.
Eileen O’Grady, barrister
