Better regulation of experts is required. Interview with Timothy Dutton QC - 26.9.2014

Related Sector: Expert Witness

Timothy Dutton QC is a leading barrister in Professional Discipline and former Chairman of the Bar Council. He has undertaken a large number of high profile cases and is described as a “doyen of the bar when it comes to professional conduct”. He also appeared in the 2014 Panorama investigation into expert witness misconduct. Here, he answers questions raised by the programme.

How big is the problem of the "hired gun" and what are the consequences for justice?
At the time of the Panorama programme, I said it was rare for me in my practice to encounter “hired guns” - people who say what they know one side wants to hear, who are not independent or objective. My practice is Commercial, Regulatory, Public Law, and Professional Negligence where the parties are normally represented by reputable solicitors with well-funded litigants.
However, I certainly have encountered hired guns over the years, including in a regulatory case last year and in a major regulatory case in 2009, and from time to time before then. In each case my side was able to expose the hired gun in cross examination. The court or tribunal did not therefore accept their evidence.
Since the Panorama programme I have spoken to several circuit judges, some of whom deal with routine personal injury cases such as whiplash. What I learned gives cause for concern.  It may well be that there are members of the professions who are prepared to write reports on a “hired gun” basis. They would be exposed if they were cross-examined. But the costs of exposure may not be justified if the case can settle for a modest sum of money. This means that the problem may go deeper than I have experienced in my own practice.
I also acted for the General Medical Council two years ago in a case which went to the High Court. A doctor had given reckless evidence (which he was neither qualified to give nor did he discharge his duties to the court) in support of a defendant charged with murder. The doctor’s evidence was relied upon by the defence but exposed as worthless. The judge referred the papers to the GMC.
There is a risk to justice, of course. For example, in the Birmingham Six case, the Home Office scientist involved was not ultimately discredited until the defendants had spent 17 years in prison. But the hope is that opposing parties will expose the hired gun.

Is regulation the answer?
There is undoubtedly a need for more effective enforcement of experts’ duties. However, I doubt that requiring experts to pass exams will solve the problem. As with all wrongdoing, it is fear of exposure that tends to drive wrongdoers away, as opposed to form filling or exams. The following steps may go some way towards increasing the risk of exposure:
1. Judges to refer papers to the CPS, police or regulatory body.
2. Lawyers and other professionals under an obligation to report misconduct of experts to police and/or the expert’s professional body.  

Is there pressure from solicitors to omit/include facts?
I am sure there is. The solicitor exerting such pressure may well be in breach of the SRA Code of Conduct and liable to discipline or to being struck off. A very serious case could be seen as an attempt to pervert the course of justice.

Is it flawed to have independent experts paid by one side?
No. This is inevitable under our adversarial system of justice.  If people comply with their duties as professionals, it does not matter that one side pays. The assumption that the problem will disappear if both sides pay, or if the court appoints the expert, is not one I would be prepared to make.  

Are there grey areas that lead to experts not knowing when they are breaching their duties?
Yes. It is important that any expert is clear that he must be independent, that he owes his duty to the court and that he must not be influenced by the parties. However, an expert may be told by a lawyer that a fact is legally irrelevant, for example. And it can be difficult for the expert to know otherwise. But he can say:  “I have noted fact X and I have been instructed that it is legally irrelevant”. That will protect the expert and expose the dishonest lawyer.

Timothy Dutton QC will be speaking about Expert Ethics and Regulation at the Bond Solon Annual Expert Witness Conference on 7 November 2014. If you haven’t secured your place already, you can book online or by calling us on 020 7549 2549.