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March 2014
Number 4

The importance of being earnest

“I hope you have not been leading a double life, pretending to be wicked and being good all the time. That would be hypocrisy.” - Oscar Wilde, The Importance of Being Earnest

As all experts will know, the vital importance of complying with the procedural rules is never far from their minds. The rules in civil and criminal law are not too divergent these days and a salutary tale has very recently emerged in the full glare of publicity. It is worth stating – but not salivating over: all experts should ask themselves whether they might also be challenged.

The judge in the current phone-hacking trial admonished an expert witness called by the prosecution after he admitted to making three mistakes in the interpretation of data relating to mobile phone movements near Rebekah Brooks's country home in Oxfordshire. David Cutts, a senior forensic engineer employed by the Metropolitan police, also admitted to Mr Justice Saunders that he did not check over his evidence "once again" before appearing in court as an expert witness.

The data concerned the movements of Mark Hanna, News International's head of security, and other security assistants on the morning of Brooks's arrest on Sunday 17 July 2011. The learned judge said: "you have been wrong on at least three occasions and accepted you have been wrong". He said the mistakes were "serious ones" and that the "court, jury and public should be able to rely on experts exercising proper care" with their evidence. He added that the witness had "failed to provide a satisfactory explanation" for the mistakes and it was important that expert witnesses "get it right".

On cross-examination by Hanna's counsel William Clegg QC, David Cutts admitted that he had made three mistakes in his interpretation of mobile phone cell-site data. When he made his first admission that two of his entries relating to calls made on the Sunday morning were wrong, Clegg accused of him of being in "a fundamental muddle". It has already been agreed in court that Hanna stayed overnight in Oxford on Saturday 16 July 2011. However his precise movements, mapped by an expert police witness, proved to be faulty.

When Clegg challenged him on a further assertion relating to Hanna's whereabouts asking if he had made another mistake, Mr Cutts hesitated in his answer. Mr Justice Saunders intervened and told the witness: "Just say yes." Mr Cutts replied: "Yes."

Range of opinion

It is vital that use of English by experts is precise and that they give a range of opinion. Both matters came alive in the trial.

Mr Justice Saunders challenged the expert witness on claims that data registered on the mobile phone mast half a mile away from the Brooks's could be definitively interpreted as at the precise location. Mr Cutts said his interpretation always puts mobile phone traffic "at or in the vicinity" of a location within range of a cell site. The judge commented "Half a mile away is not in normal English at the place and you could have explained that."

Parliamentary experts

In a different arena, the scope of expert witness evidence saw (on 7th March 2014) a House of Commons Select Committee, in its concluding stage of the enquiry into fixed term parliaments, listening to expert witness evidence on how fixed-term parliaments will affect the last year of a parliament. It called upon expert evidence from the Rt. Hon. Peter Riddell CBE PC, Director, Institute for Government, Sir Bob Kershaw, Head of the Civil service, Sir Jeremy Heywood, Cabinet Secretary, Cabinet Office and the Rt. Hon Oliver Letwin MP, Minister for Government Policy, Cabinet Office. Boris Johnson also gave evidence.

This has been a controversial part of the coalition’s constitutional agenda; it removes the right of the Prime Minister to hold a general election on a date of his or her choosing. As we approach the last leg of this Parliament with the coalition partners moving apart it will be interesting to see if this isn’t one piece of legislation which both parties regret introducing – and what role experts play in another constitutional change!

By Jonathan Dingle, Barrister-at-Law of 218 Strand and a leader on Specialist Info medico-legal courses.