Archive

Archive for the ‘Scientific Evidence and Law’ Category

Medical practitioner – Disciplinary panel – Immunity from suit – Expert giving medical evidence in criminal trial – Complaint that evidence flawed – Disciplinary proceedings brought – Panel finding serious professional misconduct proved and ordering erasure of name of expert – Whether panel having jurisdiction – Whether immunity from suit providing immunity from disciplinary proceedings. Medical practitioner – Professional misconduct – Charge of serious professional misconduct – Expert giving medical evidence in criminal trial – Whether flawed expert evidence amounting to serious professional misconduct: Meadow v General Medical Council, COURT OF APPEAL, CIVIL DIVISION (United Kingdom)

[2006] EWCA Civ 1390, [2007] 1 All ER 1, [2007] 1 FLR 1398, [2006] 3 FCR 447, 92 BMLR 51, [2007] ICR 701

Meadow v General Medical Council
COURT OF APPEAL, CIVIL DIVISION
[2006] EWCA Civ 1390, [2007] 1 All ER 1, [2007] 1 FLR 1398, [2006] 3 FCR 447, 92 BMLR 51, [2007] ICR 701
HEARING-DATES: 10, 11, 12 JULY, 26 OCTOBER 2006
26 OCTOBER 2006
CATCHWORDS:
Medical practitioner – Disciplinary panel – Immunity from suit – Expert giving medical evidence in criminal trial – Complaint that evidence flawed – Disciplinary proceedings brought – Panel finding serious professional misconduct proved and ordering erasure of name of expert – Whether panel having jurisdiction – Whether immunity from suit providing immunity from disciplinary proceedings.

Medical practitioner – Professional misconduct – Charge of serious professional misconduct – Expert giving medical evidence in criminal trial – Whether flawed expert evidence amounting to serious professional misconduct.

HEADNOTE:
M, a paediatrician, gave expert evidence for the prosecution at the trial of C for the murder of her two sons. His evidence included the use of statistics. C was convicted. She appealed unsuccessfully to the Court of Appeal. The court found the pathological and circumstantial evidence to be overwhelming proof of guilt, regardless of the various complaints made in the grounds of appeal, one of which related to M’s use of the statistics. The court regarded that evidence as irrelevant to the issue whether the death of C’s children had been natural or unnatural and voiced no criticism of M as to his use of it. The court expressed some concern that the trial judge had not ruled the evidence inadmissable or given a stronger warning to the jury, but held that it did not, in the light of the other evidence, render the conviction unsafe. C appealed to the Court of Appeal a second time. Her second appeal was allowed on the ground that the verdicts were unsafe because of material non-disclosure by the Crown’s pathologist. Full argument on M’s evidence was not heard during the second appeal but the court indicated that, if it had been, the appeal would ‘in all probability’ have been allowed on that ground also. C’s father made a complaint to the General Medical Council (GMC) that M, in his use of certain statistics in his capacity as an expert witness, had acted outside the range of his expertise and that his evidence had been so flawed that it had amounted to serious professional misconduct. The complaint was heard by the Fitness to Practise Panel of the GMC which concluded that the appellant was guilty of serious professional misconduct and ordered the erasure of his name from the register. M appealed successfully to the High Court. The judge held (i) that immunity from suit of an expert witness in respect of evidence he gave in a court of law extended to provide immunity from disciplinary proceedings based on a complaint made in relation to the evidence given and (ii) that the panel’s finding had been wrong as M had only erred by making one mistake, which was misinterpreting and misunderstanding the evidence. The order of the GMC was quashed. The GMC appealed.

Held – (1) Immunity from suit of an expert witness in relation to statements made or evidence given by him in or for the purpose of legal proceedings should not be extended to immunity from disciplinary, regulatory or fitness to practise proceedings. The purpose of fitness to practise proceedings was to protect the public. Such proceedings ensured, so far as reasonably possible, that those who were not fit to practise did not do so. If the conduct or evidence of an expert witness at or in connection with a trial raised the question whether that expert was fit to practise in his particular field, the regulatory authorities were entitled, and might be bound, to investigate the matter for the protection of the public. It would be wrong in principle for the court to limit the powers of a fitness to practice panel by extending the immunity from civil suit to fitness to practice proceedings; it would be inconsistent with the duty of the fitness to practise panel to investigate and determine the fitness to practice of the expert (see [30]-[34], [39], [45]-[50], [67], [106], [249], below); Ziderman v General Dental Council [1976] 2 All ER 334, X (minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorset CC [1995] 3 All ER 353, Darker (suing as personal representative of Docker, decd) v Chief Constable of the West Midlands Police [2000] 4 All ER 193, R (on the application of Heath) v Home Office (2005) Times, 18 October considered.

(2) (Sir Anthony Clarke MR dissenting) Viewed in the context of the criminal trial, although falling short of the required standard of an expert witness, M’s mistake had not amounted to serious professional misconduct. He had not intended to mislead the trial court and he had honestly believed in the validity of his evidence when he gave it. Accordingly, the appeal would be allowed in part (see [208], [210], [211], [223], [224], [251], [269], [278], [280], [281], below).

Decision of Collins J [2006] 2 All ER 329 reversed in part.

NOTES:
For experts’ duties and for protection from proceedings in respect of the evidence given, see 17(1) Halsbury’s Laws (4th edn reissue) paras 764, 963.

CASES-REF-TO:
A County Council v W [1996] 3 FCR 728, [1997] 1 FLR 574.

Antonelli v Secretary of State for Trade and Industry [1998] 1 All ER 997, [1998] QB 948, [1998] 2 WLR 826, CA.

Assicurazioni Generali SpA v Arab Insurance Group (BSC) [2002] EWCA Civ 1642, [2003] 1 All ER (Comm) 140, [2003] 1 WLR 377.

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223, CA.

Bolton v Law Society [1994] 2 All ER 486, [1994] 1 WLR 512, CA.

Council for the Regulation of Healthcare Professionals v General Medical Council, Council for the Regulation of Healthcare Professionals v Nursing and Midwifery Council [2004] EWCA Civ 1356, [2005] 1 WLR 717.

Darker (suing as personal representative of Docker, decd) v Chief Constable of the West Midlands Police [2000] 4 All ER 193, [2001] 1 AC 435, [2000] 3 WLR 747, HL; rvsg Docker v Chief Constable of West Midland Police [1998] 17 LS Gaz R 31, CA.

Dawkins v Lord Rokeby (1873) LR 8 QB 255; affd (1875) LR 7 HL 744, HL.

Derby & Co Ltd v Weldon (No 9) (1990) Times, 9 November.

EI Du Pont De Nemours & Co v ST Dupont [2003] EWCA Civ 1368, [2004] IP & T 559, [2006] 1 WLR 2793.

Evans v London Hospital Medical College [1981] 1 All ER 715, [1981] 1 WLR 184.

Ghosh v General Medical Council [2001] UKPC 29, [2001] 1 WLR 1915.

Gupta v General Medical Council [2001] UKPC 61, (2001) 64 BMLR 56, [2002] ICR 785, [2002] 1 WLR 1691.

Harmony Shipping Co SA v Davis [1979] 3 All ER 177, [1979] 1 WLR 1380, CA.

Hussein v William Hill Group [2004] EWHC 208 (QB), [2004] All ER (D) 296 (Feb).

J (child abuse: expert evidence), Re [1991] FCR 193.

Mann v O’Neill (1997) 145 ALR 682, (1997) 71 ALJR 903, [1997] HCA 28.

Marrinan v Vibart [1962] 3 All ER 380, [1963] 1 QB 528, [1962] 3 WLR 912, CA; affg [1962] 1 All ER 869, [1963] 1 QB 234, [1962] 2 WLR 1224.

Munster v Lamb (1883) 11 QBD 588, [1881-5] All ER Rep 791, CA.

Nandi v General Medical Council [2004] EWHC 2317 (Admin), [2004] All ER (D) 25 (Oct).

National Employers Life Assurance Co v Advisory Conciliation and Arbitration Service [1979] IRLR 282, [1979] ICR 620.

National Justice Cia Naviera SA v Prudential Assurance Co Ltd, The Ikarian Reefer [1993] 2 Lloyd’s Rep 68; rvsd [1995] 1 Lloyd’s Rep 455, CA.

Palmer v Durnford Ford (a firm) [1992] 2 All ER 122, [1992] QB 483, [1992] 2 WLR 407.

Pearce v Ove Arup Partnership Ltd (No 2) [2001] All ER (D) 32 (Nov).

Polivitte Ltd v Commercial Union Assurance Co plc [1987] 1 Lloyd’s Rep 379.

Preiss v General Dental Council [2001] UKPC 36, [2001] IRLR 696, [2001] 1 WLR 1926.

R v Cannings [2004] EWCA Crim 01, [2004] 1 All ER 725, [2004] 1 WLR 2607.

R v Clark [2000] All ER (D) 1219, CA; affg (9 November 1999, unreported), Chester Crown Ct.

R v Clark [2003] EWCA Crim 1020, [2003] 2 FCR 447.

R v Doheny [1997] 1 Cr App R 369, CA.

R v Kayretli (3 December 1998, unreported), CA.

R v Pendleton [2001] UKHL 66, [2002] 1 All ER 524, [2002] 1 WLR 72.

R (on the application of Heath) v Home Office [2005] EWHC 1793 (Admin), (2005) Times, 18 October.

R (on the application of Lannas) v Secretary of State for the Home Dept [2003] EWHC 3142 (Admin), [2003] All ER (D) 422 (Oct).

Rees v Sinclair [1974] 1 NZLR 180, NZ CA.

Roy v Prior [1970] 2 All ER 729, [1971] AC 470, [1970] 3 WLR 202, HL.

Roylance v General Medical Council (1999) 47 BMLR 63, [2000] 1 AC 311, [1999] 3 WLR 541, PC.

Silcott v Metropolitan Police Comr [1996] 8 Admin LR 633, CA.

Stanton v Callaghan [1998] 4 All ER 961, [2000] 1 QB 75, [1999] 2 WLR 745, CA.

Taylor v Director of the Serious Fraud Office [1998] 4 All ER 801, [1999] 2 AC 177, [1998] 3 WLR 1040, HL.

Threlfall v General Optical Council [2004] EWHC 2683 (Admin), (2004) Times, 2 December.

Todd v Adam [2002] EWCA Civ 509, [2002] 2 All ER (Comm) 97.

Vernon v Bosley (No 1) [1997] 1 All ER 577, CA.

Watson v General Medical Council [2006] EWHC 18 (Admin), [2006] All ER (D) 107 (Jan).

Watson v M’Ewan, Watson v Jones [1905] AC 480, [1904-7] All ER Rep 1, HL.

Whitehouse v Jordan [1981] 1 All ER 267, [1981] 1 WLR 246, HL.

X (minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorset CC [1995] 3 All ER 353, [1995] 2 AC 633, [1995] 3 WLR 152, HL.

Ziderman v General Dental Council [1976] 2 All ER 334, [1976] 1 WLR 330, PC.

INTRODUCTION:
Appeal

The General Medical Council (GMC) appealed with permission of Brooke LJ given on 28 March 2006 from the decision of Collins J on 17 February 2006 ([2006] EWHC 146 (Admin), [2006] 2 All ER 329) allowing the appeal of Professor Sir Roy Meadow from the decision of the Fitness to Practise Panel of the GMC finding a complaint of serious professional misconduct proved and ordering that his name be erased from the register. The Attorney General intervened in the appeal. The facts are set out in the judgments of Sir Anthony Clarke MR and Auld LJ.

COUNSEL:
Roger Henderson QC and Adam Heppinstall for the GMC; Nicola Davies QC, Ian Winter and Kate Gallafent for Professor Meadow; Lord Goldsmith QC, A-G, Jonathan Crow and Ben Watson for the Attorney General as intervener; GMC; Hempsons.

JUDGMENT-READ:
Judgment was reserved 26 October 2006. The following judgments were delivered.

PANEL: SIR ANTHONY CLARKE MR, AULD AND THORPE LJJ

JUDGMENTBY-1: SIR ANTHONY CLARKE MR

JUDGMENT-1:
SIR ANTHONY CLARKE MR:

Introduction

[1] This appeal arises out of evidence given by Professor Sir Roy Meadow, whom I will call Professor Meadow, in the prosecution of Sally Clark. In November 1999 Mrs Clark was tried for the murder of her two sons. The Crown relied in part upon Professor Meadow’s evidence to refute the proposition that Mrs Clark’s children may have died from Sudden Infant Death Syndrome (SIDS), or cot death. Mrs Clark was convicted. Her first appeal was dismissed in October 2000 (see [2000] All ER (D) 1219). Her second appeal was allowed on 29 January 2003 (see [2003] EWCA Crim 1020, [2003] 2 FCR 447) on the ground that the verdicts were unsafe because of material non-disclosure by the Crown’s pathologist. Full argument on Professor Meadow’s evidence was not heard during the second appeal but the court indicated that, if it had been, the appeal would ‘in all probability’ have been allowed on that ground too. No retrial was ordered.

[2] Mrs Clark’s father made a complaint to the General Medical Council (GMC) alleging serious professional misconduct on the part of Professor Meadow. The complaint was heard by the Fitness to Practise Panel (FPP) of the GMC, which concluded in July 2005 that Professor Meadow was guilty of serious professional misconduct and ordered that his name be erased from the register. Professor Meadow appealed to the High Court and on 17 February 2006 Collins J allowed his appeal and quashed the order of the GMC (see [2006] EWHC 146 (Admin), [2006] 2 All ER 329, [2006] 1 WLR 1452). This appeal is brought by the GMC pursuant to permission granted by Brooke LJ on 28 March 2006.

[3] There are two distinct parts of the appeal. The first raises an important question of principle, namely whether an expert witness should be entitled to immunity from disciplinary, regulatory or fitness to practise proceedings (together ‘FTP proceedings’) in relation to statements made or evidence given by him in or for the purpose of legal proceedings. The second entails a consideration of the GMC’s challenge to the judge’s decision that Professor Meadow was not guilty of serious professional misconduct. It seeks to restore the finding of the FPP that he was guilty of serious professional misconduct, although it does not seek to uphold the penalty of erasure from the register.

[4] These two parts of the appeal are entirely separate and I will consider them separately. The Attorney General has intervened in connection with the first part but not the second. He supports the GMC’s appeal.

Part I Immunity from FTP proceedings

Introduction

[5] This part of the appeal arises out of a point taken by the judge and not by or on behalf of Professor Meadow, either before the FPP or in the grounds of appeal to the High Court. It is common ground that at common law a witness, whether he is giving evidence of fact or opinion, and whether or not he is an expert witness, has immunity from civil suit in respect of evidence which he gives in court. It is also common ground that the immunity extends to any statement the witness makes for the purpose of giving evidence. Where it exists the witness has immunity even in a case where he gave his evidence dishonestly or in bad faith. The judge recognised (at [10]) of his judgment that before this case the immunity had not been extended to prevent the bringing of FTP proceedings.

[6] The judge held that an absolute or blanket immunity was unnecessary but that it was necessary to balance the countervailing public interests and, having carried out the balancing exercise, he concluded that in some circumstances an expert witness should be immune from FTP proceedings. His reasoning can be seen from the judgment (at [21]-[25]):

‘Since I am applying a principle based on public policy to grant an immunity which has not hitherto been explicitly recognised, I can, I think, consider whether public policy requires that an absolute immunity should be granted. The approach of their Lordships in Darker (suing as personal representative of Docker, decd) v Chief Constable of the West Midlands Police [2000] 4 All ER 193, [2001] 1 AC 435 indicates that immunity from suit, in respect of which the law has granted absolute immunity, should be confined as narrowly as reasonably possible. That approach and the need to balance the countervailing public interests persuades me that a blanket immunity is not necessary. Barristers and solicitors owe duties to the court and may be subjected to disciplinary action in respect of their conduct in litigation. That does not inhibit them because they know that they must maintain the necessary standards before the court and will be liable to action if they do not. But witnesses are in a somewhat different position, particularly when they become involved in litigation fortuitously, perhaps because as a doctor they treated a particular child and abuse is suspected.

[22] In my judgment, the immunity has to cover proceedings based on a complaint (whether or not it alleges bad faith or dishonesty) made by a party or any other person who may have been upset by the evidence given. Public policy, as reflected in the observations of the various judges which I have cited, requires at least that. But I see no reason why the judge before whom the expert gives evidence (or the Court of Appeal when that may be appropriate) should not refer his conduct to the relevant disciplinary body if satisfied that his conduct has fallen so far below what is expected of him as to merit some disciplinary action. I note that such referrals have been made, although I do not think the immunity point has been argued (see Hussein v William Hill Group [2004] EWHC 208 (QB), [2004] All ER (D) 296 (Feb) per Hallett J and Pearce v Ove Arup Partnership Ltd (No 2) [2001] All ER (D) 32 (Nov) per Jacob J. In Pearce’s case (at [61]), Jacob J said this:

“I see no reason why a judge who has formed an opinion that an expert had seriously broken his Pt 35 duty should not, in an appropriate case, refer the matter to the expert’s professional body if he or she has one. Whether there is a breach of the expert’s professional rules and if so what sanction is appropriate would be a matter for the body concerned.”

The witness should, as Jacob J stated, be given an opportunity to make representations before any referral took place.

[23] Such a referral would not be justified unless the witness’s shortcomings were sufficiently serious for the judge to believe that he might need to be removed from practice or at least to be subjected to conditions regulating his practice such as a prohibition on acting as an expert witness. Normally, evidence given honestly and in good faith would not merit a referral. Mr Henderson was concerned that to draw the line at dishonesty or recklessness could mean that a practitioner who gave seriously defective evidence which was honestly given but resulted from for example ill health was able to continue in practice to the danger of the public. I recognise that possibility: the judge is likely also to recognise it if it arises in any given case.

[24] No system can be perfect. It is, as Mr Henderson submitted, at least in theory possible that a practitioner whose shortcomings are not recognised by the court may escape deserved sanctions. This would particularly be so if the practitioner did not give evidence because court proceedings were, as in Stanton v Callaghan [1998] 4 All ER 961, [2000] 1 QB 75, never pursued. However, I think that this problem is more theoretical than real. It is unlikely that a single case involving a poor report or evidence would on its own show that the practitioner was unfit to practise and so a danger to the public. His report would become known and he would not be invited to give evidence in the future. Further, if he was so poor, he would be likely to show his defects in a subsequent case. Mr Henderson raised the issue of accreditation which, for example, would affect a pathologist. Could he be removed from the list of those entitled to act for the Home Office on the basis of poor evidence in a particular case? The answer must be that he could. Just as a private client is entitled to cease to instruct an expert if dissatisfied with his performance so can the Home Office. If that is done, he has a right of appeal.

[25] The precise boundaries of the immunity will have to be established on a case by case basis. For example, where serious defects in the expert’s evidence only come to light after a court hearing, it may be possible to go back to the judge to ask him to consider a referral. If there is an appeal, the Court of Appeal can take the necessary action. But what is of fundamental importance is that a witness can be assured that if he gives his evidence honestly and in good faith, he will not be involved in any proceedings brought against him seeking to penalise him. The risk of a judge deciding that there should be a referral in such circumstances is so remote as to be virtually non-existent.’

[7] Thus, although the judge said that the precise boundaries of the immunity will have to be established on a case by case basis, it is plain from the above passage that he envisages that an expert witness will be immune from FTP proceedings unless his conduct is referred to the FPP (or equivalent) by the trial judge in the proceedings in which he gives evidence, whether they are civil or criminal proceedings. As I understand it, that control mechanism was the judge’s idea. It was not suggested to him on behalf of the parties. As appears below, Ms Davies does not support the judge’s approach. She has suggested a different control mechanism to which I return below.

[8] I should note in passing that the Attorney General did not intervene before the judge. The Expert Witness Institute (EWI) did apply for permission to intervene but did not inform the other parties of its intention. It did however send written submissions to the court. In the circumstances the judge said (at [7]) that he had only taken EWI’s submissions into account in relation to the general duties of an expert and to the jurisdiction of FTP authorities.

[9] The judge allowed Professor Meadow’s appeal on the ground that the case against him was based upon his evidence at Mrs Clark’s trial and that, in the light of the principles the judge had identified (as set out above), he was immune from FTP proceedings before the FPP. The trial judge had not of course referred the matter to the GMC.

[10] It is convenient to consider this part of the appeal under a number of headings as follows: witness immunity at common law (ie before this case), extending the immunity, the role and responsibility of the expert witness, FTP proceedings and the role of the common law before asking whether the immunity should be extended to FTP proceedings.

Witness immunity at common law

The principles

[11] The immunity with which this appeal is concerned is entirely a common law concept. It is common ground that it applies to all witnesses including expert witnesses and I do not think that there is any or any significant dispute about its nature and extent as explained in cases before the decision of the judge in this case. I can therefore take the principles as accurately set out in the written submissions made by or on behalf of the Attorney General. The protection afforded by immunity from civil suit is that-

‘no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without any reasonable or probable cause, in the ordinary course of any proceeding in a court of justice.’

That is a quotation from the judgment of Kelly CB in Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 264. It was approved by Lord Hutton in Darker (suing as personal representative of Docker, decd) v Chief Constable of the West Midlands Police [2000] 4 All ER 193 at 212, [2001] 1 AC 435 at 464.

[12] The immunity extends to cover the following: (i) the preliminary examination of witnesses (see Watson v M’Ewan, Watson v Jones [1905] AC 480, [1904-7] All ER Rep 1); (ii) evidence from potential witnesses in criminal proceedings at a time when proceedings are in contemplation but have not yet been commenced (see Evans v London Hospital Medical College [1981] 1 All ER 715, [1981] 1 WLR 184); (iii) an expert’s report prepared in circumstances where, if there were to be proceedings for child abuse, the report would be relied upon (see X (minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorset CC [1995] 3 All ER 353 at 386, [1995] 2 AC 633 at 755 per Lord Browne-Wilkinson); and (iv) statements made out of court that could fairly be said to be part of the process of investigating crime with a view to prosecution (see Taylor v Director of the Serious Fraud Office [1998] 4 All ER 801, [1999] 2 AC 177).

[13] The immunity does not extend to things done at the investigative stage which could not fairly be said to form part of the witness’s participation in the judicial proceedings. It does not therefore protect police officers from a claim for misfeasance in public office for having fabricated evidence (see Darker’s case). Importantly, the immunity only bars civil suits. It does not protect a witness against a criminal prosecution for perjury, for perverting the course of justice or for contempt of court. Thus, as Lord Morris put it in Roy v Prior [1970] 2 All ER 729 at 733, [1971] AC 470 at 477: ‘If a witness gives false evidence he may be prosecuted if the crime of perjury has been committed but a civil action for damages in respect of the words spoken will not lie . . .’

The rationale

[14] I would accept the Attorney General’s submission that the underlying rationale for the immunity from civil suit is ordinarily expressed as promoting two objectives (see eg Roy v Prior [1970] 2 All ER 729 at 736, [1971] AC 470 at 480 per Lord Wilberforce, Silcott v Metropolitan Police Comr [1996] 8 Admin LR 633 at 637 per Simon Brown LJ; Stanton v Callaghan [1998] 4 All ER 961 at 983, [2000] 1 QB 75 at 100-101 per Chadwick LJ; and Darker’s case [2000] 4 All ER 193 at 209, [2001] 1 AC 435 at 456 per Lord Clyde). Those two objectives are: (i) ensuring that witnesses give evidence ‘freely and fearlessly’ (see Darker’s case [2000] 4 All ER 193 at 209, [2001] 1 AC 435 at 456 per Lord Clyde), ‘in an atmosphere free from threats of suit from disappointed clients’ (see Stanton v Callaghan [1998] 4 All ER 961 at 991, [2000] 1 QB 75 at 108 per Otton LJ), with the corollary that ‘persons who may be witnesses in other cases in the future will not be deterred from giving evidence for fear of being sued for what they say in court'; and (ii) ‘to avoid multiplicity of actions in which the value or truth of their evidence would be tried over again’ (see Roy v Prior [1970] 2 All ER 729 at 736, [1971] AC 470 at 480 per Lord Wilberforce).

[15] The benefit and purpose of the second objective have been variously described over the years. The Attorney General has identified two short quotations which seem to me fairly to demonstrate the position. In Marrinan v Vibart [1962] 1 All ER 869, [1963] 1 QB 234, which was subsequently upheld by this court ([1962] 3 All ER 380, [1963] 1 QB 528) Salmon J said ([1962] 1 All ER 869 at 871, [1963] 1 QB 234 at 237):

‘. . . the administration of justice would be greatly impeded if witnesses were to be in fear that any disgruntled or possibly impecunious persons against whom they gave evidence might subsequently involve them in costly litigation.’

In Munster v Lamb (1883) 11 QBD 588 at 607 Fry LJ said that the purpose of the rule was ‘to protect persons acting bon fide, who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending actions’ (see also [1881-5] All ER Rep 791 at 797). As Auld LJ put it in this court in Darker’s case (see Docker v Chief Constable of West Midland Police [1998] 17 LS Gaz R 31), in a passage approved by Lord Hope in Darker’s case ([2000] 4 All ER 193 at 196, [2001] 1 AC 435 at 447):

‘The whole point of the first public policy reason for the immunity is to encourage honest and well-meaning persons to assist justice even if dishonest and malicious persons may on occasion benefit from the immunity.’

[16] In Stanton v Callaghan Otton LJ said ([1998] 4 All ER 961 at 989, [2000] 1 QB 75 at 107) that the immunity-

‘is not granted primarily for the benefit of the individuals who seek it. They themselves are beneficiaries of the overarching public interest, which can be expressed as the need to ensure that the administration of justice is not impeded. This is the consideration which should be paramount.’

Extending the immunity

[17] The courts have shown a marked reluctance to extend the immunity. It is perhaps convenient to refer to some of the judicial statements which exemplify this approach. They include: (i) ‘the general rule is that the extension of absolute privilege is “viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated”‘ (see Mann v O’Neill (1997) 145 ALR 682 at 686, (1997) 71 ALJR 903 at 907, approved by Lord Hutton in Darker’s case [2000] 4 All ER 193 at 216, [2001] 1 AC 435 at 468); (ii) the immunity is only conferred ‘grudgingly’ because ‘the immunity may cut across the rights of others to a legal remedy and so runs counter to the policy that no wrong should be without a remedy’ (see Darker’s case [2000] 4 All ER 193 at 202, [2001] 1 AC 435 at 453 per Lord Cooke and [2000] 4 All ER 193 at 205, [2001] 1 AC 435 at 456 per Lord Clyde); (iii) ‘The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice’ (see Rees v Sinclair [1974] 1 NZLR 180 at 187 per McCarthy P); (iv) whether immunity is necessary must ‘be checked against a broad view of the public interest’ (see Roy v Prior [1970] 2 All ER 729 at 736, [1971] AC 470 at 480 per Lord Wilberforce); (v) ‘Once a situation has been identified as deserving of immunity it may readily be accepted that the immunity is in its quality absolute’ (see Darker’s case [2000] 4 All ER 193 at 205, [2001] 1 AC 435 at 456 per Lord Clyde); and (vi) ‘those principles should be of general application regardless of the particular form of the action. Thus, for example, whether the action is one of defamation or of negligence or, as in the present case, of conspiracy to injure and misfeasance in a public office, the same principles should apply’ (see Darker’s case [2000] 4 All ER 193 at 205, [2001] 1 AC 435 at 456 also per Lord Clyde).

[18] The Attorney General has also referred us to this statement of Lord Hoffmann in Taylor v Director of the Serious Fraud Office [1998] 4 All ER 801 at 813-814, [1999] 2 AC 177 at 214:

‘The policy of the immunity is to enable people to speak freely without fear of being sued, whether successfully or not. If this object is to be achieved, the person must know at the time he speaks whether or not the immunity will attach.’

[19] As appears from his judgment, quoted above ([2006] 2 All ER 329 at [21], [2006] 1 WLR 1452), the judge had well in mind the principle that, since where it exists the immunity is absolute, any extension of the existing immunity should be confined as narrowly as reasonably possible. That was why he rejected the notion of a blanket immunity. He was in my opinion correct both to approach the problem in that way and to conclude that a blanket immunity for expert witnesses from FTP proceedings arising out of statements made as a witness is not necessary. Ms Davies’s position is not the same as that of the judge. She does not submit that the immunity is the same as that from civil suit because she says that there should be no immunity from FTP proceedings where the evidence or statements relied upon amount to a crime, but in all other cases she submits that the expert is or should be immune from FTP proceedings in the same circumstances as he would be immune from civil suit. She thus says that, save in her excepted cases, the immunity is absolute. This is I think a new suggestion not made in any previous case. I will return to it below.

[20] The question whether there should be any extension of the immunity of expert witnesses to FTP proceedings should I think be answered with the role and responsibilities of expert witnesses in mind.

The role and responsibilities of the expert witness

[21] The judge quoted (at [20]) what are now well-known principles identified by Cresswell J in National Justice Cia Naviera SA v Prudential Assurance Co Ltd, The Ikarian Reefer [1993] 2 Lloyd’s Rep 68 at 81-82. Those principles were approved by Otton LJ in Stanton v Callaghan [1998] 4 All ER 961, [2000] 1 QB 75 and are now accepted and understood throughout what may be called the expert witness community. Cresswell J put them thus:

‘The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation ([Whitehouse v Jordan [1981] 1 All ER 267 at 276, [1981] 1 WLR 246 at 256], per Lord Wilberforce).

2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise (see [Polivitte Ltd v Commercial Union Assurance Co plc [1987] 1 Lloyd’s Rep 379 at 386 per Garland J] and [Re J (child abuse: expert evidence) [1991] FCR 193 per Cazalet J]). An expert witness in the High Court should never assume the role of an advocate.

3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion ([Re J]).

4. An expert witness should make it clear when a particular question or issue falls outside his expertise.

5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one ([Re J]). In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report ([Derby & Co Ltd v Weldon (No 9) (1990) Times, 9 November per Staughton LJ]).

6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.

7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports (see 15.5 of the Guide to Commercial Court Practice).’

The judge added at the end of that quotation that in addition to those considerations, the expert witness will know that he must give evidence honestly and in good faith and must not deliberately mislead the court. He will not expect to receive protection if he is dishonest or malicious or deliberately misleading.

[22] Those principles have recently been reflected and expanded in an important document entitled ‘Protocol for the Instruction of Experts to give evidence in Civil Claims’ (Civil Justice Council, June 2005), which was prepared in the light of work done by the EWI and the Academy of Experts and others and which was approved by Lord Phillips of Worth Matravers as Master of the Rolls. Paragraph 4 of the protocol is entitled ‘Duties of experts’ and includes the following:

‘4.1 Experts always owe a duty to exercise reasonable skill and care to those instructing, and to comply with any relevant professional code of ethics. However when they are instructed to give or prepare evidence for the purpose of civil proceedings in England and Wales they have an overriding duty to help the court on matters within their expertise (CPR 35.3). This duty overrides any obligation to the person instructing or paying them. Experts must not serve the exclusive interests of those who retain them.’ (My emphasis.)

[23] The Attorney General also drew our attention to Harmony Shipping Co SA v Davis [1979] 3 All ER 177, [1979] 1 WLR 1380, where it was held that there is no property in an expert witness (in that case a handwriting expert) and that any contract purporting to impose an obligation to give evidence for only one side in a dispute would be contrary to public policy (see [1979] 3 All ER 177 at 182, [1979] 1 WLR 1380 at 1385 per Lord Denning). Lord Denning also said ([1979] 3 All ER 177 at 182, [1979] 1 WLR 1380 at 1386): ‘There being no such property in a witness, it is the duty of a witness to come to court and give his evidence in so far as he is directed by the judge to do so.’

[24] The Attorney General submits that both limbs of the rationale underlying the immunity from civil suit, which may be summarised as the need for fearless testimony and the need to prevent multiple litigation apply with less force to experts than they do to witnesses of fact. In this regard he relies in particular upon this passage in the judgment of Chadwick LJ in Stanton v Callaghan [1998] 4 All ER 961 at 974, [2000] 1 QB 75 at 91:

‘There is, if I may say so, no difficulty in recognising the need for immunity in relation to the investigation and preparation of evidence in criminal proceedings, or in child abuse cases, in order to ensure that potential witnesses are not deterred from coming forward. For my part, however, I find it much more difficult to recognise an immunity founded on the need to ensure that witnesses are not deterred from giving evidence by the possibility of vexatious suits in a case where the witness is a professional man who has agreed, for reward, to give evidence in support of his opinion on matters within his own expertise; a fortiori, where the immunity is relied upon to protect the witness from suit by his own client, towards whom, prima facie, he owes contractual duties to be careful in relation to the advice which he gives. I think that there is much force in the observation of Mr Simon Tuckey QC, when sitting as a judge of the High Court in the Queen’s Bench Division in Palmer v Durnford Ford (a firm) [1992] 2 All ER 122 at 127, [1992] QB 483 at 488: “. . . I do not think that liability for failure to give careful advice to his client should inhibit an expert from giving truthful and fair evidence in court.”

It is important to keep in mind that expert witnesses have the safeguard, in common with other professional men, that they will not be held liable for negligent advice unless that advice is such as no reasonable professional, competent in the field and acting reasonably, could give. I find it difficult to believe that the pool of those who hold themselves out as ready to act as expert witnesses in civil cases, on terms as to remuneration which they must find acceptable, would dry up if expert witnesses could be held liable to those by whom they are instructed for failing to take proper care in reaching the opinions which they advance. Indeed, I would find it a matter of some surprise if expert witnesses offer their services at present on the basis that they cannot be held liable if their advice is negligent.’ (My emphases.)

The Attorney General relies in particular upon the parts of that passage which I have italicised.

[25] He also submits that the conclusion that expert witnesses are or may be expected to be more robust than their lay counterparts is supported by this statement made by Mr Simon Tuckey QC, sitting as a Deputy High Court Judge, in Palmer v Durnford Ford (a firm) [1992] 2 All ER 122 at 127, [1992] QB 483 at 488:

‘Generally I do not think that liability for failure to give careful advice to his client should inhibit an expert from giving truthful and fair evidence in court . . . I can see no good reason why an expert should not be liable for the advice which he gives to his client as to the merits of the claim, particularly if proceedings have not been started, and a fortiori as to whether he is qualified to advise at all.’

