Expert witness immunity: in the interests of justice?

The protection of expert witnesses from civil claims arising from their evidence has - subject to certain exceptions - been embedded in our legal system since at least 1873. The principle is that expert evidence put before a court, whether by way of report or oral testimony, should be given freely and without fear of reprisal.

As a result, expert witnesses, in contrast to other professionals, are not exposed to claims for breach of contract and/or negligence in respect of the evidence that they give during the course of court proceedings.

While expert witnesses are required to comply with certain duties and responsibilities set out in the courts' rules, no specific sanctions are imposed by those rules if such obligations are breached. Although there are various expert witness organisations and a move towards greater regulation of experts in certain fields (such as the Home Office's decision to establish the office of Forensic Science Regulator), there is no single accreditation scheme or regulatory body governing the conduct of all expert witnesses.

Possible sanctions

This does not mean expert witnesses can escape redress and sanction altogether in respect of the evidence they give. Expert witnesses can find themselves the subject of certain types of civil claims (including misfeasance in public office/conspiracy to injure, libel, malicious prosecution and breach of confidence) and criminal prosecution (for perjury, perverting the course of justice and contempt of court).

In addition, the court can rule that the evidence given by an expert witness is inadmissible and retains the power to make a wasted costs order against them.

Expert witnesses may face disciplinary proceedings brought by their own regulatory bodies if their evidence is flawed. In relation to medical experts, the General Medical Council's fitness to practise panels can be called on to consider whether an expert's evidence constitutes serious professional misconduct and, if so, which sanctions should be imposed.

The danger of relying on expert evidence was highlighted by the conviction of Sally Clark in 1999 for the murder of her infant sons. The conviction was overturned on a second appeal after the discovery of new microbiological evidence.

The conviction followed flawed statistical evidence given by Professor Sir Roy Meadow for the prosecution that the chance of two infant deaths in those circumstances was one in 73 million. While the Court of Appeal (in reviewing the GMC's findings) held that Professor Meadow did not have immunity from suit in respect of the disciplinary proceedings that he had faced, the GMC's decision to erase Professor Meadow from the register of medical practitioners was set aside. This has led to criticism of the immunity from suit that is afforded to expert witnesses and calls for a fresh look at whether such protection can continue to be justified in modern times, particularly in the light of the fact that the House of Lords has now removed (with retrospective effect) the immunity that was previously enjoyed by advocates.

Looking ahead

While there are compelling public policy arguments in favour of retaining protection for witnesses to ensure they are not deterred from coming forward, expert witnesses are unlikely to be so inhibited, particularly taking into account the protection that is and will continue to be available in the form of professional indemnity insurance.

Furthermore, while a challenge to the veracity of expert evidence in criminal proceedings has the potential to undermine a conviction, any such danger would subside once a conviction has been set aside on appeal. Certainly in relation to civil proceedings, it may be difficult to justify the retention of immunity from claims for breach of contract and/or negligence in respect of professional expert witnesses who offer their services in the knowledge that their evidence will be both relied on and remunerated.

There are already indications from the judiciary that expert witnesses should be held accountable for the opinions they advance. Whether the removal of immunity would deter people from acting as expert witnesses or inhibit the giving of free and fearless advice remains to be seen, but any such development would almost certainly have an impact on the availability and cost of professional indemnity insurance in this area.

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