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Expert witness issues – June update

By: Mark Tottenham BL

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UK Post Office prosecutions - a failure of disclosure.

Recently, one of the largest miscarriages of justice in UK history came to a head when about 40 convictions were set aside of people accused of misappropriating money from their employer - the UK Post Office.

These convictions were among about 700 people who were prosecuted by the Post Office - in private prosecutions - where the real culprit was the Horizon computer system. This was an electronic point of sale (EPOS) system used throughout the Post Office system, and devised by Fujitsu.

Repeatedly, accused persons sought records of errors in the Horizon system, but failed to obtain them. The only ‘expert’ evidence provided was by an employee of Fujitsu who repeatedly asserted that there were no problems with the system.

In 2013, a barrister advised the Post Office that they should be providing disclosure of the flaws in the system. It seems that this advice was ignored.

The following two judgments are of particular interest:

A) Bates and ors. v Post Office Ltd (‘Horizon Issues’) Rev 1 [2019] EWHC 3408 QB. https://www.bailii.org/ew/cases/EWHC/QB/2019/3408.html - This was one of the judgments in the civil action concerning the Horizon system, which resulted in a settlement.

B) Hamilton and ors. v Post Office Ltd [2021] EWCA Crim 577. https://www.bailii.org/ew/cases/EWCA/Crim/2021/577.html - This was the recent judgment in which most of the convictions were set aside.

An excellent speech on the subject was given by barrister Paul Marshall on 3 June. Full text here: https://www.postofficetrial.com/2021/06/marshall-spells-it-out-speech-to.html?m=1

Roles of judge, expert and counsel concerning expert evidence

The Ontario Court of Appeal recently set aside the dismissal of a medical malpractice claim, where one of the experts had testified as to the credibility of a witness of fact. On appeal, it was held that he should not have been allowed to give this evidence, that the judge should have ruled it inadmissible, and directed the jury accordingly. https://www.canlii.org/en/on/onca/doc/2021/2021onca261/2021onca261.html?resultIndex=1

Given the large number of expert and lay witnesses who testified at trial, nothing less than a clear and specific instruction that Dr. Bruce’s credibility opinions were inadmissible and should be ignored would suffice. The failure to so instruct the jury was a serious error on the part of the trial judge, despite the fact that the appellants’ counsel did not ask for either a mid-trial or a closing instruction. In this case, the trial judge should have delivered a prompt and clear mid-trial instruction during Dr. Bruce’s testimony and reiterated this instruction in the final charge.”

As summarised in an article by John Buhlman, the roles of the players are as follows:

1. Judges must exercise their gatekeeping role throughout the testimony of expert witnesses;
2. Experts must stick to the area of his or her expertise and not become advocates; and
3. Counsel are to properly instruct experts and object to inadmissible expert evidence.”

Full article here: https://www.mondaq.com/canada/trials-appeals-compensation/1070318/expert-evidence-a-refresher-from-the-court-of-appeal-on-the-key-roles-of-the-judge-expert-and-counsel-

Expert witnesses as hired guns

Despite the clear rules in the UK courts, there is still a perception that expert witnesses are being used as ‘hired guns’, according to Lord Hodge of the UK Supreme Court, in a speech to the Expert Witness Institute:

While the requirements of independence and impartiality may appear so obvious as to go without saying, it is concerning that in a 2019 survey of expert witnesses 41% of the respondents indicated that during the preceding 12 months they had come across an expert witness who they considered to be a hired gun,’ Lord Hodge said. '25% of respondents further reported that they had been asked or felt pressurised to change their report by an instructing party in a way which damaged their impartiality.”

For more information, see this article in the UK’s Law Society Gazette: https://www.lawgazette.co.uk/news/lawyers-must-do-better-lord-hodge-criticises-use-of-expert-witnesses-/5108670.article

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