[26] I would accept those statements as generally correct. However, in Stanton v Callaghan, Otton LJ, while recognising the force of the points made by Chadwick LJ, said ([1998] 4 All ER 961 at 987, [2000] 1 QB 75 at 104) that the same considerations may not apply with equal force in every case. As Thorpe LJ has demonstrated in his judgment, a draft of which I have read, different considerations may apply in different parts of the justice system, and there may indeed be good reason why some greater measure of protection to expert witnesses than exists at present should be afforded to some classes of expert, perhaps in the field of family justice, in order take proper account of what the Attorney General correctly recognised is ‘a countervailing public interest in not unnecessarily discouraging competent expert witnesses from giving evidence’. However, the question is whether the introduction of such a measure of protection into an area where such protection has not been afforded hitherto is a matter for the development of the common law (and if so what) or whether it is a matter for Parliament. Both the Attorney General and the GMC say that it is the latter.

[27] In the instant case it is said there should be a measure of protection against FTP proceedings. It follows, as it seems to me, that in order to answer the question just posed, it is important to focus on the nature and rationale of FTP proceedings and their statutory basis.

FTP proceedings

[28] While this appeal is of course concerned with FTP proceedings before a GMC panel, there are many other professions and occupations which are regulated in one way or another by detailed regulations and there are many disciplinary panels of different kinds. We were referred to a considerable number of different regulatory and disciplinary bodies in different areas of modern life. In addition to the GMC, they include the General Dental Council, the General Chiropractic Council, the General Osteopathic Council, the General Optical Council, the General Social Care Council, the Health Professions Council and the Nursing and Midwifery Council. The statutory FTP procedures are similar to those of the GMC and require the council in each case to investigate complaints or to refer an allegation to the relevant FPP for investigation. None of them contains a provision entitling the person being investigated to object to the jurisdiction of the council or FPP on the ground that the complaint relates to evidence in court and that he is immune from FTP proceedings.

[29] The same is true of boards set up under the royal prerogative. They include the Home Office Policy Advisory Board for Forensic Pathology and the Council for the Registration of Forensic Practitioners. The lawfulness of the former was recently upheld in R (on the application of Heath) v Home Office [2005] EWHC 1793 (Admin), (2005) Times, 18 October. In addition, architects are regulated under a statutory scheme and many professions, including accountants, actuaries, engineers and surveyors are regulated by professional bodies incorporated under royal charter. Amendments to the relevant bye-laws, including FTP provisions, require the approval of the Privy Council, which only gives approval after consultation with the relevant government department. Typical bye-laws have similar provisions.

[30] The purpose of all these bodies is to regulate the profession or occupation concerned for the benefit of the public. It has been held that the essential purpose of FTP proceedings is to protect the public and not to punish the practitioner. Thus in Ziderman v General Dental Council [1976] 2 All ER 334 at 336, [1976] 1 WLR 330 at 333, Lord Diplock, giving the judgment of the Privy Council, said:

‘The purpose of disciplinary proceedings against a dentist who has been convicted of a criminal offence by a court of law is not to punish him a second time for the same offence, but to protect the public who may come to him as patients and to maintain the high standards and good reputation of an honourable profession.’

Similarly, in Gupta v General Medical Council [2001] UKPC 61 at [21], (2001) 64 BMLR 56 at [21], [2002] ICR 785, Lord Rodger of Earlsferry, giving the judgment of the Privy Council, approved the approach of Sir Thomas Bingham MR in Bolton v Law Society [1994] 2 All ER 486 at 491-493, [1994] 1 WLR 512 at 517-519, where he said that a professional body was not primarily concerned with matters of punishment. In this connection, I do not think that the judge was quite right to say or suggest ([2006] 2 All ER 329 at [25], [2006] 1 WLR 1452) that FTP proceedings of this kind against an expert are ‘seeking to penalise him’. That may [be] their effect but it is not their purpose.

[31] Similarly, in Antonelli v Secretary of State for Trade and Industry [1998] 1 All ER 997, [1998] QB 948, it was held by this court that a statute introduced to protect the public against the activities of fraudulent or dishonest or violent estate agents applied to those who had been guilty of a relevant criminal offence before the Act came into force (see eg [1998] 1 All ER 997 at 1006, [1998] QB 948 at 958-959 per Beldam LJ, with whom Kennedy and Aldous LJJ agreed).

[32] In short, the purpose of FTP proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past. It would to my mind be very striking, not to say astonishing, if the way in which an expert gave evidence or the content of that evidence showed that he was not fit to practise in a particular discipline, but the FPP could not consider it because the expert was immune from disciplinary proceedings by some absolute common law immunity. That would especially be so if the only evidence of unfitness to practise derived from evidence given in court. It was no doubt in part at least for those reasons that the judge did not hold that expert witnesses are entitled to a blanket immunity of the kind which witnesses enjoy from civil suit.

[33] I should note here that Ms Davies submits that there is no or no significant difference between FTP proceedings and civil proceedings, so that the substance of the common law immunity from civil suit should apply to FTP proceedings. I recognise that both sets of proceedings may involve a consideration of some of the same issues of fact. I would not however accept Ms Davies’s submission. The crucial distinction is that to which I have just referred. In FTP proceedings the FPP is concerned to protect the public for the future and not to determine the rights and obligations of the parties in the same way as in a civil action. This introduces a further public interest which is not present in the ordinary civil suit. It is precisely for this reason that, as appears below, Ms Davies submits that, where the facts alleged against the expert amount to a crime, the expert is not immune from FTP proceedings based on those facts.

[34] I turn to consider the jurisdiction exercised by the FPP in this case. In the present context, in which we are considering whether a professional should have immunity from FTP proceedings at common law, and if so in what circumstances, the importance of the statutory provisions which govern the GMC is that they are similar to those which regulate other professions and occupations. However, I should say at once that in this regard I accept the submission made by Mr Henderson on behalf of the GMC. It is that, although the need for fearlessness and the avoidance of a multiplicity of actions has been held to outweigh the private interest in civil redress, hence the immunity from civil suit, those public policy benefits do not and cannot (or at least should not) override the public interest in the protection of the public’s health and safety enshrined in the GMC’s statutory duty to bring FTP proceedings where a registered medical practitioner’s fitness to practise is impaired. A similar point can be made in the case of other professions and occupations, with more or less force depending upon the particular circumstances.

[35] Given the fact that the judge limited the immunity to cases in which the trial judge in civil or criminal proceedings does not refer the matter to the GMC, so that in a case where no such referral is made (like this) the FPP has no jurisdiction, whereas where a referral is made the expert has no immunity and the FPP’s jurisdiction is unfettered by any such common law rule, the question arises whether there is anything in the relevant statutory provisions which supports such an approach. The answer is that there is not and nobody has suggested that there is.

[36] The jurisdiction of the GMC is for the most part set out in the skeleton arguments of the GMC and Professor Meadow for this appeal and is not in dispute. I need only refer to its salient features. The powers and duties of the GMC have been governed by the Medical Act 1983 for many years. The 1983 Act has been amended from time to time and has, indeed, been amended since the events to which this appeal relates occurred. As I understand it, when the matter was before the FPP, the powers exercised by the panel were those set out in s 36 of the 1983 Act, as then amended. Those powers were exercisable where a fully registered medical practitioner was judged by the panel to be guilty of serious professional misconduct. The matter having been referred to the panel, it was the duty of the panel to decide whether Professor Meadow was guilty of serious professional misconduct.

[37] It is, as I understand it, common ground that there is nothing in the 1983 Act or any of the rules made under it which suggests that Professor Meadow was immune from proceedings before the panel by reason of the fact that the allegations against him arose out of his conduct as an expert witness. Indeed, it is common ground that, absent such an immunity, it was the duty of the registrar of the GMC to investigate the complaint under r 6 of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 and to consider whether it should be referred to the Preliminary Proceedings Committee. On such a reference it was the duty of the Preliminary Proceedings Committee under r 11 to determine whether the case should be referred to the Professional Conduct Committee (PCC) and, in the case of an allegation of serious professional misconduct, it was its duty in making a reference to ‘indicate . . . the matters which in their opinion appear to raise a question whether the practitioner has committed serious professional misconduct’ (see r 11(2)). There are then detailed rules as to the formulation of charges before the PCC and as to the procedure before the committee which are set out in Pts IV and V of the 1988 Rules. It was those rules which applied to the proceedings before the FPP in this case, as it made clear when it made its findings of fact.

[38] As already indicated, nobody suggested before the panel that it adopted the wrong procedure or that it lacked jurisdiction. Equally nobody suggested that the FPP could not investigate the question whether Professor Meadow was guilty of serious professional misconduct because the alleged misconduct occurred in connection with evidence prepared and given in court and did not arise out of a clinical or doctor and patient relationship. This is scarcely surprising since there is ample authority for the proposition that a professional may face FTP proceedings, not just for conduct strictly within his professional capacity, but also for conduct in his private capacity (see eg A County Council v W [1996] 3 FCR 728, [1997] 1 FLR 574, approved by the Privy Council in Roylance v General Medical Council (1999) 47 BMLR 63 at 80-81, [2000] 1 AC 311 at 332). In any event this is of course a case in which the allegations related to conduct within Professor Meadow’s professional capacity. Moreover, there have been cases in which a judge has referred the conduct of an expert witness to his professional body, or in which the conduct has been referred as a result of criticisms of a trial judge: see eg by Hallett J in Hussein v William Hill Group [2004] EWHC 208 (QB), [2004] All ER (D) 296 (Feb), by Jacob J in Pearce v Ove Arup Partnership Ltd (No 2) [2001] All ER (D) 32 (Nov) at [59]-[61], and by Browne-Wilkinson J in National Employers Life Assurance Co v Advisory Conciliation and Arbitration Service [1979] IRLR 282 at 289 (paras 40, 41).

[39] As stated above, it was the judge who made the suggestion for the first time that the FPP might lack jurisdiction because Professor Meadow might be entitled to immunity from FTP proceedings. It seems to me that the effect of the judge’s decision that Professor Meadow was immune from such proceedings is to modify the jurisdiction of the FPP to consider whether a registered medical practitioner was guilty of serious professional misconduct, in circumstances where, but for the immunity, the GMC would be under a duty to investigate and, in an appropriate case, the FPP would be under a duty to consider and determine the questions raised by s 36 of the 1983 Act.

[40] I hope that I have correctly (if not fully) stated the position as it was in relation to the FTP proceedings against Professor Meadow. The position was, if anything, made clearer by reason of s 35C of the 1983 Act as amended. That section provides for the powers of an investigation committee in relation to allegations of, among other things, whether a person’s fitness to practise is impaired by misconduct. By s 35C(4) the investigation panel ‘shall investigate the allegation’ and decide whether it should be considered by an FPP and in that event, by sub-s (5), it ‘shall give a direction to that effect to the Registrar’. In the event that the matter is referred to an FPP, it is for the FPP to decide whether the person’s fitness to practise is impaired, in which case it has certain powers under s 35D.

[41] It is I think inconceivable that the draftsman of any of these provisions could have thought that a person against whom there was a case to answer that he was guilty of serious professional misconduct or, now, that his fitness to practise was impaired, would or might be entitled to an immunity of the kind suggested here. Such immunity would, to my mind, be inconsistent or potentially inconsistent with the principle that only those who are fit to practise should be permitted to do so.

The role of the common law

[42] The Attorney General submits that, whatever changes might be desirable, it is inappropriate for a fresh immunity to be created by the common law. Any such change is a matter of policy which should be made by Parliament after suitable public debate. He submits that that would be so if what was suggested was a wholesale extension of the immunity of a witness from civil suit to encompass an immunity from FTP proceedings. He submits that in any event the common law should not permit a partial extension of the immunity, either of the kind suggested by the judge, or at all.

[43] I would accept those submissions, although in doing so I do not intend to say that the common law could never extend a recognised common law immunity, if principle required an extension. After all, the common law is always capable of development to meet new challenges. However, all depends upon the particular context. I turn therefore to the question whether the common law immunity should be extended in this context.

Should the immunity be extended to FTP proceedings?

[44] This involves considering whether there should be a wholesale (or blanket) extension and, if not, whether there should be a partial extension and, if so, what.

Wholesale extension?

[45] I would answer this question in the negative. Indeed nobody suggests that the answer is yes, although Ms Davies’s submissions are perhaps closer to it than the proposals made by the judge. The above discussion shows that the courts have shown a marked reluctance to extend the immunity from civil suit at all. To my mind there is no principled basis for extending the immunity to all FTP proceedings. The judge did not think that it should be so extended and he was in my opinion correct so to hold. I have already expressed the essential reason. It is that the purpose of FTP proceedings is distinct from the purpose of civil proceedings. It is to ensure, so far as reasonably possible, that those who are not fit to practise do not do so. If the conduct or evidence of an expert witness at or in connection with a trial, whether civil or criminal, raises the question whether that expert is fit to practise in his particular field, the regulatory authorities or FPP should be entitled (and may be bound) to investigate the matter for the protection of the public.

[46] I would accept the Attorney General’s submission that in general the threat of FTP proceedings is in the public interest because it helps to deter those who might be tempted to give partisan evidence and not to discharge their obligation to assist the court by giving conscientious and objective evidence. It helps to preserve the integrity of the trial process and public confidence both in the trial process and in the standards of the professions from which expert witnesses come. As stated earlier, the purpose of FTP proceedings is the protection of the public.

[47] The duties of the regulatory authority will in most classes of case have been laid down by statute or by royal charter or by the exercise of the royal prerogative and very often in mandatory terms. I do not think that it is appropriate for the common law to introduce a qualification upon those duties. Whether to do so seems to me to be rather a matter for Parliament or the relevant authorities, after suitable public debate.

[48] The importance of the particular FTP authority exercising its own judgment is emphasised by a passage from the judgment of Sir Edwin Jowitt in R (on the application of Lannas) v Secretary of State for the Home Dept [2003] EWHC 3142 (Admin), [2003] All ER (D) 422 (Oct). In that case Dr Lannas challenged a decision of the Home Office Policy Board for Forensic Pathology (the Board). The Board was set up by the Home Secretary and operates a system for the accreditation of pathologists seeking appointment to the register and for their review and auditing after appointment. The decision challenged by way of judicial review was a decision removing Dr Lannas from the register. She submitted inter alia that the Board should not have acted until it knew of the outcome of the referral of her case to the GMC. Sir Edwin Jowitt rejected that submission. He said (at [35]):

‘[Counsel for the Secretary of State] points out that the forensic pathologist is an important figure in the prosecution case. It is very important if justice is to be done that he should be a person of ability. It is very important if the public are to have confidence in the doing of justice [that] they can be confident that [Home] Office pathologists are pathologists of real quality. The scheme is there not simply to see what standards are, or even to maintain them. [The] purpose of the scheme is to do both those things but also to raise standards where possible and to deal with matters of current interest and to see how they are dealt with so that the Board is a teaching body as well as a monitoring body. Those are important matters when it comes to public confidence in the way in which the forensic pathological service in this country is conducted on behalf of prosecutions. The scheme is one promulgated under the royal prerogative. It is the minister’s responsibility and duty to administer the scheme and to see that the proper standards are maintained and that they are elevated. It is for the minister, through the Board, to set the standards which are required. Those standards, for all I know, may be more exacting than the standards of other bodies who look into these things, but it is the minister’s responsibility. It is right that he should act in accordance with this scheme for he is responsible to Parliament for the way in which the scheme is run. It would be quite wrong if he did take a course which would amount to delegating the performance of his duty to the General Medical Council, a body over which he has no control and whose standards are for them and are not standards devised by him through the Board.’

As the Attorney General observes in his written submissions, the role of the Board, in considering whether to remove a pathologist from the register is similar to the role of an FPP in FTP proceedings. The relevance of the passage just quoted, with which I agree, is that it emphasises the importance of the relevant body, there the Board and here the FPP, being left to decide the questions which, whether by the royal prerogative or by statute, it is under a duty to answer.

[49] In short, it would be wrong in principle for the court to cut across or impliedly to limit the powers of an FPP by extending the immunity from civil suit to FTP proceedings. In X (minors) v Bedfordshire CC [1995] 3 All ER 353, [1995] 2 AC 633 the House of Lords was considering whether a local authority owed a duty of care in discharging a statutory function. Lord Browne-Wilkinson said ([1995] 3 All ER 353 at 371, [1995] 2 AC 633 at 739) that the question whether there was such a common law duty and, if so, its ambit, must be profoundly influenced by the relevant statutory framework and added:

‘. . . a common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties.’

So here, the extension of the immunity would be inconsistent with the duty of the FPP to investigate and determine the FTP proceedings against the expert.

Partial extension?

[50] I would also answer this question in the negative, for essentially the same reasons. To introduce the solution proposed by the judge would again cut across or impliedly limit the powers of an FPP by extending the immunity from civil suit to FTP proceedings, which would be wrong in principle. Here again it seems to me to be essentially a matter for Parliament or the relevant authorities to decide what, if any changes should be made. The Attorney General submits that the common law does not offer any criteria for determining the ‘right’ answer, if there is such a thing. This is I think demonstrated by the argument in this appeal as to the appropriateness of the distinction drawn by the judge and as to the problems potentially facing the courts in different fields.

[51] The judge recognised the importance of expert witnesses assisting the court conscientiously and objectively and (I think) of the public interest referred to above but he relied upon his perception of a competing public interest that, in the absence of immunity in at least some cases, competent expert witnesses, especially doctors, would be discouraged unnecessarily from giving evidence in court for fear of FTP proceedings. The judge was struck by the problems faced, especially in the family justice system, in persuading doctors to give evidence. He said ([2006] 2 All ER 329 at [6], [2006] 1 WLR 1452):

‘. . . There can be no doubt that the decision [in this case] has had a damaging effect in that it has increased the reluctance of medical practitioners to involve themselves in court proceedings, particularly in cases before the family court . . .’

[52] I quite understand the problem identified by the judge and emphasised by Thorpe LJ. However, as I see it, one of the difficulties with the judge’s solution is to distinguish the cases in which the witness will be immune from those in which he will not. As Lord Hoffmann put it in Taylor v Director of the Serious Fraud Office [1998] 4 All ER 801, [1999] 2 AC 177 in the passage quoted above, ‘the person must know at the time he speaks whether or not the immunity will attach’. If the judge’s solution is adopted, he will not know until the trial judge decides, presumably much later, whether to refer the matter to the GMC or its equivalent.

[53] The judge says ([2006] 2 All ER 329 at [22], [2006] 1 WLR 1452) (quoted above) that a witness should not be immune from FTP when the trial judge or this court is satisfied that the conduct of the witness ‘has fallen so far below what is expected of him as to merit some disciplinary action’. This is to make the trial judge or this court the sole arbiter of the question who should be immune and who should not. No such restriction exists in any of the statutory or other schemes which provide for investigation of the conduct of experts or for FTP proceedings. I agree with the Attorney General that the judge was here engaged on what was a legislative process, which was not appropriate.

[54] The judge’s approach seems to me to be inconsistent with the principle identified by Lord Clyde in Darker v Chief Constable of the West Midlands Police [2000] 4 All ER 193, [2001] 1 AC 435 (and referred to above) that a common law immunity must be an absolute immunity.

[55] Further, I agree with the Attorney General that there is no principled basis upon which trial judges should be charged with the responsibility for deciding whose conduct should be referred to an FPP and whose conduct should not. The judge presiding over a criminal trial has many duties, some of which are very onerous. So too does a trial judge in a civil action of any complexity. Although trial judges have been free in the past (and will no doubt be free in the future) to refer the conduct of an expert to his professional body, it has never been part of a trial judge’s duty to consider whether or not to do so. To impose such a duty on all trial judges in both civil and criminal cases seems to me to be inappropriate.

[56] While I understand the judge’s view that these are problems to be worked out on a case by case basis, that seems to me to underline the point that, if there is to be a system of referring some cases but not others, the relevant rules and criteria would have to be very carefully worked out. Many potential questions arise. Could the judge act only of his own motion or would it be open to an interested party (or indeed any member of the public) to apply to the judge for an appropriate direction? Would the expert have a right to make submissions? What would the test be? Would it be the same as or different from the test applied by the particular FPP or regulatory authority? These questions do not seem to me to be fanciful. They highlight the point that the answers to them essentially involve matters of policy, which in turn involve balancing the various competing public interests. They should be answered, not by a judge, but by Parliament or the appropriate authority, after considering detailed evidence-certainly much more detailed evidence than was before the judge. In short, they are not matters which can properly be determined by a judicial decision extending the kind of common law immunity described above.

[57] Further, the present immunity from suit extends to the contents of witness statements. Many civil cases settle before the trial, in which case there is of course no trial and thus no trial judge to form a view on the particular expert. Yet the statement or statements of an expert witness might well evidence unfitness to practise. On the judge’s approach such a person would be entitled to immunity at common law, whereas if the same expert had given evidence and perhaps been cross-examined on his statements before a trial judge, the immunity would be lost if the trial judge chose to refer him to his professional body.

[58] In all the circumstances, the judge’s proposal seems to me to be arbitrary and not fairly to draw the line between one expert and another. It is arbitrary from the standpoint both of the expert and of anyone aggrieved by the alleged unfitness of the expert, and as such cannot be in the public interest.

[59] The Attorney General gave a number of examples of these problems. I refer to only two, those of Dr Heath and Dr Lannas. Dr Heath was referred to the Board by experts retained by the defence in two trials. His conduct had not been criticised by the trial judges. The trials took place in 2002 but the conviction in one of them was not quashed until 2005. In his judgment in R (on the application of Heath) v Home Office [2005] EWHC 1793 (Admin), (2005) Times, 18 October (referred to above) Newman J said (at [6]):

‘The regulation provided by the Board is of particular importance because the users of forensic pathology services are, in the main, not in a position to assess for themselves the technical standard of the work carried out by registered forensic practitioners. Accordingly, the Board has a vital role to underpin the proper functioning of the criminal justice system and to prevent miscarriages of justice.’

I agree. So here the GMC seems to me to have a similar role. I should add in parenthesis that I say nothing about the merits of Dr Heath’s case because I think it is ongoing. In any event I do not know what they are.

[60] The case of Dr Lannas (see above) demonstrates a different problem, namely what to do where the trial judge is unaware of the position. In R (on the application of Lannas) v Secretary of State for the Home Dept [2003] All ER (D) 422 (Oct) issues relating to Dr Lannas were referred to the Home Office by a number of other pathologists and two coroners. In the case of R v Kayretli (3 December 1998, unreported), it is plain that the trial judge was not aware of the problems and did not criticise her. The Court of Appeal said (at para 26):

‘What neither judge nor jury nor, we are confident, the prosecution knew was that the quality of Dr Lannas’s work had recently been called into question. Indeed prior to the trial commencing, the Home Office Policy Board for Forensic Pathology through its Quality Assurance and Scientific Standards Committee (which monitors the work of Home Office pathologists) had in 1996 held two of Dr Lannas’s reports to be below standard.’

Those cases seem to me to exemplify the problems with the judge’s solution in this case.

[61] I appreciate that we have had much more detailed argument on these questions than the judge did. It may well be that, if he had had as much assistance as we have had, he would have reached a different conclusion but I do not think that it is appropriate or principled for the court to afford a paediatrician, or indeed any other expert, the kind of new conditional immunity at common law suggested by the judge, where all depends upon a subsequent decision by the trial judge or by this court. As Ms Davies in substance put it, it is wrong in principle for the jurisdiction of a regulatory body to be determined by a different body, however independent, namely the trial judge or the Court of Appeal.

[62] Ms Davies nevertheless seeks to uphold the judge’s decision that Professor Meadow was immune from FTP proceedings. She recognises I think that there are problems as to where precisely the line is to be drawn but she submits that, wherever it is, Professor Meadow is entitled to immunity. She stresses the public interest in ensuring that there are competent doctors, especially paediatricians willing and able to give evidence in sensitive and sometimes high profile cases, both in the criminal courts and in the family justice system. She relies upon the material which was before the judge and his conclusion at [6] quoted above. These concerns are emphasised by Thorpe LJ in his judgment and should not in any way be belittled. Certainly nothing in this judgment is intended to belittle them.

[63] Ms Davies submits that both limbs of the rationale for the immunity from suit discussed above apply to paediatric experts, namely that to ensure that witnesses give evidence freely and fearlessly and that they are not exposed to a multiplicity of litigation going over the same ground by disgruntled litigants, often with hopeless cases. She focuses particularly on paediatricians rather than on expert witnesses generally and submits that it is or may be appropriate to treat different professions differently, relying upon the observations of Otton LJ in Stanton v Callaghan [1998] 4 All ER 961, [2000] 1 QB 75 quoted above.

[64] As I stated earlier, Ms Davies does not argue for the same immunity as the immunity from civil suit which I have discussed at some length. Her proposal is different from that of the judge. She recognises that expert witnesses have never been immune from contempt proceedings or from criminal process. Thus they can be prosecuted for perjury or conspiracy to pervert the course of justice. She also accepts that, like any witness, a civil action will not lie against an expert witness on the basis of anything said as a witness, whether or not what is said amounts to a crime (see eg Darker’s case). However, she proposes that FTP proceedings should be permitted in respect of any statement made by a witness which amounts to a crime. So, for example, a witness could be sued for conspiracy to injure.

[65] This is an entirely new suggestion which has not, so far as I am aware, been made before. It does not have the defects of the judge’s solution, so far as it depends upon the decision of the trial judge, to which I have referred at some length, but it has what to my mind is the same underlying difficulty. It involves the extension of the common law immunity from civil suit to a common law immunity from FTP proceedings. It seems to me that the same objections apply to this extension as apply to the blanket immunity discussed above. In particular, such an immunity would cut across and interfere with the statutory responsibilities of the GMC or its equivalent. It would limit the power (and duty) of the GMC to investigate an allegation that an expert is unfit to practise except in cases where the facts alleged amount to a crime. I see no principled basis upon which the common law could impose such a limit. I would not therefore adopt Ms Davies’s proposal.

[66] I should add that in reaching these conclusions I have not overlooked the problems adverted to by the judge and emphasised by Thorpe LJ in his judgment. He has set out there some of the history of recent events in the particular field with which this case is concerned. It is to be hoped that a solution to the particular problems identified can be found by discussion between those directly concerned, and that, if appropriate, changes can be made, including changes to the relevant rules governing the GMC. In particular, it does seem to me that it should be possible to devise a scheme which reduces to an absolute minimum the risk of expert witnesses being vexed by unmeritorious complaints to regulatory bodies like the GMC.

[67] However, for the reasons that I have given, it seems to me that the solution to particular problems in particular professions must be reached by discussion and, if appropriate, rule change, not by what to my mind would be an unprincipled extension of the common law immunity from civil suit. Ms Davies was right not to challenge the jurisdiction of the GMC, either before the FPP or before the judge. For these reasons I would allow this part of the appeal and hold that the FPP had jurisdiction to entertain the allegations against Professor Meadow.

Part II Serious professional misconduct

[68] This part of my judgment should be read after and in the light of the judgments of Auld and Thorpe LJJ, which I have read in draft. They have set out the facts in considerable detail and it would serve no useful purpose for me to do the same. They have concluded that the judge was correct to allow the appeal from the decision of the FPP that Professor Meadow was guilty of serious professional misconduct. It follows that the GMC’s appeal on this question will be dismissed. I have reached a different conclusion from the other two members of the court and thus find myself in a minority. In these circumstances I do not think that it is appropriate for me to do any more than shortly to express the reasons for my conclusion that Professor Meadow was guilty of serious professional misconduct.

[69] As to the relevant test, I agree with the approach adopted by Auld LJ at [117]-[127], below. I turn to the facts.

[70] It is common ground between the parties that the relevant principles to be adopted by expert witnesses are summarised by Cresswell J in National Justice Cia Naviera SA v Prudential Assurance Co Ltd, The Ikarian Reefer [1993] 2 Lloyd’s Rep 68 in the passage quoted at [21], above. I extract these principles as being of particular relevance: (1) Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation. (2) An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate. (3) An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion. (4) An expert witness should make it clear when a particular question or issue falls outside his expertise. (5) If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.

[71] It is in my opinion of the utmost importance that an expert should only give evidence of opinion which is within his particular expertise and that, where a statement, whether made in writing or orally, is outside his expertise, he should expressly say so. If, for example, it depends upon work done or opinions expressed by others, that work or those opinions should be identified in the statement, so that their validity can be ascertained by the parties to the proceedings or by the court. All reasonable attempts should be made [to] check the validity of an opinion which is not within the expert’s expertise. These are simple precautions which should be taken by experts because of the risk that the opinion might be wrong, with what may be very serious consequences. This seems to me to be of particular importance in a serious criminal matter such as the trial of a defendant for murder.

[72] It was the failure of Professor Meadow to adopt these principles and to adopt these precautions which, in my opinion, amounted to serious professional misconduct. I agree with Auld and Thorpe LJJ that it was not appropriate for the FPP to judge Professor Meadow more harshly because of his great experience and eminence but these seem to me to be elementary precautions, which should have been taken. The judgments of Auld and Thorpe LJJ both focus in particular upon the judgments of the Court of Appeal Criminal Division, especially that given by Henry LJ in the first appeal (see [2000] All ER (D) 1219). I accept that those judgments are relevant and that it was most unfortunate that the parties agreed (for different reasons) that neither judgment should be put before the FPP but we should be careful not to place too much weight upon them. We should judge the conduct of Professor Meadow at the time he made his statements and gave evidence.

[73] The key parts of the evidence given by Professor Meadow which were scrutinised by the FPP and the judge are set out by Auld LJ. As Auld LJ says (at [130], below), the main focus of Professor Meadow’s evidence prepared for the committal proceedings was a consideration, in the light of the pathological material before him and his clinical findings, of various possible alternative causes of death, with a view to determining a possible or probable cause of each of the deaths. Professor Meadow’s statement included this passage under the heading ‘Two Infant Deaths in One Family':

‘Even when an infant dies suddenly and unexpectedly in early life and no cause is found at autopsy, and the reason for death is thought to be an unidentified natural cause (Sudden Infant Death Syndrome) ["SIDS"], it is extremely rare for that to happen again within a family. For example, such a happening may occur 1:1,000 infants, therefore the chance of it happening twice within a family is 1:1m. Neither of these two deaths can be classified as SIDS. Each of the deaths was unusual and had the circumstances of a death caused by a parent.’

[74] I agree with Auld LJ that, as he puts it (at [131], below), there is no doubt that this statement, if and when given in evidence at trial, would tend to negative any SIDS defence and thus support in the eyes of the jury a view that these deaths were not natural. As Auld LJ says (at [132], below), and as is now common ground, the conversion, or ‘squaring’, in this passage of the odds of 1:1,000 deaths for one death to 1:1 million deaths for two deaths, is only valid if each of the deaths is truly independent of the other, that is without, at the very least, the shared genetic and environmental circumstances of the children being members of the same family. So squaring of this sort should only be considered valid where true independence of each event from the other has been established. There was no such independence on the facts here.

[75] It is fair to say that at the committal proceedings, at which the Professor again referred to the squaring, the principle was not challenged on behalf of the defence. Auld LJ has explained the events in some detail. He has also explained (at [136]-[138], below) how the draft Confidential Enquiry into Stillbirths and Deaths in Infancy (CESDI) report came to be used as the source of the figure of 1 in 73 million which so struck the FPP. Before the trial Professor Meadow produced a further witness statement which included the following:

‘Since writing my report, I have read the reports of other medical experts.

Apart from non-accidental injury, no likely specific medical cause of death has been proposed. Thus it is suggested that the deaths of both children should be considered as examples of SIDS.

The likelihood of SIDS rises with social circumstances. The most recent estimation of the incidence in England is that for a family in which the parents do not smoke, in which at least one has a waged income, and in which the mother is over the age of 26 years, the risk is 1 in 8543 live births.

Thus the chance of two infant deaths within such a family being SIDS is 1 in 73,000,000.’

[76] The other medical experts were or included Professor Fleming and Professor Berry, who were co-authors of the CESDI report. They had made statements to the defence which had been disclosed to the prosecution. The additional statement of Professor Meadow was served on the defence because, in the light of the defence reports, it was thought that the defence would rely upon SIDS at the trial, although in the event it did not do so.

[77] The judge said this about that statement ([2006] 2 All ER 329 at [37], [2006] 1 WLR 1452):

‘. . . As will be obvious, this was based on the extract from the CESDI study which I have already cited. It was a statement based on a misunderstanding of the significance of the squaring. The squaring was not intended to be a guide to the risk of recurrence. The figures given were estimates based on a mathematical modelling and were not observed rates. Since independence could not be assumed, the squaring was a statistically invalid assumption and was intended to do no more than show that it produced in truth an underestimate of the real risk. I am bound to say, having read Professor Fleming’s evidence (he was a witness before the FPP), I am far from clear why the squaring exercise was included at all.’

[78] The judge then described (at [38], [39]) Professor Meadow’s attempt to contact Professor Fleming, set out the material faxed by Professor Fleming to counsel for the defence and said that the defence had all the necessary ammunition to question the appellant’s use of statistics. Auld LJ has described the evidence at the trial in some detail between [142] and [158], below. The CESDI report was put before the jury by the prosecution without the qualifying text quoted by Auld LJ (at [137], below). As Auld LJ says (at [151]), Professor Meadow prefaced his answers about the table with the observation that it was necessary to approach statistics with caution but described the CESDI study as the largest, latest and most reliable in the country and did not refer to the qualifications in the text. On the one hand, I agree with Auld LJ that Professor Meadow did not say (at any rate expressly) either that it represented the odds against Mrs Clark’s children having died natural deaths or that it supported the prosecution case by showing a probability that they had died from unnatural causes. On the other hand, I also agree with Auld LJ that that can have been the only possible relevance of such evidence to the case and was capable, without a firm warning from the judge, of being misunderstood by the jury.

