In the Media

Why an automatic trust in expert witnesses is dangerous

PUBLISHED March 8, 2006

Courts all over the world have been reaching verdicts on expert opinions that are little more than speculation. 

THE General Medical Council is to seek leave to challenge the recent High Court ruling in the case of Professor Sir Roy Meadow. The GMC does not want to reinstate its decision to strike off the paediatrician over his evidence in the Sally Clark murder trial, but it does want to go to the Court of Appeal over what it believes are ?significant implications? for its role in protecting the public interest.

In his ruling ? one that in no way detracts from Sally Clark?s innocence ? Mr Justice Collins found no evidence of any misconduct by Sir Roy in the Clark case and said that disciplinary proceedings should never have been brought against him. He concluded that it was contrary to public policy for expert witnesses to be subjected to disciplinary proceedings unless a complaint is made by a trial judge. The law already forbids a civil suit for damages for what experts do in court; now disciplinary proceedings are subject to the same ban.

The Royal College of Paediatrics will welcome the professor?s exoneration ? because it claimed that its members had been deterred from specialising in child protection work because of the finding against him.

In the Clark trial, Sir Roy said that the chances of two cot deaths were 1 in 73 million. He was quoting from a government report. When he said that the chances of two cot deaths were the equivalent of backing an 80-1 outsider in the Grand National four years running, the judge found that he was not elaborating on the statistic ? just explaining it for the jury.

When Clark?s first appeal court heard that the chances of two cot deaths were 30 times greater than the chances of two murders, they were not impressed. They dismissed the appeal. Statistics could not be a ground of appeal; they were merely a ?sideshow? and could not have affected the jury?s decision. Many, though, believe that the ?73 million to 1? not only convicted Clark but also, being so well known, to the murder conviction of Angela Cannings. Three of her babies died.

Immunity for experts may have a serious affect on child protection cases. There is already evidence that unscientific theories have led to hundreds of jail sentences and many children being wrongly taken into care. Munchausen?s syndrome by proxy, first described by Sir Roy, in which a mother fabricates an illness in her child to draw attention to herself, was cited approvingly by Mr Justice Collins. But it was ruled inadmissible in 2003 by the Court of Appeal in Queensland, Australia, because it ?does not relate to an organised or recognised body of knowledge or experience?. Three judges of appeal in Tennessee, in 2004, dismissed expert evidence that three infant deaths must mean all are murder, something every American doctor ?knows to be true?.

In Britain, the rule is that ?one death is a tragedy, two is suspicious and three is murder until the contrary is proved?. It is sometimes called Meadow?s Law (though not by him). The American court found that it is no more than folklore. There is no scientific basis for the theory. A study of 258,000 Scottish mothers by Cambridge University, published in The Lancet last December, showed a predisposition for a mother who has one cot death to have another, irrespective of special risks factors such as smoking and marital status. Last July, in London, the Court of Appeal quashed two convictions based on shaken baby syndrome. For 30 years the medical profession has accepted that a triad of injuries ? haemorrhages in the eyes and damage to two parts of the brain ? is conclusive evidence that a baby has been shaken to death.

That Court of Appeal heard research, using elaborate models, which shows that shaking is the one thing that cannot cause those injuries unless accompanied by structural damage to the neck ? seldom found. For 30 years experts have testified to injuries characteristic of dropping a baby from 40ft on to concrete. But new research shows that the same injuries result from a fall from 3ft on to carpet. The totality of the human misery caused to innocent people by these three theories alone is unprecedented in the annals of medicine and the law.

It is extraordinary that courts have been reaching verdicts on expert opinions that are little more than speculation. Will immunity for experts improve prospects for families facing false allegations, or make them worse? The GMC has the right to appeal the judgment and it must be in every family?s interests that it is doing so. The future of child protection is at stake.