Abstract
At least since 1282, when a coroner called a surgeon to advise whether an arrow injury to the chest could be fatal (Sayles 1936), doctors have been needed to assist the administration of justice. Dr Andrew Duncan, Senior, recognised this in 1795 in his University of Edinburgh lectures on forensic medicine: ‘Many questions come before the Courts … where the opinion of medical practitioners is necessary either for the exculpation of innocence or the detection of guilt … an opinion consistent with truth and with justice.’ This duty was identified by Percival (1803, p. 120): ‘It is a complaint made by coroners, magistrates and judges, that medical gentlemen are often reluctant in the performance of the offices, required from them as citizens qualified by professional knowledge, to aid the execution of public justice.’
These Courts rely on the professionalism and rigor of the experts who come before them.
At least since 1282, when a coroner called a surgeon to advise whether an arrow injury to the chest could be fatal (Sayles 1936), doctors have been needed to assist the administration of justice. Dr Andrew Duncan, Senior, recognised this in 1795 in his University of Edinburgh lectures on forensic medicine: ‘Many questions come before the Courts … where the opinion of medical practitioners is necessary either for the exculpation of innocence or the detection of guilt … an opinion consistent with truth and with justice.’ This duty was identified by Percival (1803, p. 120): ‘It is a complaint made by coroners, magistrates and judges, that medical gentlemen are often reluctant in the performance of the offices, required from them as citizens qualified by professional knowledge, to aid the execution of public justice.’
The Role of the Medical Expert Witness
Expert evidence is only admissible if it is ‘information which is likely to be outside of the experience of a judge or jury’ because ‘[i]f, on the proven facts, a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary’ (R v Turner [1975] QB 834). So, ‘[i]f matters arise in our law which concern other sciences or faculties we commonly apply for the aid of that science or faculty’ (Buckley v Rice-Thomas (1554) 1 Plowd 118) and ‘[i]n matters of science no other witnesses can be called’ (Folkes v Chadd (1782) 3 Doug KB 157). Medicine is such a science.
Hodgkinson and James (2015, p. 10) divide expert evidence into five categories (Box 1.1).
Box 1.1 The Five Categories of Evidence Given by Expert Witnesses
1. Expert evidence of opinion, on facts adduced before the court
2. Expert evidence to explain technical subjects or the meaning of technical words
3. Evidence of fact, given by an expert, the observation, comprehension or description of which require expertise
4. Evidence of fact given by an expert, which does not require expertise for its observation, comprehension and description, but which is a necessary preliminary to the giving of evidence in the other four categories
5. Admissible hearsay of a specialist nature
Whether an injury was caused by a hammer or a knife is a matter of opinion (Category 1). To understand this opinion, expert medical evidence is necessary to explain terms such as ‘laceration’, ‘incision’ and ‘abrasion’ (Category 2). Expert evidence of fact (Category 3) falls into two sub-categories: (a) what ‘he or she has observed’, where the judge or jury is unlikely to appreciate the facts due to their technical nature; and (b) ‘his or her knowledge and experience of a subject matter, drawing on the work of others, such as the findings of published research or the pooled knowledge of a team of people with whom he or she works’ (Kennedy v Cordia (Services) LLP [2016] UKSC 6). This includes:
… evidence … which is used to support or contradict the opinion evidence. This is evidence which is commonly given by experts, because … they rely upon their expertise and experience … So an expert may say what he has observed in other cases and what they have taught him for the evaluation for the facts of the particular case.
It is a matter of fact (Category 3a) whether a wound is a laceration, an incised wound or an abrasion, but medical expertise is needed to describe it. The medical expert may also rely on a study of knife wounds (Category 3b). No medical expertise is necessary to describe the garment overlying the wound (Category 4).
Whereas at common law hearsay statements are inadmissible as evidence of the truth of what was said, one exception, other than in Ireland, is hearsay of a specialist nature (Category 5), such as an extract from the victim’s hospital records. However, a statement from the records as to who the victim said caused the injury will be inadmissible hearsay.
In Ireland, medical records are still, strictly speaking, hearsay. Although they may be accepted ‘as prima facie giving a reasonably accurate account of the events which they purport to record and of the opinion of the doctors from whom they emanate … [i]f in any particular they are contradicted by sworn testimony I shall reject such documentary record unless it is supported by other sworn testimony which I prefer’ (Hughes v Staunton Prof Neg LR 244 (Irish High Court, unreported, 16 February 1990)). The records must be admitted or proved in the usual way (McGregor v HSE [2017] IEHC 504).
The Law of Expert Evidence
Until the court accepts you as an expert witness, it does not matter how well-qualified and experienced you are and how expert you think you are. Understanding this requires an understanding of several interrelated aspects of the law on expert evidence.
Admissibility
In Kennedy, relying in part on R v Bonython (1984) 38 SASR 45, Lord Reed and Lord Hodge identified four considerations which govern the admissibility of what in Scotland is termed ‘skilled’ evidence (Box 1.2).
