New rules begin on expert witnesses

Proposed new rules on how expert witnesses present evidence in court are being rolled out tonight in a bid to prevent potential miscarriages of justice.

Among the recommendations from the Law Reform Commission is a ban on experts being paid conditional on the outcome of the case, which could threaten their independence.

The independent body said international studies have shown experts have given opinions in court favourable to those paying them, which under grilling from lawyers presents an inaccurate picture and misleads the court.

It argued that without sufficient and robust safeguards in place there is a danger that miscarriages of justice could occur.

Raymond Byrne, Law Reform Commission director of research, said there was a need to tighten the rules around so-called expert evidence.

“There have been a number of issues about how expert evidence has been actually given and we’re just trying to bring some clarity to that,” Mr Byrne said.

“The key (recommendation) one would be about guidance, which would either be on a statutory basis or could be on a more informal kind of way, about how the expert would actually be presenting the evidence to court in a way that could be understood.

“The other would be to actually set out a clear list of duties that an expert has to the court, because there is a risk that experts are being paid by usually one side, there is a risk that maybe the people that are being paid will maybe consider their obligation is for one side, rather than an obligation to explain very difficult, technical and complicated issues to the court.”

The Commission’s Paper on Expert Evidence involves an examination of the current rules concerning the admissibility of expert evidence in court and the role and function of expert witnesses.

It states that in a criminal trial, the issue of innocence or guilt could hang on complex issues such as DNA evidence, mobile phone tracing, or medical details.

The body claimed that without robust or sufficient safeguards in place, miscarriages of justice could occur in criminal trials.

The Commission pointed to the case of Sally Clark in the UK who was wrongly convicted of murdering her babies largely because of now discredited expert testimony.

Ms Clark was wrongly jailed in 1999 for killing her 11-week-old son Christopher in December 1996 and eight-week-old Harry in January 1998.

The Commission said the term expert needed to be defined, and posed whether it should be based on experience-only based knowledge or formal, professional qualifications.

It also called for a formal guidance code for experts on how to present evidence.

Experts should not be be prohibited from giving evidence if they have a pre-existing relationship with one of the parties, and both parties should be required to exchange expert reports prior to any civil claims, the body said.

This currently only applies to personal injuries civil actions.

The Commission also suggested a set form and structure for expert reports.

The Paper will be launched by the Hon Ms Justice Fidelma Macken, judge of the Supreme Court.

Submissions on the proposals should be forwarded to the Commission by the end of April.