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Rapid Responses: Rapid Responses published:
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Another problem with evidence
- Peter Gooderham (3 November 2006)
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Re: Another problem with evidence
- C Frank Lockyer (5 November 2006)
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expert witness discussion ignores lawyers' role
- Peter Mahaffey (10 November 2006)
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Peter Gooderham, Tutor Cardiff Law School, Museum Avenue, Cardiff CF10 3XJ
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Dear Editor, Further to the clear account (1) of the Court of Appeal decision in General Medical Council v Meadow (2), it appears that another problem with evidence has occurred in this sorry, sad affair. It is stated in the judgment of Lord Justice Thorpe that the General Medical Council (GMC) panel which heard Meadow's case did not consider the views of the judges who had examined his expert evidence in the Court of Appeal in R v Clark (3, 4). It appears that this results from conduct of the case by the barristers, for reasons which are understandable, but unsatisfactory. Thorpe LJ put it thus: "268. With the advantage of hindsight it seems both extraordinary and disadvantageous to deny the panel both judgments of the Court Appeal (Criminal Division). Miss Davis naturally wanted the panel to have the advantage of the judgment in the first appeal, Mr Seabrook, who led for the GMC at the panel hearing, wanted the panel to have the judgment of the court in the second appeal. Apparently the resulting agreement between leading counsel was that neither judgment should go to the panel. "269.The predictable outcome, in my judgment, was that the panel failed to understand the full context in which Professor Meadow gave evidence..." It is to be hoped that lessons have been learned about expert evidence in court. Thorpe LJ has identified a lesson to be learned about evidence before the GMC when it carries out its role of assessing that evidence. Doctors have a concept of putting themselves into a position in which they can reach the correct decision, and this principle should apply to their professional regulatory body. When expert evidence has been examined by judges, it seems appropriate that their judgments should be considered by the disciplinary panel when hearing cases about that expert evidence. (1) Clare Dyer Regulatory bodies can discipline expert witnesses BMJ 2006; 333: 933-a (2) General Medical Council v Meadow [2006] EWCA Civ 1390 http://www.bailii.org/ew/cases/EWCA/Civ/2006/1390.html (3) R v Clark [2000]EWCA Crim 54 http://www.bailii.org/ew/cases/EWCA/Crim/2000/54.rtf (4) R v Clark [2003] EWCA Crim 1020 http://www.bailii.org/ew/cases/EWCA/Crim/2003/1020.html Competing interests: PG has an academic interest in the role and regulation of expert witnesses |
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C Frank Lockyer, Retired Chief Superintendent of \Police SP1 2SS
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Peter Gooderham has a point but whilst it may seem extraordinary for the GMC Panel to be denied both the Appeal Court Judgments there were very good reasons. Certainly the family and as I understand it both Counsel, were anxious to avoid the GMC Panel Proceedings degenerating into yet a fifth re-trial of the Sally Clark case; which would have done nothing for Professor Meadow nor Sally trying to pick up the shreds of her life. Perhaps more to the point neither Appeal Judgment was central to the issues of the GMC Hearing. The first Appeal Judgment was based on the erroneous assumption that the medical evidence was sound. Whereas of the nine experts, prosecution and defence, who gave evidence at the Trial, the only two who opined both deaths as unnatural, the pathologist Williams and Meadow, had since been seriously challenged. Both by numerous other experts and by the GMC. (A third expert for the Prosecution had admitted mistake and withdrawn three days before the Trial) The second Appeal Court allowed the Appeal on the primary grounds of failing to disclose vital medical evidence which had revealed the most likely cause of death as natural, confirmed by eleven experts. Having so determined this Court had no need to go into other detail dismissed obiter by Lord Justice McKay as "self perpetuating myths". Against the background of a full Enquiry and Report by the Criminal Cases Review Commission followed by painstaking Enquiry by the GMC Panel over 17 days, it is open to question whether or not access to limited Appeal Court Judgments did not confuse rather than help at least two of the Judges in the latest High Court ruling. The family never set out to be vengeful only to establish justice and accountability and that has been done. If two of the three Judges think it not to be "serious" by definition then so be it but it was certainly serious for Sally. C Frank Lockyer Competing interests: The Complainant |
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Peter Mahaffey, consultant surgeon bedford hospital MK42 9DJ
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Over the past 10 years, the mindset of the medical profession has been battered by public pillory over many issues. Its therefore sad, but perhaps not surprising, that the entire discussion on expert witness immunity has revolved around the need to hold to account the errant opinion of doctors. This rather defensive approach from our profession overlooks the responsibilities of the legal profession, probably to their great relief. There is little dispute that the flawed statistical evidence presented by Meadow at the Clark trial played a part in a major miscarriage of justice. But because the evidence was given by an expert of considerable standing the court was effectively seduced into accepting it. In a case where there was very senior counsel representing both sides, was it not part of the job of those barristers to demand some analysis of the figures given in evidence? It beggars belief, given the training and propensity for aggressive cross-questioning by all good criminal barristers, that the simple mistakes in Professor Meadows' statistics were not exposed at the time. One might also question whether the presiding judge in the case had a duty to enquire why such a vital piece of evidence had not been clarified. Had capital punishment still been in existence, an irreversible tragedy might well have ensued. It is completely unacceptable that expert witnesses in general are now being made the scapegoats for lazy lawyering. Competing interests: expert witness |
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