Don’t knock the experts

Doubts over the reliability of expert evidence in criminal court
trials started with professor Sir Roy Meadow and his statement that
one cot death is a result of natural causes, two is suspicious and
three is murder. This opinion has now been discredited; three women
who were jailed on the basis of Meadow’s infamous maxim have been
released, and Meadow is now himself the subject of an investigation
by the General Medical Council. But misgivings about “experts” have
not stopped with Meadow. Instead, they are gathering
momentum.

Last month, a man found guilty of raping a five-year-old boy had
his conviction quashed by the Appeal Court after doubts were thrown
on evidence from expert witness Dr Camille San Lazaro. The Appeal
Court heard that San Lazaro had been criticised for her handling of
allegations of sexual abuse during the 2002 libel case brought by
nursery workers Dawn Reed and Christopher Lillie. The lingering
doubts over San Lazaro’s expert evidence contributed to a ruling
that the man’s conviction was unsafe.

But isn’t it dangerous to assume that just because one expert
witness’s testimony has been found wanting, all convictions based
on that person’s testimony are unsafe? Conversely, many would argue
that if our legal system allows people to be convicted on the basis
of one “expert” opinion, something is badly wrong.

Jean Price is community paediatrician at Southampton Primary Care
Trust and chairperson of the child protection standing committee
for the Royal College of Paediatrics and Child Health. She says it
is “grossly unfair” that experts are being targeted in the way they
are without the judiciary being examined in a similarly critical
light. “It’s very dangerous to extrapolate and make generalisations
from one case. It could decimate practice,” she adds.

Doubtless the furore over the use of experts will extend far beyond
child protection. Experts witnesses are used in every conceivable
criminal and civil court trial and so the backlash could reach
cases involving the abuse of other groups of vulnerable people from
older people to those with mental health problems.

Nicola Harney is a partner at Stewart solicitors in London. She has
a team of lawyers who pursue civil claims for compensation for
children who have been abused, adults who were abused as children,
and people with learning difficulties who have been abused. When
the case involves someone with a learning difficulty, expert
evidence is relied on. “Normally there are no witnesses to abuse,
so it’s one person’s word against the other and weighing up who is
more credible,” says Harney. But people with learning difficulties
are often unable to recall precise details such as dates and times.
“When you have someone without good communication skills you often
need expert evidence to tip the balance in their favour.”

Harney is worried about the implication of recent rulings, that if
an expert has been criticised in one case then their judgement is
flawed in every case they have been involved in. “Everybody is
human and everybody can make mistakes,” she says. She acknowledges
that there are people who claim to be experts and look good on
paper, but fold as soon as they are challenged in court.

“When dealing with vulnerable people we must get somebody who knows
their stuff, has an established reputation, and isn’t going to be
open to challenge. Their duty is to the court and they shouldn’t be
swayed by whoever is instructing them.”

Sue Richardson knows all too well how one case can scar a career
for life. She was a child abuse consultant for Cleveland Council at
the time of the abuse scandal in the 1980s when families suspected
of sexual abuse had their children removed by social workers.
Richardson was one of the three professionals thrown into the media
spotlight to be pilloried by the press. “Cleveland introduced this
way of ‘Aunt Sallying’ the expert – attacking the expert as a way
of demolishing the case,” she says.

“Meadow was a pioneer of the fact that not all cot deaths are
natural. Because it’s so hard to convince the public that people do
murder their children, he had to shout a bit louder.” Richardson
believes something similar happened in Cleveland, where experts had
to raise an extreme alarm before their concerns were heard.

In hindsight, Meadow may have shouted a bit too loud. But
Richardson believes the doubts cast on expert witnesses – as
highlighted by the recent San Lazaro case – are setting “a
dangerous precedent”. She says: “Experts must be feeling that it’s
Cleveland revisited. It’s about discrediting expert testimony of
something that society doesn’t want to put on its agenda.”

With all the scorn being poured on experts, professionals are
likely to be even less inclined to stick their head above the
parapet, which could lead to children being less well protected.
Again, Richardson sees the origins of this with Cleveland: “It made
things unsafe for professionals, particularly doctors and
paediatricians, because they weren’t believed.” She argues that the
courts aren’t necessarily the right forum to settle these cases.
“They are looking for a certainty that experts can’t really
provide.”

For Richardson, the result of the whole affair was that she was
made redundant. She ended up changing career, training as a
psychotherapist and working with traumatised vulnerable adults. But
she acknowledges that it has taken a long time to rebuild her
professional career and life.

And now, the spotlight may be moving on from experts. Courts use
of, and reliance on, photographic evidence is being questioned. At
the end of last year, a High Court judge warned of the dangers of
experts relying on photographs in cases of alleged child sexual
abuse. The judge’s remarks may lead to yet more cases being
reopened – this time those involving photographs taken by
colposcopy, a probe with a digital camera attached.

Fewer re-examinations of children alleging sexual abuse was a key
recommendation from the Cleveland inquiry – which is where
photographs come in. Price says: “We would still say you shouldn’t
keep re-examining, but sometimes you need to because your initial
findings could be suspect. You photo it each time and the
photographs back up your clinical verdict.”

Although photographs often support professionals’ judgement, the
camera can lie. Pictures are not always of good quality or reflect
what the professional sees. “Photos are two dimensional and
eyesight is three dimensional. With a digital camera you can carry
on until you think it reflects what you see,” she adds.

“It would be a huge shame and huge disadvantage to children and
professionals if we couldn’t continue using photos. It’s highly
supportive of children, and of professionals trying to explain what
they have seen and it means we can get a second opinion to support
us in our finding.”

In Price’s mind, the problem is not with the photograph but the
fact that the child is re-examined some time after the first
examination. Significant healing may have taken place during this
time, to the point where a paediatrician cannot confidently say
there was previous trauma. As Price points out: “We try to get it
right, but of course we can’t always do that.”

Meadow, meanwhile has learned that to his cost. To err is human,
and while it would be naive to believe all experts are infallible,
abandoning their testimony would also be a grave mistake for the
future protection of all vulnerable people.