The origin of the species
As Spring brings hope – or at least an indication of change, it is a time to look for signs of growth by digging into the weeds. The history of expert witnesses is long and largely devoid of weeds. There are strong characters throughout. It is often said that the first person to give evidence as an expert witness in legal proceedings in an English court was Charles Smeaton, a civil engineer, who gave evidence in 1782 about the silting up of Wells harbour in Norfolk.
Smeaton was famous for his lighthouse on the Eddystone Rocks off Plymouth. It now sits on the Ho and is there as a testimony to his expertise. The case established the need for more than simple eye witnesses in such cases. It also established the right for an expert witness to give evidence free from the fear of suit – a situation that persisted until Jones v Caney changed the law recently.
In 1901 Scotland Yard formed its first fingerprint branch and in 1905 Albert and Alfred Stratton were convicted of murder, in part because of Alfred’s fingerprints on a cashbox from which money had been stolen at the time of the murder. The police officers giving evidence about the fingerprint were, of course, cross-examined about it. The defence called their own expert, a certain John George Garson, a doctor, to deal with the fingerprints. He was in agreement with some parts of the police’s evidence, but not with all of it. He did not agree that he could be satisfied that the fingerprint belonged to Alfred.
He was, of course, cross-examined by the prosecution on his evidence. He said that he had written to the Director of Public Prosecutions and offered to give evidence for the Crown because he felt that how the police were using fingerprint comparisons in this case could bring the system into disrepute. There is no transcript of the questions and answers of that court hearing but on being challenged, he said: “I am an independent witness. If I had had to give evidence for the Treasury - as the prosecution was often called in those days - it would have been precisely the same. I have given evidence for the Treasury in many cases, and I have had to give reports to them which have altered totally their procedure.”
A continuing duty
The overriding duty to the Court and not to those who are instructing them was later, from 26th April 1999, established formally in law. But it was actually much earlier established that those who pay most definitely do not ‘call the tune’ so far as expert witnesses are concerned
The notorious case of Dr John Bodkin Adams in 1957 is an example. Dr Adams was originally to be prosecuted for the murders of two of his patients, although he was suspected of many more, often benefitting from their wills. There were to be two trials, prosecuted by Attorney General Reginald Manningham-Buller.
The first trial indicted Dr Adams for the murder of his patient Edith Morrell by administering drugs to her. In his summing up to the jury the judge referred to the central and most difficult part of the case as being whether the death was caused as the natural result of Mrs Morrell’s illness or whether it was by the administration of the drugs. There were expert witnesses called by both sides to help the jury decide this issue although even one of the prosecution experts said that he could not rule out natural causes - another example of the independence of expert witnesses.
Perhaps not surprisingly given that comment, the prosecution experts must have been less than convincing - the jury acquitted Dr Adams of murder in under three-quarters of an hour. The trial had lasted 17 days. The Attorney General took the decision not to proceed with the second murder prosecution.
For those doing Legal Aid work
The present AG has also stepped in to the fray on paying for experts doing legal aid work. We know you are out there! Even in these days of cuts and changes there are experts in a range of cases who are on legal aid rates. The payments have been fixed since April 2013 and amended in December 2013 for work happening now.
This is because the Civil Legal Aid (Remuneration) (Amendment) Regulations 2013 and the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2013 have introduced new rates for most types of expert. The rates in the Remuneration Regulations (as amended) will apply to all work undertaken by experts in all civil, family and crime work with a case start date or representation order date of on or after 2nd December 2013. Your attention is drawn, however, to the somewhat complex transitional provisions that will apply, which are contained in Part 2 of the Civil Legal Aid (Remuneration) (Amendment) Regulations 2013.
They are not generous, but the rates and the rules can be found here: remuneration-of-expert-witnesses-guidance.PDF
We will bring you more news and discussion in March – but we are always happy to answer experts’ questions. Please email them to email@example.com and (in a redacted form) we will be glad to publish our ideas.
By Jonathan Dingle, Barrister-at-Law of 218 Strand and a leader on Specialist Info medico-legal courses.