[79] At [152]-[154], below, Auld LJ sets out the key evidence which Professor Meadow gave as to the significance of the table. The professor explained that it calculated the risk of two infants dying of SIDS in a family by chance: ‘. . . you have to multiply 1 in 8,543 times 8,543 and . . . in the penultimate paragraph. It points out that it’s approximately a chance of 1 in 73 million.’ He added: ‘. . . in England, Wales and Scotland there are about say 700,000 live births a year, so it is saying by that happening will occur about once every hundred years.’ And in response to the following question by Mr Spencer: ‘So is this right, not only would the chance be 1 in 73 million but in addition in these two deaths there are features which would be regarded as suspicious in any event?’ He replied ‘I believe so’.

[80] Mr Bevan did not challenge the admissibility of this evidence either on the ground that it was irrelevant or on the ground that it was unfairly prejudicial. He cross-examined Professor Meadow on the basis that the chances of a second child dying were the same as the chances of the first child doing so, viz in this example about 1 in 8,500. Professor Meadow agreed that it is just like tossing a second coin but added:

‘This is why you take what’s happened to all the children into account, and that is why you end up saying the chance of two children dying naturally in these circumstances is very, very long odds indeed, one in 73 million.’

In answer to the next question he said:

‘. . . it’s the chance of backing that long-odd outsider at the Grand National, you know; let’s say it’s an 80 to 1 chance, you back the winner last year, then the next year there’s another horse at 80 to 1 and it is still 80 to 1 and you back it again and it wins. Now here we’re in a situation that, you know, to get to these odds of 73 million you’ve got to back that 1 in 80 chance four years running, so yes, you might be very, very lucky because each time it’s just been a 1 in 80 chance and you know, you’ve happened to have won it, but the chance of it happening four years running we all know is extraordinarily unlikely. So it’s the same with these deaths. You have to say two unlikely events have happened and together it’s very, very, very unlikely.’

He was then asked whether he had ever heard the expression ‘Lies, damned lies and statistics’ and he said ‘I don’t like statistics, but I’m forced into accepting their usefulness’.

[81] The case against Professor Meadow is that he should not have introduced the notion of squaring in presenting the various statistics to the court, either in his statements or in his oral evidence. Thus he should not have referred to the chances of a second SIDS death being one in a million without explaining that this statistic would only be valid if the deaths were truly independent of one another. More strikingly he should not have referred to the chances being 1 in 73 million without explaining the qualifications in the CESDI paper. Yet more strikingly still, he should not have used the Grand National analogy, which likened the chances of a second SIDS death to successfully backing four 80 to 1 outsiders to win the Grand National, especially when he immediately added that ‘it’s the same with these deaths. You have to say two unlikely events have happened and together it’s very, very, very unlikely’. I do not think that there can be any doubt that in giving the answers quoted at [79] and [80], above, he was applying the 73 million to 1 statistic, the one in a hundred years’ chance and the Grand National analogy to these deaths.

[82] The failure of Professor Meadow to introduce the qualifications to the figure of 73 million to one was described by Kay LJ, giving the judgment of the second Court of Appeal as follows (R v Clark [2003] EWCA Crim 1020 at [102], [2003] 2 FCR 447 at [102]):

‘None of these qualifications were referred to by Professor Meadow in his evidence to the jury and thus it was the headline figures of 1 in 73 million that would be uppermost in the jury’s minds with the evidence equated to the chances of backing four 80 to 1 winners of the Grand National in successive years.’

Later Kay LJ said (at [175]):

‘. . . Putting the evidence of 1 in 73 million before the jury with its related statistic that it was the equivalent of a single occurrence of two such deaths in the same family once in a century was tantamount to saying that without consideration of the rest of the evidence one could be just about sure that this was a case of murder.’

I entirely agree with both those statements. Professor Meadow must surely have appreciated that that was the case or, if he did not, he was to my mind grossly negligent in not doing so.

[83] Professor Meadow is not a statistician and had no relevant expertise which entitled him to use the statistics in the way he did. I entirely accept the point that he made a mistake which other non-statisticians have made but that does not seem to me to exonerate him. He gave the evidence as part of his expert evidence and, moreover, did so in a colourful way which might well have been attractive to a jury without expressly disclaiming any expertise in the field on an issue the only possible relevance of which can have been (as stated above) to support the prosecution’s case that the children had both died from unnatural causes. He knew that he had no such experience and should have expressly disclaimed any. To my mind, that amounts to serious professional misconduct, as the FPP held.

[84] I appreciate that this view is different from that of both the judge and of my Lords and that their views are based to a significant extent upon the views expressed by the first Court of Appeal. In particular, I appreciate the force of these considerations, which are accurately described in detail by Auld LJ:

(i) The case against Mrs Clark as presented to the jury, which of course included the evidence of Dr Williams, was a strong one. It was that the deaths were not from natural causes and that the children must have been murdered.

(ii) The evidence of the statistics was a side show at the trial because it was not the defence case that the deaths were SIDS deaths. The defence case was that the deaths were caused by natural causes. By the end of the trial, as Henry LJ put it in the first Court of Appeal’s judgment ([2000] All ER (D) 1219 at para 109), the precise measure of rarity was not a significant issue.

(iii) The central issue in each case was whether the prosecution could exclude death by natural causes. The effect of the medical evidence as a whole was that neither child was the subject of a SIDS death and the lowest common denominator (as Henry LJ put it) was that each death was unexplained and consistent with an unnatural death.

(iv) There was a considerable amount of evidence in addition to that of Professor Meadow, including the evidence of Dr Williams, and the essential basis of his evidence was not the statistical evidence of which complaint is made.

(v) As appears in Henry LJ’s judgment (at para 160), the court concluded that Professor Meadow’s opinion was based on his expert assessment of the medical and circumstantial evidence and not on the statistical material.

(vi) The first Court of Appeal rejected the suggestion that Professor Meadow contributed to the danger of misinterpretation (see para 171). The 1 in 73 million figure was merely a distraction (see para 178). Professor Meadow did not misuse the figures, although he did not help to explain their limited significance (see para 179).

(vii) The defence was aware of the point about squaring, Professor Berry made the point and, indeed, the judge reminded the jury about Professor Berry’s evidence in his summing up (see Henry LJ’s judgment at para 155).

(viii) The criticism which the first Court of Appeal made of the trial was not misuse by Professor Meadow of the statistics but of the direction given to the jury by the judge in the course of his summing up. The court’s concern was that counsel for the prosecution should not have said to the jury in his closing speech that the existing injuries led to ‘even longer odds’ than the 73 million to 1 (see para 180).

(ix) The court’s concern can be seen at paras 182 and 184 which are quoted by Auld LJ (at [165], below):

‘We have made clear what the judge should have told the jury: that it was the prosecution’s case that to have one unexplained infant’s death with no suspicious circumstances in the family was rare, and for there to be two such in the same family would be rarer still. That was the only relevance of [the table], and the statistics were capable of showing that, but nothing more. They could not help as to whether the defendant was guilty or not guilty . . . The difficulty we feel . . . is that by the time of the speeches, rarity was largely accepted, so the measure of rarity, the CESDI study was not important. The 73 million figure should have been cleared away as a distraction. Instead the judge considered that the statistics could be considered. Might the jury have been misled into attributing to those statistics a significance they did not have, ie as lengthening the odds against the deaths being natural? . . .

184. . . . we conclude that there is some substance to the criticism that the judge appeared to endorse the prosecution’s erroneous approach in this particular . . .’

(x) Notwithstanding that conclusion the court did not consider the convictions unsafe. As quoted by Auld LJ (at [166], below), it stated its conclusions thus:

‘272. . . . we consider that there was an overwhelming case against the appellant at trial. If there had been no error in relation to statistics at the trial, we are satisfied that the jury would still have convicted on each count. In the context of the trial as a whole, the point on statistics was of minimal significance and there is no possibility of the jury having been misled so as to reach verdicts that they might not otherwise have reached . . .

273. It follows that in our judgment the error of approach towards the statistical evidence at trial . . . did not render the convictions unsafe.’

[85] Although I recognise the force of my Lords’ conclusions, I am not persuaded that those considerations lead to the conclusion that Professor [Meadow] was not guilty of serious professional misconduct when he used the statistics as he did as part of his evidence that, in his opinion, the deaths of the children were not natural. I recognise that he had other reasons for his opinion, that there was other evidence which supported it, that the defence was able to cross-examine him on the statistics and of course that he was not responsible for the way in which prosecuting counsel addressed the jury or for the way the defence conducted the case. However, to my mind, none of that justifies the evidence he gave arising out of the statistics.

[86] None of it justifies Professor Meadow’s decision to give the evidence summarised at [79] and [80], above in which he related the statistics to these deaths. The views of the second Court of Appeal quoted at [82], above, are in my opinion plainly correct and, in so far as there is any difference between those views and the views of the first Court of Appeal, are to be preferred. Auld and Thorpe LJJ have expressed the views of the second Court of Appeal as tentative. I would prefer to describe them as provisional.

[87] The judge accepted that Professor Meadow could properly be criticised for not making it clear that he was not an expert statistician but ultimately expressed his conclusions in this way (at [54], [55]):

‘. . . I have no doubt that that conclusion is not justified by the evidence before the FPP . . . he made one mistake, which was to misunderstand and misinterpret the statistics. It was a mistake, as the panel accepted, that was easily and widely made. It may be proper to have criticised him for not disclosing his lack of expertise, but that does not justify a finding of serious professional misconduct.

[55] Ms Davies submits that the conclusion that the appellant had acted in good faith and that there was no evidence of calculated or wilful failure to use his best endeavours to provide evidence precluded a finding of serious professional misconduct. I accept that such a finding can be made even though there has been no bad faith or recklessness. But it will only be in a very rare case that such a finding will be justified. The lapses in question must be serious indeed to lead to such a finding in the absence of bad faith. I am satisfied that the lapses in this case did not justify the finding.’

[88] I accept the judge’s conclusion that it will be a rare case in which a person should be held to be guilty of serious professional misconduct in the absence of bad faith and I entirely accept that Professor Meadow was held not to have acted in bad faith or to have intended to mislead the court or anyone else. I also agree that, as the judge put it, the lapse in question must be serious indeed before the conduct in question can be regarded as serious professional misconduct. Auld LJ noted (at [201], below) that it is common ground that serious professional misconduct may take the form of incompetence or of negligence of a high degree. All depends upon the circumstances of the particular case.

[89] It is important to have in mind that the way a case is developed at and before trial is essentially a matter for the parties and their lawyers and that an expert must not be blamed for the shortcomings of the lawyers or indeed the judge. Equally, proper account must be taken of what Auld LJ describes as the alien confines of the witness box, where the witness is giving evidence in an adversarial contest in which the judge and the lawyers hold sway. All questions of legal relevance and admissibility are for the parties and the judge and not for the expert. As Auld LJ puts it (at [205], below), it is important to assess the expert’s conduct in the forensic context in which the allegations arise and it is of great importance to take account of the circumstances in which he came to give the evidence and of the potential effect on the outcome. I do not think, however, that it is relevant in deciding the question whether he is guilty of serious professional misconduct (as opposed to the question of penalty) to take account of the actual outcome.

[90] On the other hand, I agree with Auld LJ that none of this absolves the expert from what he calls (at [207], below) professional or forensic impropriety in the presentation and form of his evidence, although his conduct must be judged in the context of the particular circumstances in which he or she is placed.

[91] The difference between the view that I have formed and that formed by my Lords is not on the question whether Professor Meadow was guilty of professional misconduct but whether he was guilty of serious professional misconduct. I agree with the conclusions which Auld LJ sets out (at [210], below), which he expresses in this way:

‘The first [starting point] is that Professor Meadow was undoubtedly guilty of some professional misconduct. In his preparation for, and presentation of evidence at, the trial of Mrs Clark he fell below the standards required of him by his profession. Although not an expert in the use of statistics or calculation of probability, he put forward a theory of improbability of recurrence of unexplained and seemingly natural infant deaths, applicable only where recurrence occurred in familial, environmental and economic circumstances wholly independent of those of a first such death. In doing so, he relied initially on statistical figures of uncertain source and scientific validity and then on those in the CESDI report, which had nothing to do with the probabilities of recurrence in any individual case, and which, in any event, he misunderstood and, by implication and the use of an inappropriate analogy, misapplied. In addition, and importantly, he did not expressly draw the court’s attention to the fact that he had no expertise in the field of statistics or calculations of probability in this or any other field.’

[92] These seem to me to be serious shortcomings. The essential features of his evidence which have persuaded me that Professor Meadow’s shortcomings amount to serious professional misconduct and not simply to professional misconduct are that he did not simply state that the statistics were relevant only to SIDS deaths, which these were not, and that they were not relevant to and did not help to decide whether the deaths of the children were caused by natural causes. On the contrary, the way in which he gave the evidence quoted at [79] and [80], above, in my opinion suggested that his opinion was that the 73 million to 1 statistic, the one in a hundred years’ chance and the Grand National analogy all applied to the chances of these deaths being caused by natural causes. The second Court of Appeal expressed that opinion ([2003] 2 FCR 447 at [102], [175] (quoted at [82], above)), albeit without hearing full argument on the point, and I agree. To put it at its lowest, there was to my mind a serious risk that the jury would so understand the evidence and accept it.

[93] I entirely accept that Professor Meadow did not intend to mislead the court and that he honestly believed in the validity of his evidence when he gave it. I also accept that some of the FPP’s reasoning was flawed. Thus (as stated above) I do not think that it was right in the circumstances of this case to judge Professor Meadow more harshly because of his undoubted eminence. Also I do not think that he can fairly be criticised in relation to the figure of 1 in 1000. It was his use of the squared figures which is open to criticism. Moreover I quite understand that in giving his oral evidence he was answering questions asked by counsel.

[94] Nevertheless, none of the points which can be made in Professor Meadow’s defence, either singly or when taken together, seem to me to negative the key points set out above. In particular, although (as already stated) Henry LJ said that, although he can be criticised for not helping to explain the limited significance of the figures, he did not misuse the figures, that seems to me to be a very narrow view. It is true that the figures related to SIDS deaths and these were not SIDS deaths and that at the trial it was not said that they were, it seems to me that Professor Meadow did misuse the figures in that he applied the 1 in 73 million figure to the deaths of these children without qualification in the context of his opinion that the deaths were not natural. Moreover, he did so by using colourful language including the reference to the one in a hundred year chance and the Grand National analogy.

[95] It is true that Professor Meadow did not intend to mislead the jury and that no one challenged what he did but, as Kay LJ put it (at [102], [175], quoted above), that was the picture that would be uppermost in the jury’s minds and was tantamount to saying that without consideration of the rest of the evidence one could be just about sure that this was a case of murder. In my opinion Professor Meadow should have appreciated that there was (to put it no higher) a serious risk that that would be the effect on the jury and should not have made the unqualified statements that he did. In short this is one of those rare cases in which the FPP was correct to hold that the expert was guilty of serious professional misconduct without acting in bad faith.

[96] For these reasons I would have allowed the appeal. Since this is a minority view, the question of sanction does not arise. However, it is right to observe that the GMC did not seek to uphold the sanction of erasure from the register. It was in my opinion correct not to do so. In all the circumstances of the case, erasure was not appropriate. Indeed, given the professor’s experiences since the trial, the mitigating factors referred to by Auld LJ, his long and distinguished service to the public and his age a finding of serious professional misconduct would be enough.

JUDGMENTBY-2: AULD LJ

JUDGMENT-2:
AULD LJ:

Introduction

[97] Professor Sir Roy Meadow is an eminent paediatrician. He is now aged 73, and, before the FPP proceedings he had retired from the clinical practise of medicine. He had long held a well-deserved reputation as one of the pre-eminent paediatric and child healthcare specialists in this country, through his clinical practice, his published research, the giving of lectures and the giving of evidence in family and criminal proceedings on child abuse. His eminence had been marked by a number of positions in the world of paediatric medicine, notably in his presidencies of the British Paediatric Association and of the Royal College of Paediatrics and Child Health.

[98] In 1998 Professor Meadow was instructed by the Cheshire Constabulary to provide a medical opinion on the causes of the successive deaths of each of the two infant sons, Christopher and Harry, of Mrs Sally Clark and her husband, Mr Stephen Clark. There were a number of similarities relating to each death, one of which was that they had occurred whilst in the care of Mrs Clark and in the absence of her husband. Professor Meadow reviewed all the material provided to him by the police, including the reports of the findings of the pathologists who had conducted the post mortems. In 1998 he provided the police with a report expressing the view, on the pathological and other information put before him, of the improbability of their deaths from natural causes and as having the characteristics of deaths caused by a parent. He included in his report a brief reference, under the heading, ‘Two Infant Deaths in One Family’, to some statistics as to the likely occurrence and recurrence of a sudden and unexplained unexpected infant death in a family, known as ‘Sudden Infant Death Syndrome’ (SIDS). This reference derived from a study in 1981 of the American National Institutes of Health on ‘sudden death of an infant unexpected by history, and which remains unexplained after a thorough investigation of the circumstances of death and the conduct of a post-mortem to a satisfactory standard’.

[99] Professor Michael Green, a consultant pathologist to the Home Office also provided the police with a report, in which, in reliance on the pathological material and information as to the circumstances of each death, he too opined that the deaths were not due to natural causes.

[100] Largely on the strength of the expressed views of those two experts, the police charged Mrs Clark with the murder of her sons. Both gave evidence at the committal proceedings and at trial. Professor Meadow’s principal evidence, like that of Professor Green was as to the significance of the pathological and circumstantial evidence relating to each death. But, in circumstances to which I shall return in a little more detail, he also spoke of and developed the point made in his witness statement on the SIDS statistics. The jury, by a majority of ten to two, found her guilty of murder of both children.

[101] In 2000 Mrs Clark appealed unsuccessfully to the Court of Appeal against those convictions (R v Clark [2000] All ER (D) 1219). The court found the pathological and circumstantial evidence to be overwhelming proof of guilt, regardless of the various complaints made in the grounds of appeal, one of which went to Professor Meadow’s use of the statistics. The court regarded that evidence as irrelevant to the issue whether the deaths of Mrs Clark’s infants had been natural or unnatural, voiced no criticism of Professor Meadow as to his use of it, expressed some concern that the trial judge had not ruled it inadmissible or given a stronger warning to the jury about it than he did, but held that it did not, in the light of the other evidence, render the conviction unsafe.

[102] Subsequently, it was discovered that the pathologist, Dr Alan Williams, who had conducted the post mortem of Christopher and the initial post mortem of Harry, had not disclosed to the prosecution or at trial highly relevant results of certain biological tests on Harry. That led the Criminal Cases Review Commission to refer her case back to the Court of Appeal, which this time upheld her appeal. It did so, on the basis of that non-disclosure. It did not order a re-trial since the prosecution did not seek it, having regard to the fact that, if the non-disclosed material had been disclosed and considered at the time, it was likely that further tests, not possible years after the event, would have been undertaken. In the circumstances, the court did not need to, and did not, hear full argument or any evidence on the implications for the safety of her convictions of Professor Meadow’s statistical evidence. Nevertheless, it expressed, albeit tentatively, some concern about the possible impact of that evidence on the jury, and stated that, if the point had been argued before the court, it would probably have provided ‘a quite distinct basis upon which the appeal had to be allowed’ (see [2003] EWCA Crim 1020 at [180], [2003] 2 FCR 447 at [180]).

[103] In the light of the success of Mrs Clark’s appeal and of that tentative indication by the court, Mrs Clark’s father complained to the General Medical Council (GMC) that Professor Meadow, in his use of the statistics in his capacity as an expert witness for the prosecution, acted outside the range of his expertise and that his evidence was so flawed that it amounted to serious professional misconduct. The FPP, following a 16-day hearing in late June and early July 2005, found him guilty of serious professional conduct, and ordered the erasure of his name from the Register of Medical Practitioners.

[104] Professor Meadow appealed the finding of, and sanction imposed by, the FPP to the High Court pursuant to s 40 of the Medical Act 1983, and on 17 February 2006 Collins J allowed the appeal (see [2006] EWHC 146 (Admin), [2006] 2 All ER 329, [2006] 1 WLR 1452). In doing so, he held: (1) that Professor Meadow was entitled to immunity from regulatory proceedings before the FPP arising out of his evidence in the trial of Mrs Clark, an immunity which the judge ruled-based as it was on public policy that witnesses should not be deterred from giving evidence by fear of subsequent proceedings arising from their evidence-applied to regulatory or disciplinary proceedings as well as civil suits in the courts, and whether or not it was given dishonestly or otherwise in bad faith; and (2) if, contrary to his view, the immunity did not extend to the proceedings before the FPP, (a) although the proceedings were not limited to a review, the test for intervention by the court was whether it considered the finding or sanction to be ‘clearly wrong’, and (b) that he considered the FPP’s finding and sanction were clearly wrong, since, in his view, Professor Meadow’s error consisted in making only one mistake, namely of misinterpretation and misunderstanding of the evidence.

[105] The GMC, in challenging the judge’s rulings and findings, seek to restore the FPP’s finding of serious professional misconduct, but not the sanction of erasure, suggesting instead that he should be subject to a condition not to undertake medico-legal work.

Part 1

Immunity from FPP proceedings

[106] I respectfully agree with Sir Anthony Clarke MR, for the reasons he has given, that Professor Meadow has no immunity from disciplinary proceedings before the FPP in respect of his evidence in the murder trial. In deference to the concerns expressed by Thorpe LJ in his judgment about the problems of securing expert evidence in the family justice system, and having regard to the important issue of principle raised as to the common law limits of witness immunity, I add a few words of my own.

[107] There are two complementary starting points for consideration of the principle.

[108] The first is that immunity from suit for anything done or said in the course of judicial proceedings is itself an exception from the operation of the most fundamental feature of our system of law that breach of it should be remediable through the courts. Ubi jus, ibi remedium.

[109] The second, witness immunity from civil suit, came into being a long time ago for the same purpose, to protect the integrity of the legal system so that those who administer justice and those who seek it, or help those who seek it, are not deterred from doing so by the possibility or threat of subsequent civil suit arising out of what they say or do in the proceedings.

[110] These complementary-but in the limited exception of the one to the other-also opposing, principles require that the exception should extend no further than necessary to ensure that justice may be sought and administered without constraint in the courts. To that end, the immunity should apply and extend only in so far as it is necessary to achieve that purpose. Hence the few, but well-established, exceptions to the immunity of suits for malicious prosecution, prosecutions for perjury and proceedings for contempt of court, a common feature of which, if well based, is to prevent abuse of the process of the courts for unlawful ends.

[111] For the system to function efficiently and with justice to all who may be affected by the prospect of recourse to subsequent proceedings arising out of what they have said or done in court, those who may be, or who may consider themselves, vulnerable to such complaint must have certainty as to whether they are immune and, if so, that their immunity is absolute.

[112] The fact that a witness-expert or otherwise-may be deterred from making himself available to give evidence in civil, criminal or other judicial proceedings for fear of disciplinary proceedings by his professional body arising out of serious professional misconduct by him in the witness box is no basis for extending the immunity to such proceedings. There is high and firm authority militating against any such extension, to which Sir Anthony Clarke MR has referred; see in particular the reasoning and citation of authorities by Lord Clyde in Darker (suing as personal representative of Docker, decd) v Chief Constable of the West Midlands Police [2000] 4 All ER 193 at 205-206, [2001] 1 AC 435 at 456-457. It is important to emphasise that we are talking about serious professional misconduct here, not some civil wrong falling short of it, but of disciplinary proceedings in protection of the profession and the public.

[113] That, it seems to me, is the answer to Collins J’s purported justification ([2006] 2 All ER 329 at [17], [2006] 1 WLR 1452), for his extension of the immunity from civil suit to disciplinary proceedings so as not to deter medical practitioners, in particular paediatricians, from giving evidence in court. The reason why the immunity should not be extended to professional disciplinary proceedings is that, to enable expert witnesses to give evidence unconstrained by their professional codes of conduct and/or the accepted norms of their profession, would run contrary to the public policy for immunity, which is based on the need to protect the administration of justice. Put in another way, why should an expert witness be entitled to go into the witness box secure in the knowledge that what he says will have immunity not only from civil suit, say in negligence or other civil wrong, but also disciplinary proceedings for conduct so bad that, if established, would bring his profession into disrepute and, if unchecked, be potentially harmful to the public?

[114] For similar reasons, and for those given by Sir Anthony Clarke MR (at [64], [65], above), I can see no logical basis or one that is permitted to us on authority for extending the immunity, as suggested by Miss Davies, to expert witnesses, and paediatricians in particular, in respect of professional misconduct falling short of a crime.

[115] As to Collins J’s suggestion (at [22]-[26]), that, a judge could, on a case by case basis, set aside the immunity he proposed by referring a witness’s conduct he regards as particularly bad to the appropriate disciplinary body, I can see nothing but disaster. The frailty of such a suggestion lies in Collins J’s observation (at [25]) that ‘[t]he precise boundaries of the immunity will have to be established on a case by case basis’. It goes to the very root of the core principle of immunity that it must be certain in its extent and it must be absolute. And that must be equally so where the boundary line is between-in the case of medical practitioners-serious professional misconduct or no, or between serious professional misconduct and serious professional conduct so bad (‘super serious professional misconduct’) that a judge in a particular case considers it necessary to refer the matter to a disciplinary body. As Sir Anthony Clarke MR has put it (at [53], above), that would make the trial court or this court the sole arbiter, on a case by case basis, as to who should be immune and who should not. It is difficult to see how such a proposal can stand with the imperative of the need for certainty articulated by Lord Hoffmann in Taylor v Director of the Serious Fraud Office [1998] 4 All ER 801 at 813-814, [1999] 2 AC 177 at 214, and by Lord Clyde in Darker’s case [2000] 4 All ER 193 at 206, [2001] 1 AC 435 at 457. Lord Hoffman said: ‘. . . the person must know at the time he speaks whether or not the immunity will attach.’ Lord Clyde said:

‘. . . there has to be some degree of certainty about the existence of an immunity for it to be effective. The matter cannot be entirely left as one to be determined on each and every occasion. For the immunity of a witness to be effective it is necessary that the person concerned should know in advance with some certainty that what he or she says will be protected. So even although the matter may depend in any case upon a balancing of interests it ought to be possible to predict with some confidence whether or not an immunity will apply. The law has sought to achieve this by making it clear that the substance of the evidence presented to the court in judicial proceedings will be immune from attack.’

[116] For similar reasons, I agree with Sir Anthony Clarke MR’s conclusions, at [28]-[30], [34], [66] and [67], above, that there is no basis upon which this court could distinguish in this respect between medical practitioners, paediatricians in particular, from other professional persons called upon to give expert evidence in the courts. Such distinction, would be highly case-sensitive, and difficult objectively to draw on a case by case basis, the distinction presumably turning on the relative degree to which members of different professions may be deterred from giving expert evidence when called upon to do so, because of their vulnerability to disciplinary proceedings if they misconduct themselves professionally in the witness box. If change, or fine-tuning, in this respect is required-as it may be-it is a matter for the legislature, not for the courts.

Part II

Serious professional misconduct

The s 40 test

[117] Section 40 of the 1983 Act provides for an appeal from a decision of the FPP ordering erasure to the High Court. The basis on which such a decision can be challenged is to be found in the Civil Procedure Rules and Practice Direction. CPR 52.11 provides, so far as material:

‘(1) Every appeal will be limited to a review of the decision of the lower court unless-(a) a practice direction makes different provision for a particular category of appeal; or (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.’

The Practice Direction to Pt 52 does provide otherwise for appeals to the High Court under s 40 of the 1983 Act, requiring them to be supported by written evidence and, if the court so orders, oral evidence, and to be ‘by way of re-hearing’ (see CPR 52 PD 22.3(2)).

[118] CPR 52.11 also provides:

‘(2) Unless it orders otherwise, the appeal court will not receive-(a) oral evidence; or (b) evidence which was not before the lower court;

(3) The appeal court will allow an appeal where the decision of the lower court was-(a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

(4) The appeal court may draw any inference of fact which it considers justified on the evidence.’

[119] The judge dealt shortly with the test for the High Court on an appeal under s 40. He noted that such an appeal is not limited to a review, but said that the court would not interfere unless persuaded that a decision, whether in respect of a finding of misconduct or of sanction was ‘clearly wrong’, the test with which, without further gloss, he said he would apply.

[120] Appeals under s 40 were transferred from the Privy Council to the High Court on 1 April 2003 [a]. As Mr Henderson noted, the Privy Council, shortly before, in Ghosh v General Medical Council [2001] UKPC 29, [2001] 1 WLR 1915, and Preiss v General Dental Council [2001] UKPC 36, [2001] IRLR 696, [2001] 1 WLR 1926, had begun to distance itself from earlier expressions of deference to specialist regulatory and disciplinary bodies. The change of approach, which, it seems to me, is more of emphasis than clear definition, is that, though such disciplinary bodies are in general better able than the courts to assess evidence of professional practice in their respective fields, the courts should still accord them an appropriate measure of respect (see eg Council for the Regulation of Healthcare Professionals v General Medical Council, Council for the Regulation of Healthcare Professionals v Nursing and Midwifery Council [2004] EWCA Civ 1356, [2005] 1 WLR 717). Those were undue leniency appeals by the Council for the Regulation of Health Care Professionals under s 29 of the National Health Service Reform and Health Care Professions Act 2002 against decisions of the relevant regulatory bodies to take no or no adequate disciplinary action. Lord Phillips of Worth Matravers MR, as he then was, giving the judgment of the court in Council for the Regulation of Healthcare Professionals v General Medical Council, said (at [78]):

‘. . . Where all material evidence has been placed before the disciplinary tribunal and it has given due consideration to the relevant factors, the council and the court should place weight on the expertise brought to bear in evaluating how best the needs of the public and the profession should be protected . . .’

However, the courts should be ready in appropriate cases and, if necessary, to substitute their own view for that of disciplinary bodies.

Submissions

[121] The impetus for the change of emphasis to less deference by the courts to specialist tribunals and the Practice Direction requirement for s 40 and like appeals to be by way of rehearing was, submitted Mr Henderson, prompted by the Human Rights Act 1998, to introduce, where necessary, appeal processes that could cure any defect in disciplinary procedures below, namely by way of rehearing. However, he maintained, drawing on observations of Collins J in Nandi v General Medical Council [2004] EWHC 2317 (Admin) at [29], [2004] All ER (D) 25 (Oct), and in Watson v General Medical Council [2006] EWHC 18 (Admin), [2006] All ER (D) 107 (Jan), that there was no longer need for any significant change from the pre-Ghosh and Preiss position, certainly so far as s 40 appeals are concerned, since the reorganisation in 2002 of the GMC’s disciplinary processes, have now made them more art 6 compliant. In Watson v General Medical Council, Collins J said (at [11]):

‘The Privy Council rarely if ever had witnesses give evidence before it. There is no reason to believe that when Parliament provided that appeals should come to this court instead it intended to widen the scope of those appeals. In Nandi v General Medical Council I considered this question and observed that the Practice Direction 22.3(2), which disapplied CPR 52.11(1), was inappropriate. It may be that it reflected a view that art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) required fuller appeal rights since at that time there were doubts about the independence of the GMC committees. The reforms have established that the FPPs now have sufficient independence to mean that an appeal which is in the form of a review is all that is needed to comply with art 6.’

[122] By that route, Mr Henderson submitted, this court should now treat as otiose, and disregard, the requirement in the Practice Direction that a s 40 appeal must be by way of re-hearing, and accord the FPP the due deference that, he claims, Collins J did not. He likened the role of the GMC’s FPPs to specialist juries charged with determining whether the facts found by them constitute serious professional misconduct-a value judgment upon which differently constituted panels might reasonably differ, closely analogous to the exercise of a discretion on which the courts should not readily intrude, citing Mance LJ, as he then was, in Todd v Adam [2002] EWCA Civ 509 at [129], [2002] 2 All ER (Comm) 97 at [129], Clarke LJ, as he then was, in Assicurazioni Generali SpA v Arab Insurance Group (BSC) [2002] EWCA Civ 1642 at [15]-[17], [2003] 1 All ER (Comm) 140 at [15]-[17], [2003] 1 WLR 377, and the approach of Stanley Burnton J in Threlfall v General Optical Council [2004] EWHC 2683 (Admin) at [20], (2004) Times, 2 December, that, although the Practice Direction required an appeal to be by way of re-hearing, ‘a re-hearing in this context is in general a review of the decision of the lower court’.

[123] Mr Henderson submitted, therefore, that Collins J erred in identifying the test as whether the decision of the FPP was ‘clearly wrong’ without identifying the basis upon which he could so find. He said that an approach of expressly allowing appropriate deference in an appellate review to the judgemental process of a professional regulator would provide a more objective and valid approach to a determination whether the evaluation was wrong or ‘clearly’ wrong. It is not clear, he submitted, that that was how Collins J approached it.

[124] Miss Davies challenged the rationale of Mr Henderson’s contention that there is no longer any need for the Practice Direction’s requirement of a re-hearing in such appeals, and submitted that, in any event, the Practice Direction remains in force and the court is not entitled to disregard it. She accepted the ‘clearly wrong’ test, but not on the basis urged by Mr Henderson, of it being outside the range of reasonable judgment of a properly advised and directed FPP, which she suggested, smacked inappropriately of a Wednesbury irrationality approach (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223). She regarded it as a reflection of the Ghosh, Preiss and Todd v Adam approach, namely of the appellate tribunal making its own decision on the facts found below subject to giving the FPP such appropriate respect as it deserves in the circumstances.

Conclusion

[125] For the following reasons, I can see no basis for faulting Collins J’s simple expression of the test, save that I doubt whether the adverbial emphasis of ‘clearly’ adds anything logically or legally to an appellate court’s characterisation of the decision below as ‘wrong’.

[126] First, whatever the rationale behind the Practice Direction requirement of a rehearing and whatever the strength or otherwise of Mr Henderson’s arguments for saying that it has now disappeared, there is no basis on which the court can disregard its requirement that the appeal ‘be by way of re-hearing’ as ‘otiose’. The Civil Procedure Act 1997, pursuant to which the CPR are made and have legal force, provides, in para 6 of Sch 1, that they may, instead of providing for any matter, refer to a provision made or to be made about that matter by directions, which is what CPR 52 PD 22.3(2) does.

