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The Non-Expert Expert

Medico Legal

by Mark Solon - 10 September 2019

This year saw the collapse of a multi-million-pound fraud trial at Southwark Crown Court due to the appointment of a witness patently unqualified for the role. So how could this happen? Andrew Ager, who was posing as a carbon credit expert, was clearly “not an expert of suitable calibre”, in the words of the judge, Nicholas Loraine-Smith. “He had little or no understanding of the duties of an expert. He had received no training and attended no courses. He has no academic qualifications. His work has never been peer-reviewed”, the judge said.

All expert witnesses need two sets of skills: first they must have the relevant qualifications and experience in the professional field in which they work and second,they must have the skills to be an expert witness.This includes how to write a court compliant report,give oral evidence and understand the law and procedures that applies to experts. Any lawyer needing to use an expert witness must exercise due diligence to ensure that the expert has these skills.

All experts must be checked thoroughly before being instructed. It seems that in the Ager case, the expert had been used on many occasions in previous cases and that whoever instructed him didn’t exercise the necessary care in making sure that he was up to scratch. There are several lessons from this case. Itis important for the solicitor to ask the potential expert for an up to date CV. They need to be curious and suspicious when they read this and then follow up with a phone call. They should discuss with the expert their qualifications and experience as these need to be appropriate for the issues in the matter before the court, as experts need to be specific to the case.

They should ask for further evidence of their skills if appropriate and make sure they have been trained as an expert witness so their report will be court compliant and they understand how to deal with cross examination and that their duty is to the court.Some solicitors ask for references and anonymised reports from previous cases that the expert has been involved in and also may check articles they list in a report appendix.

Clearly the amount of due diligence exercised will depend on the quantum in dispute or seriousness of the matter in order to keep costs proportionate.These steps are important as the instructing solicitor is potentially liable in negligence if they have not exercised reasonable care in the selection and instruction of their expert. What is interesting in criminal matters is that the Crown Prosecution Service does not hold a list of approved experts but recommends contacting the National Crime Agency (NCA). It is not clear how the NCA approves the names they hold and perhaps this needs to be reviewed in the light of this disastrous prosecution collapse. It may be that Ager was used merely because he had been used in the past for some 20 cases. However, he continued to make the same mistakes, just with greater confidence each time. This was not noticed until the defence teams in this case attacked his credibility and all was revealedin some excellent cross examination. An expert must be an expert not an incompetent amateur.

Let’s look at the Ager case. Narita Bahra QC and John Carl Townsend of 2 Hare Court exposed the many problems with this expert. The prosecution had asserted that Ager was an expert in the carbon credits market. Narita Bahra called Dr Marius Cristian Frunza as an expert for the defence. Frunzaholds a PhD from Sorbonne University and lectures in respect of the carbon credit markets. Ager attempted to dissuade Frunza from giving evidence.This resulted in the defence cross-examining Ager ina voir dire. Bahra and Townsend uncovered a raft ofevidence to prove that Ager was not up to the job, including not having any academic qualifications or reading any books on the subject he alleged to be an expert in.

He admitted lying during joint expert meetings and said that he did not consider it his duty to bring facts to the court’s attention that might assist the defence.On top of which he said he had kept no records of evidence provided to him by police and had even lost material relating to the case. In short, he showed no understanding whatsoever of the seriousness of his role. At the conclusion of the voir dire the prosecution abandoned Ager as their expert and said he had been removed from the NCA’s list of approved experts.The trial judge commented that Ager should never be permitted to give expert evidence again.

All healthcare expert witnesses get some detailed guidance

Expert witnesses play a vital part in the legal system providing informed expert opinion to assist courts in understanding technical issues. The importance of expert opinion was made clear in the report Bearing Good Witness by Sir Liam Donaldson, former Chief Medical Officer, which said: “The Courts need to be confident both that an appropriate witness will be available when needed and the evidence provided is of the highest quality, is based on high-quality research and represents the current state of knowledge about the issue in question.”

Until now there has been no overall guidance on how experts should act and be trained. In May this year the Academy of Medical Royal Colleges published Acting as an expert or professional witness, Guidance for healthcare professionals. (Guidance)

(https://www.aomrc.org.uk/news-and-views/actingas-(https://www.aomrc.org.uk/news-and-views/actingas-a-professional-or-expert-witness-guidancepublished/)

