Experts Misconduct. By P S Ranjan Advocate & Solicitor Malaysia

Transcription

1 Experts Misconduct By P S Ranjan Advocate & Solicitor Malaysia

2 Experts Misconduct Difficulties in Definition

3 Experts Misconduct - in the context of legal proceedings broadly, interference with the course of justice

4 Some Examples giving false evidence, as regards facts or opinion or both disrupting the proceedings, behaving offensively or threateningly to the Judge, counsel, a party or a witness taking a bribe supporting without grounds insurance, disability and pension claims, and medical malpractice claims

5 Cont conversely, supporting without grounds the defence or rejection of such claims charging excessive fees charging contingency fees, meaning no win, no fee charging fees according to the amount recovered in compensation claims ( win more, pay more ) mis-stating the facts or suppressing or ignoring relevant facts relying on irrelevant facts being biased (and being reverse-biased?)

6 Cont straying beyond the expert s field of expertise without drawing attention to it or qualifying the opinion given disclosing confidential or privileged information to others without consent, authority or justification

7 Consequences of Misconduct proceedings for contempt of Court in some instances, criminal proceedings professional conduct proceedings before the Medical Council or the Dental Council

8 However immunity from civil action, e.g. for damages in negligence, still remains

9 Witnesses, whether Lay or Expert, may be punished for disobeying a subpoena when proper notice has been given and proper sums had been paid as fees and expenses disobeying an order of the Judge, such as an order not to speak about the case to a particular person

10 Misconduct The need for a guilty mind

11 When opinions are given fraudently dishonestly recklessly and without basis

12 How about the - the Honestly-held Opinion which is Simply Unacceptable?

13 The Saga of Professor Sir Roy Meadow Erasure from register ordered by the General Medical Council for serious professional misconduct in the giving of expert evidence (by straying beyond his field of paediatrics and into statistics), which helped to get convicted a mother, a solicitor named Sally Clark, for murder of her two male babies, one after the other.

14 Meadow s Opinion extremely rare for a second case of Sudden Infant Death Syndrome to happen in a family In Sally Clark 1 in 73 million chance of both deaths being cases of SIDS

15 The Royal Statistical Society Professor Meadow had employed statistics wrongly

16 Lord Randolph Churchill There are lies, damned lies, and statistics Professor Meadow s answer at Sally Clark s trial I don t like statistics but I m forced into accepting their usefulness.

17 GMC found Aggravating Factors his eminence his continued denial of misconduct in the fitness to practice proceedings

18 Meadow v General Medical Council 92 BMLR 51, C.A. in the High Court his appeal was allowed (the Judge said that immunity applied and also that he was not guilty in the first place) on appeal, to the Court of Appeal, not guilty, by a 2-1 verdict he had not intended to mislead when giving statistical evidence in the mistaken belief that it was valid he was guilty of some professional misconduct because he had fallen below the required standard, but not of serious professional misconduct (as said by the majority)

19 Meadows, cont all three Judges said that Professor Meadow had no immunity from fitness to practice proceedings two said that he was not guilty because his misconduct was not sufficiently serious the presiding Judge said that he was guilty of serious professional misconduct

20 Clark v R [2003] EWCA 1020 In Sally Clark s case, the eventual acquittal (following a second appeal) was based on non-disclosure of material pathological evidence although the Court indicated that in all probabilities it would also have allowed the appeal on the ground that Professor Meadow s evidence on the application of statistics should not have been accepted. In the second appeal, the subject of Professor Meadow s evidence was not fully argued.

21 Fallout from the Sally Clark Case convictions in other murder cases based on Professor Meadow s evidence were set aside and other cases were called up for review the end of Professor Meadow s career as an expert

22 R v Richardson (and others), The Times, 20 October 1989 The Guildford Four R v Maguire and Others [1992] 2 All ER 433 The Maguire Seven Innocent people convicted of IRA bombings following inter alia, tender of tainted scientific evidence and non-disclosure of scientific evidence supporting the defence

23 Richardson forensic scientist admitted that he had changed his original statement at the request of the police the Commander of the Scotland Yard Bomb Squad admitted that the Director of Public Prosecutions had instructed the police to tell the scientists to remove vital evidence supporting the defence

24 Maguire discredited forensic evidence that a number of the accused had handled the explosive nitroglycerine

25 Result Freed on appeal, after many years.

26 Maquire Stuart-Smith L.J. (at p 447) : We are of the opinion that a forensic scientist who is an adviser to the prosecuting authority is under a duty to disclose material of which he knows and which may have some bearing on the offence charged and the surrounding circumstances of the case...

27 P P v Dr Nadason Kanagalingam [1985] 2 LJ 122 criminal charge of procuring a miscarriage (at a time when it was allowed only for the purpose of saving the life of the mother) failed tubal ligation (after two babies) for a patient who wanted to stop at two doctor wrote request for termination as regards the third pregnancy performed the procedure with consent of patient

28 His Defence there were sufficient medical reasons she had varicose veins during her second pregnancy and that condition had worsened during the third pregnancy there was a danger of she suffering from a fatal pulmonary infarction as a result

29 Expert Support for the Defence from a Professor of Obstetrics & Gynaecology

30 Court - guilty the possibility of a pulmonary infarction occurring during the pregnancy was not sufficient to justify the procedure which was allowed only for the purpose of saving the life of the mother defence expert had come to Court to help his friend the accused

31 Questions if the defence supported by the expert was far-fetched on clinical grounds, was there infamous conduct in a professional respect? was helping a friend infamous conduct? what was the expert s state of mind?

32 Abdul Ghafur bin Mohd Ibrahim v Pengarah, Hospital Kepala Batas [2010] 6 MLJ 181 Plaintiff s expert, a neurosurgeon, was untruthful when he said that when he resigned from Government service, he was a senior consultant neurosurgeon and that his application to rejoin Government service was accepted. The expert falsely claimed that he decided not to rejoin Government service after being accepted because the Government did not want to appoint him as a paediatric neurosurgeon

33 Result Court decided to give more weight to the defendant s expert s neurosurgeon s evidence as the plaintiff s expert witnesses credibility was in question

34 The Expert s Duty to be honest truthful careful fair-minded and impartial obedient (to the court) well-behaved not to stray outside his or her field

35 Immunity Against Civil Claims for Experts in Malaysia is available as regards evidence (oral or written) given to the court is not available as regards experts reports and statements made not to the court but to insurance companies, employers, etc.

36 Some Conclusions there are various forms of misconduct by a witness, whether lay or expert, which the courts can punish, in their criminal jurisdiction and also pursuant to their powers to punish a person for contempt of court experts misconduct regarding their evidence can lead to professional disciplinary proceedings against them in Malaysia, civil claims for damages cannot arise against experts who commit such misconduct (but not anymore in the UK following legislative changes in the UK)

37 Thank You