[127] Secondly, if there is anything in practice between the contentions of Mr Henderson and Miss Davies on this point, it so finely shaded as to be of no practical importance in the circumstances of this case. First, whether the appeal is by way of ‘review’ under CPR 52.11(1) or a re-hearing under CPR 52.11(1)(a) by reason of the Practice Direction, the material test for quashing a decision of the FPP is whether, as provided in CPR 52.11(3)(a), it is ‘wrong’. Collins J’s conclusion was that the FPP’s decision was ‘clearly’, or plainly, wrong because it was ‘not justified by the evidence before the FPP’ (see [2006] 2 All ER 329 at [54], [2006] 1 WLR 1452). His subsequent analysis of the FPP’s treatment of the matter shows that his approach fell within both formulations of the test to the extent, if at all, that they differed in the circumstances here.

[128] Thirdly, given the structure of CPR 52.11, the difference between a ‘review’ and a ‘re-hearing’ is clearly thin and variable according to the circumstances and needs of each case, not least in the stipulation in CPR 52.11(2) of the norm for both processes of no oral evidence or evidence not before the lower court. The analysis of May LJ in EI Du Pont De Nemours & Co v ST Dupont [2003] EWCA Civ 1368 at [92]-[98], [2004] IP & T 559 at [92]-[98], [2006] 1 WLR 2793, is instructive on the overlap between the two, namely that a ‘re-hearing’ in CPR 52.11(1) may, at the lesser end of the range, merge with that of a ‘review’, and that ‘[a]t this margin, attributing one label or the other is a semantic exercise which does not answer such questions of substance as arise in any appeal’. But even when a review is a full re-hearing in the sense of considering the matter afresh, if necessary by hearing oral evidence again and, even admitting fresh evidence, the appellate court should still, said May LJ (at [96]), ‘give to the decision of the lower court the weight that it deserves’. This elasticity of meaning in the word ‘re-hearing’ in CPR 52.11 should clearly apply also to the same word in the Practice Direction. It all depends on the nature of the disciplinary tribunal, the issues determined by it under challenge and the evidence upon which it relied in doing so, how the High Court should approach its task of deciding whether the decision of the tribunal was, as provided by CPR 52.11(3)(a) ‘wrong’, and, whether on the way to reaching such a conclusion, it draws, pursuant to CPR 52.11(4) ‘any inference of fact which it considers justified on the evidence’.

The FPP’s finding of serious professional misconduct-the facts

SIDS

[129] The main thrust of Professor Meadow’s evidence in the trial of Sally Clark, giving rise to the disciplinary proceedings before the FPP was, as I have said, within his expertise as a paediatrician, and not the subject of any complaint. It was his treatment of the statistics towards the end of his evidence-in-chief in response to questions by Mr Robin Spencer QC, leading counsel for the prosecution, and then in cross-examination by Mr Julian Bevan QC, leading counsel for the defence, that led to the proceedings before the FPP.

[130] The starting point for that evidence lay in the short reference to SIDS that he included in his first witness statement provided to the police in June 1998 and which was read in the committal proceedings in May 1999 as his evidence-in-chief. The main focus of that evidence was consideration, in the light of the pathological material before him and his clinical findings, of various possible alternative causes of death, with a view to determining a possible or probable cause of each death. The statement included the following passage under the heading ‘Two Infant Deaths in One Family':

‘Even when an infant dies suddenly and unexpectedly in early life and no cause is found at autopsy, and the reason for death is thought to be an unidentified natural cause (Sudden Infant Death Syndrome) ["SIDS"], it is extremely rare for that to happen again within a family. For example, such a happening may occur 1:1,000 infants, therefore the chance of it happening twice within a family is 1:1m. Neither of these two deaths can be classified as SIDS. Each of the deaths was unusual and had the circumstances of a death caused by a parent.’

[131] There is no doubt that that statement, if and when given in evidence at trial, would tend to negative any SIDS defence and thus support in the eyes of the jury a view that the deaths were not natural.

[132] However, as only later identified on appeal, the conversion, or ‘squaring’, in this passage of the odds of 1:1,000 deaths for one death to 1:1m deaths is only valid if each of the deaths is truly independent of the other, that is without, at the very least, the shared genetic and environmental circumstances of the children being members of the same family. So squaring of this sort should only be considered valid where true independence of each event from the other has been established.

The committal proceedings

[133] In the committal proceedings in June 1999, Mr John Kelsey-Fry, counsel for Mrs Clark, put to Professor Meadow various research papers as a basis for suggesting that there was a greater risk of SIDS than represented by the statistics included in his witness statement put in evidence, but did not challenge the propriety of his recourse to such evidence. Professor Meadow adhered to his evidence on this, and also referred to a paper of his entitled ‘Unnatural sudden infant death’, published in Archives of Disease in Childhood, in January 1999-that is, after he had made his witness statement-of a study of 81 children, including in a number of instances two or more children in the same family, thought to have died of natural causes, but subsequently found to have been killed. The paper included the following passage:

‘The reason that more than half the reported families included more than one dead child is likely to be because the courts were impressed by evidence that it was highly improbable for two or more children to die in infancy of undiagnosable natural causes: “if there is a 1/1000 chance of a child dying suddenly and unexpectedly of natural causes in the first year of life, the chance of two children within a family so dying is 1/1 000 000″. A parent who kills only one child is much less likely to be incriminated than one who kills or abuses two or more. Nevertheless, the finding of 26 serial killers is worrying.’

[134] When asked, later in the trial and in his evidence to the FPP, about the source of the apparent quotation in that passage, he said that he thought it had come from someone in the audience at a lecture he had given, and that he put it on a blackboard, but he could not recall when or where. Later, he indicated that the figure of 1/1,000 could have come from him, but he wasn’t sure, but that, if it had, it was not a product of his own experience; it was ‘a ball park figure for the incidence’ of SIDS over the period covered by the paper; and the 1/1,000,000 figure resulted from his squaring of the 1/1,000 figure: ‘I squared it because I did not think there was a meaningfully increased recurrence rate of sudden infant death syndrome, so it seemed to me a legitimate thing to do.’

[135] Whatever the provenance and/or accuracy of the 1 in 1,000 figure, it is now common ground that his squaring of it to produce a 1 in 1 million chance against recurrence was statistically unsound in that it wrongly assumed independence of the two deaths without stating the assumption. To have any relevance to a case of two unexplained and seemingly natural infant deaths in the same family, it should have been based on an assumption of dependence between the two deaths, so as to produce a greater risk, that is a significantly lower figure than that of the 1 million resulting from the squaring exercise. In short, the failure to assume such dependence invalidated the squaring exercise.

The Confidential Enquiry into Stillbirths and Deaths in Infancy (CESDI) report

[136] In August 1999, shortly after the committal of Mrs Clark for trial, Professor Meadow, at the request of Professor Fleming, Professor of Infant Health and Development Physiology at the Institute of Child Health at Bristol University, wrote a preface to a report in draft of a study of which Professor Fleming was the main author, known as ‘the CESDI Study’, commissioned by the Department of Health. It was a study of factors contributing to sudden and unexpected deaths in infancy. But it was not intended to inform the reader, by way of statistics or otherwise, of the probabilities of recurrence of such deaths in the same family. The draft of the report sent to Professor Meadow to enable him to write his preface indicated a ratio of about one SIDS death to every 1,300 deaths-i e not far removed from the 1 in 1,000 in his 1999 paper. It identified three important, but not the only, factors, capable of lessening that ratio, that is, households at increased risk of such a death, namely those with smokers and/or with no wage-earners and/or with mothers below the age of 26, none of which applied to Mrs Clark’s family.

[137] The draft CESDI report contained a table, with accompanying explanatory text, showing that, for infants in families with all three increased risk factors present, the risk was 1 in 214, compared with a risk of 1 in 8,543 for infants in families with none of those factors. But it produced odds of 1 in 73 million-that is, dramatically higher than the 1 in 1 million that Professor Meadow had quoted in his 1999 paper for a second SIDS death in the same family, the principal source of what was later to give rise in his evidence to what has been called ‘the prosecutor’s fallacy’, namely the fallacious use of statistics in evidence to create a false impression [b]. The passage in the draft report accompanying this analysis continued with the following important caveats where two unexplained infant deaths occur in a family, and nowhere suggested that the statistical information in the table would enable diagnosis of the cause of an unexplained and seemingly unnatural death in an individual case.

‘Since the factors will generally remain the same (with the possible exception of maternal age below 27 years) for a subsequent child, the risk of SIDS to a subsequent child in a family in which one infant has already died will range from 1 in 214 to 1 in 8543. This does not take account of possible familial incidence of factors other than those included in the above table.

For a family with none of these three factors, the risk of two infants dying as SIDS by chance alone will thus be 1 in (8543 x 8543) i e approximately 1 in 73 million. For a family with all three factors the risk will be 1 in (214 x 214) i e approximately 1 in 46,000. Thus, for families with several known risk factors for SIDS, a second SIDS death, whilst uncommon, is 1600 times more likely than for families with no such factors. Where additional adverse factors are present, the recurrence risk would correspondingly be greater still.

. . . When a second SIDS death occurs in the same family, in addition to careful search for inherited disorder there must always be a very thorough investigation of the circumstances-though it would be inappropriate to assume maltreatment was always the cause.’ (My emphases.)

As will appear, only the table, of which that text was an explanation, not the text itself, was put before the jury at the trial in the Crown Court. It was given to them by Mr Spencer in the course of his examination-in-chief of Professor Meadow. And, as Collins J noted, the evidence of Professor Meadow at the trial, based on his understanding of that table, was largely the source of the complaint that led the FPP to its finding of serious professional misconduct.

[138] After committal and before trial, disclosure by the Crown of reports of Professor Fleming, led those representing Mrs Clark to retain him and Professor Berry, a co-author with him of the CESDI report, as defence experts for the trial, and to serve copies of their reports on the prosecution. Professor Meadow then provided a short supplementary witness statement adding a short passage from the CESDI report as to the new odds against two SIDS in the same family, an implication as to probability of recurrence which, as I have said, was an over-simplification or misunderstanding of the significance of the CESDI figure. This is how it read:

‘Since writing my report, I have read the reports of other medical experts.

Apart from non-accidental injury, no likely specific medical cause of death has been proposed. Thus, it is suggested that the deaths of both children should be considered as examples of SIDS.

The likelihood of SIDS rises with social circumstances. The most recent estimation of the incidence in England is that for a family in which the parents do not smoke, in which at least one has a waged income, and in which the mother is over the age of 26 years, the risk is 1 in 8,543 live births.

Thus the chance of two infant deaths within such a family being SIDS is 1 in 73,000,000.’

[139] The prosecution duly served the supplementary witness statement on the defence because it considered that had been part of Professor Meadow’s diagnostic exercise and because Professor Fleming’s and Professor Berry’s reports led it to anticipate that the defence would rely on SIDS at trial. In the event, they did not, but that did not become clear until Professor Berry went into the witness box for the defence. As Collins J observed ([2006] 2 All ER 329 at [37], [2006] 1 WLR 1452), the squaring exercise, applied this time to the much higher CESDI odds against two SIDS in one family, was not intended to be a guide to the risk of recurrence, but estimates drawn from mathematical modelling based on a statistically invalid assumption of true independence between two SIDS deaths in a single family.

[140] Shortly before the trial, Professor Meadow tried, without success, to contact Professor Fleming to check whether he had correctly understood the significance of the table. Professor Fleming, who, although retained to advise in the defence of Mrs Clark was not to be a witness at the trial, sent to her solicitors on 19 October 1999 a letter for use in cross-examination of Professor Meadow and other prosecution experts. In the letter, he commented in detail on Professor Meadow’s supplementary statement and the CESDI report, pointing out that he had not drawn attention to the many and significant qualifications to any application of the statistics in it, particularly in relation to two infant deaths in the same family. He summarised his warnings in this way:

‘. . . therefore, the risk scoring system which we have developed is primarily aimed at trying to identify families for whom the risk of a subsequent baby dying is substantially increased compared with the general population. Because of the extreme rarity of sudden death in families with none of these risk factors, the use of this risk score for such families is potentially less reliable.’

[141] Thus, as Collins J commented in his judgment, the defence were primed before trial to deal with such reliance as the prosecution and Professor Meadow in evidence might place on the CESDI statistics. However, at no stage during the trial did the defence challenge its admissibility or, save through the evidence of Professor Berry, the validity of the squaring exercise as an indicator of probabilities of causation.

The trial

[142] In the trial of Mrs Clark, which took place before Harrison J and a jury at Chester Crown Court in the Autumn of 1999, the prosecution case was that, although there was no direct evidence as to how each of the deaths had been caused, neither could be considered as SIDS, because of the presence of signs of recent and old injuries in each case. Its positive case, as summarised by Henry LJ, giving the judgment of the court in the first appeal to the Court of Appeal, Criminal Division (R v Clark [2000] All ER (D) 1219), was that there were similarities in the two deaths that would make it an affront to common sense to conclude that either was natural; it was beyond coincidence for history so to repeat itself. The similarities were that: (1) the babies died at the same age; (2) they were both found by Mrs Clark, and both, on one version given by her, in a bouncy chair; (3) they were found dead at almost exactly the same time in the evening, having been well and successfully fed shortly before, and at a time when she admitted she had become tired in coping; (4) on each occasion Mrs Clark was alone with the baby when, on her account, she found him lifeless; (5) on each occasion her husband was away from home or about to go away; (6) in each case there was evidence of previous abuse; and (7) in each case there was evidence of recent deliberate injury.

[143] In the case of Christopher, the prosecution’s evidence included that of three pathologists, Dr Williams, Professor Green and Dr Keeling, and Professor Meadow. Dr Williams had carried out the initial post mortem in both cases. In the case of Christopher, he had originally formed the view that some of the recent injuries could have been caused by attempts at resuscitation and that death had been natural, certifying the cause of death as lower respiratory tract infection. Because of that conclusion, there was no further post mortem in Christopher’s case. However, Dr Williams later changed his opinion. His evidence at the trial was that, while he could not exclude the possibility of some of the recent injuries to Christopher having been caused by attempts at resuscitation, the cause of his death was suffocation or smothering. And, contrary to his earlier conclusion, he now ruled out infection as a possible cause of death. (Kay LJ, giving the judgment of the second Court of Appeal, after considering the transcript of Dr Williams’s evidence at trial, noted ([2003] 2 FCR 447 at [55]) that he had been unable to explain why he had altered his position in that way, and commented that, at the very lowest, it called into question his competence.)

[144] Professor Green, Dr Keeling and Professor Meadow expressed the view that Christopher’s injuries were unlikely to have been a product of attempts at resuscitation, and Dr Keeling and Professor Meadow suggested the injuries were a sign of abuse and consistent with smothering. Their combined evidence, with the addition in the case of Professor Meadow, of the statistics derived from his paper and the CESDI report study, was that the deaths of the two boys were not from natural causes.

[145] In the case of Harry, because of his injuries, Dr Williams concluded from his post-mortem examination that he had not died naturally but had been shaken to death. In the light of that conclusion, there was a second post-mortem examination carried out by Professor Emery and Dr Rushton. Professor Meadow and Dr Smith, a consultant neuropathologist, expressed the view that it was not a natural death, and Professor Green and Dr Keeling, while not dismissing that as a possibility, considered the most appropriate diagnosis to be ‘unascertained’.

[146] The defence case was that both deaths were natural. However, when the defence experts, in particular Professor Berry, gave evidence, it became apparent that, while they were broadly supportive of the defence contention that the deaths were or could have been natural, they did not suggest that either was a true SIDS death. As Kay LJ observed in the court’s judgment in the second appeal (at [93]), on the medical evidence available at trial, this was a difficult case, since there was a wide difference of view in respect of each death as to the conclusions that could properly be drawn from it. Much depended in both cases upon the competence and reliability of Dr Williams’s evidence as to what he found in his post-mortem examinations, and if the jury could not be sure that either one of the deaths was murder, it would have been difficult in the state of the evidence for them to be sure that the other was.

[147] As to the statistical evidence given by Professor Meadow, Henry LJ in the first Court of Appeal, regarded it as of little or no relevance, commenting in the court’s judgment ([2000] All ER (D) 1219 at paras 109, 182) that, though the precise measure of rarity was not a significant issue by the end of the trial, the principle of rarity was.

[148] Mrs Clark gave evidence that she did not kill the boys or do anything that could have caused their deaths, and that they must have died of natural causes. Expert evidence called in her support included, as I have said, that of Professor Berry, one of the authors of the CESDI report, and also Dr Rushton and other paediatric specialists, two of them pathologists. The combined effect of their evidence in the case of each death was to cast doubt on the existence or significance of the observed injuries and to indicate their view that the cause of death could not be ascertained.

[149] Thus, in the case [of] each of the deaths, the only candidate for murder, if it was murder, was Mrs Clark, and the only options for causation were unnatural or natural death. The central issue was whether the prosecution could exclude death by natural causes. As Henry LJ put it (at para 15):

‘Thus the central issue on each count was whether the Crown could exclude death by natural causes. The effect of the medical evidence as a whole was that neither baby was the subject of a SIDS death and there was consensus, as the lowest common denominator, that each death was unexplained and was consistent with an unnatural death. But the medical evidence did not stand alone. In the circumstances the credibility of the parents’ evidence was crucial for the jury to consider. The absence of any explanation by the appellant for the medical findings, and the inaccuracy of the husband’s evidence [on one important matter] were matters of great potential significance.’

[150] When Professor Meadow began his evidence at the trial he outlined his medical qualifications, appointments present and past and his professional experience. None of that included or suggested any expertise in the field of statistics. However, he did not then, or later when referring to and giving his opinions on statistical matters, expressly disclaim any expertise in that field.

[151] Towards the end of Professor Meadow’s evidence-in-chief, Mr Spencer asked him about the CESDI report, to which he was then writing a preface. Professor Meadow began by saying that it was necessary to approach statistics with caution. He went on to describe the CESDI study as the largest, latest and most reliable in the country. As I have said, Mr Spencer then put the table in the report before the jury, but not the explanatory text containing the important qualifications (see [137], above). And, unfortunately Professor Meadow did not refer in his evidence to any of them. As to the table, he did not say that it represented the odds against Mrs Clark’s children having died natural deaths in the circumstances of this case or-put another way-that it supported the prosecution’s case by showing a probability that they had died from unnatural causes. However, that can only have been the only possible relevance, if any, of such evidence to the case, and was capable, without firm warning from the judge, of being so misunderstood by the jury.

[152] As to the evidence Professor Meadow did give about the table, he explained that it calculated the risk of two infants dying of SIDS in a family by chance: ‘you have to multiply 1 in 8,543 times 8,543 and . . . in the penultimate paragraph. It points out that it’s approximately a chance of 1 in 73 million.’

[153] He added: ‘in England, Wales and Scotland there are about say 700,000 live births a year, so it is saying by that happening will occur about once every hundred years.’

[154] And in response to the following question by Mr Spencer: ‘So is this right, not only would the chance be 1 in 73 million but in addition in these two deaths there are features which would be regarded as suspicious in any event?’ He replied, ‘I believe so’.

[155] As I have also indicated, at no point in the trial did Mr Bevan apply to have this evidence excluded on the ground of irrelevance or that it was unfairly prejudicial. Nor did he challenge in his cross-examination of Professor Meadow, the CESDI figures or the concept of squaring. On the contrary, his cross-examination about those matters suggested acceptance by the defence of the relevance of the evidence and the principle of squaring. His principal challenge, by way of suggestion, was that the figure of 1 in 8,543 for a single death from natural causes might be much too high, to which the Professor responded by adhering to the figure, but stating that, for practical purposes, the figure was a ‘starting point’ for the incidence of risk. When Mr Bevan asked him about the figure of 1 in 73 million for two deaths by natural causes, the Professor, in an analogy that he subsequently acknowledged had been insensitive, sought to illustrate it by reference to the odds of winning the Grand National in four successive years. He said:

‘A. . . . you take what’s happened to all the children into account, and that is why you end up saying the chance of two children dying naturally in these circumstances is very, very long odds indeed, one in 73 million . . .

A. . . . it’s the chance of backing that long-odd outsider at the Grand National . . . let’s say it’s an 80 to 1 chance, you back the winner last year, then the next year there’s another horse at 80 to 1 and it is still 80 to 1 and you back it again and it wins. Now here we’re in a situation that . . . to get to these odds of 73 million you’ve got to back that 1 in 80 chance four years running, so yes, you might be very, very lucky because each time it’s just been a 1 in 80 chance and . . . you’ve happened to have won it, but the chance of it happening four years running we all know is extraordinarily unlikely. So it’s the same with these deaths. You have to say two unlikely events have happened and together it’s very, very, very unlikely.

Q. Have you ever heard . . . the expression “Lies, damned lies and statistics”?

A. I don’t like statistics, but I’m forced into accepting their usefulness.’

[156] The defence case on the evidence was supported in part by evidence from Professor Berry to the effect that the risk of a SIDS death were inherently greater where there had already been one SIDS death. Whilst he accepted the 8,543 statistic in relation to a first SIDS death in low risk families as an observed figure, he regarded squaring it to calculate the risks of a second SIDS death to be an illegitimate over-simplification. And he drew attention to the accompanying warnings in the text of the CESDI report to which I have referred. Overall his position was that statistics do not enable determination in any individual case whether cause of death was natural.

[157] Harrison J dealt relatively briefly with this issue in his summing-up. He reminded the jury, without criticism or other comment as to the applicability or otherwise to the facts of this case, of the statistics in the table of the CESDI report. He gave them a very brief summary of Professor Meadow’s commentary in evidence of their effect and of his view that neither death was a SIDS death or a natural death. He then expressed the following words of caution about the statistics:

‘Reliance was also placed by the prosecution on the statistics mentioned by Professor Meadow for the probability of two SIDS deaths within the family, namely one in 73 million and even longer odds, it was said, if you take into account the existence of the old and fresh injuries, and reliance was also placed on the . . . similarities between the two deaths . . . and which the prosecution suggest make it beyond coincidence that these two deaths were natural deaths.

I should I think . . . just sound a note of caution about the statistics. However compelling you may find those statistics to be, we do not convict people in these courts on statistics. It would be a terrible day if that were so. If there is one SIDS death in a family it does not mean that there cannot be another one in the same family. That part of the evidence relating to statistics is nothing more than that. It is a part of the evidence for you to consider. Although it may be part of the evidence to which you attach some significance, it is of course necessary for you to have regard to the individual circumstances relating to each of these two deaths before you reach your conclusion on the two counts in the indictment.

Having said that . . . I turn then to what truly were the conclusions of the relevant experts relating to Harry . . .’ (My emphases.)

[158] The first Court of Appeal was to express concern about the adequacy of that caution.

The first Court of Appeal

[159] It was not until the case reached the Court of Appeal that any point was taken either as to the statistical validity of the CESDI figures or as to their inadmissibility as irrelevant to the issue of causation before the jury. It was then taken as one of five grounds of appeal. As I have indicated, the court dismissed the appeal on what it regarded as the overwhelming case against Mrs Clark at trial, having regard to the pathological evidence and the similarities between the two deaths.

[160] The ground of appeal as to the use of the statistics consisted of three related complaints, namely that: (i) the evidence given by Professor Meadow of the statistical probability of two SIDS deaths in one family undermined the safety of the convictions in that the figures cited were wrong; (ii) his opinion that the deaths were unnatural was wrongly founded in part on the statistical evidence; and (iii) the judge failed to warn the jury against the ‘prosecutor’s fallacy’ in appearing, in his summing-up, to endorse the prosecution’s erroneous use of the statistical evidence, including a comment made by Mr Spencer in his closing address to the jury, to which the judge referred in the part of his note of caution that I have italicised.

[161] Although Henry LJ, when giving the judgment of the court, considered each of these sub-grounds and the expert evidence before the jury on it in some detail, he nevertheless regarded the statistics and the use made of them at trial as a ‘side-show’. As to the first two, directed at the conduct of Professor Meadow in his account and use of them, the court rejected the complaints; as to the third, directed principally at the erroneous inclusion by Mr Spencer in his closing address of the statistics as one of the pointers to guilt, and the judge’s apparent endorsement of it, the court had misgivings. However, it found them insufficient to overcome the strength of the prosecution evidence even if there had been no such errors.

[162] It is interesting to note at this point that, while the first Court of Appeal regarded the issues engendered at the trial by Professor Meadow’s evidence on the statistics as a ‘side-show’, the second Court of Appeal, looking at its possible impact on the jury, took a somewhat different approach, Kay LJ observing (at [102]) in relation to the qualifications in CESDI text accompanying the table:

‘None of these qualifications were referred to by Professor Meadow in his evidence to the jury and thus it was the headline figures of 1 in 73 million that would be uppermost in the jury’s minds with the evidence equated to the chances of backing four 80 to 1 winners of the Grand National in successive years.’

[163] As to sub-ground (i), Henry LJ said, in the following passages of the judgment:

‘142. While to deal properly with this ground of appeal in its context in the trial it has been necessary to consider the evidence and issues in some detail, it was very much a side-show at trial. The experts were debating the incidence of genuine SIDS (unexplained deaths with no suspicious circumstances) in a case where both sides agreed that neither Christopher’s death nor Harry’s death qualified as such . . .

155. . . . The existence of arguments against squaring was known to the jury at the trial. Professor Berry made the points . . . and the judge reminded the jury about these in his summing up. But . . . the precise figures are not important, since the Crown was making the broad point that repeat SIDS deaths were very unusual, in which exercise the number of noughts separating the lower risk households from higher risk households did not matter once the overall point was made, as here it was . . .

158. Thus we do not think that the matters raised [in sub-ground (i)] are capable of affecting the safety of the convictions. They do not undermine what was put before the jury or cast a fundamentally different light on it. Even if they had been raised at trial, the most that could be expected to have resulted would be a direction to the jury that the issue was the broad one of rarity, to which the precise degree of probability was unnecessary.’

[164] As to sub-ground (ii), Henry LJ exonerated Professor Meadow from any impropriety in the form of stepping outside his expertise or of misleading the jury. He said:

‘160. . . . in our judgment Professor Meadow did not overstep the line between the expert’s role and the task of the jury when he gave it as his opinion that Christopher and Harry did not die natural deaths. Mr Bevan’s submission proceeds on the basis that Professor Meadow’s opinion was founded both on the medical and circumstantial evidence and on the statistical evidence, and that it was in founding himself on the statistical evidence that Professor Meadow fell into error. In our judgment, however, Professor Meadow’s opinion was based on his expert assessment of the medical and circumstantial evidence, not on the statistical material. Most of his examination-in-chief was concerned with the medical issues. He nowhere suggests that [the table] (which did not deal with deaths such as these) provides any evidence that these deaths were unnatural, only that true SIDS were rare . . . it is clear from reading his evidence that his conclusion was firmly based on that medical and circumstantial evidence . . . He then dealt briefly with the statistical material towards the end of the examination-in-chief, before being brought back in conclusion to “these two babies” for the purpose of expressing an opinion on whether the deaths were natural or not. As we read the transcript, that involved a move away from the subject of statistics and back to the medical and circumstantial evidence relating specifically to Christopher and Harry . . .

170. . . . it is stating the obvious to say that the statement “In families with two infants, the chance that both will suffer true SIDS deaths is 1 in 73 million” is not the same as saying “If in a family there have been two infant deaths, then the chance that they were both unexplained deaths with no suspicious circumstances is 1 in 73 million”. You do not need the label “the prosecutor’s fallacy” for that to be clear. It is clear that the second statement does not follow from the first, nor does it tell you anything about the children or their parents other than there were no smokers in the household, there was one waged income, and the mother was 27 or over-all being factors which put the Clarks in the lowest of all risk categories.

171. It is suggested by Dr Evett that the fact that the second statement does not follow from the first needs to be carefully explained to the jury. As a generalisation, we agree, but it all depends on just what was said. He also suggests that Professor Meadow contributed to the danger of misinterpretation. We do not agree that he did . . .

177. . . . because [the table] addresses the chance of any family being so afflicted and does not help us as to the likelihood that a specific parent or parents abused their child, because it tells you nothing relevant to the question of guilt or innocence. That is a different question the answer to which cannot affect the . . . [table] question: namely what is the risk of a two-child family suffering a double SIDS?

178. Therefore, we accept that when one is looking ex post [facto] at whether two deaths were natural or unnatural, the 1:73 million figure is no help. It is merely a distraction. All that matters for the jury is that when your child is born you are at a very low risk of a true SIDS death, and at even lower risk with the second child.

179. Professor Meadow did not misuse the figure in his evidence, though he did not help to explain their limited significance.’

[165] As to sub-ground (iii), the court’s real concern was, as I have indicated, not Professor Meadow’s references to the statistics in his evidence, but the possibility that the jury might have regarded the judge’s inclusion of the statistics in his synopsis of the prosecution case in summing up as probative of guilt. It was also, as I have said, unsure whether the judge’s warning to the jury about statistics was sufficient to prevent such possible prejudice to the defence:

‘180. . . . In our judgment, counsel for the Crown should not have said that the existing injuries led to “even longer odds” than the 73 million to one. The existing injuries to the infants went to guilt, the odds went to rarity, and it was a mistake to put them together . . ..we are not persuaded that counsel for the appellant or the judge then understood the Crown to have submitted to the jury that the odds against the appellant being innocent were (because of the statistics in [the table]) 73 million to one against. That submission would in our judgment have been obviously fallacious, and had it been made, we would have expected Mr Bevan for the defence to have objected, the judge to have upheld the objection, and the 1 in 73 million figure would have gone as an unnecessary distraction. That there was no such application suggests the lack of impact of “1 in 73 million and even longer odds” on the third day of the summing-up of this long trial. But we must and do assume that counsel said what the judge reported him as having said. Might the jury have focused on that to the exclusion of the real and compelling evidence in this case? . . .

182. We have made clear what the judge should have told the jury: that it was the prosecution’s case that to have one unexplained infant’s death with no suspicious circumstances in the family was rare, and for there to be two such in the same family would be rarer still. That was the only relevance of [the table], and the statistics were capable of showing that, but nothing more. They could not help as to whether the defendant was guilty or not guilty . . . The difficulty we feel . . . is that by the time of the speeches, rarity was largely accepted, so the measure of rarity, the CESDI study, was not important. The 73 million figure should have been cleared away as a distraction. Instead the judge considered that the statistics could be considered. Might the jury have been misled into attributing to those statistics a significance they did not have, i e as lengthening the odds against the deaths being natural? . . .

184. . . . we conclude that there is some substance to the criticism that the judge appeared to endorse the prosecution’s erroneous approach in this particular . . .’

[166] However, as we know, at the end of the court’s consideration of all the issues and material evidence in the appeal, it did not consider its concern in the above respects sufficient to render the convictions unsafe:

‘272. . . . we consider that there was an overwhelming case against the appellant at trial. If there had been no error in relation to statistics at the trial, we are satisfied that the jury would still have convicted on each count. In the context of the trial as a whole, the point on statistics was of minimal significance and there is no possibility of the jury having been misled so as to reach verdicts that they might not otherwise have reached . . .

273. It follows that in our judgment the error of approach towards the statistical evidence at trial . . . did not render the convictions unsafe.’

The second Court of Appeal

[167] The Court of Appeal, in the second appeal, was invited to consider two grounds of appeal. The first was the non-disclosure by the prosecution at the trial of records of results of microbiological tests on samples gathered by Dr Williams in the initial post-mortem examination of Harry, as rendering the convictions unsafe. The second was the unreliability of the statistical evidence put before the jury as to the degree of unlikelihood of two natural infant deaths in the same family, as distinct from the use made of it at the trial.

[168] In the event, the court felt constrained to uphold the appeal on the first ground in relation to both deaths, and did not, in consequence, consider the second ground in any great detail, or rule on it.

[169] The new evidence was that of Professor Morris, a consultant pathologist, to the effect that Harry had probably died from natural causes, derived from reports of testing of the previously undisclosed samples taken by Dr Williams. The absence of such evidence in Harry’s, but not Christopher’s case, was noted by the jury in two pointed questions. Professor Morris’s conclusion was challenged in evidence put before the court by the Crown from another specialist in this field, Dr Klein. However, having regard to the guidance given by this court in R v Pendleton [2001] UKHL 66, [2002] 1 All ER 524, [2002] 1 WLR 72, the court did not attempt to resolve the issue for itself. It held that it was obliged to allow the appeal in the case of Harry’s death because, if Professor Morris’s evidence had been available to, and had been relied upon by, the defence at the trial, it might have caused the jury to reach a different verdict. It followed, the court also held, that, if the jury would have concluded that Harry’s death may have been from natural causes, they could not have failed to reach a different conclusion in relation to the weaker prosecution case in respect of Christopher. As the court observed, those reasons were sufficient to dispose of the appeal relating to both deaths.

[170] Nevertheless, the court returned briefly (at [172]-[180]) to the statistics, their admissibility and the point it had made (at [102]) of the leaving of Professor Meadow’s analogy of the Grand National odds uppermost in the jury’s minds (see [155], above). In doing so, it acknowledged that the matter had only been the subject of brief argument before it and that it had heard none of the evidence.

[171] As to admissibility of the statistical evidence, the court echoed the first Court of Appeal’s firm view that the statistics were irrelevant and should never have been put before the jury:

‘[173] It is unfortunate that the trial did not feature any consideration as to whether the statistical evidence should be admitted in evidence and particularly, whether its proper use would be likely to offer the jury any real assistance . . .

[174] . . . juries know from their own experience that cot deaths are rare. The 1 in 8,543 figure can do nothing to identify whether or not an individual case is one of those rare cases.

[175] Generally juries would not need evidence to tell them that two deaths in a family are much rarer still. Putting the evidence of 1 in 73 million before the jury with its related statistic that it was the equivalent of a single occurrence of two such deaths in the same family once in a century was tantamount to saying that without consideration of the rest of the evidence one could be just about sure that this was a case of murder . . .

[177] Like the Court of Appeal on the first occasion we are quite sure that the evidence should never have been before the jury in the way that it was when they considered their verdicts. If there had been a challenge to the admissibility of the evidence we would have thought that the wisest course would have been to exclude it altogether.