Professor Carrie MacEwen, Chair of the Academy of Medical Royal Colleges, said, “Being an expert witnessis an important and valuable role. It is essentialis that clinicians acting in these roles are properly trained, fully up to date and act with complete integrity.Having this guidance endorsed by such a range of professional bodies and supported by professional regulators is a significant step. I believe this guidance will help ensure and maintain the required standards as sought by Sir Norman Williams Review.”Interestingly the Guidance followed on from the Secretary of State for Health and Social Care setting in February 2018 the Professor Sir Norman Williams Review which was tasked to conduct a rapid policy reviewi nto the issues relating to gross negligence manslaughter in healthcare. The Review was publishedon 11 June 2018. (https://www.gov.uk/government/groups/professor-sir-norman-williams-review)This Review made recommendations “to support a more just and learning culture in the healthcare system”covering:

• the process for investigating gross negligence manslaughter

• reflective practice of healthcare professionals

• the regulation of healthcare professionals

The review was set up to look at the wider patient safety impact of concerns among healthcare professionals that simple errors could result in prosecutionfor gross negligence manslaughter, even if they happen in the context of broader organisation and system failings. However, Part 8 of the Review specifically looked at the use of expert witnesses.

Sir Norman’s panel had heard several concerns about the quality and consistency of opinion provided by healthcare professionals acting as experts or expert witnesses. They were told that even finding the right expert can be difficult. So, although the terms of reference were limited to gross negligence manslaughter,the panel heard evidence of more general concerns about medical experts

Medical defence organisations and healthcare professionals raised concerns about “the use of experts who did not have sufficient understanding of current healthcare practice, as they had retired or worked primarily in an area that was not directly relevant to the case under consideration. In addition,there were concerns that in some cases experts provided opinion based on a ‘text-book’ approach, which failed to recognise the realities of current frontline healthcare practice.”

Other concerns raised were that expert witnesses did not have an adequate understanding of the law or their duties to the court in providing expert opinion.There was also a suggestion of ‘expert shopping’,seeking further views if the initial expert did not support a case. The panel said it was clear that a number of steps were needed to improve the quality and availability of healthcare experts in both criminal and reg ulatory settings.

As well as having current experience in the relevant field, the panel said: “It is also vital that experts should have an appropriate understanding of their role in the legal process and of their responsibility to provide objective and unbiased opinion in an investigation or to the court. The panel believes that training should be improved in order to better prepare healthcare professionals who provide an expert opinion or appear as an expert witness. All professionals require training to practise in the fields in which they operate, and knowledge of the standards needed to do so. It is a notable omission that those putting themselves forward as suitable to provide expert evidence do not need to undergo any training or accreditation in that role.”

The Academy of Medical Royal Colleges has now published the Guidance and this has been endorsed by nine healthcare professional bodies on behalf of over 70 healthcare separate professional organisations representing doctors, dentists, nurses, midwives,pharmacists, allied health professionals, optometrists and healthcare scientists. Importantly, the General Medical Council, Nursing and Midwifery Council,Health and Care Professions Council, General Pharmaceutical Council, General Dental Council and General Chiropractic Council have all confirmed that the advice set out in this guidance is consistent with their standards and guidance as regulatory bodies.The Guidance clearly states what healthcare professional bodies expect of their members in terms of standards, training and behaviour when acting as a witness.The guidance reflects good practice set out by other bodies and highlights the legal requirements of witnesses. However, the aspects which are original or have been highlighted as specific responsibilities fo rclinicians include:

• Healthcare professionals giving expert evidence must hold the appropriate licence to practise or registration and be in, or sufficiently recently be in,practice

• Healthcare professionals who act as expert witnesses should undertake specific training and continuing professional development (CPD) for being an expert witness

• The healthcare professional must have a full understanding of the wider context of the care delivery and how it impacts on the case, including the care delivery setting (rural, tertiary care, district general hospital, independent sector, primary care etc) and the historical context and circumstances if relevant

• Healthcare professionals should be able to describe and explain the range or spectrum of clinical and/or professional opinion on the issue in question and indicate,with sufficient reasoning, where their own opinion fits into that spectrum

• Healthcare professionals acting as expert witnesses should make a self-declaration as to their scope of practice, professional development, training, special interests, areas of expertise both in general and in relationinterests, areas of expertise both in general and in relation to the specific case and any conflicts of interest that could impact on their evidence

• If they are found to have provided misleading information after such a declaration, they could be liable to professional misconduct proceedings in addition to the possibility of any criminal sanction.

After the Guidance was published, Sir Norman said,

“The review which I led into gross negligence manslaughter in healthcare identified problems with the expert evidence provided by healthcare professionals in both criminal and regulatory proceedings.The review recommended the introduction of standards and better training to ensure greater consistency and higher standards in the evidence provided by medical expert witnesses.The important work taken forward by the Academy of Royal Medical Colleges,which has been agreed with organisations across the profession, is a major step forward in delivering this recommendation.

”All healthcare practitioners should read the Review and Guidance if they are expert witnesses or are considering becoming an expert. It is essential that experts follow the Guidance for if they are in breach,there could be serious consequences. Professional training as an expert witness is at the heart of the Guidance.

