The BBCs leading documentary programme, Panorama, has undertaken an expose of expert witnesses in the UK. Looking at document examiners, a wildlife expert and a CCTV specialist they undertook secret filming of each. In every case the reporter indicates their guilt and yet the experts agree to prepare reports that would seek to exonerate them. While it is not clear how many experts they approached who refused to do this it is a damning indictment of the state of expert witnesses and the process by which they are employed.
The 30 minute programme is available to watch above:
It is a relief of course that there is no odontology expert witness here – and certainly no suggestion that any odontology expert would engage in this activity. It does however bring into focus the means by which experts are instructed, the information given to them at the time and its impact on their report. Given that odontologists are usually instructed by Courts – as jointly instructed experts, or by solicitors the chance of the accused influencing such reports is minimised.
Here is how the Daily Mail reported the story:
Court expert witnesses will give evidence in defence of paying clients even if they have been told that they are guilty, an investigation found. Undercover reporters filmed specialists who regularly give professional testimony in court apparently flouting strict rules on remaining impartial and independent. Two handwriting experts wrote reports casting doubt on whether a threatening letter was penned by their client – despite being told he was the author. In the name of justice: Expert witnesses have a duty to give an ‘objective, unbiased opinion’. Their reports, which can decide a case, must include all relevant information.
And an ‘animal scientist’ told a journalist from the BBC’s Panorama programme he could claim a crime was an accident. ‘What you’ve done and what they can prove are two entirely different things,’ Professor Barry Peachey said. He has strongly denied backing up a false defence, saying: ‘For people to come to me and say that they’re guilty is absolutely nothing new. It happens, and very often they’re not [guilty].’ Expert witnesses have a duty to give an ‘objective, unbiased opinion’. Their reports, which can decide a case, must include all relevant information.
‘You were walking your dog along and the dog suddenly saw a badger and dived down a hole and all you were trying to do is get it back.’
His report, for which he charged £2,223, noted that many people would not have realised badgers lived there. He wrote: ‘It was not at all obvious to any casual passer-by that there was a badger sett nearby.’ Prof Peachey indicated that he would be prepared to give evidence in court, saying: ‘You’re saying it’s an accident, they are asking me whether or not I think it is a credible accident and I say, “yes, highly likely”.’ He also advised the reporter not to speak openly to his solicitor, telling him: ‘Don’t tell them the truth under any circumstances.’ Responding to Panorama’s investigation, Prof Peachey strongly denied that his report had backed up a false defence.
He said: ‘The court report does nothing except deal with the ecology of the site, which is exactly what I was asked to do, which is completely 100 per cent truthful and accurate, and makes no mention whatsoever of his motives or actions.’ The expert said he twice told the undercover reporter that he would not lie in court for anybody. He added: ‘For people to come to me and say that they’re guilty is absolutely nothing new. It happens, and very often they’re not (guilty)… You don’t just go to see a solicitor and tell him that you’re guilty when you don’t know what the case against you is.’
Another expert, former Metropolitan Police forensic scientist Michael Ansell, said a sample of the reporter’s handwriting provided ‘strong evidence’ he was not the author of a threatening letter – even though the journalist said he did write it.
He later told Panorama that he heard the reporter say he had written the letter but did not think he meant it. Responding to the programme’s findings, former Bar Council chairman Timothy Dutton QC said: ‘Every so often one comes across experts who may seek to subvert the rules. My own experience is that that is comparatively rare. ‘Nevertheless, seeing these four examples is surprising and in each of these instances it seems to me that the breaches of duty are, had they been carried through into the court process, very serious.’ There have been a number of miscarriages of justice as a result of unsafe evidence from expert witnesses, including the cases of Sally Clark and Angela Cannings, who were both wrongly jailed for murdering their children.
Justice Minister Damian Green said: ‘Rules for criminal courts are being tightened, and changed so judges are provided with more information at an early stage about any expert evidence being used, giving them the opportunity to challenge anything inappropriate.
‘We have already made changes in the family courts from last month so experts can only be used where they are necessary to resolve cases justly.’
How many miscarriages of justice might be slipping through the net? Panorama reporter reveals how and why he set out to investigate expert witnesses
By DANIEL FOGGO, reporter on Panorama – Undercover: Justice for Sale?
Expert witnesses are an everyday presence in our courts. Brought in to court cases whenever specialist knowledge is required, they are unlike any other type of witness – for one thing they are able to express not just facts, but opinion, and furthermore, they get paid for giving evidence. Some of them, in fact, make a healthy living from writing court reports and testifying on the stand.
Whatever their area of expertise – from handwriting analysis to lip-reading – they are meant to be impartial and independent, presenting their findings fairly despite the fact that that often they are being paid by only one side or the other.
Justice for sale? Panorama reporter Daniel Foggo outside the High Court in London
But are they? Might the lure of money lead some expert witnesses to become partisan, drawing conclusions in their court reports that are more favourable to the side paying them than they should be?
Their behaviour is already governed by ethical duties and regulations known as the court procedure rules. These clearly set out an expert witness’s main duty, which is to the court and the pursuit of justice, rather than to the client who is paying them. They also stipulate how they should be even-handed and transparent in their evidence, including in their reports everything relevant disclosed to them by a client during the course of being instructed. But are they always abiding by their professional obligations and the court procedure rules? And if not, how many miscarriages of justice might be slipping through the net, unseen, on a daily basis? Given the level of influence expert witnesses have on our courts, if some were willing to pitch their reports in their paymasters’ favour, it would raise a question mark over whether justice itself is for sale?
I set out to try and answer that question.