[178] The argument before us would have addressed the question whether the 1 in 73 million figure was misleading in itself quite apart from the use made of it at trial. On the material before us, we think it very likely that it grossly overstates [sic] the chance of two sudden deaths within the same family from unexplained but natural causes . . . Quite what impact all this evidence will have had on the jury will never be known but we rather suspect that with the graphic reference by Professor Meadow to the chances of backing long odds winners of the Grand National year after year it may have had a major effect on their thinking notwithstanding the efforts of the trial judge to down play it . . .

[180] . . . it seems likely that if this matter had been fully argued before us we would, in all probability, have considered that the statistical evidence provided a quite distinct basis upon which the appeal had to be allowed.’

[172] Thus, the Court of Appeal in relation to both deaths were agreed as to the irrelevance of the statistics to the issue of Mrs Clark’s guilt on the other evidence, including the pathological evidence of Professor Meadow of which there was no complaint.

[173] As Henry LJ in the first Court of Appeal’s judgment dismissing the appeal had made plain, it had done so on account of the overwhelming evidence as to similarities between the two deaths and on the pathological evidence. Nevertheless, although the first Court of Appeal had regarded the debate engendered by the statistical evidence as a side-show, it had examined with great care Professor Meadow’s and the other evidence on that evidence. In the result, it expressly concluded that, put in the context of what happened at the trial, Professor Meadow did not misuse the statistics.

[174] It is true that Kay LJ, in giving the judgment in the second appeal-to the success of which the statistical evidence was equally irrelevant-was more uneasy about the possible impact of Professor Meadow’s evidence on the jury. However, it is plain from the judgment that the court did not consider the matter in anything like the detail the first Court of Appeal had done. Its criticism of the admission of such evidence was necessarily tentative and it did not single out Professor Meadow as at serious fault. As will appear, for reasons that I shall touch on shortly, the FPP were denied the opportunity to consider the two judgments of the Court of Appeal, an opportunity that would have enabled them to consider-in the context of the trial-why, and the manner in which this statistical evidence had been deployed, and the seeming overwhelming strength of the other evidence to support the conviction (in the absence of the undisclosed pathological evidence).

The FPP hearing

[175] With effect from 1 November 2004 the GMC’s disciplinary procedures were reformed by the Medical Act (Amendment) Order 2002, SI 2002/3135. The concepts of serious professional misconduct, seriously deficient performance and seriously impaired health were replaced by a unified concept of impaired fitness to practise. The FPP, before which these proceedings were conducted in late June and early July 2005, by virtue of a transitional provision in the 2002 order [c], exercised the earlier jurisdiction of the Professional Conduct Committee of the GMC by reference to serious professional misconduct

[176] The charges that Professor Meadow faced before the FPP, on complaints made by Mr Frank Lockyer, Mrs Clark’s father, was a prolix mixture of assertions of primary and secondary fact, and of related and sometimes overlapping, particular and general complaints of unprofessional conduct. The FPP dealt with each of them, first making findings of fact in relation to each of the allegations, and then, in a somewhat discursive way, making its determination of serious professional misconduct purportedly by reference to those findings.

[177] As Collins J noted ([2006] 2 All ER 329 at [28], [2006] 1 WLR 1452), the conduct of Professor Meadow that the FPP found proved, and which it decided amounted to serious professional misconduct, did not touch on his skills as a doctor or impugn his evidence on pathological matters.

[178] The matters in respect of which the FPP found Professor Meadow guilty of serious professional misconduct may be summarised as follows: (1) use of statistical material of which he had no expert knowledge or experience; (2) failure to disclose to the jury that he lacked such expertise or experience; (3) mistaken reliance and/or use in evidence of erroneous and/or irrelevant statistical material; (4) incompetence in misunderstanding and presenting that evidence, in his original figures of 1 in 1 million and then the CESDI figures of 1 in 73 million, as indicative of probabilities of recurrence of SIDS death so as to suggest similarly long odds against Mrs Clark’s children having died from natural causes and thus as supportive of the prosecution case that she had killed them; and (5) his foray into statistics outside his expertise and his incompetence and the manner in which he did so were particularly serious for a man of his experience and eminence in his profession in the potential harm caused to justice and to the reputation of his profession.

[179] The hearing, which took 16 days in late June 2005 and early 2006, included oral evidence in support of the complaints from Professor Fleming, Professors Sir David Cox and Colin Aitkin, statisticians, and Professor Jean Golding, a paediatric epidemiologist. Professor Meadow and witnesses who gave evidence of his qualities and reputation as a paediatrician were the sole defence witnesses.

[180] Professor Fleming gave an account to the FPP of the CESDI study, indicating, by reference to its publications, its primary purposes, namely the identification of risk factors and associations for SIDS, but not of recurrence rates. He accepted in cross-examination that the purpose and some of the CESDI statistics were open to misinterpretation and had been misinterpreted by others.

[181] Professor Cox criticised Professor Meadow’s use of the statistics as a tool for calculating probabilities, including his assumption in the use of his squaring calculation that one natural infant death in a family decreases the probability of a second. He said that the occurrence of one event would almost invariably increase the probability in a similar situation. However, he acknowledged, as did Professors Aitkin and Golding, that the multiplication by non-statisticians of probabilities in relation to events that were not independent of each other-of which this was an instance-was an easily made mistake.

[182] Professor Golding’s evidence as to probabilities may well have left the panel unclear whether one unnatural infant death in a family increased or decreased the probability of another, all other things being equal.

[183] Professor Meadow gave evidence over a number of days. In it, he acknowledged that his reference to the statistics in the context of the issue as to the probabilities of the causes of death of Mrs Clark’s children was an error. He said that he had misunderstood the CESDI table, and he expressed his regret for having used the Grand National analogy. Much attention was given in his evidence-in-chief and in cross-examination-now some years after the event-to the origin or basis of the 1 in 1,000 figure in his 1999 paper. He gave the same account-that he was uncertain as to its precise provenance-as he had given in his evidence at the trial of Mrs Clark.

[184] The FPP did not have before it the two judgments of the Court of Appeal, apparently because Miss Davies wanted the first in, but Mr Seabrook objected; and Mr Seabrook wanted the second one in, but Miss Davies objected. I understand that, in the result, counsel agreed that the panel should see neither.

The FPP’s findings and determination

[185] As to Professor Meadow’s unqualified squaring of the CESDI figures, the FPP, in its determination, stated:

‘The Panel has heard expert statistical evidence (which it accepts) that the squaring of the 1:1000 ratio to conclude that there was 1 in a million incidence of double SIDS deaths within a family was incorrect. Furthermore you were unable to explain from where you derived these figures. You said in evidence before this Panel that you thought someone in the audience of a lecture you were giving had said this, and that you had remembered putting the figures “on a blackboard somewhere”, although you could not remember when and where. The Panel considered this explanation to be unacceptable, and the members were of the opinion that this highlighted your less than rigorous use of statistics and inability to adhere to strict scientific principles in so doing.’

[186] As to the propriety of Professor Meadow relying on the table of figures in the CESDI report, the panel accepted Professor Fleming’s evidence that the exercise from which those figures was derived was not a study of recurrence of SIDS and that, although Professor Meadow had not intended to mislead, he should not have given evidence implying that it could be taken as such:

‘. . . The Panel found that you failed to provide a fair context for the limited relevance, if any, of SIDS deaths, by not referring, amongst other things, to common environmental or genetic factors or interaction of such factors.

You erroneously implied that two such deaths would be independent of one another and failed to justify or explain your assumption of the independence of the postulated second SIDS death from the first . . .

The incidence of two SIDS deaths in a family was far greater than you stated and the Panel found that you gave misleading and erroneous evidence, although it has found that you did not intend to mislead. You did not take account of familial factors and your use of the SIDS statistics when giving expert evidence (which was to the effect that Harry and Christopher had died unnatural deaths) was not relevant. It was described succinctly in evidence by Sir David Cox as the “the prosecutor’s fallacy” whereby the statistics are used fallaciously thus creating a false impression of the evidence. The Panel accepted [Sir David Cox's evidence that] it would be possible for people to derive from your evidence that there was only a 1 in 73 million chance that these children died from natural causes, the false implication being that there was only a 1 in 73 million chance that Sally Clark had not killed her children. You should have taken great care to provide a context for the benefit of those people who may well have been under the impression that you were still giving evidence in the realm of your expertise. This was a grave error, one which had serious implications and repercussions for many people, not least those who work in the field of child protection.

The Panel noted your regret expressed during these proceedings of having used the insensitive Grand National analogy.’

[187] The FPP concluded that, in his evidence of and treatment of the statistics, Professor Meadow had strayed outside the ambit of his expertise and had done so without warning the jury of that fact. Its findings included the following general propositions, which it variously also particularised:

‘The Panel has found that you were ready, willing and considered yourself able to give expert evidence as to child abuse and unnatural infant deaths, Sudden Infant Death Syndrome (SIDS), the probability of occurrence and recurrence of SIDS claims within a family, and the statistical consideration of data relating thereto as well as the forensic presentation of such evidence.

The Panel found that you owed a duty of familiarising yourself with all relevant data and published (or yet to be published) work, sufficient to provide competent, impartial, balanced and fair forensic evidence of scientific validity. Insofar as you chose to use statistics to support your evidence it was your responsibility to only use them in accordance with good statistical principles and practice in relation matters within your expertise.

You owed a duty to identify relevant matters including assumptions on which your statistical evidence was based. You failed in this duty. You should have refrained from giving expert evidence upon matters beyond your competence, but this again, you failed to do . . .

The Panel concludes that in giving your evidence to the Court, as an expert witness, you were under a duty to satisfy yourself as to the scientific validity of that evidence, and, insofar as that evidence was of a statistical nature, of the statistical validity of that evidence, notwithstanding that (as the Panel accepts) you are not yourself a statistician. You failed in this duty.’

[188] The FPP concluded those findings with a determination that they constituted serious professional misconduct, indicating in doing so that his conduct was aggravated by two factors, his eminence in his profession and his adherence to his case that his conduct did not merit such condemnation:

‘The Panel considered carefully your Counsel’s emphasis on its findings that you did not intend to mislead. However, your misguided belief in the truth of your arguments, maintained throughout the period in question and indeed throughout this inquiry, is both disturbing and serious. It is because of your eminence and authority that this misleading evidence carried such great weight. It was also argued, in your defence, that the CESDI . . . study was unclear on the point at issue, and that your erroneous squaring of odds was a mistake easily and widely made. That may be the case, but you were giving expert evidence and using that erroneous statistic to support that evidence. If, as you have said repeatedly, you were not a statistician this should have been made clear to the Court: instead you spoke authoritatively outwith your own field of expertise . . .

The Panel, having considered all these matters, has concluded that your errors compounded by repetition, over a considerable period of time, constitutes such a serious departure from, and falling short of the standards expected of, a registered medical practitioner, that it finds you guilty of Serious Professional Misconduct.’

[189] As to sanction, the FPP again acknowledged that Professor Meadow had not intended to mislead, the high regard in which he was widely held in the profession and that the role of sanctions in this field was not one of punishment. It correctly identified the three main reasons for sanctions before considering and deciding on that of erasure; first, the need to protect patients; second, to maintain public confidence in the profession; and third, to declare and uphold proper standards of conduct. Before turning to erasure, it considered and rejected all the lesser alternatives. This is how it expressed its decision:

‘The Panel concluded that it was not appropriate to conclude your case by taking no further action. Your breaches of the duties of an expert witness were significant and grave and to take no action would be wholly inappropriate and not in the public interest.

Next the Panel considered whether it was sufficient to conclude the case with a reprimand . . . However, it . . . considered the need to recognise the public interest and the need to maintain public confidence in those who give evidence to the courts as well as the crucial need for judges and families throughout the country to be confident that those medical practitioners who give evidence before the courts have complied with the accepted duties of an expert. That you failed to do . . .

Your errors, compounded by repetition over a considerable period of time were so fundamental and so serious it is the Panel’s view that a period of suspension would be inadequate, not in the public interest and would fail to maintain public confidence in the profession.’

Appeal to Collins J

[190] Professor Meadow, in his appeal to Collins J, did not challenge the FPP’s findings of primary fact, but focused on its findings that he had misinterpreted and misapplied the CESDI statistics, and that, in doing so, he had wrongly gone outside his area of expertise and had done so without alerting the court to that fact.

[191] Collins J, after considering the record of the evidence given to the FPP, held: (1) that the FPP wrongly found that Professor Meadow had been guilty of serious professional misconduct in giving evidence in the way he did of the statistical material and of his understanding of its effect. He said ([2006] 2 All ER 329 at [51], [2006] 1 WLR 1452):

‘. . . the FPP acted too harshly in concluding as it did. The appellant gave evidence of his concerns at giving evidence and the difference between criminal and family courts. He had honestly and as he believed correctly relied on his understanding of the statistics. He had not concealed their source and he was aware that the defence had access to experts. He expected his evidence to be challenged and the adversarial process to establish any errors. He never put himself forward as an expert in statistics. While I accept that he can properly be criticised for not making it clear that he was not an expert in the field, I do not accept that his failure was as heinous as the FPP indicated.’

[192] As to the FPP’s condemnation of Professor Meadow for his lack of any precise source for the 1 in 1,000 figure in his 1999 paper, Collins J characterised it (at [52]) as ‘unfair’, given the Professor’s evidence at trial and before the FPP of uncertainty as to where it first came from and the general acceptance of it in the profession as a ‘ball park’ figure. As Collins J had put it earlier in his judgment (at [47]):

‘. . . In reality it seems that it was based on his general experience and was used as an average. That it was properly so regarded became apparent from the CESDI report, which gave an average of 1 in 1,300-odd. It may well be that the appellant did not explain things as clearly as he should have done . . .’

[193] As to the FPP’s finding that Professor Meadow had wrongly interpreted and applied the statistical material in the CESDI report (‘the prosecutor’s fallacy’) and had wrongly persisted in justifying his interpretation, Collins J roundly rejected it (at [53]):

‘In dealing with the CESDI study, the FPP said that it produced evidence that “there is an elevated risk of a second SIDS death in one family after there has been one such death”. I am far from sure that that reflects the evidence; it may depend on what is meant by elevated risk. Elevated above what? Their criticism based on the prosecutor’s fallacy was also unfair and might well not have been made if they had seen the judgment of the first Court of Appeal. The appellant did not produce the prosecutor’s fallacy. He merely gave what he believed to be accurate evidence based on the CESDI study. It was not for him to decide what use was made of that evidence. The FPP stated that his eminence meant that he had a unique responsibility to take meticulous care in such a grave case. I do not think that eminence imposes a greater burden. The FPP said: “Your misguided belief in the truth of your arguments, maintained throughout the period in question and indeed throughout the inquiry is both disturbing and serious.” That in my judgment was hardly fair. In truth, until he had the criticisms put to him, he made one mistake and had no reason to believe that he was wrong. His evidence at the inquiry was given to try to show that he had honestly believed that he had not made any mistake.’

[194] Collins J finally concluded (at [54], [55]) that the FPP’s over-all conclusion, in the light of all its findings, of serious professional misconduct was not justified on the evidence before it:

‘. . . I have no doubt that that conclusion is not justified by the evidence before the FPP . . . he made one mistake, which was to misunderstand and misinterpret the statistics. It was a mistake, as the FPP accepted, that was easily and widely made. It may be proper to have criticised him for not disclosing his lack of expertise, but that does not justify a finding of serious professional misconduct.

[55] Ms Davies submits that the conclusion that the appellant had acted in good faith and that there was no evidence of calculated or wilful failure to use his best endeavours to provide evidence precluded a finding of serious professional misconduct. I accept that such a finding can be made even though there has been no bad faith or recklessness. But it will only be in a very rare case that such a finding will be justified. The lapses in question must be serious indeed to lead to such a finding in the absence of bad faith. I am satisfied that the lapses in this case did not justify the finding.’

Submissions

[195] Mr Henderson submitted to this court that: (1) the gravamen of the case against Professor Meadow in the proceedings before the FPP was that he had proffered at the trial evidence outside his expertise that was erroneous and irrelevant to the issues in the case, and potentially gravely prejudicial to justice and to the damage of the medical profession; (2) he had done so without making clear that the evidence was outside his expertise, and the fact he had done so in good faith did not prevent it from being serious professional misconduct; (3) the lack, to his knowledge, of any scientific provenance for his original figure of 1 in 1,000 odds against a single SIDS death in his initial witness statement, the 1999 paper and his evidence in the committal proceedings; (4) his incompetence in misleading the jury as to the effect of the 1 in 73 million odds against two SIDS deaths in the same family, wrongly bolstering the other prosecution evidence against Mrs Clark; and (5) his sole responsibility for introducing this statistical evidence before the court and for underlining it with inappropriate analogies.

[196] Miss Davies, in her submission, relied heavily on the reasons given by Collins J in his judgment allowing Professor Meadow’s appeal, in particular that: (1) his evidence on statistics had been given without intention to mislead and in the honest but mistaken belief of its accuracy and appropriateness to the issue of probability of cause of the two deaths; (2) the FPP wrongly imposed a higher professional duty on him than it considered would otherwise have been appropriate because of his eminence in his profession; (3) he had not held himself out to the court as an expert on statistics and that the FPP did not consider his evidence and the way in which he had come to give it, and without challenge as to its admissibility, in the context of the trial process; (4) the FPP, in certain respects, misunderstood his and other evidence as to the statistics and their possible impact on the trial, and his subsequent explanations about the source of the 1 in 1,000 figure and of his mistaken understanding of the CESDI figures and their effect.

Conclusions

[197] On an appeal from a determination by the GMC, acting formerly and in this case through the FPP, or now under the new statutory regime, whatever label is given to the s 40 test, it is plain from the authorities that the court must have in mind and give such weight as is appropriate in the circumstances to the following factors: (i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect; (ii) The tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides; (iii) The questions of primary and secondary fact and the overall value judgement to be made by [the] tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.

[198] As to what constitutes ‘serious professional misconduct’, there is no need for any elaborate rehearsal by this court of what, on existing jurisprudence, was capable of justifying such condemnation of a registered medical practitioner under the 1983 Act before its 2003 amendment. And, given the retention in the 1983 Act in its present form of s 1(1A), setting out the main objective of the GMC ‘to protect, promote and maintain the health and safety of the public’, it is inconceivable that ‘misconduct’-now one of the categories of impairment of fitness to practise provided by s 35C of the 1983 Act-should signify a lower threshold for disciplinary intervention by the GMC.

[199] It is common ground that Professor Meadow, in giving and/or purporting to give, expert medical evidence at the trial of Mrs Clark, was engaged in conduct capable of engaging the disciplinary attention of the GMC.

[200] As Lord Clyde noted in Roylance v General Medical Council (1999) 47 BMLR 63 at 79-81, [2000] 1 AC 311 at 330-332, ‘serious professional misconduct’ is not statutorily defined and is not capable of precise description or delimitation. It may include not only misconduct by a doctor in his clinical practice, but misconduct in the exercise, or professed exercise, of his medical calling in other contexts, such as that here in the giving of expert medical evidence before a court. As Lord Clyde might have encapsulated his discussion of the matter in Roylance v General Medical Council, it must be linked to the practice of medicine or conduct that otherwise brings the profession into disrepute, and it must be serious. As to seriousness, Collins J, in Nandi v General Medical Council [2004] EWHC 2317 (Admin), [2004] All ER (D) 25 (Oct), rightly emphasised (at [31]) the need to give it proper weight, observing that in other contexts it has been referred to as ‘conduct which would be regarded as deplorable by fellow practitioners’.

[201] It is also common ground that serious professional misconduct for this purpose may take the form, not only of acts of bad faith or other moral turpitude, but also of incompetence or negligence of a high degree. See Preiss v General Dental Council [2001] IRLR 696 at [28], [2001] 1 WLR 1926. It may also be professional misconduct where, as here, a medical practitioner, purporting to act or speak in such expert capacity, goes outside his expertise. Whether it can properly be regarded as ‘serious’ professional misconduct, however, must depend on the circumstances, including with what intention and/or knowledge and understanding he strayed from his expertise, how he came to do so, to what possible, foreseeable effect, and what, if any, indication or warning he gave to those concerned at the time that he was doing so.

[202] Particular considerations thrown up by the circumstances giving rise to this appeal are the duality and overlap of forensic and professional roles of an expert witness in the trial process. These do not appear to have figured sufficiently in the FPP’s brisk dismissal of his mitigation of his conduct, that, like others, he had misunderstood the effect of the statistics:

‘The Panel has noted with care the argument put forward on your behalf that others within the court system did not question your erroneous application of statistics in the police statement, Magistrates’ and Crown Courts. You, however, were the expert witness, you provided the statistics, spoke to them with authority and it was your expert evidence which was relied upon by the other parties to the Court proceedings.’

[203] There may be tensions between what is sought from an expert witness and seemingly legally admissible and what he can say having regard to the limits of his professional expertise. Questions of relevance, as a matter of logic and, hence, legal admissibility, as well as of professional propriety in proffering sought evidence on the border of, or outside, a witness’s expertise may be in play. Depending on the vigilance of the lawyers and of the medical expert in the forensic interplay of the courtroom, each may complement or distract the other from the respective high professional standards demanded of them. It seems to me that the latter was the case here.

[204] An expert, who is called to give, and gives evidence, of opinion or otherwise, on matters within his own professional knowledge and experience has an ‘overriding duty’ to the court to assist it objectively on matters within his expertise. He is also bound both by the ethical code and generally accepted standards of his profession. The former is expressly acknowledged in civil matters in CPR 35.3, and has been usefully elaborated by Cresswell J in his much cited analysis in National Justice Cia Naviera SA v Prudential Assurance Co Ltd, The Ikarian Reefer [1993] 2 Lloyd’s Rep 68 at 81-82. The same or similar principles have been applied for many years in criminal and family cases. There is clearly much overlap in the two categories of obligation, but, in the hurly-burly of the trial process, especially seen through the eyes of the expert witness they may not, in practice, always complement each other.

[205] Where the conduct of an expert alleged to amount to a professional offence under scrutiny by his professional disciplinary body arises out of evidence he has given to a court or other tribunal, it is, therefore, important that that body should fully understand, and assess his conduct in the forensic context in which it arose. Of great importance are the circumstances in which he came to give the evidence, the way in which he gave it, and the potential effect, if any, it had on the proceedings and their outcome. If the disciplinary body lacks information to enable it properly to assess the expert’s conduct in that forensic context, or fails properly to take it into account, a court reviewing its determination is likely to bring important insights of its own to the matter. Not least among those should be an appreciation of the isolation of an expert witness, however seasoned in that role, in the alien confines of the witness box in an adversarial contest over which the judge and the lawyers hold sway.

[206] In criminal or civil proceedings, it is for the parties’ legal representatives and ultimately the judge, to identify before and at trial what evidence, lay or expert, is admissible and what is not. In the case of expert evidence, involving, as it often does, opinion evidence as to causation, it is critical that the legal representatives of the party proposing to rely on such evidence should ensure that the witness’s written and oral evidence is confined to his expertise and is relevant and admissible to the important issues in the case on which he has been asked to assist. Equally, it is incumbent on the legal representatives on the other side not to encourage, in the form of cross-examination or otherwise, an expert to give opinion evidence which is irrelevant to those issues and/or outside his expertise, and, therefore, inadmissible. And, throughout, it is for the judge, as the final arbiter of relevance and admissibility, to ensure that an expert is assisted or encouraged to keep within the limits of his expertise and does so relevantly to the issues in the case on which he is there to assist.

[207] All of this is not to absolve the expert of responsibility from professional or forensic impropriety in the presentation and form of his evidence. As a medical expert, he should know his limits. In most instances, his knowledge and instincts in his particular field should alert him to confining his evidence to those limits and the true issues identified for the court by the legal representatives of the parties. However, the forensic process, in preparation and in action at trial, is not always as ordered and considered as it should be. The issues may not always be sufficiently carefully defined, or the evidence, lay and expert, adequately prepared and tailored in advance, to deal with them. The trial process itself can be unpredictable in direction. From time to time the questioners and the questioned can lose sight of the essential issues in exploring or ‘trying out for size’ areas of evidence that, on careful examination, have no bearing on the case. The line and pace of the questioning may leave little time for calm analysis by an expert witness called to deal with a variety of issues on one or more of which he is required to express an opinion that is, or he knows is, to be, challenged. The same may be said for those questioning him and, indeed for the judge who is trying to keep up with the evidence as it is given. In that, sometimes, fevered process, mistakes can be made, ill-considered assertions volunteered or analogies drawn by the most seasoned court performers, whatever their role.

[208] It is in those respects that I believe the respective insights of the two Court of Appeal judgments would have been of help to the FPP. Unfortunately, as I have mentioned, it did not take or have the opportunity to consider them. In consequence, it appears, in my view, to have misunderstood or mistaken certain aspects of Professor Meadow’s evidence and the circumstances in which he came to give it, and to have wrongly exaggerated the heinous effect, as it saw it, of what he said and its possible effect on the integrity and outcome of the trial.

[209] Given those considerations, it is plainly important to consider and assess the significance of the evidence of Professor Meadow under question to the issues of causation in the trial and how he came to give it. There are two starting points for the court’s consideration.

[210] The first is that Professor Meadow was undoubtedly guilty of some professional misconduct. In his preparation for, and presentation of evidence at, the trial of Mrs Clark he fell below the standards required of him by his profession. Although not an expert in the use of statistics or calculation of probability, he put forward a theory of improbability of recurrence of unexplained and seemingly natural infant deaths, applicable only where recurrence occurred in familial, environmental and economic circumstances wholly independent of those of a first such death. In doing so, he relied initially on statistical figures of uncertain source and scientific validity and then on those in the CESDI report, which had nothing to do with the probabilities of recurrence in any individual case, and which, in any event, he misunderstood and, by implication and the use of an inappropriate analogy, misapplied. In addition, and importantly, he did not expressly draw the court’s attention to the fact that he had no expertise in the field of statistics or calculations of probability in this or any other field.

[211] The second starting point is that Professor Meadow did not intend to mislead the trial court and that he honestly believed in the validity of his evidence when he gave it. The FPP so found, expressly stating that there was ‘no evidence of calculated or wilful failure to use [his] best endeavours to provide evidence’. As Collins J observed ([2006] 2 All ER 329 at [55], [56], [2006] 1 WLR 1452), in the absence of bad faith or recklessness, only a very rare case could justify a finding of serious professional misconduct, and that ‘[i]t [was] difficult to think that the giving of honest albeit mistaken evidence could save in an exceptional case properly lead to such a finding’.

[212] The question, therefore, is whether such misconduct as the FPP properly found in the circumstances of this case was ‘serious’, or, if it was, sufficiently serious to justify the sanction of erasure from the register imposed by the FPP? I should preface my answers to those questions by commenting on two strands of the FPP’s reasoning that clearly permeated its approach to both its conclusions against Professor Meadow.

[213] The first was that the Professor’s eminence gave him ‘a unique responsibility to take meticulous care in such a grave case’, suggesting that the FPP was entitled to find misconduct proved that it could not otherwise have done, or misconduct to be more serious than otherwise it would have been. Collins J rejected that submission, saying (at [53]) ‘I do not think that eminence imposes a greater burden’. I agree with him in the circumstances of this case, where the error or errors consisted in Professor Meadow’s misunderstanding of a discipline outside his expertise and his failure expressly to draw the trial court’s attention to the latter. As I have noted more than once, it was not suggested that he had intended to mislead or had wilfully failed to use his best endeavours to provide honest and accurate evidence. If Homer could occasionally nod, without it costing him his reputation and place in history, so also should similar allowance be made where appropriate to eminent leaders of professions. However, I would not wish to be taken as dismissing eminence as a possibly relevant consideration in other types of cases, for example, where some moral turpitude or bad faith is involved, or perhaps when it is shown that a leader of a profession has deliberately or recklessly cast aside the norms of his professional obligations in the confident expectation that his authority will carry the day.

[214] The second strand in the FPP’s reasoning was its reliance, in its determination of serious professional misconduct and in fixing on the sanction of erasure, on what it regarded as Professor Meadow’s persistence in an unwarranted denial that he had been guilty of sufficiently heinous conduct to amount to serious professional misconduct. But the essence of his case was that he, like others, had misunderstood the statistics and had been honest, albeit mistaken, in his use of them at the trial, a case substantially acknowledged by the FPP in its findings. That was his defence, and the first time he had had to advance it was in the FPP proceedings. Whilst Collins J (at [53], [54]) may have understated somewhat his culpability by categorising it as only ‘one mistake’, namely misunderstanding and misinterpreting the statistics, he correctly pointed out the Professor’s stance before the FPP had been to acknowledge and explain it and point, as was the case, that others in the profession had similarly misunderstood them. The same could be said about his mistake in not having expressly drawn attention when giving evidence to the fact that he was not an expert in statistics; it was never suggested that he had dishonestly or wilfully withheld that information from the jury. Accordingly, I agree with the following conclusion of Collins J ([2006] 2 All ER 329 at [54], [2006] 1 WLR 1452):

‘. . . he made one mistake, which was to misunderstand and misinterpret the statistics. It was a mistake, as the FPP accepted, that was easily and widely made. It may be proper to have criticised him for not disclosing his lack of expertise, but that does not justify a finding of serious professional misconduct.’

[215] I turn now to the main findings of the FPP, as I have summarised them at [178], above:

(1) Use of statistical material of which he had no expert knowledge or experience

[216] Professor Meadow’s reference to the statistics, albeit in the incorrect anticipation that the defence intended to rely on them, was clearly open to criticism, given his lack of expertise in that discipline; the second principle identified by Cresswell J in The Ikarian Reefer [1993] 2 Lloyd’s Rep 68. But, in his misunderstanding of the figures and in his failure before and at trial to appreciate their irrelevance and, therefore, their inadmissibility on the issue of probability as to the causes of death in the circumstances of this case, he appears to have been in good medical and legal company respectively. As Collins J noted ([2006] 2 All ER 329 at [49], [2006] 1 WLR 1452):

‘Mr Henderson was compelled to accept that if the appellant had said that he was not an expert in statistics but believed that his interpretation of the figures in the CESDI report was correct, he might have had difficulty in seeking to uphold the finding of serious professional misconduct . . .’

(2) Failure to disclose to the jury that he lacked such expertise or experience

[217] The FPP rightly found that Professor Meadow should have alerted the jury to the fact that he was not a statistician and thus not qualified to interpret the statistics in the way he appeared to do; the fourth principle identified by Cresswell J in the The Ikarian Reefer. However, experts frequently refer to other disciplines of which they are not masters as part of the base material for their expert conclusions, and his lack of expertise in this field was a matter that was open to attention by counsel on either side and by the judge, if the defence had chosen to challenge him on his understanding and use of the statistics. As I have said, there was no such challenge, only to the make-up of the base figures for squaring, and as to whether the occurrence of one event increased or decreased the probability of its recurrence in like circumstances.

(3) Mistaken reliance on and/or use in evidence of erroneous or dubious and/or irrelevant statistical material

[218] The FPP’s condemnation of Professor Meadow for ‘less than rigorous use of statistics and inability to adhere to strict scientific principles in so doing’, in relation to his evidence as to the source of the 1 in 1,000 figure for one SIDS death was, in my view, unfair. As Collins J observed (at [47]), on a proper reading of the Professor’s evidence at the trial and to the FPP, he had throughout indicated no clear recollection of the precise source of the ratio, save to mention the blackboard incident, and to describe it as a ‘a ball park figure’, one in general currency at the time. In the event, as pointed out to the FPP, it was within reach of CESDI’s own average of 1,300 for one SIDS death. It is plain that the FPP, in making this stringent criticism, failed to give effect to his evidence on the matter read as a whole or, at the very least, misunderstood it.

(4) Use of the CESDI statistics to imply that there was only a 1 in 73 million chance that Mrs Clark’s children died from natural causes and correspondingly, that there was a 1 in 73 million chance against her not having killed them

[219] The implication of Professor Meadow’s evidence, by reference to the CESDI report, was that the occurrence of one possibly natural death decreased the probability of another in the circumstances of this case (‘the prosecutor’s fallacy’). On the FPP’s understanding of the evidence on this issue, it increased it.

As I have indicated, there was some confusion of evidence about this, but, whatever the scope for error in Professor Meadow’s evidence in this respect, he simply gave, as the FPP accepted, what he had honestly believed to be the effect of the CESDI figures in response to questions put to him by counsel. It is notable that, despite the FPP’s excoriation of him in its determination on this issue, it had found two of the three allegations associated with it not proved. The figures were not his: and counsel, not he, produced them to the jury whilst, as Henry LJ observed in para 179 of the first Court of Appeal’s judgment (see [164], above), he can be criticised for not helping to explain their limited significance, he did not misuse the figures.

(5) Failure to provide a fair context for the squaring application, in particular in his seeming unqualified application of it to the circumstances of this case

[220] This was a mistake, but as I have indicated, no one challenged it; indeed Mr Bevan in his cross-examination of Professor Meadow, appeared to accept the principle of squaring as an appropriate method, or starting point, for calculating second natural deaths within the same family. It was also a mistake, as the FPP accepted in the light of the GMC’s witnesses, that was easily and widely made.

[221] Accordingly, for all those reasons, and applying whichever end of the narrow range of rival formulations of the test for Collins J of ‘wrongness’ of the FPP’s, or for this court, of his conclusion, respectively advanced by Mr Henderson and Miss Davies, I am firmly of the view that the FPP was wrong and that Collins J was right on this ground of appeal.

[222] Accordingly the question of sanction does not arise. But, as I have said, the GMC did not seek restoration of erasure, suggesting instead that, in the absence of an appropriately defined undertaking, the imposition of a condition along the lines considered by Collins J ([2006] 2 All ER 329 at [58], [2006] 1 WLR 1452) that Professor Meadow should not undertake medico-legal work would have been appropriate. It is difficult to reach and express a contingent view on the appropriate sanction on a hypothesis of a finding of serious professional misconduct with which I could not agree. But, like Collins J, given the undisputed circumstances of the trial that I have summarised in this judgment, I could not contemplate erasure as an appropriate penalty for Professor Meadow’s uncharacteristic honest errors in this difficult case. If it had been necessary to mark his conduct with a finding of serious professional conduct, I would have considered that, after his long and distinguished service to the profession and the public and given his age, that finding would have been enough.