When will they ever learn? The Pabon trial

Yet again experts need to learn that their duty is to the court and that they must stay within the area of their expertise, Lord Justice Goss said this in the judgement in R v Pabon [2018] EWCA Crim 420Court of Appeal, Criminal Division last month. He went on to say the sole test for the Court of Appealwhen deciding whether to allow or dismiss an appeal against conviction is whether that conviction is unsafe.Pabon’s appeal was dismissed but there are lessons fore x perts and lawyers.

The Appellant, Alex Pabon, together with a number of co-defendants, faced a Count of conspiracy to defraud,alleging that they dishonestly rigged LIBOR.Few had heard of LIBOR before the case thinking it perhaps a mispronounced opposition political party but is it vital in the pricing of money.

Goss LJ helpfully explained the term LIBOR for the uninitiated. “LIBOR is the shorthand for the "LondonInter-Bank Offered Rate". It is a global benchmark interest rate for many types of financial transactions. LIBOR is set in London and is based on the rate of interest banks charge one another for loans of funds or, put another way, the interest rate at which banks could borrow money from each other on a particular day.

”The Appellant was sentenced to 2 years and 9 months' imprisonment. The sole focus of the appeal concerned the conduct of an expert witness, called by the SFO, Mr Saul Haydon Rowe. Goss LJ said “At there trial and following cross-examination on new material,not available at the Appellant's trial, Rowe fared disastrously

.”The SFO case was that the defendants dishonestly agreed to procure or make false or misleading LIBOR submissions. The traders requested theLIBOR submitters to submit false rates and the submitters in turn provided rates. The manipulation of the rates was undertaken in order to increase the traders' profits or decrease their losses. Acceding to the traders' requests gave the LIBOR submitters status and standing within the bank. The traders were able to make larger profits for their desk, ultimately increasing their bonuses, their prospects of career advancement and their own status within the bank. The smallest movement in the published LIBOR rate was capable of directly affecting the profit or loss of the bank.

The SFO identified some 120 dodgy requests from traders to get the rate they wanted for example: "1350contracts. We need high one month, we need to get kicked out, 1350 eurodollar contracts"; and "Tell PJto keep LIBOR low” and "We see three month LIBOR at 5.2225. Anything above that would be great".

The central issue for the jury was dishonesty. Rowe was called by the SFO to assist the court on thecomplexities of LIBOR and the banking system.

For the Appellant, Mr Allen QC submitted that Rowe's conduct fell far below the standards expected of an expert witness in many different ways. Rowe had given expert evidence in two previous LIBORtrials and the prosecution had spent some £400,000 in payments to him. At the original trial, in the absence of the fresh material available at the retrial, the Appellant's counsel had been inhibited in his abilityto cross-examine Rowe as to his credibility or expertise.That picture had been radically altered by the fresh material at retrial. It was clear that Rowe's failings as an expert were extensive; thus: "....he had signed documents stating that he had complied with his duties when he knew he hadn't; he had failed to report with any detail or accuracy as to how he reached his opinions; he secretly consulted with a number of undisclosed advisors; he blatantly disregarded the directions of a trial judge during the course of a criminal trial; and he knowingly gave evidence about matters outside his area of competence.These are deeply troubling failings that bring the system of justice into disrepute... 

"Not the sort of expert any lawyer would be too pleased with, especially having paid hundreds of thousands of pounds for the evidence. The fresh material would have permitted devastating cross-examinationat the trail. It did do just that at the retrial.The duty resting on an expert witness is so fundamental that where it is abused, the entire process is affected: "....It leads to the peculiarity of a trial in which the prosecution seeks to prove the dishonesty of a defendant and in order to do so calls a dishonest expert as an essential building block of their case. ..There may be circumstances in which that state of affairs does not impinge upon the safety of the conviction. But this was not one of them."

Goss LJ went on to say “For the SFO, Mr Hines QC,after (if we may say so) a somewhat grudging concession as to Rowe's failings in his skeleton argument, accepted that Rowe had not complied with his duties as an expert. The SFO had itself had no inkling of Rowe's want of expertise (other than his lack of trading experience, known to all at the trial); this was his third "outing" in LIBOR trials. That said, Rowe's evidence went to largely agreed background matters…The single issue at trial concerned the A ppellant's dishonesty…

”In February 2014, Rowe was instructed by the SFO to provide an expert report "explaining the workings of an investment bank, inter-dealing brokerage and related financial instruments and trading terms used by individuals within these institutions". As background,Rowe was informed that the SFO was investigating allegations that "between 2005 and 2010, LIBOR was dishonestly manipulated across a number of differen t currencies and tenors".