To do so, I went undercover, approaching a number of experts in several disciplines. In each instance, I told the expert that I was expecting to become involved imminently as a defendant in a court case of either a criminal or civil nature. I said that I wanted a court report from them to help me deny whichever allegation I was facing. But to test their integrity, I told them repeatedly that I had actually done the thing I was trying to deny. If an expert abided by the rules, they should take account of my admission in their report, effectively devaluing it completely. More likely, a scrupulous expert would simply decline to work for me once he knew that he was being asked to prop up a lie. Surely all experts would choose that option? Wrong. Out of the nine experts approached by a colleague and myself, only one did exactly that and excused himself once he’d heard me admit my guilt.
I took several of them the whole distance and bought court-ready reports from them. Not one of them mentioned the fact that I’d admitted my guilt – repeatedly – to them. There was the graphologist (a type of handwriting expert) Simone Tennant who sold me a court-worthy report for £500. Using my normal handwriting as a comparison, she said it was ‘inconclusive’ who was the author of a ‘threatening’ letter which I’d told her I’d written (and was about to be sued over). In the process she also sifted the samples of my admitted handwriting and discarded the one which appeared too similar to the disputed letter on the basis that ‘you don’t want to shoot yourself in the foot.’ Simone Tennant did not respond to Panorama’s findings.
Then there was the forensic document examiner Michael Ansell who went even further, helpfully ignoring our confession of guilt to conclude, after a similar comparison exercise, that there was ‘strong evidence’ that the letter had not been written by our reporter. When asked what he would say in court if asked whether he’d been told by us who actually wrote the letter, Ansell, a former deputy head of the Metropolitan Police’s document section, flatly said he’d deny it. Mr Ansell told Panorama that although he heard the reporter say he had written the letter, he did not think he had meant it.
I also approached an expert in CCTV analysis. Neil Millar, a former soldier, also overlooked my admission that it was me in a grainy clip I had mocked up which purported to show someone damaging my neighbour’s property. Instead, he produced a report costing £1,360 which concluded that while there was ‘moderate evidence’ it might be me in the footage, it could also be someone else. Even though I’d repeatedly confessed it was me. Mr Millar later told Panorama that he acted entirely properly, limiting his report to an analysis of the evidence. He added that he didn’t treat the confession as part of his instructions and that he never takes what his clients say at face value.
And finally, there was the expert in animal science. Professor Barry Peachey, among other things specialises in badgers. They are protected by law and interfering with a badger sett, is an offence which can land you six months in jail. I told him that with a friend I had allowed some dogs to chase a badger and then put a terrier into the sett in pursuit of it. I also said that I thought I’d been filmed by a passer-by on his mobile phone and was fearing prosecution. He leapt into action, suggesting that he attend the scene as soon as possible.
On seeing the sett, he pronounced it ‘heaving’ with badgers, which wouldn’t have augured well for my chances of claiming in court that it was an inactive sett. But he immediately offered a way out: I was in a good place, he said, to ‘paint’ the whole thing as an accident. What he meant by this, he explained, was that I would claim to have simply been walking the dogs off the lead when one had popped down the badger sett of its own volition. His report, he explained, would only mention the fact that the badger sett was fully occupied with badgers, leaving out the fact that, behind the scenes he would be suggesting my defence. And a false one, at that. I was astonished at his brazenness. As he admitted on covertly recorded film: ‘What is most important is that I am an independent expert. It is not for me to put up your defences. The fact that I will put up your defences must be unknown to the prosecution.’
That expert went on to confirm that he would be prepared to stand up in court and say he thought it ‘highly likely’ that the whole incident had been an accident, despite having repeatedly acknowledged that he knew I’d really broken the law. And his fee for this all-in ‘get out of jail’ level of service? The princely sum of £2,223. Plus a further £410 for taking the time to come and collect his cheque and talk me through his report at a motorway service station. Professor Peachey later told Panorama that his report was truthful and accurate and that he had no financial incentive not to tell the truth. He said the facts of the incident had not been made clear to him and that he would never lie in court.
It wasn’t just our view that these experts were behaving badly – Timothy Dutton, one of the leading QCs in the country, a former chair of the Bar Council and an expert in legal ethics, viewed all our footage and concurred, saying that by breaching the court rules the witnesses’ actions would have been ‘very serious’ had they been related to genuine cases. So how worried should we be? It’s part of the problem that we can’t even know the full scale of it because expert witnesses as an industry are almost entirely unregulated. Anyone could set themselves up as an expert witness tomorrow without the need to register anywhere or even to guarantee to abide by a code of ethics.
And concerns about the reliability of expert witnesses’ evidence are on the increase: there have been some spectacular instances in the recent past whereby expert testimony has led to miscarriage of justices. The evidence of the paediatrician Sir Roy Meadow, for instance, led to several women being wrongly convicted of murdering their children; it was later revealed that his claims as to the statistical likelihood of two cot deaths happening in the same family were wildly inaccurate.
Both the House of Commons Science and Technology Committee and the Law Commission, the government’s adviser on legal reform, have called for greater scrutiny of expert evidence, with the latter even proposing a new law to allow judges to throw out suspect testimony. But although the Ministry of Justice has now accepted the principle behind the proposed legislation it has declined to introduce it for financial reasons, preferring instead to tweak the court procedure rules. And the only regulator of sorts – the Forensic Science Regulator – does not cover all expert disciplines and also has no statutory powers at all. In other words, it’s toothless and even the Home Office itself acknowledges as much, having recently launched a consultation into finally beefing up the role and giving the regulator the authority to stick its nose where it might not be appreciated. But the concern is that, until that happens, some expert witnesses will still be able to turn a blind eye to their clients’ guilt and get away with it.