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How should expert witnesses be disciplined?

The General Medical Council is seeking permission to appeal against a High Court ruling in the case of the paediatrician who was struck off following a statistical error in the Sally Clark murder trial, which resulted in a wrongful conviction. Solicitor Mark Solon, director of legal training consultancy Bond Solon, shares his views with Grania Langdon-Down...

The General Medical Council (GMC) is seeking permission to appeal against a High Court ruling in the case of Professor Sir Roy Meadow, the paediatrician who was struck off the medical register for serious professional misconduct after his statistical error in the Sally Clark murder trial proved a key factor in her wrongful conviction for killing her two baby sons.

Solicitor Mark Solon, director of legal training consultancy Bond Solon, says the High Court decision that expert witnesses such as Prof Meadow should be immune from disciplinary proceedings unless referred by a trial judge was a "retrograde step" and gave too great an immunity to expert witnesses.

The GMC has said that it is not seeking to reinstate its decision to have the paediatrician struck off. However it wants to challenge the High Court ruling because it does not believe that doctors and other professional should be placed beyond the reach of their regulators, a move which would have "significant implications" for the council’s role in protecting the public interest.

Solon says: "We would support the GMC in their appeal because we take the view that if someone puts themselves up as an expert they should take both the risk and the reward."

Prof Meadow was found guilty of serious professional misconduct after telling the jury in Mrs Clark’s trial in 1999 that the "chance of two children dying naturally in these circumstances is very, very long odds indeed, one in 73 million", likening this to the probability of an 80-1 horse winning four consecutive Grand Nationals. She was finally freed in 2003.

The GMC found him guilty of serious professional misconduct and struck him off the medical register. Prof Meadow appealed to the High Court, where Mr Justice Collins agreed that the paediatrician had made an obvious statistical error. But, he said, Prof Meadow had "made one mistake, which was to misunderstand and misinterpret the statistics". While it may be proper to have criticised him for not disclosing his lack of expertise in that field, it did not justify the GMC’s finding.

The judge went on to say that public policy required that an expert who gave evidence in court should be immune from disciplinary proceedings, unless they were initiated by the trial judge. This was based on the principle that a witness could not be sued over remarks made in court. Otherwise, the judge said, experts would be deterred from giving evidence. "What is of fundamental important is that a witness can be assured that if he gives his evidence honestly and in good faith, he will not be involved in any proceedings brought against him seeking to penalise him."

Solon says: "This is new law and I do think this needs to be looked at by the Court of Appeal. If the public is relying on expert evidence during litigation, they should have faith in the quality of the expert and the only two effective constraints are the professional body to which the expert belongs and the court itself. If only the court can discipline, that is a retrograde step and gives them an immunity too far."

He dismisses the judge’s view that, without this immunity, professionals would be deterred from giving evidence. "They should only become involved as expert witnesses if they are competent to do so. If they are, they have no fear whatsoever because no professional body is going to discipline an expert for evidence given competently. Experts are also protected because they can only give opinions according to the state of knowledge at the time. Why would a professional body discipline somebody because techniques or procedures had moved on?"

The High Court ruling came two days after the Attorney General Lord Goldsmith issued new guidelines to restrict the evidence given to courts by expert witnesses. Solon says the classic point of expert witness training is "stay within your field of expertise".

"Lawyers also have a part to play here in not instructing experts to go outside that circle of knowledge, while defence counsel need to cross-examine experts rigorously if they do go outside their field of expertise. Judges must also stop experts doing this because sometimes judges will gently encourage an expert to form a view on something outside their field to move the trial on."

(10/03/06)

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