Giving notice of matters capable of undermining your opinion or your credibility

The Criminal Practice Directions (CPD) have just been amended in relation to expert evidence provided for criminal proceedings.  The requirements of the new Directions are expressly applicable to criminal proceedings but their content is just as applicable to any expert seeking to give unbiased and reliable evidence to any court or tribunal.  To look at that the other way round, the matters to which this Direction relate are all matters which could seriously embarrass an expert and the party by whom the expert is instructed in any proceedings if admitted to for the first time under cross-examination, and the failure to disclose them could lead to serious consequences for the expert, including financial penalty and reference to the appropriate professional body.

CPD 19A.7 gives examples of matters which should be disclosed as potentially undermining the reliability of an expert’s opinion or detracting from the credibility or impartiality of an expert, both in relation to the expert and in relation to any corporation or body for which the expert works.

  1. any fee arrangement under which the amount or payment of the expert’s fees is in any way dependent on the outcome of the case;
  2. any conflict of interest of any kind, other than a potential conflict disclosed in the expert’s report;
  3. adverse judicial comment;
  4. any case in which an appeal has been allowed by reason of a deficiency in the expert’s evidence;
  5. any adverse finding, disciplinary proceedings or other criticism by a professional, regulatory or registration body or authority;
  6. any such adverse finding or disciplinary proceedings against, or other such criticism of, others associated with the corporation or other body with which the expert works which calls into question the quality of that corporation’s or body’s work generally;
  7. conviction of a criminal offence in circumstances that suggest: (i) a lack of respect for, or understanding of, the interests of the criminal justice system (for example, perjury; acts perverting or tending to pervert the course of public justice),  (ii) dishonesty (for example, theft or fraud), or  (iii) a lack of personal integrity (for example, corruption or a sexual offence);
  8. lack of an accreditation or other commitment to prescribed standards where that might be expected;
  9. a history of failure or poor performance in quality or proficiency assessments;
  10. a history of lax or inadequate scientific methods;
  11. a history of failure to observe recognised standards in the expert’s area of expertise;
  12. a history of failure to adhere to the standards expected of an expert witness in the criminal justice system.

CPD 19A.8 states that where there has been adverse comment in the course of a judgment, it would be reasonable to expect those criticised to supply information about the conduct and conclusions of any independent investigation into the incident, and to explain what steps, if any, have been taken to address the criticism.

The potential sanction in criminal proceedings under CPD 19A.9 is ‘a searching examination of the circumstances by the court’ of a failure to disclose, and potentially the exclusion of the expert evidence in the proceedings.  But in any proceedings these would all be matters likely to impact on the reliability of the expert’s evidence and should be raised by the expert with the instructing solicitor if not referred to in the report itself.

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Your statement of truth really, really matters!

Not many court experts, signing the statement of truth at the end of their reports, are thinking about the clang of the prison gates.  The recent decision in Liverpool Victoria Insurance v Zafar [2019] EWCA Civ 392 is a reminder that they should.

The medical expert revised a prognosis in his medical report by adopting his instructing solicitor’s suggestion, and without re-examining the client or exercising any professional judgment.  There was no clinical justification for the amendment.  It was not perhaps surprising that the judge had held that the expert was reckless as to the truth of the revision and as to whether that would mislead the court, and for that contempt of court passed a sentence of 6 months imprisonment but suspended it.

The Court of Appeal was asked to find the sentence unduly lenient.  It did.

It was emphasised that making a false statement verified by a statement of truth is a serious offence.  Doing so deliberately or recklessly would usually result in committal to prison, and the offence remained serious even if there was no direct financial motive on the part of the expert for the false statement.  In the case of an expert witness, it made little difference whether the false statement was made deliberately or recklessly.

The maximum sentence for contempt is 2 years’ imprisonment.  A sentence “well in excess of 12 months” was the starting point.  Early admission and co-operation, genuine remorse and previous unblemished professional record were all relevant, but breach of the court’s trust by a professional witness could be expected to result in severe sanctions.  That experts in this position will have brought ruin upon themselves was not a reason not to impose a significant custodial sentence.

The Court of Appeal indicated immediate custodial sentence would be the norm, and there would have to be powerful factors to justify suspending the sentence.

The expert in this case was not re-sentenced as the guidelines now available by this judgment were not available when he was sentenced.  However it was made clear that now an appropriate sentence would be an immediate custodial sentence significantly longer than six months.

Conclusion

An expert must take the statement of truth required at the conclusion of an expert report for any court or tribunal extremely serious.  Although rarely read, as it is pasted into a report or appears in the template, it does bear reading.  To recklessly or deliberately misstate matters in the report in breach of that statement of truth is likely to result in an immediate custodial sentence, as well as terminal consequences for the expert’s professional status.

Similar weight should also be given to the sign-off of a joint statement following a joint discussion between experts.  In civil claims this requires a brief restatement that the experts recognise their duties to the court and that they have not been instructed to avoid reaching agreement on any matter within their competence. An intentional or reckless false statement is likely to have similar consequences.

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