Box 1.2 Lord Reed’s and Lord Hodge’s Four Considerations Governing the Admissibility of Expert or Skilled Evidence
(i) whether the proposed skilled evidence will assist the court in its task;
(ii) whether the witness has the necessary knowledge and experience;
(iii) whether the witness is impartial in his or her presentation and assessment of the evidence; and
(iv) whether there is a reliable body of knowledge or experience to underpin the expert’s opinion.
Assistance
Lord Reed and Lord Hodge said that these considerations apply to skilled evidence of fact as well as opinion, although, when the first consideration, assistance, is applied to opinion evidence, the threshold is necessity as expert evidence is unnecessary if the matters are within the experience or knowledge of the judge or jury. As Lawton LJ held in Turner: ‘Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life.’ This is for the ordinary folk on the jury.
To assist, evidence also has to be relevant to a matter in issue. Relevance has a strict legal meaning derived from the sixteenth-century Scots legal term meaning ‘legally pertinent’. It must be logically probative or disprobative of something which requires proof; evidence which makes the matter requiring proof more or less probable (DPP v Kilbourne [1973] AC 729). If it leaves the court no more certain as to the probability of the matter, it is not relevant and should not be admitted (Bonython). Expert opinion of uncertainty or inability to assist on the balance of probability may nevertheless assist a court when faced with opposing evidence.
Finally, the evidence has to be reasoned: ‘Proper evaluation of the opinion can only be undertaken if the process of reasoning which led to the conclusion, including the premises from which the reasoning proceeds, are disclosed by the expert’ (Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung mbH, 1976 (3) SA 352).
Lord Reed and Lord Hodge quoted approvingly Lord Prosser: ‘[W]hat carries weight is the reasoning, not the conclusion’ (Dingley v Chief Constable of Strathclyde Police (No. 1), 1998 SC 548). Informing the court of the factors which made up the opinion allows the court, as appropriate, to take a different view (Flynn v Bus Átha Cliath [2012] IEHC 398).
Knowledge and Experience
Having the necessary knowledge and experience means being competent to assist: a ‘“skilled person” … who has by dint of training and practice, acquired a good knowledge of the science or art concerning which his opinion is sought’ (R v Bunnis (1964) 50 WWR 422). It is possible to ‘acquire expert knowledge in a particular sphere through repeated contact with it in the course of one’s work, notwithstanding that the expertise is derived from experience and not formal training’ (Malek 2013, p. 1189).
Lord Reed and Lord Hodge summarised this, relying on Myers v The Queen [2015] UKPC 40:
The skilled witness must demonstrate … that he or she has relevant knowledge and experience to give either factual evidence, which is not based exclusively on personal observation or sensation, or opinion evidence. Where the skilled witness establishes such knowledge and experience, he or she can draw on the general body of knowledge and understanding of the relevant expertise.
An early example is that of a solicitor whose expertise in handwriting was acquired studying church registers (R v Silverlock (1894) 2 QB 766).
So, the expertise necessary to assist is defined legally by sufficient skill, acquired through education, training or experience. This should reassure doctors concerned that the ‘status-based tests’ of expertise set out by the General Medical Council’s (GMC) expert in Pool v General Medical Council [2014] EWHC 3791 (Admin) represented a change in the law. The expert’s tests are too restrictive and wrong in law (Rix, Haycroft and Eastman 2017).
What Pool illustrates, like Sir Roy Meadow’s statistical evidence about sudden infant death syndrome (General Medical Council v Meadow [2006] EWCA Civ 1390), and the neuropathologist Dr Waney Squier’s evidence about non-accidental head injury (Squier v General Medical Council [2016] EWHC 2739 (Admin)), is that the expert should not express opinions outside their field of expertise. This includes not questioning the validity of experts in other fields. In Ali v Caton [2013] EWHC 1730 (QB), the judge criticised a neuropsychologist for ‘his mistaken questioning … of (the claimant’s psychiatrist’s) views about J’s hearing of voices’. The GMC’s Good Medical Practice (GMP) (2019) states: ‘You must recognise and work within the limits of your competence’ and, in its Acting as a Witness in Legal Proceedings (AWLP), it states:
You must only give expert testimony and opinions about issues that are within your professional competence or about which you have relevant knowledge of the standards and nature of practice at the time of the incident or events that are the subject of the proceedings. If a particular question or issue falls outside your area of expertise, you should either refuse to answer or answer to the best of your ability but make it clear that you consider the matter to be outside your competence.
It is permissible for an expert to research a topic to enhance their existing expertise by obtaining ‘the views of others, including work colleagues, so long as he records where he went for that advice’ (R v Pabon [2018] EWCA Crim 420).
Related posts:
Chapter 4 – Business Matters
Chapter 5 – The Medicolegal Consultation
Chapter 10 – Reports in Cases Involving Capacity Issues
Chapter 11 – Reports for the First-tier Tribunal (Health, Education and Social Care Chamber) Mental Health
Chapter 12 – Reports in Immigration and Asylum Cases
Chapter 17 – Going to Court
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