In March 2016, the defendants in the trial sought a pre-trial hearing to exclude or restrict Rowe's evidence, on the ground of lack of expertise.Although it was accepted that Rowe had some general banking experience, it was contended that he had no direct experience of interest rate derivatives trading, cash trading or making LIBOR submissions.His evidence ought to be restricted to the "core" of his report, covering the structure of banks, financial concepts and an overview of the relevant financial instruments in the case. Rowe, it was submitted, should be prevented from giving "inadmissible evidence as to the permissible approach to the LIBOR-setting process, the permissible extent of communications between traders and LIBOR submitters, or whether conduct of any kind is or could be regarded as being dishonest".

Goss LJ said ”Rowe was not competent to provide opinion evidence on such matters. He had never worked as an interest rate derivatives trader, a cash desk trader or a LIBOR submitter and appeared to have no direct knowledge of the LIBOR submission process. He had not worked as a trader of any kind since 2000 and, from 2005 onwards, had acted as a professional expert witness on general banking disputes.Particular exception was taken to various Powerpoint slides.

”At the trial, Rowe gave evidence in April 2016. He ran a company providing expert consulting and testimony in banking cases. He had worked in the finance industry between 1989 and 2000. He gave evidence concerning various banking terms and concepts. He was asked to comment upon e-mails sent between the defendants and the terms used in those e-mails. He utilised slides to demonstrate concepts such as the inter relationships and functions of various desks in banks and the categories of trader and the financiali n struments within which they were concerned.

Before leaving Court on the 13 April, the trial Judgegave Rowe the usual admonition, "You know not totalk about this case to anyone whilst your evidence isin progress". Rowe would of course have known thath e would face cross-examination the next day.

The retrial saw dramatic developments concerning Rowe's evidence. Rowe provided e-mail correspondence revealing that Mr Dominic O'Kane, a partnerat Rowe's firm and a part-time Professor of Pricing and Risk Financial Derivatives, had been responsible for drafting sections of Rowe's report. This was not previously known. Prior to April 2016 Rowe had sent excerpts of the case papers to others without telling them about the trial nor explaining to them the caution which they should exercise in expressing an opinion.

In the month prior to his giving evidence in the 2016 trial, much like a phone addicted teenager, Rowe had exchanged around 90 text messages with other experts, as well as numerous emails. A remarkable feature of the newly disclosed material was the revelation that at the conclusion of the first day of his evidence at the trial and having been expressly warned by the Judge not to discuss his evidence until it was concluded, Rowe went on to do just that.

Inevitably, Rowe was subjected to damaging and unfortunately amusing cross-examination at the retrial on this rich seam of material, including his duties as an expert and the declaration in his report, required by the Crim PR."

Q: Are you really saying that when you signed off the declaration which I suspect is in standard form,you hadn't in fact read either the CPR or the booklet?

A : I don't think I could have read them fully....

Q : Did you read them at all?

A : I'm pretty sure that I glanced at something."

There were further beam me up Scottie crossexamination moments dealing with Rowe's expertise including:"

Q: What you did in 2016 was to start pinging out emails and texts to people, passing on the material you had been provided with by the SFO and saying to people: can you help me to understand it because I don't understand it? That's what you did isn't it?

A : So what else am I supposed to do as an expert?

Q: Say it is not my field; I cannot give you an expert opinion; you the SFO should go and speak to some one else.

A: I think I have had conversations with the SFO to check that they know that I am not a STIR expert.

"The Judge's summing-up at the retrial was telling as to Rowe's evidence, in an extended passage early in his summing-up

:"Despite that catalogue of experience, you may have formed a judgment that he knew very little about the duties of being an expert......he seems to have been perfectly content to sign a standard declaration in which he declared that he had read the Criminal Procedure Rules which govern his conduct as an expert, both before trial and in giving evidence and the booklet on his duties of disclosure without doing anything really to familiarise himself with either of those documents. It will be for you to judge whether he has in fact given expert opinion which falls outside his true expertise. Any expert is entitled to research a topic on which he is to give evidence and obtain the views of others, including work colleagues, about it to enhance his opinion, so long as he records where he went fo rthat advice and so long as it is to enhance an expertise he already has, rather than to become an expert on a subject where he has no knowledge whatsoever.

”So lawyers need to be very careful in selecting experts who are appropriate to the issues in dispute and have training in the basics of law and procedure as relevant to experts and their duties

.Mark Solon 10 September 2019

Bond Solon is the UK's leading Expert WitnessTraining Company and since 1992 have trained tens of thousands of expert witnesses. In this time we have been at the forefront of improving the standards of expert witnesses in the UK and worldwide through the provision of knowledge and skills based learning and qualifications.

www.bondsolon.com

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