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Is your Expert Witness really an Expert?

Posted on 21 August 2019

Is your Expert Witness really an Expert?

The evidence put forward by expert witnesses, and the judge's subsequent assessment of that evidence, can be pivotal to the success or otherwise of a case.

Whilst numerous judgments in the civil Courts have considered the issue of expert witnesses and their evidence, including experts' duties, their qualifications, impartiality (or perceived lack thereof), experience, expertise and the quality of evidence provided, there are also some notable criminal cases which have been widely reported in both the national and legal press.

In 2017, the expert witness instructed by the Serious Fraud Office in the trial of two bank traders accused of rigging Libor (SFO v Stylianos Contogoulas and Ryan Reich), admitted to texting his colleagues in the middle of the trial seeking their help to explain email evidence.

More recently, in May 2019, a multi-million pound fraud trial (R v Marcus Allen & Ors) collapsed due to the incompetence of an expert witness. Presiding Judge Nicholas Loraine-Smith found that purported carbon credits expert, Andrew Agar, had limited understanding of his duties as an expert, had received no expert witness training, held no academic qualifications and had never had his work peer-reviewed. With such a damning assessment it is difficult to understand how he could have been considered the most appropriate expert witness for the case. However, there is currently no requirement in England and Wales for expert witnesses to be regulated. Had such regulation been in place, the issues arising in this trial may have been minimised or avoided altogether.

As it stands, expert witnesses are neither obliged to undergo training nor are they assessed in their performance as an expert witness at Court. Soon after the collapse of the R v Marcus Allen & Ors case, the Law Gazette reported that the Expert Witness Institute ('EWI') is aiming to create a register of certified expert witnesses. The proposed certification process would be rigorous for any applicants and involve a series of practical assessments, involving the preparation at least two CPR compliant reports, meeting with experts in the same discipline/speciality to narrow the issues, followed by examination/cross-examination by barristers in front of a judge. The whole process would be reviewed by assessors and moderated by independent observers.

This proposal may address some of the issues highlighted above, but in practice the EWI certification is optional rather than mandatory. Given the significant implications of instructing the 'wrong' expert witness, this begs the question as to why certification should not be obligatory.

Some possible reasons as to why certification may not yet be mandatory are: (1) it may prove too onerous; (2) it may be considered too expensive for some; and (3) it may also reduce the already limited pool of experts in certain areas. This is likely to be the case in niche areas of expertise where experts may already be few and far between, and may only give evidence in a handful (at most) of trials for the duration of their professional career.

Currently, the position remains as before for instructing parties seeking expert witness assistance. Prior to any expert instruction they will need to undertake as much due diligence as possible to ensure that experts: (1) have the necessary qualifications; (2) have the requisite knowledge and expertise on the precise issues in question; (3) have undergone expert witness training to convey their knowledge in a CPR compliant report; (4) can liaise with their peers to narrow down the issues and, more importantly; (5) have the experience and skill set to deliver cogent and decisive expert evidence in Court. In some cases, this will be easier said than done.

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