WALKING ON WATER

Following a recent hearing in the High Court, Dr. David Southall, an eminent paediatrician, has been reinstated by the General Medical Council [GMC], albeit reluctantly, and is now free to return to child protection work. The GMC had earlier found him guilty of serious professional misconduct, based on his involvement in high profile infant deaths, and struck him off the medical register.

Memories come flooding back of Dr. Southall’s involvement in the case of Sally Clark, who was convicted in 1999 of murdering her two children, but subsequently cleared by the Court of Appeal and released from prison in 2003.

Also involved in that case, and other equally high profile cases, was Professor Sir Roy Meadow. He was another outstanding and eminent paediatrician, and he too suffered the same fate as his colleague when he was struck off the medical register in 2005, again for serious professional misconduct. Following hearings in the High Court and the Court of Appeal, Sir Roy was reinstated in October 2006. It was a pyrrhic victory, as he had by this time retired. Following the final hearing, a spokesman for the Society of Expert Witnesses said: “Unless the justice system deals with the failure to handle conflicting scientific opinion, today’s judgment can only add to the growing exodus of experts prepared to assist tribunals.”

The complaints levelled against both experts centred on the extent to which their expert opinions were ‘coloured’ by their apparently flawed interpretation of the facts, described in Sir Roy’s case as “uncharacteristic honest errors in this difficult case.” As an aside, judges do it all the time during the trial process, colouring disputed evidence with their own particular interpretation of the facts, but experts are not expected to stoop to such questionable tactics.

When representing a person accused of crime, where the evidence against him is substantially or solely of an expert nature, the way forward is obvious and predictable. Assuming the accused denies the allegations, and by inference challenges the expert evidence, I immediately instruct an expert of my own. I make sure that he outranks the prosecution expert, or at least ranks pari passu, and believing, as I must, in the innocence of my client, the experts go head to head. There may be times when the defence expert agrees with the prosecution expert, in which case certain consequences flow, and attacking the expert evidence without any ammunition can be a sterile as well as a highly inventive exercise.

The judge must give a standard direction to the jury about the weight they give to expert evidence, and if he fails to do so, any conviction will be overturned on appeal. The judge will tell the jury that they are free to accept or reject the expert evidence, or any part of it, as they are the sole judges of the facts. Whilst experts bring with them a level of expertise beyond the common knowledge of the jury, their evidence must be evaluated in exactly the same fair and impartial way as any other evidence. Any advocate worth his wig and gown will seek to restrict any excessive or ‘colourful’ gloss which the expert might wish to put on the disputed facts, so “uncharacteristic honest errors” should be kept to a minimum.

Experts have an important role to play in the trial process, and without their input, the truth may never be known. In this regard, I have every sympathy with the spokesman for the Society of Expert Witnesses. If even the most eminent expert can be struck off, and thereby lose his livelihood as well as his reputation, is it worth the candle? By the same token, experts should take care when expressing opinions beyond their remit, and leave the obvious inferences to be drawn by the jury. After all, experts have not yet managed the art of walking on water, and are sometimes as fallible as the rest of us.