[223] Perhaps the best way to conclude this judgment is to refer to the following comment by the distinguished jurist and scholar of the vexed subject of expert evidence, Sir Louis Blom-Cooper QC in Public Law, Issue 1, 2006 [d], and to adopt it as a succinct and apt summary of my view on the FPP’s finding of serious professional misconduct against Professor Meadow:

‘The FPP’s adjudication that, in giving an incorrect piece of statistical evidence about the repetition of the deaths of infants by their carers, Sir Roy was guilty of serious professional misconduct-and hence struck off the register of medical practitioners-was not just a disproportionate finding and/or penalty. It was fundamentally flawed, since it perceived Sir Roy’s error as part of his professional service; whereas his mistake or misjudgement had properly to be viewed in the context of the criminal trial in November 1999 for the murder of her two sons. (She was ultimately acquitted by the Court of Appeal (Criminal Division) second time round in January 2003, on a ground totally unconnected with Sir Roy’s evidence on statistical probabilities.’

[224] Accordingly, I would dismiss the GMC’s appeal on this ground.

[a] National Health Service Reform and Health Care Professions Act 2002, and National Health Service Reform and Health Care Professions Act 2002 (Commencement No 4) Order 2003, SI 833/2003.

[b] See R v Doheny [1997] 1 Cr App R 369 at 372-374 per Phillips LJ.

[c] Paragraph 10 of Sch 2.

[d] See, in particular, Experts in the Civil Courts (2006).

JUDGMENTBY-3: THORPE LJ

JUDGMENT-3:
THORPE LJ:

Family justice background

[225] In his skeleton argument and in his oral submissions the Attorney General rightly emphasised the importance of the regulatory and disciplinary functions of the GMC and other like bodies. The public interest depends upon protection from those who fall below the generally accepted professional standard let alone from the charlatan.

[226] However the identification of the public interest in the round will vary from one justice system to another. In criminal and civil justice there are many fields of expertise beyond the medical from which dependable witness[es] must be available to the courts. There are a corresponding number of professional men whose livelihood in part, and sometimes in large part, is gained from court work. In a marketplace where supply exceeds demand there is a particular need for ensuring dependability both in the field of the witnesses’ expertise and also in the observation of the forensic standards set by the courts. Accreditation through an association such as the Council for the Registration of Forensic Practitioners provides a reliable badge of dependability.

[227] However the position is very different in the family justice system. Here most of the required experts are either medically qualified or otherwise qualified in the mental health professions. The majority will be employed under NHS consultant contracts. By contrast to the other justice systems this is a market in which demand exceeds supply. It is thus very sensitive to increasing or newly emerging disincentives. This factor is compounded by a paucity of incentives. The fee for the work will often be paid to the trust employer. The employer may be reluctant to release the consultant from other duties. Keeping up with the demands of the court’s timetable may involve evening or weekend work.

[228] The consequential threat to a sustainable future supply of experts was recognised by the President’s Interdisciplinary Committee in 1998 and in collaboration with the Department of Health and the Lord Chancellors Department day conferences were arranged to debate the problem and seek solutions. Only limited progress was made with the introduction of training and mentoring schemes for specialist registrars. The resolution of the profounder underlying problems foundered on the difficulties inherent in renegotiating contractual terms for consultants.

[229] It was the judgment of the Court of Criminal Appeal in the case of R v Cannings [2004] EWCA Crim 01, [2004] 1 All ER 725, [2004] 1 WLR 2607 that elevated the public debate concerning the trial and conviction of mothers for the murder of their babies to a level that demanded government intervention. Professor Sir Roy Meadow had also given evidence in the trial of Mrs Cannings. The inter-relationship of the two trials is considered in the judgment of the court as follows (at [16]):

‘As is well known, the conviction of Sally Clark has been quashed. Save superficially, however, this appeal is dissimilar, and raises different issues. Unlike the Court of Appeal Criminal Division in that case, we have not been presented with evidence of apparent misconduct and serious non-disclosure by an expert witness, Dr Williams, called by the Crown, which came to light after conviction. Of itself, that would have been sufficient for the conviction to be quashed. In addition, expert evidence describing statistical probabilities was also severely criticised. That evidence was given by an expert witness of great distinction, if not pre-eminence in this field, Professor Sir Roy Meadow, whose evidence would undoubtedly have carried great weight with the jury which tried Sally Clark. If it were flawed, as it was, the safety of the jury’s decision was further called into question. Professor Meadow’s evidence in the present case did not extend to the flawed statistical evidence presented to the jury during the trial of Sally Clark. The present convictions therefore cannot be quashed on either or both the grounds relied on in her appeal, and the observations on the facts in the Court of Appeal Criminal Division in that case were case-specific, and not otherwise of general application to the present appeal.’

[230] The judgment in R v Cannings was delivered in January 2004 and led to the Attorney’s statement to Parliament that past cases in which conviction or care orders had been made upon the premises so severely criticised by the court would be reviewed. (In the event there were only two appeals brought from care orders made in the Family Division and both were dismissed.)

[231] More pertinently the then Minister for Children made a statement to Parliament in June 2004 which contained the following:

‘Today we are announcing an initiative to determine how best to ensure the availability of medical expert resources to the family courts. Professor Sir Liam Donaldson, the Government’s Chief Medical Officer, will lead this work and plans to involve a wide range of interests, including judicial, legal, clinical specialities, scientific, statistical and consumer interests as well as health regulatory bodies.’

[232] The volume and the nature of the public criticism of Professor Sir Roy Meadow caused anxious concern to the President and Council of the Royal College of Paediatrics and Child Health. Members of the Royal College were either withdrawing from or declining to enter forensic work, a vital ingredient of overall child protection services. Accordingly the Department of Health had convened a meeting in May 2004 bringing together representatives of the Royal College of Paediatrics, the Chief Medical Officer (CMO), officials of the department, the President and myself as the Chairman of the Interdisciplinary Committee.

[233] The early following announcement of the Minister for Children seemed to meet many of the concerns expressed at the Department of Health’s meeting, particularly because it was anticipated that the CMO’s report would be available early in the new year.

[234] However there was one independent development that flowed from the meeting, namely collaboration between the GMC and the Chairman of the Interdisciplinary Committee to endeavour to speed disciplinary processes brought against consultants solely in connection with evidence given in family proceedings. Part of the oppression to the consultant resulting from an unfounded or malicious complaint was its duration. The GMC were finding that existing procedures for the disclosure of case papers from family proceedings heard in chambers were leading to unacceptable delays. An accelerated procedure needed to be sought. Then there was a question as to whether the judgment that concluded the proceedings might not provide the basis for a filter to eliminate complaints that would be revealed to be akin to frivolous or vexatious.

[235] The issues, although seemingly relatively straightforward were in fact complex as a result of, on the one hand, the GMC’s statutory duty to investigate and, on the other hand, the confidentiality of family proceedings and the need to ensure that interested parties within the proceedings had an opportunity to make representations upon any application for the release of case papers.

[236] Accordingly these two separate but allied issues were the subject of negotiation between representatives of the GMC and myself as the Chairman of the President’s Interdisciplinary Committee assisted by Baron J over the course of some 18 months, culminating in an agreement in October 2005 which was subsequently approved by the President.

[237] The less contentious and easier issue was the procedural acceleration, although even that required wide consultation. More difficult was the adoption of a system that, piloted in the Family Division, would ensure that the judge would in all cases consider and appraise the quality of any expert evidence, with that part of his judgment, subsequently transcribed, being made available to the GMC in the event of any complaint being received.

[238] Inherent difficulties were emphasised when at the judges’ meeting in January 2006 the proposal for the implementation of the pilot scheme was rejected.

[239] Further pursuit was apparently rendered unnecessary by the judgment of Collins J allowing Professor Meadow’s appeal.

[240] However the utility of this development was offset by the mounting delay in the publication of the report of the CMO. The draft delivered to the Department of Health was in confidential circulation for comment in August 2005. Thereafter further progress was apparently beset by inter-departmental debate over the legal problems that would result from the implementation of his proposals.

[241] Against that background and against the background that the majority of paediatric expert evidence is given in family proceedings, the written submissions of the Attorney General deal with this fundamental problem hardly at all. In para 14.3 there was some recognition of the deterrent factor:

‘There is also a countervailing public interest in not unnecessarily discouraging competent expert witnesses from giving evidence, and also in avoiding the risk of multiple proceedings, but the common law protects that interest by maintaining the immunity of expert witnesses from civil liability: it does not also demand their immunity from FTP proceedings.’

[242] In para 98 an argument was advanced in relation to the deterrent factor:

‘The Attorney General’s inquiries to date suggest that FTP proceedings are on occasion brought against experts in relation to evidence given by them for the purpose of court proceedings, but only rarely. If this is a fair reflection of the general picture, it suggests two things. First, it suggests that the threat of FTP proceedings has a salutary effect in helping to ensure that expert evidence is given responsibly: were it otherwise, such proceedings would have been more common. Secondly, it suggest that the likelihood of FTP proceedings being brought is sufficiently remote not to have any significant chilling effect on the willingness of competent expert witnesses generally to give evidence in court.

Evidence demonstrating concern among paediatricians was adduced before Collins J, hence the use of the word generally.’

[243] Finally in para 110 it was submitted:

‘To the extent that any particular profession, or any particular specialism within a profession, is exposed to exceptional risks in this regard and requires special treatment, the matter can be dealt with locally without the need for creating a general immunity at common law applicable to all expert witnesses in all circumstances, and then subjecting it to an unsatisfactory exception.’

[244] In para 40 and 41 reference was made to ‘an important public interest in ensuring an adequate supply of competent expert witnesses and regulating their conduct appropriately’. There followed the reference to the CMO’s report ‘on which work is still continuing’.

[245] In his oral submissions the Attorney General was able to inform the court that the CMO’s report would be published in about eight weeks. He was also able to say that it would propose incentives to encourage specialist registrars to undertake forensic work. What he was not able to say was that the report would propose minimising existing disincentives or deterrents.

[246] Having submitted that Collins J’s extension of witness immunity was either unlawful or impermissible the Attorney General submitted that the real issue became what should be the control mechanism to protect expert witnesses from unfounded or malicious complaints. He had no positive suggestions as to what the control mechanism might be. Whilst plainly there can be no progress pending the publication of the CMO’s report, it is hardly encouraging that the Attorney General was not in a position to give any indication of the government’s contribution to the development of the mechanism. Past experience demonstrates that inter-professional collaboration alone has not sufficient power to achieve an effective solution. Commitment and action by the relevant departments of government seem essential. It is equally clear that the creation of the mechanism is long overdue. This is now urgent business.

[247] Mr Henderson during the course of his oral submissions produced a document which he submitted would meet the future needs of the family justice system by the creation of a judicial mechanism. The document is headed ‘Professional Regulators-Court Disclosure/Judicial Referral’. Paragraphs 5 and 6 read as follows:

‘What can reasonably be required of Judges and Tribunals in aid of the statutory duty of GMC and other Professional Regulators in terms of qualitative judgments of experts and particularly of matters relevant to fitness to practise and in terms of notification and provision of transcripts, documents and information to professionals and regulators, preferably being such as to promote:

(a) alerting of professional regulators to professionals whose fitness to practise is open to question, whether as an expert or otherwise (e.g. mental health);

(b) permitting professional regulators to draw an inference when considering a complaint that the absence of referral by a Judge/Tribunal provides some evidence of absence of impairment.

Should a judge refer a professional to a professional regulator and/or consider an application for disclosure when a case is subject to appeal? Should the referral/application be dealt with the appellate court or be stayed pending the appeal or otherwise?’

[248] Mr Henderson’s document follows shortly after his disclosure of the correspondence passing between the GMC and the Family judges in 2005. Therefore Mr Henderson’s proposal seems to replicate what was agreed as a Family Division pilot. Subsequent events demonstrate that it would be rash to invest confidence that the experiment will develop into the control mechanism envisaged by the Attorney General.

[249] All the above may be said to be peripheral to the determination of the principal issue in the appeal, the issue that attracted the Attorney General’s intervention. On that issue I have had the advantage of reading in draft the judgment of Sir Anthony Clarke MR, with which I am in complete agreement.

Serious professional misconduct

[250] The courts have defined the standards expected of expert witnesses, classically in the judgment of Cresswell J in The Ikarian Reefer [1993] 2 Lloyd’s Rep 68. We were told that the standards which he set for experts in civil cases apply equally at criminal trials. Identical standards apply to witnesses in family proceedings (see Re J (child abuse: expert evidence) [1991] FCR 193 at 226 per Cazalet J and Vernon v Bosley (No 1) [1997] 1 All ER 577 at 612).

[251] In this appeal there can be no doubt that Professor Sir Roy Meadow fell short of the required standards. He advanced a probability theory that can only be applied in the calculation of the odds against the happening of two truly independent events. He was not expert in the calculation of probability. The calculation which he advanced in his original witness statement for the trial of Mrs Clark was drawn from a paediatric paper which he had published in the Archives of Disease in Childhood in 1999, without any citation of the source. In the days immediately preceding the trial he submitted a supplemental witness statement in which he advanced an even more extreme calculation drawn from the Confidential Enquiry into Stillbirths and Deaths in Infancy (CESDI) study by Professor Fleming and others. He knew from the text of the article that simple squaring was not a reliable basis for the calculation of the probability of recurrence given that two infant deaths within the same family are not independent events. He, who had introduced the CESDI study to the case, allowed the bare table for the calculation of probability by squaring to go before the jury without the qualifications expressed in the accompanying text. When cross-examined, far from fairly admitting the need for qualification, he elaborated the figure produced by simple squaring with illustrations, one of which (backing an eighty to one Grand National winner in four consecutive years) he has subsequently acknowledged to be inappropriate and insensitive. Such breaches of the duties imposed upon an expert witness must amount to misconduct even if the witness had no intention to mislead and honestly believed in the validity of his opinion. However I cannot accept that in the context of this particular case Professor Meadow was guilty of serious professional misconduct as construed by the Privy Council authorities.

[252] Let me explain that conclusion. The first publication of the statistic in the 1999 paper of course demonstrated a lack of scientific rigor and perhaps presaged an over casual approach to the incorporation of seeming expertise from a neighbouring scientific discipline. However at the trial of Sally Clark the fundamental fallacy, namely that the recurrence of a second SIDS death in the same family could be calculated by simple squaring was common ground between prosecution and defence. That is demonstrated by Professor Meadow’s cross-examination at the committal proceedings before the stipendiary. Mr Kelsey-Fry for Mrs Clark put the following questions:

‘Am I right in thinking that, in the event of a family suffering a cot death, a SIDS, an unexpected death, a SIDS, an unexplained death, research shows that the chances of a repeat occurrence, once the first has happened, of course, the chances of a repeat occurrence are effectively the same?

In other words, the fact that there is one, does not enhance the chance of another; nor does it detract from the chance of another?

A. No.

Q. That is right, is it not?

A. I agree.

Q. Which is why, I am right, Professor, that you giving the general figure of 1:1,000 then you multiply for the chances of the double occurrence?

A. Yes.

Q. The result of one in a million in your view makes it one in a million unlikely that both deaths in such a family were natural?

A. Yes.

Q. Unlikely in the sense of one in a million?

A. Yes.

Q. But the fact remains the chances of one death in a family remains as one in a thousand?

A. Correct.’

[253] At the trial itself Mr Bevan QC leading Mr Kelsey-Fry, with the agreement of Mr Spencer QC for the prosecution, put before the judge and the jury the bare table extracted from the CESDI study. In cross-examining Professor Meadow on the table Mr Bevan did not challenge, indeed plainly accepted, that simple squaring is the correct route to the calculation of the probability of a second SIDS death in the same family. This is illustrated by the exchange during Professor Meadow’s cross-examination as follows:

‘Q. On your table when Christopher was born his chances in relation to a cot death were, taking your own figure, 1 in 8,543?

A. Around there, yes. I say around because as this paper mentioned, this figure analyses the three biggest risk factors and there are other things that can modify it, but I think for practical purposes 1 in 8,500 is a starting point.

Q. He died. When Harry came into this world, yes?

A. Yes.

Q. When he was born the chances of Harry dying, the chances of him dying of a cot death were exactly the same, were they not, 1 in 8,543?

A. Yes, that is correct.

Q. It’s a bit like a coin, isn’t it? If you flip a coin, heads or tails, yes?

A. Yes.

Q. It’s the same odds each time, isn’t it, one to one?

A. Yes, and that’s why you don’t just look at . . . This is why you take what’s happened to all the children into account, and that is why you end up saying the chance of two children dying naturally in these circumstances is very, very long odds indeed, one in 73 million. You know, I mean . . .

Q. That’s a double death every hundred years.

A. I know, but I mean, you know, I know Mr Kelsey-Fry is interested in betting odds and you know, it’s the chance . . .

Q. I don’t know how you knew that.

A. At a previous hearing; but it’s the chance of backing that long-odd outsider at the Grand National, you know; let’s say its an 80 to 1 chance, you back the winner last year, then the next year there’s another horse 80 to 1 and it is still 80 to 1 and you back it again and it wins. Now here we’re in a situation that, you know, to get to these odds of 73 million you’ve got to back that 1 in 80 chance four years running, so yes, you might be very, very lucky because each time it’s just been a 1 in 80 chance and you know, you’ve happened to have won it, but the chance of it happening four years running we all know is extraordinarily unlikely. So it’s the same with these deaths. You have to say two unlikely events have happened and together it’s very, very, very unlikely.

Q. Have you heard-I hope it’s not too frivolous a remark to make but have you heard the expression “Lies, damned lies and statistics”?

A. I don’t like statistics but I’m forced into accepting their usefulness.’

[254] Nor was Mr Bevan short of scientific ammunition. On 20 October his instructing solicitor and his junior received by fax a letter from Professor Fleming in which he explained why the table that later went to the jury had been published and the considerable limitation in its use as an indicator of risk. Additionally Mr Bevan had one of the co-authors, Professor Berry as his expert.

[255] With the advantage of hindsight this acceptance on the part of Mrs Clark’s very experienced counsel seems hard to understand. However I stress that evidence as to the probability of recurrence only related to SIDS and it was common ground at this trial that the two deaths in issue were not SIDS deaths, certainly after the evidence of Professor Berry.

[256] Thus Professor Meadow proceeded on the footing that the principle of simple squaring was agreed, even if the numbers to be squared were in issue. In a sense whether the numbers were 1:73,000,000 or 1:1,000,000 is of limited significance, given that even the lower figure is at the highest end of improbability. Professor Meadow’s duty to be fair has to be assessed in the context of an agreed proposition. His introduction of the CESDI figures for SIDS was not entirely gratuitous since at the exchange of experts’ statements it appeared from the statement of Professor Berry that he would raise the possibility that both infant deaths were SIDS. That he was not in fact supporting that hypothesis only emerged from his evidence. Thus the issue might have been, and in my view should have been, disposed of by a direction from the judge that the evidence as to recurrence rates was irrelevant and the table put before the jury by agreement should have been withdrawn.

[257] My view of the context is much reinforced by the subsequent analysis of the trial carried out by the first appeal to the Criminal Division of this court. Judgment was given on 2 October 2000 approximately 11 months after the Chester trial (see R v Clark [2000] All ER (D) 1219). Counsel for the appellant and for the Crown were those who had appeared at the trial. There were five grounds of appeal the third being:

‘The evidence given by Professor Meadow of the statistical probability of two SIDS deaths in one family undermined the safety of the convictions, in that the figures cited were erroneous, Professor Meadow’s opinion as to the deaths being unnatural was wrongly founded in part on the statistical evidence, and the judge failed to warn the jury against the “prosecutor’s fallacy” in relation to the use of statistical evidence.’

[258] That third ground was very thoroughly considered between paras 101-184 of the judgment. The court concluded that the judge had not dealt with the statistical evidence correctly. The resulting error had to be looked at in the round in order to consider whether it rendered the conviction unsafe. (See paras 182-184, 247).

[259] The court’s ultimate judgment in the round was thus expressed at para 272:

‘For all those reasons, we consider that there was an overwhelming case against the appellant at trial. If there had been no error in relation to statistics at the trial, we are satisfied that the jury would still have convicted on each count. In the context of the trial as a whole, the point on statistics was of minimal significance and there is no possibility of the jury having been misled so as to reach verdicts that they might not otherwise have reached.’

[260] There are two paragraphs within the court’s review of the statistical evidence that are in my opinion of relevance to the principle question in the present appeal. The court settled the context thus (at para 142):

‘While to deal properly with this ground of appeal in its context in the trial it has been necessary to consider the evidence and issues in detail, it was very much a side-show at trial. The experts were debating the incidence of genuine SIDS (unexplained deaths with no suspicious circumstances) in a case where both sides agreed that neither Christopher’s death nor Harry’s death qualified as such.’

[261] Then (at paras 178, 179) is the court’s evaluation of Professor Meadow’s shortcomings:

‘Therefore we accept that when one is looking ex post at whether two deaths were natural or unnatural, the 1:73 million figure is no help. It is merely a distraction. All that matters for the jury is that when your child is born, you are at a very low risk of a true SIDS death, and at even lower risk with the second child.

179. Professor Meadow did not misuse the figure in his evidence, though he did not help to explain their limited significance.’

[262] The conviction was returned to the Criminal Division by the Criminal Cases Review Commission in 2002. Judgment on the resulting appeal was given on 11 April 2003 (see R v Clark [2003] EWCA Crim 1020, [2003] 2 FCR 447). At the appeal two grounds were advanced: the first was the failure by the Crown’s pathologist, Dr Williams, to disclose microbiological reports with the result that important aspects of the case which should have been before the jury were never considered at trial. The second ground of appeal was, again, that statistical information given to the jury about the likelihood [of] two SIDS in a family misled the jury.

[263] The appellant’s case on the first ground was very strong and resulted in the appellant’s release on bail prior to the hearing and the discharge of the conviction on the hearing of the appeal. Thus it was not necessary for the court to rule determinatively on the second ground of appeal. However the court’s judgment dealt with the statistical evidence between [94] and [110], particularly recording that at the first appeal this ground had only failed because of the court’s conclusion in the round that there was an overwhelming case against the appellant.

[264] Since that overwhelming case had been destroyed by the discovery of the microbiological reports-

‘[179] The Court of Appeal on the last occasion would, it seems clear to us, have felt obliged to allow the appeal but for their assessment of the rest of the evidence as overwhelming. In reaching that conclusion the court was as misled by the absence of the evidence of the microbiological results as were the jury before it. We are quite satisfied that if the evidence in its entirety, as it is now known, had been known to the court it would never have concluded that the evidence pointed overwhelmingly to guilt.

[180] Thus it seems likely that if that matter had been fully argued before us we would, in all probability, have considered that the statistical evidence provided a quite distinct basis upon which the appeal had to be allowed.’

[265] Thus it is clear that there is no discord between the two judgments on the issue of statistical evidence. However it is clear that the judgment given in April 2003 was more critical of the evidence of Professor Meadow than had been the judgment in October 2000. However the issue was more profoundly canvassed at the first appeal and the tentative conclusion expressed by the second court was further qualified by its introductory para [172]: ‘Finally we should say a little about the statistical evidence led before the jury. The matter was the subject of only brief argument before us and we certainly heard none of the evidence.’

[266] Thus I do not consider that the observations of the court in the Cannings appeal cited at [229], above, fairly summarise the role of Professor Meadow at Mrs Clark’s trial. It is of course only a brief summary but the focus on the second appeal alone risks distortion.

[267] In so far as there is a difference of view between two courts partly addressing the same issue, it is, in my opinion, an indication that Professor Meadow’s failings were not extreme.

[268] With the advantage of hindsight it seems both extraordinary and disadvantageous to deny the panel both judgments of the Court Appeal (Criminal Division). Miss Davies naturally wanted the panel to have the advantage of the judgment in the first appeal; Mr Seabrook, who led for the GMC at the panel hearing, wanted the panel to have the judgment of the court in the second appeal. Apparently the resulting agreement between leading counsel was that neither judgment should go to the panel.

[269] The predictable outcome, in my judgment, was that the panel failed to understand the full context in which Professor Meadow gave evidence. Their reasons suggest that they never understood that Professor Meadow’s evidence as to probabilities went to a non-issue at the conclusion of the evidence.

[270] It is also apparent that the panel regarded Professor Meadow as responsible for misleading the jury by the introduction of the squaring mechanism for the calculation of probability. It does not seem from their reasons that they understood that it was common ground between prosecution and defence that that was the correct mechanism. Had they had the judgment of the court on the first appeal they would have appreciated that a legitimate evaluation demonstrated: (a) The probability of a recurring SIDS death in one family was a side-show at the trial; and (b) Professor Meadow’s evidence, flawed though it was, fell far short of serious professional misconduct.

[271] There are other more minor criticisms of the panel’s reasoning. Having quoted the crucial paragraph from Professor Meadow’s witness statement the panel continued:

‘The Panel has heard experts statistical evidence (which it accepts) that the squaring of the figure 1:1000 ratio to conclude that there was 1:1,000,000 incidents of double SIDS deaths within a family was incorrect. Furthermore you were unable to explain from where you derived these figures. You said in evidence before this Panel that you thought someone in the audience of a lecture you were giving had said this and that you had remembered putting the figures “on a blackboard somewhere”, although you could not recall when and where. The Panel considered this explanation to be unacceptable and the members were of the opinion that this highlighted your less than rigorous use of statistics and your inability to adhere to strict scientific principles in so doing.’

[272] I regard that critique as less than fair. The figure of 1:1,000 was in fact conservative and the only error was the squaring. As to the Professor’s oral evidence of derivation, the charges all related to his evidence in the criminal proceedings and not to the research preceding the publication of his 1999 paper.

[273] Furthermore the panel seemingly misunderstood the evidence of Sir David Cox that Professor Meadow had been responsible in his evidence for setting up ‘the prosecutor’s fallacy’ to mislead the jury.

[274] Finally the panel was, in my judgment, wrong to state:

‘You are an eminent paediatrician whose reputation was renowned throughout the world, and so your eminence and authority carried with it a unique responsibility to take meticulous care in a case of this grave nature.’

[275] Whilst Professor Meadow undoubtedly was a paediatrician of the greatest eminence and authority, the duties imposed upon an expert witness do not rise or fall in proportion to the witness’s standing.

[276] The only passage in the panel’s reasoning which demonstrates their endeavour to appreciate the context of Professor Meadow’s evidence is this paragraph:

‘The Panel has noted with care the argument put forward on your behalf that others within the court system did not question your erroneous application of statistics in the police statement, Magistrates’ and Crown Courts. You, however, were the expert witness, you provided the statistics, spoke to them with authority and it was your expert evidence which was relied upon by the other parties to the Court proceedings.’

[277] That paragraph seems to me to demonstrate that the panel had not properly understood: (a) That Professor Meadow’s evidence mainly concentrated on factors to suggest that neither infant death was natural; (b) Professor Meadow was one of a bevy of experts at the trial; (c) Professor Meadow’s expert evidence was certainly not relied upon by the other parties to the proceedings. It was substantially challenged by the team of experts called by the defence; (d) Even within the statistical side-show the defence had available to them Professor Fleming’s letter and the evidence of his co-author Professor Berry.

[278] Collins J did have available to him the judgments of the court in the two appeals. Thus his evaluation of Professor Meadow’s evidence demonstrates a proper understanding of the context and founds the criticisms that he made of the panel’s decision set out at [50]-[54] inclusive of his judgment. Those criticisms are broadly similar to those I have expressed above. I share his evaluation and his conclusion (at [56]):

‘It follows that I would allow the appeal against the finding of serious professional misconduct. It is difficult to think that the giving of honest albeit mistaken evidence could save in an exceptional case properly lead to such a finding.’

[279] Privy Council authorities have established what is meant by serious professional misconduct. In Preiss v General Dental Council [2001] UKPC 36, [2001] IRLR 696, [2001] 1 WLR 1926 it was defined in the following terms (at [28]):

‘It is settled that serious professional misconduct does not require moral turpitude. Gross professional negligence can fall within it. Something more is required than a degree of negligence enough to give rise to civil liability but not calling for the opprobrium that inevitably attaches to the disciplinary offence . . .’

[280] Whilst the Privy Council was, and now the Queen’s Bench judge is, free to upset the decision of the panel if clearly wrong, it has always been recognised that the appellate court must accord due deference to the evaluation of a panel substantially composed of doctors for the obvious reason that they are better placed to make a peer judgment. There can be no doubting that proposition where the charge before the panel relates to clinical work. But where the only charge relates to the doctor’s evidence given during legal proceedings there is no similar foundation for deference. It is the judges, in judgments such as National Justice Cia Naviera SA v Prudential Assurance Co Ltd, The Ikarian Reefer [1993] 2 Lloyd’s Rep 68 who set the standards that they require of the expert witnesses appearing before them. In my opinion the judges are best placed to evaluate whether and to what extent an expert witness fell below those standards.

[281] It is for these reasons that I would support the judgment of Collins J and reject the GMC’s appeal on this important issue.

[282] I add that I have also had the advantage of reading in draft the judgment of my Lord, Auld LJ on the s 40 test, with which I agree.

DISPOSITION:
Appeal allowed in part.

Rationales for the Witness Immunity Rule: Cassidy v Hawcroft (United Kingdom)

(Transcript: Smith Bernal)

Cassidy v Hawcroft
COURT OF APPEAL (CIVIL DIVISION)
(Transcript: Smith Bernal)
HEARING-DATES: 27 JULY 2000
27 JULY 2000

COUNSEL:
J Cash for the Appellant; R Elliott for the Respondent

PANEL: MORRITT, MAY LJJ, FORBES J

JUDGMENTBY-1: MAY LJ

JUDGMENT-1:
MAY LJ: 1. This is an appeal by the claimant, Michael Cassidy, with the permission of Aldous LJ, against the decision and order of HH Judge Swanson made on 23 December 1999 in the Kingston upon Hull County Court. The judge then heard and determined in the defendant’s favour a preliminary issue to the effect that Mr Cassidy was precluded from bringing his proceedings for slander and libel because they were brought in respect of and in reliance on a document and information contained in it which Mr Cassidy had obtained by discovery in other proceedings. The judge ordered Mr Cassidy’s action to be stayed and ordered him to pay Mr Hawcroft’s costs.

2. Mr Cassidy had an interest in land and property at Bursea Lodge Farm. In 1991, Receivers were appointed over this property. Eversheds were the solicitors who acted for the Receivers. In the summer of 1992, Mr Hawcroft’s solicitors were Taylor Broomer & Co. of Hull. In August 1992, the Receivers offered the properties for sale. In September 1992, they accepted, subject to contract, an offer by Mr Hawcroft for one lot of the land. By January 1993, contracts had not been exchanged.

3. On 25 January 1993, Mr Hawcroft’s solicitors wrote a letter to Eversheds. The letter is central to these proceedings and to this appeal. It included the following:

“Re: Hawcroft from Lloyds Bank plc

Lot 1 Bursea Lodge Farm

Our client recently attended at this office to express his strong reservations about proceeding to exchange of Contracts. His concerns stem from comments made by various local people. Rumours are circulating that Mr Cassidy intends to wreak vengeance upon those persons who, as he sees it, are acquiring his land at below market price and without his approval. Whilst we are not prepared to commit to paper any further details the end result is that our client fears for his own safety and that of his family and property.”

4. The receivership proceeded. Mr Cassidy took proceedings in the Leeds County Court and, on 13 April 1993, he applied without notice for an injunction to restrain the Receivers from disposing of any land at Bursea Lodge Farm. Mr Brian Horrocks, a partner in Eversheds, got to hear of this application. He attended the court and undertook on behalf of the Receivers not to sell any land until after a hearing of Mr Cassidy’s application on notice – as it happened, in the Bradford County Court – on 21 April 1993. For the purpose of that hearing, Mr Horrocks swore a long affidavit. In para 18 of that affidavit, Mr Horrocks said that the Receivers had tried to dispose of various lots in the face of obstruction by members of the Cassidy family. He understood that in consequence purchasers had been deterred from submitting offers or had submitted extremely low offers. He gave a reported example of aggressive remonstrations from both Mr and Mrs Cassidy in the presence of prospective purchasers. He then said:

“One prospective purchaser of Lot 2 has verbally informed the Receivers’ Agent that whilst he would be interested in purchasing Lot 2 and the farmhouse (with vacant possession) he was not prepared to proceed as long as Bernard Cassidy remained on site. My firm have received a letter (which in the circumstances I have chosen not to exhibit to this Affidavit): this letter was received by [sc. from] solicitors acting for an interested party in one of the lots and the following is a true extract from the said letter:

“[Our client's] concerns stem from comments made by various local people. Rumours are circulating that Mr Cassidy intends to wreak vengeance upon those persons who, as he sees it, are acquiring his land at below market price and without his approval. Whilst we are not prepared to commit to paper any further details the end result is that our client fears for his own safety and that of his family and property.””

5. As may be seen, this was a direct reference to and quotation from the letter of 25 January 1993.

6. The hearing on 21 April 1993 took place in open court and the affidavit was used. Mr Cassidy’s application for an injunction was dismissed. By December 1993, these injunction proceedings were dormant but still in being. On 13 December 1993, Mr Cassidy obtained an order in those proceedings that:

“… the Defendants [the Receivers] do forthwith supply to the Plaintiff copies of the correspondence referred to in paragraph 18 of the Affidavit of Brian Julian Horrocks dated 20 April 1993″.

7. Mr Horrocks did not consent to that order but he did not feel able to oppose it in the light of the then CCR Ord 14 r 4, to which I shall refer later in this judgment. In consequence, Eversheds sent to Mr Cassidy a copy of Taylor Broomer & Co’s letter to them of 25 January 1993.

