Expert witnesses: Jones v Kaney and the Law Commission's report

Abstract

There is a significant coincidence in the timings of the publication of the Law Commission Report on Expert Evidence in Criminal Proceedings and the Supreme Court’s ruling in Jones v Kaney, which removed the enjoyment of immunity from suit for expert witnesses in civil cases. Here, we summarize the essence of each, draw on the common ground between them and provide a commentary – this may provide some relief for experts anxious as to whether a verdict reflective of a court’s rejection of their evidence might be the first step on the road to their being a defendant in an action for negligence. Recent failings in the field of expert evidence have given rise to notorious difficulties in both criminal and civil litigation, perhaps most infamously in relation to pathologists’ evidence in infant mortality cases. Experts who prepare reports in contemplation of legal proceedings are understandably nervous about the broader implications of the judgement in Jones. While experts in civil actions are most directly affected at this stage, the erosion of their immunity created by the Jones ruling will understandably cause ‘criminal’ experts to be concerned about their own positions. However, help is at hand in the form of the Law Commission Report and its recommendations. No expert report prepared for use in criminal proceedings should fail to take account of the Report and Criminal Procedure Rule 33 (both as it exists and in the enhanced version envisaged by the Law Commission). Cognisance of and adherence to these should protect experts from the risk of becoming defendants.