8. Mr Cassidy began the present proceedings by High Court writ dated 29 December 1995. He claimed against Mr Hawcroft damages for slander and libel. At that time, the normal statutory limitation period for bringing proceedings for defamation was 3 years. It has since been reduced to one year. The alleged slander was the spoken publication to his solicitors, Taylor Broomer & Co, of words which it is alleged were reported in the letter of 25 January 1993. The alleged libel was the publication of the letter itself by his solicitors. By his original defence, Mr Hawcroft admitted the occasion of the alleged slander and admitted that he had expressed certain concerns to his solicitor. He also admitted that his solicitors had written the letter of 25 January 1993 to Eversheds and quoted the allegedly defamatory words as being part of the letter. He served a true copy of the carbon of the letter with the defence. The defence also contained various defences to the substance of the claims.

9. At a later stage, Mr Hawcroft’s defence was amended. In its amended form, the substantive defences in summary included that the publication of the alleged slander was on an occasion of absolute privilege, alternatively of qualified privilege; that the publication of the alleged libel was on an occasion of qualified privilege; and that the publications did not refer to Michael Cassidy, but to his father Bernard Cassidy. There were other matters of substantive defence. The amended defence also pleaded that the proceedings for both libel and slander were an abuse of process because they were brought in reliance on a document and information in it – that is, the letter of 25 January 1993 – which Mr Cassidy had obtained by way of discovery in other proceedings. The particulars of that plea relied on the facts which I have related leading up to Mr Cassidy obtaining the letter from Eversheds by virtue of the court order of 13 December 1993. It was this issue which was the subject of the preliminary issue which Judge Swanson decided in favour of Mr Hawcroft.

10. The defendant’s contentions were and are that documents obtained on discovery are subject to an implied undertaking not to use them or the information contained in them for the purpose of proceedings other than those in which they were disclosed. This, it is submitted, applies to Mr Cassidy’s obtaining of the copy of the letter of 25 January 1993 which was an essential ingredient of his ability to bring the defamation proceedings. He could not have done so otherwise because the reference to the letter in para 18 of Mr Horrocks’ affidavit of 20 April 1993 did not identify some of the necessary basic ingredients of a defamation pleading – for example the identity of the publisher and the occasions of publication. The application of 13 December 1993 was itself an abuse because it was made in dormant proceedings with the ulterior motive, not of using the document in the proceedings in which it was to be produced, but for separate defamation proceedings. [Mr Cassidy challenges the contention that he did not have sufficient information apart from the letter to start the defamation proceedings, but, for reasons which will appear, it is not necessary to determine this part of the dispute.]

11. The judge rehearsed the defendant’s contention as being that there is a general rule that a party who discloses a document on discovery is entitled to the protection of the Court against any use of it otherwise than in the action in which it was disclosed. The document and the information in it obtained by the parties in the course of discovery are obtained subject to an implied undertaking not to use them for any purpose other than the proceedings in which they are compulsorily disclosed. If they are used for other proceedings, that is an abuse of process and a contempt of court. There will be no abuse or contempt if the court releases the person subject to the implied undertaking from it, but there was no such release in this case. Mr Horrocks did not voluntarily disclose the letter.

12. Mr Cassidy’s case relied on the former CCR Ord 14 r 8A, which was in identical terms to the former RSC Ord 24 r 14A, and which provided that:

“Any undertaking, whether express or implied not to use a document for any purposes other than those of the proceedings in which it is disclosed shall cease to apply to such document after it has been read to or by the Court, or referred to, in open Court, unless the Court for special reasons has otherwise ordered on the application of a party or of the person to whom the document belongs.”

13. The reference to the letter of 25 January 1993 in Mr Horrocks’ affidavit of 20 April 1993 had, of course been before Mr Cassidy obtained a copy of it. But the essential contention was that, since the letter had been referred to in open court on 21 April 1993, Ord 14 r 8A operated so that any implied undertaking by Mr Cassidy ceased (or never came into existence).

14. The judge’s consideration of this issue concentrated on two strands of authority which it was not easy to reconcile. On the one hand were cases including Tejendrasingh v Christie [1995] EMLR 152 (Drake J.); Tejendrasingh v Metsons [1997] EMLR 597 (the same case in the Court of Appeal); Mahon v Rahn (unreported, Brooke J. 19.6.96); and Taylor v Director of Serious Fraud Office [1999] 2 AC 177, [1998] 4 All ER 801 (House of Lords) which favoured (or arguably favoured) a narrow ambit to the release from the undertaking effected if Ord 14 r 8A applied. On the other hand were cases including Derby v Weldon (No. 2) Browne-Wilkinson V-C, the Times 20 October 1988; Mahon v Rahn [1998] QB 424, [1997] 3 All ER 687 (Court of Appeal); and Smith Kline Beecham v Connaught Laboratories [1999] 4 All ER 498, [2000] FSR 1 which favoured the proposition that, once a document has been used and referred to in open court, it is a public document and no special undertaking continues. The judge decided that he was bound by Tejendrasungh v Metsons in the Court of Appeal. He had quoted and applied a passage from the judgment of Butler Sloss LJ in that case at page 602, where she said:

“… Quite clearly, rule 14A [the High Court version of the rule], which was brought into effect to get rid of what have been called the absurdities of the Harman v. The Home Office situation, is not to be used to enable a litigant who obtains documents in one set of proceedings to use them as the foundation for a wholly different, completely separate set of proceedings, as in this case, for defamation.

It is not, as I said, a matter of confidentiality; it is a matter of the undertakings. The scope of rule 14A does not, in my view, give the applicant the right to start quite different sets of proceedings relying upon these attendance notes.”

15. The judge further held that, even if Mr Cassidy was entitled to rely on the contents of the letters insofar as they were incorporated into the affidavit, the application for discovery, for the motives which the judge had found, was not a proper use of the process of the court and amounted to an abuse. The further use of the information, thus for the first time discovered, in an action for defamation amounted to a further abuse. The judge concluded that the action should be stayed for that reason also.

16. Mr Cassidy’s grounds of appeal seek to challenge certain of the judge’s findings of fact. It is only necessary to consider one of these, that is that Mr Horrocks did not disclose the letter voluntarily. On this point, Miss Cash’s submissions took what was for me at least an unexpected turn. It seems that the preliminary issue before the judge, at which Mr Cassidy was unrepresented, proceeded on the basis that his application on 13 December 1993 was an application for discovery; that the order made was one which compelled Mr Horrocks to disclose a document which he was not otherwise obliged to disclose; that the receipt of the letter by Mr Cassidy was therefore subject to the usual implied undertaking; and that the issue was that which depended on Ord 14 r 8A. Miss Cash pointed out to us, however, that the order of 13 December 1993 was not an order for discovery, but an order for the production for inspection of a document referred to in an affidavit. It was an application (as Mr Horrocks had acknowledged in an affidavit) under CCR Ord 14 r 4. This provided:

“(1) Any party to an action or matter shall be entitled at any time to serve on any other party in whose pleadings, affidavits or witness statements reference is made to any document a notice requiring him to produce it for the inspection of the party giving the notice and to permit him to take copies thereof.

(2) The party on whom a notice is served under paragraph (1) shall, within 4 days after service, serve on the party giving the notice a notice stating a time within 7 days after service thereof after which the documents, or such of them as he does not object to produce, may be inspected at a place specified in the notice and stating which (if any) of the documents he objects to produce and on what grounds.”

17. Thus is was not an application for discovery, but an application for production for inspection to which Mr Cassidy was entitled under the rule and to which Mr Horrocks offered no opposition because he rightly appreciated that there was no proper ground for doing so. The relevant disclosure, that is in the affidavit, was voluntary. Mr Cassidy was entitled to production. There was no implied undertaking and no fetter on the use of the document to which Mr Cassidy was in law entitled.

18. There is in my judgment no answer to this submission. Mr Elliott struggled to make submissions to the contrary. He submitted that, under the rules, inspection of documents and production of them are the same. Mr Horrocks, who is not the defendant in these proceedings, did not take objection, but he might have done so. The provision of the document was a form of discovery and part of a compulsory process which carried with it an implied undertaking. Mr Horrocks made clear that he was not exhibiting the document and only referred to it in part. Mr Cassidy only secured the document in its entirety by reason of a compulsory court order. The implied undertaking arose from the form of the rule and Mr Horrocks’ ability to object, although he did not in fact do so. Mr Elliott had to concede that, if Mr Horrocks’ affidavit had referred to the whole of the relevant part of the letter, that would have been for relevant purposes a complete voluntary disclosure of the letter to which no implied undertaking could attach. In my view, the fact that he only referred to and quoted part of it makes no difference. The disclosure was voluntary – and for good measure in open court – and Mr Cassidy was entitled to production for inspection. There was no implied undertaking and the basis on which the issue proceeded before the judge was to this extent erroneous, largely because Mr Cassidy was not represented. This conclusion accords with a passage in the judgment of Hobhouse J. in Prudential Assurance v Fountain Page [1991] 3 All ER 878, [1991] 1 WLR 756 at 767H of the latter report. Hobhouse J. was there considering the categories of case discussed by Browne-Wilkinson V-C in Derby v Weldon (No. 2) in these terms:

“With regard to the third category of documents that he had to consider, that is to say documents which a party was required to produce because they had been referred to in a voluntary affidavit, the Vice-Chancellor said that the source of the obligation to produce those documents was the voluntary affidavit and that therefore the subsequent order of the court was merely the recognition of an obligation which the party had already voluntarily accepted. Such documents were subject to no relevant restriction.”

19. Thus in my judgment these proceedings were not an abuse as being brought in reliance on the letter of 25 January 1993 in breach of any implied undertaking.

20. Mr Elliott nevertheless submitted that the judge was right to conclude that the proceedings were an abuse for the more general reason that Mr Cassidy’s acquisition of the document in proceedings which were dormant was founded on an improper motive and that the court should recognise this by staying the proceedings. Even if Mr Cassidy was entitled to production of the document, that did not mean that his use of it was not an abuse. Mr Elliott submitted that there is abuse where the court’s procedure is not used as it is intended, but misused for an ulterior purpose. The defamation claim was dependent on the information in Mr Horrocks affidavit, which Mr Elliott accepted was available for unrestricted use, but also on the sight of and physical possession of the entire letter. Mr Cassidy’s case that he had sufficient information to start the proceedings without the letter is not credible and the judge rejected it. His purpose in acquiring the letter itself was palpable. Mr Horrocks was trying to protect his source. He did not produce it voluntarily. The injunction proceedings were moribund. The court has a discretion to control in the public interest the use of documents produced as a result of its process. The procedures of the court should not be misused and, although Mr Hawcroft had no standing in the injunction proceedings to prevent the use of a document which was not his, the court should seek to avoid unnecessary invasion of privacy and confidentiality and to avoid the spawning of parasitical litigation of a disproportionate nature. Looking at Mr Cassidy’s case in the round, it has little merit and it is wholly consistent with the overriding objective of the Civil Procedure Rules that it should be stayed.

21. It may turn out that it was indeed a great pity that the defendant chose to take a procedural abuse point as a preliminary issue, rather than concentrating on the substantive merits of his defence. But the present abuse submission cannot, in my judgment, properly extend beyond questions relating to the acquisition of the letter of 25 January 1993. As to that, I assume for the purpose of this judgment that Mr Cassidy may well have wanted and needed the letter, as the judge found, to be enabled to start these proceedings. I should emphasise that this is an assumption only, since Mr Cassidy has appealed against that finding, but it is not in my view necessary to determine that part of his appeal. Upon that assumption, he was nevertheless entitled to its production and I do not see how it can be an abuse to obtain production of a document to which he was entitled, which had been voluntarily disclosed by Mr Horrocks to whom it belonged and whose production he did not oppose. The abuse submission is further, in my view, untenable in the light of the admissions made in the defence, to which I have referred, which would have entitled Mr Cassidy to production of the letter in these proceedings, if a copy of the carbon had not already been served with the defence itself. The proposition that proceedings are an abuse because they depend on a letter which the defendant has admitted and himself served with his defence is one which, in the circumstances of this case, in my view, has no force.

22. For these reasons I would allow this appeal.

JUDGMENTBY-2: FORBES J

JUDGMENT-2:
FORBES J: 23. I agree.

JUDGMENTBY-3: MORRITT LJ

JUDGMENT-3:
MORRITT LJ: 24. I also agree.

DISPOSITION:
Appeal allowed with costs.

SOLICITORS:
Peter Carter-Ruck & Partners; Gosschalks

Criminal evidence – Expert evidence – Voice identification – Technique used by expert disputed – Whether evidence admissible – Recognition of appellants voice by police officers – Whether public policy exception relating to identification should be extended to evidence of recognition – Whether such evidence admissible: R v Robb (United Kingdom)

Lexis UK CD 180, 93 Cr App Rep 161

R v Robb
COURT OF APPEAL (CRIMINAL DIVISION)
Lexis UK CD 180, 93 Cr App Rep 161
HEARING-DATES: 21 JANUARY, 1 FEBRUARY 1991
1 FEBRUARY 1991

CATCHWORDS:
Criminal evidence – Expert evidence – Voice identification – Technique used by expert disputed – Whether evidence admissible – Recognition of appellants voice by police officers – Whether public policy exception relating to identification should be extended to evidence of recognition – Whether such evidence admissible.

HEADNOTE:
This judgment has been summarised by LexisNexis UK editors.

The appellant was involved in the abduction of a wealthy Arab businessman. It was alleged that he had made telephone calls to the victim’s wife demanding a ransom and to a cab company to arrange for its collection. All but one of these telephone calls were tape-recorded and the Crown sought to adduce expert evidence, to establish that the appellant was the man who had made the telephone calls, and evidence of police officers who had accompanied the appellant to London, that they recognised the voice on the tapes as being that of the appellant. At the trial, the defence submitted that this evidence ought to be excluded. In the case of the expert, because he relied upon auditory techniques alone and this was not accepted by orthodox professional opinion as being sufficient so as to be reliable, and in the case of the police officers, because a public policy exception applying to purported identification which disallowed evidence based on familiarity gained in the course of a police investigation, should equally apply to purported recognition. The judge rejected these submissions and the appellant was convicted. He appealed, repeating the submissions made at trial.

Held: (1) The expert was entitled to be regarded as a phonetician well qualified by academic training and practical experience to express an opinion on voice identification. Although his reliance on the auditory technique had to be regarded as representing a minority view in his profession, he had reasons for his preference and on the facts of the case he was not shown to be wrong.

(2) The authorities cited in support for the use of the public policy exception, related to cases of purported identification as opposed to purported recognition. In the instant case, the police officers were not providing expert evidence of identification but were instead testifying as witnesses of fact, that they recognised the voice on the tapes as being that of the man whom they had accompanied, this was crucially different. The public policy exception could not found an unqualified rule of law. What it properly could do, in any case where police officers’ evidence of recognition appeared suspect or procured for ulterior motives, or in any case where unfair advantage had been taken of the Defendant to strengthen the case against him, was provide powerful grounds for excluding the evidence under s 78(1) of the Police and Criminal Evidence Act 1984. It had therefore been open to the judge to admit the evidence and on the facts none of the grounds, mentioned as justifying exclusion under s 78(1) existed. The judge’s admission of the evidence was not contrary to law and good practice. The appeal would be dismissed.

COUNSEL:
M Hill QC and J Kelsey-Fry for the Appellant; J Korner and A Brierly for the Crown

PANEL: BINGHAM LJ, HUTCHISON, BUCKLEY JJ

SOLICITORS:
Registrar of Criminal Appeals; Crown Prosecution Service

Law practitioners — Rights and privileges of law practitioners — Barrister immune from an action for negligence in the conduct of a case and pretrial matters intimately related thereto — Law Practitioners Act 1955, s 13(2). Negligence — Arising out of special relations — Barrister conducting a case not liable: Rees v Sinclair (New Zealand)

Copyright 1973 New Zealand Council of Law Reporting
New Zealand Law Reports
Rees v Sinclair
Court of Appeal, Wellington
[1974] 1 NZLR 180; 1973 NZLR LEXIS 722
20, 21 August, 3 October 1973
DECIDED-DATE: 3 October 1973

CATCHWORDS:
[*1]

Law practitioners — Rights and privileges of law practitioners — Barrister immune from an action for negligence in the conduct of a case and pretrial matters intimately related thereto — Law Practitioners Act 1955, s 13(2).

Negligence — Arising out of special relations — Barrister conducting a case not liable.

HEADNOTES:
This was an appeal from the judgment of Mahon J reported [1973] 1 NZLR 236 dismissing an action for professional negligence brought by the appellant against the respondent. The appeal was dismissed and is reported only on the validity of a claim against a lawyer for damages for negligence in the conduct of litigation on the part of the lawyer.

Held, 1 The administration of justice requires that a barrister should be immune from an action for negligence so that he may perform his tasks fearlessly and independently in the interests of his client, but subject to his overriding duty to the Court, which may conflict with the interest of his client (see p 182, line 17; p 189, line 40).

Rondel v Worsley [1969] 1 AC 191, 227-228; [1967] 3 All ER 993, 998-999, applied.

2 Actions for negligence against barristers would make the re-trial of the original [*2] action inevitable and so prolong litigation contrary to the public interest (see p 183, line 19; p 189, line 44).

Rondel v Worsley [1969] 1 AC 191, 249-250, 251; [1967] 3 All ER 993, 1012, 1013, applied.

3 By McCarthy P. Public policy necessitates that in litigation a barrister should be immune because he is bound to undertake litigation on behalf of any client who pays his fee (see p 184, line 33).

Rondel v Worsley [1969] 1 AC 191, 281; [1967] 3 All ER 993, 1033, applied.

4 By McCarthy P. Unless a barrister was immune he could not be expected to prune his case of irrelevancies and cases would be prolonged contrary to the public interest (see p 185, line 9).

Rondel v Worsley [1969] 1 AC 191, 273; [1967] 3 All ER 99o, 1028, applied.

5 By McCarthy P. The fact that a barrister simpliciter cannot sue for his fees is not the justification for his immunity; it exists not for his benefit but in the interests of the State (see p 186, line 9).

Rondel v Worsley [1969] 1 AC 191; [1967] 3 All ER 993, applied.

6 In New Zealand the immunity extends to pre-trial work in so far as the particular [*3] work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way the cause is to be conducted at the hearing (see p 187, line 17; p 190, line 16).

Judgment of Mahon J affirmed.

NOTES:
Refer 9 Abridgement 249; 11 Abridgement 404.

The question was left open as to whether a solicitor-barrister should be entitled to sue for his fees as held in Robinson and Morgan-Coakle v Behan (supra), having regard to the later decision in Rondel v worsley (supra) as to the basis for the existence of a barrister’s immunity (see p 187, line 26; p 190, line 31).

The question of whether the immunity should extend to solicitors appearing in Court or performing duties incidental to such appearances was also left open (see p 186, line 47; p 190, line 26).

CASES-REF-TO:
Other cases mentioned in judgments
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] 2 All ER 575.
Le Strange v Pettefar (1939) 161 LT 300.
O’Donoghue v Downer and Co Ltd [1953] NZLR 758.
Robinson and Morgan-Coakle v Behan [1964] NZLR 650.
Singer (Re) [1929] NZLR 301; [1929] GLR 234.
Watts and Cohen v Willis (1909-1910) 29 NZLR 58 (SC); 615 (CA).

INTRODUCTION:
Appeal
This was an [*4] appeal from the judgment of Mahon J [1973] 1 NZLR 236.

COUNSEL:
A L Hassall for the appellant.

R K Davison QC and R W Worth for the respondent.

JUDGMENT-READ: Cur adv vult

JUDGES: McCarthy P, Macarthur and Beattie JJ

JUDGMENT BY: McCARTHY P.

MACARTHUR J.

BEATTIE J.

JUDGMENTS: McCARTHY P. This is an appeal against a judgment of Mahon J in which he dismissed an action brought by the appellant, a retired barrister and solicitor of Auckland, aged 79, against a practising barrister and solicitor, Mr J B Sinclair, for damages for negligence by Mr Sincair while acting for the appellant, Mr Hawea Rees.

[After disposing of the appeal his Honour continued:] As the matter of the immunity of barristers from actions for negligence was argued at considerable length, it is fitting, I think, to say something about that, notwithstanding that what I say may appear unnecessary. The House of Lords took the same course in Rondel v Worsley [1969] 1 AC 191; [1967] 3 All ER 993, where after making it plain that they thought that the appeal before them was entirely without merit and must fail on the facts, proceeded to deal with the law at length and in detail.

When Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] 2 All ER 575 [*5] was decided by the House of Lords, much speculation developed whether the immunity of barristers from suits for negligence would survive. There were many who thought that it should not, for, so they said, it confers an unwarranted protection on lawyers which other professional men who, too, have obligations to society do not enjoy. The House was alive to this thinking, and so saw the vital question as being whether in this day and age this protection should be maintained, or abandoned, in the public interest. It held unanimously that it should be maintained. In each of the opinions delivered by the five members of the House, the different consideration urged for and against this conclusion are discussed and weighed. All of these may not have the same importance in the New Zealand scene, but those to {182} which the House seem to me to have given the greatest weight do apply here. I shall say what they are presently, and to what extent they apply; but first I must emphasise that the House was concerned with the immunity of a member of the English Bar, a barrister practising his profession in a country where the professions of barrister and solcitor are completely separate.  [*6] That situation is very different from the situation in this country where most practitioners are both barristers and solicitors.

Another aspect of Rondel v Worsley, which I should emphasise, is that the House was concerned with public policy in England and Scotland. Lord Reid stresses this and said that he did not know enough about conditions in any other country to express any opinion as to what public policy might there require (ibid, 227; 998). Now we, of course, are concerned with the requirements of public policy in New Zealand, and it does not necessarily follow that the requirements are the same here as in the United Kingdom.

The first consideration stressed by the House in Rondel v Worsley in favour of the immunity is that the administration of justice requires that a barrister should be able to perform his tasks fearlessly and independently in the interests of his client but at the same time discharge the duty which he owes to the court and the administration of justice generally, which is a higher duty than that which he owes to his client. The two can conflict. To extend this point, I would take a citation from the opinion of Lord Reid, pointing out first in relation [*7] to this and to the other citations which I will make in relation to other considerations which the House relied on, that a like viewpoint appears in the opinions of all the Members. The citations are unavoidably rather long. Lord Reid said:

“Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce. And by so acting he may well incur the displeasure or worse of his client so that if the case is lost, his client would [*8] or might seek legal redress if that were open to him.

Is it in the public interest that barristers and advocates should be protected against such actions? Like so many questions which raise the public interest, a decision one way will cause hardships to individuals while a decision the other way will involve disadvantage to the public interest. On the one hand, if the existing rule of immunity continues there will be cases, rare though they may be, where a client who has suffered loss through the negligence of his counsel will be deprived of a remedy. So the issue appears to me to be whether the abolition of the rule would probably be attended by such disadvantage to the public interest as to make its retention clearly justifiable. I would not expect any counsel to be influenced {183} by the possibility of an action being raised against him to such an extent that he would knowingly depart from his duty to the court or to his profession. But although the line between proper and improper conduct may be easy to state in general terms, it is by no means easy to draw in many borderline cases. At present it can be said with confidence in this country that where there is any doubt [*9] the vast majority of counsel put their public duty before the apparent interests of their clients. Otherwise there would not be that implicit trust between the Bench and the Bar which does so much to promote the smooth and speedy conduct of the administration of justice. There may be other countries where conditions are different and there public policy may point in a different direction. But here it would be a grave and dangerous step to make any change which would imperil in any way the confidence which every court rightly puts in all counsel who appear before it” ([1969] 1 AC 191, 227-228).

This consideration and the words of Lord Reid seem to me to apply just as much in New Zealand as in England.

The second consideration discussed by the House and which, like the first, I believe applies equally in this country, is that actions for negligence against barristers would make the retrial of the original action inevitable and so prolong litigation contrary to the public interest. Here, to explain the point, I take a citation from Lord Morris of Borth-y-Gest:

“It will be useful to consider some of the circumstances that would arise if such actions were permitted. If someone has [*10] been tried on a criminal charge and has been convicted it would not be of any purpose for him to assert that his counsel had been unskilful unless he could prove that he would have been acquitted had his counsel conducted the case with due care and skill. He would have to prove that on a balance of probability. He would, however, only have been convicted if the jury had been sure that his guilt had been established. If he asserts that, had his counsel asked some more questions than he did ask, the jury in the criminal case or the magistrates would have acquitted him, would he be entitled in his negligence action to call as witnesses the members of the jury or the members of the bench of magistrates who had convicted him? I have no doubt that it would be against public policy to permit any such course. If there were a conviction by a majority verdict of ten to two, could one of the ten be called to say that had there been further questions put to some witness he would have agreed with the two jurors? Again, that, in my view, would be procedure that ought not to be permitted. If there were a jury in the civil action for negligence they would have to decide whether, on the assumption [*11] that the additional questions had been put, there probably would have been an acquittal. Presumably they would have to review all the evidence that had been given in the criminal case. They would either need to have a transcript of it or they would have to hear the witnesses who had previously given evidence. After a period of time the witnesses might not be available. The transcript might not be obtainable. If obtainable it might relate to a trial that had taken not days but weeks to try. But assuming that all the necessary evidence was available and assuming that memories were not dimmed by the passing of time, the civil jury would in effect be required to be {184} engaged in a re-trial of the criminal case. That would be highly undesirable. And supposing that after a criminal trial a person was convicted and then appealed unsuccessfully against his conviction and later brought a civil action against his counsel alleging negligence: if he succeeded, would any procedure have to be devised to consider whether or not it would be desirable to set aside the conviction. The conviction (as in the present case) might have taken place years before. Any sentence of imprisonment [*12] imposed might have been served (as in the present case) long before. If in the civil action the suggestion was made that, had there been further evidence called or further questions put in the criminal case, there might have been a disagreement rather than a conviction, this only serves to demonstrate how difficult in would be for a court to decide on a balance of probabilities what the jury in the criminal case would have done had there been different material before them. A trial upon a trial would raise speculation upon speculation” ([1969] 1 AC 191, 249-250).

And again:

“Many of these considerations have parallel validity in regard to complaints of lack of care and skill in a civil action. It is true that courts must not avoid reaching decisions merely because there are difficulties involved in reaching them. It may not be impossible in certain circumstances for one civil court to decide that an earlier case in a civil court (one, for example, tried by a judge alone) would have had a different result had some different course been pursued, though in most cases there would be likely to be various difficulties in the way of reaching such a conclusion. But it would, in my view,  [*13] be undesirable in the interests of the fair and efficient administration of justice to tolerate a system under which, as a sort of by-product after the trial of an action and after any appeal or appals, there were litigation upon litigation with the possibility of a recurring chain-like course of litigation” ([1969] 1 AC 191, 251).

The third consideration, another which has application in New Zealand to a practitioner whose services are sought purely as counsel, relates to the obligation of a barrister to accept any client, however difficult. I turn to Lord Upjohn:

“Therefore, the immunity of the barrister, if it exists at all, must depend on some other ground than his status, his inability to sue or his incapability to contract. I think that public policy necessitates that, at all events in matters pertaining to litigation, a barrister should have this immunity, and basically it depends upon two factors. First, a barrister is in a unique position, even different from a physician, for he is bound to undertake litigation on behalf of a client provided that it is in the usual way of his professional practice and that he is properly instructed or, to put it more bluntly, properly  [*14] paid according to his standing at the Bar. Whatever may be the powers of counsel to compromise civil litigation contrary to his client’s instructions during its course there can be no doubt that, however much he may believe it to be in the interests of his client that the latter should plead guilty, if the client refuses to accept that advice counsel is bound to continue with the defence of the prosecution, however distasteful it may be. I make no apology for quoting yet again the famous words of Erskine when he accepted a brief to defend Tom Paine:

{185} ‘From the moment when any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the courts where he daily sits to practice, from that moment the liberties of England are at an end.’

That at once distinguishes the position of the barrister from even the physician, who is not bound to undertake any treatment which he does not advise” ([1969] 1 AC 191, 281; [1967] 3 All ER 993, 1033).

The fourth and final consideration which I propose to extract is closely related to the second, and is most clearly expounded in the opinion of Lord Pearce:

“It is  [*15] impossible to expect an advocate to prune his case of irrelevancies against his client’s wishes if he faces an action for negligence when he does so. Prudence will always be prompting him to ask every question and call every piece of evidence that his client wishes, in order to avoid the risk of getting involved in just such an action as the present. This is a defect which the possibility of an action for negligence would greatly encourage. It is difficult and it needs courage in an advocate to disregard irrelevancies which a forceful client wishes him to pursue.

This question is of great importance for two reasons. First, if by good advocacy a case is cut down to its essentials, it is more manageable and more likely to be justly decided by judge or jury. Secondly, the time (and consequently the cost) is greatly diminished. An unpruned presentation of a case may actually double or treble the time which it would have taken to present had it been properly pruned of all that was not relevant.

If, as I believe to be the case, the number of our judges in proportion to the work they do is much fewer than in other countries, this is undoubtedly due in great measure to the fact that  [*16] a judge can trust counsel and that counsel can, in putting forward his points or his evidence or in cross-examining, safely look only to what the judge properly needs for deciding the case. Hitherto he has not had to look over his shoulder and ask questions in cross-examination or put forward evidence or take points whose sole purpose is to assure the client that no stone has been left unturned, so that he may not follow a defeat by instituting an action for negligence against his counsel” ([1969] 1 AC 191, 273; [1967] 3 All ER 993, 1028).

The force of this observation in a climate of escalating case loads in courts of first instance and at appellate levels in this country, as elsewhere, is obvious. It is very much in the public interest that justice be administered with reasonable despatch. As Lord Reid observes, it is the opinion of most men of experience in handling litigation that the lengthening of trials does not lead to closer approximation to ideal justice (ibid, 229; 999).

In New Zealand it has been generally considered that insofar as the work of a barrister in relation to Court proceedings is concerned, the same immunity applies, but there is [*17] no satisfactory decision of a superior Court in this country which says so. Watt and Cohen v Willis (1909-1910) 29 NZLR 58 (SC); 615 (CA) seems to have been treated, when it reached this Court, as a claim for negligence as a solicitor. But it has been held that where a practitioner is both a barrister and solicitor, he can sue for his fees. The early history of the {186} proposition and the cases concerning it in New Zealand and overseas are discussed in a most careful judgment of Perry J in Robinson and Morgan-Coakle v Behan [1964] NZLR 650. I shall have something more to say about this later, but at this point I assume that he can sue. It has therefore sometimes been contended that as the immunity of an English barrister had often been stated to be founded on the fact that he has no contractual relationship with his client and cannot sue for his fees, there could be no reason why a New Zealand barrister and solicitor, if he is entitled to sue for his fees, should receive this same protection. But the House of Lords has said quite decisively in Rondel v Worsley that the fact that the English barrister cannot sue is not the justification for the immunity: it exists not for [*18] his benefit but in the interests of the State.

The legal profession in New Zealand is often described as a “fused” profession, because a practitioner may practice both as a barrister and a solicitor. Indeed most practitioners do, though there are some who practice solely as a barrister, including, of course, Queen’s Counsel, and there are some who practice solely as solicitors. But the use of the term “fused” may possibly lead to misconceptions as Perry J observed in Robinson and Morgan-Coakle v Behan. There are separate rolls for the two professions. There is a roll for barristers and another for solicitors (ss 3 and 4 of the Law Practitioners Act 1955). The necessary qualifications for the two professions are stated separately and are somewhat different (ss 6 and 7). There are other provisions in the Act which relate to barristers only, and others to solicitors only. Included in the former is s 13 which says:

“Barristers of the Court shall have all the powers, privileges, duties, and responsibilities that barristers have in England.”

Now the immunity from suits for negligence which barristers possess in England could be argued to be a privilege. “A privilege describes some [*19] advantage to an individual or group of individuals, a right enjoyed by a few as opposed to a right enjoyed by all”: Le Strange v Pettefar (1939) 161 LT 300, 301, per Luxmoore LJ. So it may be that by virtue of this provision alone, a barrister in New Zealand is entitled to this same immunity, at least one who is practising as a barrister only. But I do not wish to dispose of the issue in this way. I prefer to consider the question solely in the light of the public interest. Doing that I come to the conclusion that the considerations which I have mentioned and which, as I have said, seem to me to have persuaded the House of Lords, are sufficiently powerful in New Zealand to call for the same result in this country.

But I have been speaking of barristers simpliciter. What of the practitioner who practises both as a barrister and solicitor? Should a different result be arrived at in that case? I think not. The considerations which I have mentioned seem to apply with equal force to such a practitioner. The protection, I repeat, is not conferred for the benefit of the individual, but in the interests of the administration of justice. It may be argued [*20] that on this reasoning the protection should also be extended to solicitors, when they are appearing in Court or performing duties incidental to such appearances. Some of the members of the House in Rondel v Worsley thought that that result followed. Perhaps that is also the situation in New Zealand, but the point is not before us, and has not been argued. So I do not decide it.

In Rondel v Worsley the House held that the immunity covered not {187} merely the conduct and management of a cause in Court, but also preliminary work in connection therewith, such as the drawing of pleadings. More than one member of the House commented on the difficulty of drawing the line of demarcation in certain classes of barristerial work. Mr Hassall has contended that the difficulty is even greater in New Zealand, where the delineations between the work of a barrister on the one hand and a solicitor on the other are less clearly marked than they are in England. Therefore, he says, we should restrict the coverage to the actual Court appearance. I agree that the boundaries are less certain in New Zealand, and that it is most difficult to draw in advance any statement of them which will satisfactorily [*21] dispose of all debatable areas, but that should not deter us from declaring the principle. I agree, too, that, having regard to the capacity of practitioners in New Zealand to be both barristers and solicitors, we should not be controlled by the divisional lines adopted in England. But I cannot narrow the protection to what is done in Court: it must be wider than that and include some pre-trial work. Each piece of before-trial work should, however, be tested against the one rule; that the protection exists only where the particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing. The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice, and that is why I would not be prepared to include anything which does not come within the test I have stated.

I return now to the matter of the right of a barrister-solicitor to sue for fees, a right upheld in Robinson and Morgan-Coakle v Behan (supra.) That case was decided before the immunity of barristers was said [*22] by the House of Lords to be justifiable only on the ground of public interest and not on those which had often been advanced in the past, and when it was doubtful whether the immunity enjoyed by the English barrister applies in New Zealand. Now it may possibly be that the same requirement of public interest could be relevant to the barrister-solicitor’s right to sue. So I would like to ensure that the question is kept open for consideration when it arises.

Now applying what I have said to this particular case, it seems to me that the vital matter amongst the different matters complained of by the appellant was Mr Sinclair’s decision not to raise on the application for permanent maintenance the conduct of Mrs Frances Rees prior to the separation agreement. Once a decision was made not to bring that material into the contest, the other matters referred to in the complaints seem to me to be purely incidental and unimportant. In my view Mr Sinclair’s advice on this central feature was intimately connected with the manner in which the case was to be conducted at the hearing; it governed the tactics to be adopted in court. Unquestionably it would be covered by the English immunity,  [*23] and I think it should be covered in New Zealand. So, even if I thought that there was negligence on the part of Mr Sinclair in giving this advice and making all consequential decisions, which I do not, I would be prepared to hold that the appellant could not succeed at law.

I would dismiss the appeal.

MACARTHUR J. I have had the advantage of reading in advance the judgment of McCarthy P. I am entirely in agreement with him that {188} the appeal fails on the facts. The findings of Mahon J are perfectly clear, and I am quite unable to accept Mr Hassall’s argument that this Court should take a different view. On Mahon J’s findings there was no negligence on the part of Mr Sinclair, in respect of any of the five grounds put forward by Mr Hassall. Consequently the appeal must fail.

I think that I should add a few words, however, on the question of the liability for professional negligence on the part of barristers in New Zealand. Mr Davison commented that this question has not been decided in any previous case. It is true that in Watt and Cohen v Willis (1909-1910) 29 NZLR 58 (SC); 615 (CA), Edwards J, the Judge at first instance, appears to have considered that a barrister in [*24] New Zealand could be successfully sued for negligence in relation to litigation conducted by him, either before or at the trial. The plaintiffs in the case were a firm of solicitors who had acted for the defendant in a suit for specific performance of a contract for the sale of a lease. They sued for their costs. The defendant counterclaimed damages for negligence: the suit for specific performance had failed because the lease in question was in fact an under-lease. The plaintiff Mr Cohen, who was also a barrister and who was in charge of the common law department of the firm, had conducted the litigation. It was held that he was negligent in not making sure that the defendant had a good title which the purchaser could be compelled to take. The Court of Appeal (Stout CJ and Williams and Chapman JJ) affirmed the judgment of Edwards J which was in favour of the defendant. The case appears to have been decided, however, on the basis that Mr Cohen’s negligence was negligence as a solicitor, that is, in failing to search the title. It is clear that this view was taken by Stout CJ and Williams J, although Chapman J does appear to have regarded the matter as negligence on the part [*25] of counsel. But clearly the negligence was not related to the actual conduct of the litigation in Court. I agree with Mahon J’s conclusion that Watt and Cohen v Willis cannot be relied upon by the appellant in the present case as supporting his claim for damages against the respondent for alleged negligence as counsel in the conduct of the proceedings.

In his very careful judgment in Robinson and Morgan-Coakle v Behan [1964] NZLR 650 Perry J records the history of the legislation relating to the practice of the profession of the law in New Zealand. He shows that ever since 1861 the legislation has provided for separate rolls of barristers and solicitors, and that the statutes have permitted practitioners with the exception of Queen’s Counsel to practise both as barristers and solicitors. The statute now in force is the Law Practitioners Act 1955 and s 13 of that Act contains a provision similar to that which appears in the 1861 Act, viz:

“Barristers of the Court shall have all the powers, privileges, duties, and responsibilities that barristers have in England.”

I agree with Mahon J’s statement in his judgment now under consideration that there is probably only one material difference [*26] between the status of barristers in New Zealand and the status of barristers in the United Kingdom. This difference is that in New Zealand a person on the roll of barristers may also be on the roll of solicitors, a situation not permitted in England. Section 15 of the Law Practitioners Act 1955 provides that no barrister of the rank of Queen’s Counsel shall practise as a solicitor, and that no practising certificate as a solicitor shall be issued to him; but a Queen’s Counsel may still remain on the roll of solicitors. A practitioner practising alone takes out a practising certificate {189} as a barrister only. A Queen’s Counsel and a practitioner practising solely as a barrister must be instructed by a solicitor: there is a rule of professional etiquette that they are precluded from receiving instructions from a lay client direct. Practitioners who practice both as barristers and as solicitors, however, are entitled to be instructed direct by a lay client even in respect of work which is exclusively barrister’s work. The expression “fused profession”, as Perry J pointed out in the judgment mentioned above, is a loose expression which does not describe accurately the system [*27] of practice in New Zealand. True fusion would mean the coalition of the two branches into one profession.

In Rondel v Worsley [1969] 1 AC 191; [1967] 3 All ER 993 the House of Lords held that a barrister in England was immune from an action for negligence at the suit of a client in respect of his conduct and management of a cause in Court and the preliminary work connected therewith such as the drawing of pleadings. Their Lordships held that that immunity was not based on the absence of contract between barrister and client, but on public policy and long usage. I am not going to burden this judgment with a repetition of any part of the speeches in the House of Lords. It is sufficient to say, in summary, that the three grounds of public policy relied on by their Lordships were (a) that the administration of justice required that a barrister should be able to carry out not only his duty to his client, but also his overriding duty to the Court fearlessly and independently; (b) that actions for negligence against barristers would make the retrying of the original causes inevitable and so prolong litigation, contrary to the public interest; and (c) that a barrister was obliged to accept [*28] any client, however difficult, who sought his services. It should be noted that the majority of their Lordships were of the view that on the grounds of public interest a solicitor while acting as an advocate has the same immunity from an action for negligence as a barrister does. There was some difference of opinion, however, on the question whether the immunity for a barrister extends to chamber work. Three of their Lordships (Lord Reid, Lord Morris of Borth-y-Gest and Lord Upjohn) were of the view that public policy does not require that a barrister shall be immune from action for negligence in relation to matters unconnected with cases in Court, for if he fails to exercise the ordinary care and skill that can reasonably be expected of him, he should be and is in no better position than any other professional man.

The decision in Rondel v Worsley is not directly applicable in New Zealand but of course it is strongly persuasive. In my opinion the first two grounds of public policy relied upon by their Lordships in that case are equally applicable to New Zealand conditions. I refer to (i) the duty which the barrister owes to his client and to the Court, which must be carried  [*29] out fearlessly and independently, and (ii) actions for negligence against barristers would make the retrying of the original action inevitable, and so prolong litigation. These matters are undoubtedly of great importance in the administration of justice in New Zealand, as in England. The question that has to be decided is — having regard to the different conditions of practice operating in New Zealand should Rondel v Worsley be applied here, and if so, to what extent? I have no doubt that a measure of immunity should, on the reasoning in that case, apply to a barrister who practises solely as a barrister. Moreover I can see no reason why a similar measure of immunity should not also apply to a barrister and solicitor in so far as he is acting qua {190} barrister. Logically there is no difference between the positions of those two types of practitioner, as far as the question of immunity is concerned. Moreover I think that, as the basis of immunity in this connection is the public interest, the immunity should apply equally to contractual situations as to duty situations actionable in negligence. But what is the measure of the immunity that the public interest requires in  [*30] New Zealand? Clearly it should cover the barrister’s conduct and management of a cause in Court. In Rondel v Worsley their Lordships went further: they held that the immunity also covered the preliminary work connected with the cause, such as the drawing of pleadings. In practice in New Zealand, however, I do not think there is a clear line of demarcation between solicitor’s work and counsel’s work: the one tends to merge into the other. In practice, pleadings are not always drawn by counsel. The instructing solicitor (who almost invariably holds a barrister’s practising certificate as well) not infrequently carries out this work. I think that the only practical test is to confine the immunity to the true work of an advocate; and here I am content to adopt the definition propounded by McCarthy P, that is, that the protection covers the barrister’s conduct and management of a cause in Court and other work so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way in which the cause is to be conducted when it comes to a hearing. I agree with McCarthy P that those are the limits within which the barrister [*31] in New Zealand should be held immune from an action for negligence at the suit of a client.

There appears to be good reason for applying the same rule of immunity in respect of solicitor-advocates. This was the view of the majority of their Lordships in Rondel v Worsley, although it was of course obiter. The point does not arise in the present case and I therefore do not express a decided opinion on it.

I would leave open the question whether reconsideration may possibly have to be given to the decisions relating the the recovery of barristers’ fees, for example, Re Singer [1929] NZLR 301; [1929] GLR 234, O’Donoghue v Downer and Co Ltd [1953] NZLR 758, and Robinson and Morgan-Coakle v Behan (supra). There are those who would question the rightness of a legal situation in which a barrister may sue for his fees and yet be immune from a claim for professional negligence. The point does not arise for decision, however, in the present case.

In the present case the respondent was consulted as a barrister and solicitor; and I agree with Mahon J that there was a contract of retainer embracing all aspects of the work which the respondent was instructed to perform. The work comprised both [*32] solicitor’s work and counsel’s work. As regards the counsel’s work, the respondent is immune from suit for professional negligence in so far as his conduct comes within the definition set out above; but as regards the solicitor’s work he would be liable for professional negligence in connection with that work. Applying the foregoing definition of immunity to the relevant allegations in the present case it is clear that these allegation of negligence all come within the immunity. They are all directly concerned with Mr Sinclair’s conduct and management of the cause in Court. Hence in law the appellant cannot succeed in any claim based on negligence as regards those allegations. In respect of the remaining allegations the appellant has failed to establish any negligence.

{191} I am for dismissing the appeal.

BEATTIE J. I also agree that this appal should be dismissed.

ORDER:
Appeal dismissed.

SOLICITORS:
Solicitors for the appellant: Hassall, O’Neill, Allen & Parker (Hamilton).

Solicitors for the respondent: Butler, White & Hanna (Auckland). #020509M001USPENK#

Malicious Prosecution, Misconduct of Police, Practice – Pleadings – Striking out – Criminal proceedings against plaintiffs stayed as abuse of process – Action against police for damages for conspiracy to injure and misfeasance in public office – Amended statement of claim alleging fabrication of evidence – Whether police immune from suit – Whether amended statement of claim to be struck out: Darker and others v Chief Constable of the West Midlands Police (United Kingdom)

[2001] 1 AC 435

Darker and others v Chief Constable of the West Midlands Police
House of Lords
[2001] 1 AC 435
HEARING-DATES: 15, 16, May 27 July 2000
27 July 2000

CATCHWORDS:
Practice – Pleadings – Striking out – Criminal proceedings against plaintiffs stayed as abuse of process – Action against police for damages for conspiracy to injure and misfeasance in public office – Amended statement of claim alleging fabrication of evidence – Whether police immune from suit – Whether amended statement of claim to be struck out

HEADNOTE:
Following a police undercover operation involving an informer, four of the five plaintiffs were indicted on counts alleging conspiracy to import cannabis resin and four on counts alleging conspiracy to forge travellers’ cheques. In the course of the trial the judge ruled that the police had been significantly at fault in respect of disclosure and directed that the charges be permanently stayed on the ground of abuse of process. The plaintiffs brought an action against the defendant chief constable claiming damages for conspiracy to injure and misfeasance in public office, alleging, inter alia, that police officers had fabricated evidence against them. The defendant applied for the statement of claim to be struck out, claiming that the acts alleged were covered by an absolute privilege or immunity. The judge struck out the statement of claim and dismissed the plaintiffs’ action. The Court of Appeal dismissed the plaintiffs’ appeal.

On appeal by the plaintiffs-

Held, allowing the appeal, that public policy required in principle that those who suffered a wrong should have a right to a remedy; that, although the absolute immunity from action given in the interests of the administration of justice to a party or witness, including a police witness, in respect of what he said or did in court extended to statements made for the purpose of court proceedings and to prevent him being sued for conspiracy to give false evidence, public policy did not require it to be extended to things done by the police during the investigative process which could not fairly be said to form part of their participation in the judicial process as witnesses; that, in particular, the immunity did not extend to cover the fabrication of false evidence; and that, accordingly, the plaintiffs’ statement of claim should not have been struck out and the action should be allowed to proceed to trial (post, pp 446D, 448B-F, 449A-B, 450A-C, 451A-B,452C G-H, 453G-454A, 456A-B, H-457A, 461B-G, 463G, 464C-E, 465A, E-F,468F, 469E-H, 470F-G, 471G-472D).

Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, HL(E) and Bennett v Comr of Police of the Metropolis (1997) 10 Admin LR 245 applied.

Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 considered.

Silcott v Comr of Police of the Metropolis (1996) 8 Admin LR 633, CA overruled.

Decision of the Court of Appeal reversed.

INTRODUCTION:
APPEAL from the Court of Appeal

This was an appeal by the plaintiffs, Darren Haigh Darker (personal representative of David Stanley Docker), Albert Head, William Rea Lamont, Steven Rhodes and John Clark, by leave of the House of Lords (Lord Browne-Wilkinson, Lord Steyn and Lord Hoffmann) given on 16 February 1999 from the judgment of the Court of Appeal (Millett, Auld and Schiemann LJJ) on 24 March 1998 dismissing the plaintiffs’ appeal from Maurice Kay J The judge on 27 September 1996, on an application by the defendant, the Chief Constable of the West Midlands Police, had struck out the plaintiffs’ amended statement of claim and dismissed their action against the defendant in which they claimed damages for conspiracy to injure and misfeasance in public office. The grounds on which the defendant had applied for the statement of claim to be struck out were that it disclosed no reasonable cause of action and/or was scandalous and vexatious and/or that it might prejudice and embarrass the fair trial of the action.

The facts are stated in the opinion of Lord Hutton.

COUNSEL:
Alan Newman QC and Paul Spencer for the plaintiffs. The effect of the absolute immunity rule is to deny access to justice to a person who may have suffered grievous harm at the hands of another who has maliciously caused him damage. This is because, as a matter of policy, the courts decide that the proper functioning of the justice system requires absolute immunity and overrides the legitimate aims of the victim of such wrongdoing. Such far-reaching consequences require careful balancing of competing interests and a resolution that formulates the absolute immunity rule as narrowly as possible so as to achieve the objectives that the court has identified: see Roy v Prior [1971] AC 470, 480f-g; Saif Ali v Sydney Mitchell & Co [1980] AC 198, 214H, 217 and Rees v Sinclair [1974] 1 NZLR 180, 187.

The absolute immunity rule has existed for centuries. Until 1981 the cases had developed so as to “form part of a coherent principle”: see Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, 214. The extension of the immunity made by the Court of Appeal in Silcott v Comr of Police of the Metropolis (1996) 8 Admin LR 633, 640c, utilising Drake J’s reference in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184, 192 to “the process of investigating a crime”, was neither necessary nor desirable for the proper administration of justice and created confusion and inconsistency with other decided cases. Moreover, an absolute immunity covering the whole range of police investigative functions is too rigid and over-inclusive. It operates disproportionately to impede a victim’s right of access to the court guaranteed by article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969).

Case after case has dealt with absolute immunity as attaching only to “parties”, “witnesses”, “advocates”, “jurors” and “judge”, categorised in Rondel v Worsley [1969] 1 AC 191, 270e as “the five essential ingredients of the judicial process”. The conduct of police officers in the investigative and preparatory stages of a criminal process does not have the requisite “intimate connection”: see Rees v Sinclair [1974] 1 NZLR 180, 187 and Saif Ali v Sydney Mitchell & Co [1980] AC 198, 215. [Reference was made to Somasundaram v M Julius Melchior & Co [1988] 1 WLR 1394.] If an investigating police officer is a witness at trial, he will qua witness be covered by the immunity rule: see Taylor’s case [1999] 2 AC 177, 214G. He does not fit into any of the other five “essential ingredients of the judicial process”: Rondel v Worsley [1969] 1 AC 191, 270e.

As to the Watson v M’Ewan; Watson v Jones [1905] AC 480 “extension”, the connection between “the actuality that is undeniably privileged and the foreshadowing of it” must be reasonably close: see Lincoln v Daniels [1962] 1 QB 237, 257, 261. All the material in the instant case gathered by the police and forwarded on to the Crown Prosecution Service is too remote: see Szalatnay-Stacho v Fink [1947] KB 1. The witness who has provided a statement to the police with proceedings in mind may be protected, but there is nothing in Watson v M’Ewan to suggest that the solicitor who takes the statement is protected by any rule of absolute immunity: see Somasundaram v M Julius Melchior & Co [1988] 1 WLR 1394. [Reference was also made to Gatley on Libel and Slander, 9th ed (1998), para 13.1, pp 280-282; para 13.24, pp 301-303; n 71, p 302; para 14.1, pp 325-327.]

As to the first of the two public policy purposes underlying the absolute immunity rule identified in Silcott’s case 8 Admin LR 633, 637c, Fry LJ when stating that purpose in Munster v Lamb (1883) 11 QBD 588, 607 was referring to judges, witnesses, parties and counsel actually in court. As to the second purpose, it is clear in Roy v Prior [1971] AC 470, 480 that it is limited to witnesses in court. To avoid the immunity being outflanked, it is necessary to extend it to proofs of evidence or other documents given to solicitors or filed in court as a precursor to testifying in court: see Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, 208e; Watson v M’Ewan [1905] AC 480, 487; Cutler v Dixon (1585) 4 Co Rep 14b; Astley v Younge(1759) 2 Burr 807; Revis v Smith (1856) 18 CB 126; Henderson v Broomhead (1859) 4 H & N 569; Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184; X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 755g; Stanton v Callaghan [2000] 1 QB 75; Marrinan v Vibart [1963] 1 QB 528, 536 and Cabassi v Vila (1940) 64 CLR 130, 140.

So far as concerns the immediate participants in the judicial proceedings, they are covered by the rule and that is sufficient to satisfy the first policy purpose identified in Silcott v Comr of Police of the Metropolis 8 Admin LR 633, 637c. They may participate freely and openly in judicial proceedings without the chilling effect of later being pursued through the courts for what they have said: see Stanton v Callaghan [2000] 1 QB 75, 91.

As to the second policy purpose, if a defendant has been found guilty in criminal proceedings there is a public interest in preventing a collateral attack on the verdict through the launching of civil proceedings by the disgruntled defendant, This is achieved through the exercise by the court of its extensive inherent jurisdiction to prevent abuse of process: see Hunter vChief Constable of the West Midlands Police [1982] AC 529, 536. On the other hand, if the criminal proceedings have been resolved in favour of the defendant, there is a public interest in permitting collateral civil proceedings whereby a claimant may seek redress for damage intentionally and maliciously inflicted on him. There is no question of any flank attack on the outcome of the criminal proceedings. On the contrary, the claimant will rely on that outcome. To apply a bulldozer approach by shielding “investigating officers” behind the absolute immunity rule is positively against the public interest.

American jurisprudence provides useful assistance: see Imbler v Pachtman (1976) 424 US 409, 424-431 (n 33); Buckley v Fitzsimmons (1993) 113 S Ct 2606, 2612-2617; Spurlock v Satterfield (1999) 167 F 3d 995, 1001-1004; Forrester v White (1988) 484 US 219, 229 and Burns v Reed (1991) 500 US 478, 486. There is nothing in Taylor v Director of the Serious Fraud Office[1999] 2 AC 177 to prevent adoption of the distinction, applying the functional approach, drawn by the Supreme Court in Buckley v Fitzsimmons 113 S Ct 2606. The principle in Spurlock v Satterfield is not confined to the United States courts.

The rule of absolute immunity accorded to a witness in respect of evidence given at court cannot prevent a civil claim for abuse of process merely because, as an incidental aspect, testimony is given in court: see Roy v Prior [1971] AC 470, 477 and Surzur Overseas Ltd v Koros (unreported) 25 February 1999; Court of Appeal (Civil Division) Transcript No 224 of 1999. A plaintiff will only be non-suited if the essence of the tort focuses on the testimony that has been given in court. An action for malicious abuse of process has as an element the absence of reasonable and probable cause (see Gizzonio v Chief Constable of Derbyshire The Times, 29 April 1998; Court of Appeal (Civil Division) Transcript No 559 of 1998), but that is not the litmus test as to whether the absolute immunity rule should be applied. It is not “respectable jurisprudence” to grant the police or the Crown Prosecution Service a blanket immunity from suit arising out of the manner in which they discharge their duties: see Bennett v Comr of Police of the Metropolis (1997) 10 Admin LR 245, 254.

Actions against the police for torts committed in the course of the investigatory process, e g, battery or trespass, are regularly brought. If Silcott v Comr of Police of the Metropolis 8 Admin LR 633 is right, virtually the whole existing jurisprudence dealing with wrongful arrest and police trespass would have to be revised: see Hill v Chief Constable of West Yorkshire [1989] AC 53, 59c. Moreover, there is no policy reason for distinguishing between actions for assault or trespass and actions alleging misfeasance: see Bennett’s case 10 Admin LR 245, 254. [Reference was also made to South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd[1992] 2 NZLR 282, 302-303; Palmer v Durnford-Ford[1992] 2 QB 483; Calveley v Chief Constable of the Merseyside Police [1989] AC 1228, 1239-1240 and Gray v Comr of Police of the Metropolis (unreported) 30 June 1992; Court of Appeal (Civil Division) Transcript No 612 of 1992.]

Cases such as Hill v Chief Constable of West Yorkshire[1989] AC 53 have nothing to do with the absolute immunity rule, which relates solely to judicial proceedings. [Reference was made to Elguzouli-Daf v Comr of Police of the Metropolis[1995] QB 335, 349c-e.] Those cases are part of awider developing jurisprudence that provides that those carrying out public/ statutory functions should not as a general rule be liable in negligence: Capital Counties plc v Hampshire County Council [1997] QB 1004; X (Minors) v Bedfordshire County Council [1995] 2 Ac 633; Barrett v Enfield London Borough Council [1999] 3 WLR 79. While the exclusionary rule formulated in Hill’s case (see pp 59c, 63) serves a legitimate aim, namely, the maintenance of an effective police force, it must not be applied in so rigid a manner as, in reality, to provide a watertight defence: see Osman v United Kingdom (1998) 29 EHRR 245, 316, paras 150, 151. It should, in each case commenced against investigating officers, be balanced against any countervailing public policy considerations identified in Hill’s case. Depending on the circumstances, this may have to await ascertainment of the facts at trial. A failure properly to balance countervailing policy decisions, and therefore in reality to apply the rule as providing an automatic immunity to the police, constitutes a disproportionate restriction on the applicant’s right of access to the court.

There is no inconsistency between domestic law and European Court of Human Rights law as to the manner in which the competing policy considerations should be approached. Although in Barrett v Enfield London Borough Council [1999] 3 WLR 79, 84 Lord Browne-Wilkinson found the decision of the European Court “extremely difficult to understand”, the principles announced by the European Court in Osman v United Kingdom 29 EHRR 245 are straightforward; it is the way in which they were applied that presented the difficulty. The Court of Appeal in Osman’s case (see Osman v Ferguson [1993] 4 All ER 344) found that the tests of foreseeability and proximity were both satisfied. That being the case, the European Court, whilst using the concept of “disproportionality”, was saying no more than that the particular policy decision was irrational in the light of the Court of Appeal’s findings as to foreseeability and proximity and applied over-rigidly as though it were an automatic immunity as opposed to a factor to be weighed in the balance: see paras 151, 152, pp 316-317. An important consequence of Osman’s case is that each case must be considered separately on its merits, and often this will not be able to occur until trial when the facts have been ascertained.

As regards torts where malice or deliberate wrongdoing is concerned, the balancing of competing policy considerations leads to only one conclusion, namely, that the victim of wrongdoing should be permitted to proceed. In this context, malice is not limited to “targeted malice” but is used in the wider sense identified by Clarke J in Three Rivers District Council v Governor and Company of the Bank of England (No 3) [1996] 3 All ER 558, 582. Where a police officer (or any other official carrying out public duties) is alleged to have acted with malice, or to have engaged in deliberate and intentional wrongdoing, the countervailing considerations will inevitably outweigh the policy considerations giving rise to the exclusionary rule. It is in the public interest that an officer exercising his public duties with deliberate malice or intending to do wrong should know that he can be made to account to the victim. An allegation of malice against an individual officer, or a small group of officers, is not going to lead to expensive inquiries into general policing policies. In most of the police negligence cases where the exclusionary rule has been applied the damage has been caused by a third party, namely, a criminal who allegedly should have been apprehendedearlier. In cases of misfeasance, trespass or assault the wrongdoing is by the officer himself. Where a victim has suffered damage as a result of deliberate wrongdoing by a public official, there are strong policy reasons why he should be able to sue: Martin v Watson[1996] AC 74, 89. Quite apart from his concern to recover damages, there is a wider public interest in that the courts should be able to identify publicly such wrongdoing and through their judgments seek to prevent its recurrence. The application of an absolute immunity rule which, by its very nature, must be rigidly applied, as opposed to a balancing exercise where the court considers whether permitting the claim to proceed is “just, fair and reasonable”, is necessarily over-rigid and therefore disproportionate. If such rigid application falls foul of article 6(1) of the Convention in cases alleging negligence, a fortiori must that be the case where malice is alleged. Moreover, the grant of absolute immunity to a large class of persons, namely, “investigating officers”, is in itself contrary to the Convention: see Fayed v United Kingdom (1994) 18 EHRR 393, 429, para 65.

Michael Austin-Smith QC and Daniel Janner for the defendant. The boundaries of the immunity rule in the present context were properly identified by Drake J in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 and approved by the Court of Appeal in Silcott v Comr of Police of the Metropolis 8 Admin LR 633 and the House of Lords in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177. [Reference was also made to X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 754e-f.]

Although there were specific justifications for each of Lord Pearce’s five categories in Rondel v Worsley [1969] 1 AC 191, 268-270, the broad, overarching reason of public policy that he identified for such immunity was the functioning of the judicial process. Although the immunity for each category of beneficiary has the common objective of sustaining the judicial process so that it is not weakened or hampered, those immunities have different origins and have evolved differently to meet the needs of justice in the different situations. [Reference was made to Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184, 191d-f; Dawkins v Lord Rokeby (1873) LR 8 QB 255; Roy v Prior [1971] AC 470, 480; Stanton v Callaghan [2000] 1 QB 75, 91c; Watson v M’Ewan; Watson v Jones [1905] AC 480, 487-488; Cabassi v Vila (1940) 64 CLR 130 and Marrinan v Vibart [1963] 1 QB 528, 533, 535.]

The so-called extension of immunity to cover the classes of potential witnesses in possible proceedings identified by Drake J is in accordance with public policy and authority: see Marrinan v Vibart [1963] 1 QB 528, 533, 535 and Taylor’s case [1999] 2 AC 177, 214g-215a, 218, 219, 221-222. Police officers intimately connected with the investigation of crime, such as those concerned with the instant appeal, are always potential witnesses and thus fall within the immunity rule in respect of conduct that can fairly be said to he part of the investigatory or preparatory process: see Silcott v Comr of Police of the Metropolis 8 Admin LR 633, 640a-d. [Reference was also made to Gizzonio v Chief Constable of Derbyshire The Times, 29 April 1998; Court of Appeal (Civil Division) Transcript No 559 of 1998.

The protected activities are not limited to words written or spoken but embrace any conduct that fairly falls within the investigatory or preparatoryprocess. Further, the determination of whether such conduct falls within or without the immunity rule cannot depend on its perceived wickedness, notwithstanding that it can serve no public interest to protect the perpetrators of such conduct. If the seriousness of the wrongdoing were to be determinant of whether the conduct should be actionable, it would logically result in the abrogation of the immunity rule in respect of words actually spoken in court. Qualified privilege would not provide a sufficient protection to correspond with the identified public policy reasons: see Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, 219. Those who undeservedly gain the benefit of the immunity rule may still find themselves exposed to civil action and to criminal or disciplinary proceedings. If the claimant can prove an absence of reasonable and probable cause in bringing the prosecution, he can claim malicious prosecution. If the conduct otherwise constitutes an abuse of the process of the court he may have a cause of action, notwithstanding that a step in the process involved giving evidence in court. The conduct may result in a criminal prosecution for perjury or perverting the course of justice. In the case of a police officer, he is also exposed to the risk of disciplinary proceedings under the Police Acts. Further, the immunity rule does not provide a blanket immunity; rather, there are clear and important limits to the protection that it affords in that the conduct may be so remote that it falls outside the scope of proceedings in being or realistically contemplated and immunity will not attach if the conduct cannot reasonably be said to be part of the investigation or other preparation for proceedings.

When the basic immunity rule has been challenged, the courts have sought to provide a proximity test of one sort or another, relating to proximity as a witness to court proceedings. The proximity test may in practice be reduced or supported by the necessity test (and the function test). In the context of the present case, one would look no further than the immunity of witnesses. It is plain that those in question are either witnesses or potential witnesses. As to police officers, the appropriate test is one that enables boundaries to be drawn.

As to the ambit of the immunity where there has been conspiracy from the outset, the test is whether the conduct can fairly be said to be part of the investigative process. If the evidence shows that the conduct effectively initiated the process, it would be difficult to justify immunity on the ground of public interest. There is, however, in the present case no indication that that is the situation, and in practice there is no need to interfere with Drake J’s formulation of the test in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 since if there is onlyconspiracy there is no damage. If the conspiracy is put into effect so as to initiate or prolong the prosecution it will amount to malicious prosecution.

The immunity rule as it applies to witnesses has developed incrementally to meet the emerging problems in an increasingly complex society. Whether it has developed appropriately should be measured against the test proposed by Lord Wilberforce in Roy v Prior [1971] AC 470, 480 which suggests a dynamic approach to immunity with the law evolving to meet the changing needs of society and the interests of justice. It is arguable that nowadays the more important of the two public policies justifying it is that of providing protection to those who are or become involved in litigation or possible litigation, whether voluntarily or under compulsion: see Munster v Lamb(1883) 11 QBD 588, 607. This protection has become an increasingly necessary object of public policy. It may be that in other areas of the immunity rule, for example, the immunity of barristers where the more important of the two public policies may be the avoidance of collateral attack, the balance of public need has altered so that a more restricted immunity is appropriate. Such considerations should not affect the rule as it applies in the present context. It may be that one rule cannot be devised that would satisfactorily meet the public interest requirements of each situation, The Supreme Court of the United States, against a background of positive statutory rights, has sought to develop a common test for immunity based on the conduct being “intimately associated with the judicial phase of the criminal process”: see Imbler v Pachtman (1976) 424 US 409, 430. This is similar to the test proposed in Saif Ali v Sydney Mitchell & Co [1980] AC 198, 215 for advocates based on intimate connection with the conduct of the case in court. Such a test may be appropriate for an advocate qua advocate and also for the corrupt investigator, assuming that he is not in any event exposed to an action for malicious prosecution, but it substantially ignores the first of the public interests identified by Fry LJ in Munster v Lamb 11 QBD 588, the importance of which has become demonstrably more significant.

Over the years, many attempts have been made to circumvent the immunity rule: see Marrinan v Vibart [1963] 1 QB 528, 538-539. The “emergent” tort of malicious prosecution has provided a new opportunity. The real reason lying behind this appeal is that the plaintiffs are unable to maintain a claim for malicious prosecution. If they were to be successful in evading the immunity rule, it would effectively mean the end of malicious prosecution: see Gibbs v Rea [1998] AC 786, 802b; Gizzonio v Chief Constable of Derbyshire The Times, 29 April 1998; Court of Appeal (Civil Division) Transcript No 559 of 1998 and McDonagh v Comr of Police of the Metropolis The Times, 28 December 1989. Sir Richard Scott V-C in Bennett v Comr of Police of the Metropolis 10 Admin LR 245 was dealing with a factual situation wholly different from the present. Nothing that he said casts doubt on the immunity rule as it relates to witnesses and others involved in the investigation and preparation for trial.

Misfeasance in public office should not constitute an exception to the immunity rule. To grant a novel ground of action circumventing the restrictions imposed by the requirements of malicious prosecution would, at this stage of its historical development, probably require legislation. In cases where the trial process has been completed with a finding adverse to the claimant, to permit litigation to proceed where in all probability the only damage that he could claim would be that flowing from his allegedly wrongful conviction would breach the declared basis of public policy and raise the same problems as those identified by Lord Diplock in Saif Ali v Sydney Mitchell & Co Ltd [1980] AC 198, 222-223. The reality is that if there is no need to prove absence of reasonable and probable cause few litigants would choose malicious prosecution when misfeasance was available. Immunity provides the reason why malicious prosecution is the tort and misfeasance is not. [Reference was also made to Hunter v Chief Constable of the West Midlands Police [1982] AC 529 and Rondel v Worsley [1969] 1 AC 191.]

If the dictum of Sir Richard Scott V-C is to be taken as making any inroad upon the immunity rule, his reasoning ignores the twin justifications of public policy. Attempts at circumventing the immunity rule have at their heart the object of altering the existing balance that exists between two competing public interests. The tort of malicious prosecution has evolved so as to satisfy these competing interests by placing the burden of proving malice and absence of reasonable cause on the claimant. The substitution of misfeasance in public office and/or conspiracy to injure would radically alter that evolved balance: see Silcott v Comr of Police of the Metropolis 8 Admin LR 633, 639-640. The torts of malicious abuse of process will ordinarily provide a sufficient means of providing redress to an aggrieved claimant. Few deserving claimants will find the route barred as it is in the present case. Where such remedies are not available, the concurrent public interest in deterring wrongdoing by investigators and others is satisfied through the criminal and, in the case of the police, disciplinary sanctions for perjury and conspiracy to pervert the course of public justice.

Janner following. Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969) is not applicable in the present context. The plaintiffs have not been denied a right to a fair and public hearing within a reasonable time by an independent and impartial tribunal. Moreover, by virtue of the immunity rule, they cannot rely on any substantive right in domestic law to sue the police in respect of their alleged acts of misfeasance in a public office and conspiracy to injure.

Alternatively, article 6(1) has not been breached, for two reasons: the immunity rule has legitimate public policy aims; and its application is proportionate to the loss of access. Applying the relevant principles stated in Fayed v United Kingdom (1994) 18 EHRR 393, 429, para 65 and approved in Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHHR 249, 271 to any alleged breach of article 6, it is in the general interest of the public to apply the immunity rule. The rule as extended meets the legitimate aims of enabling and encouraging persons to assist in the course of justice without fear of exposing themselves to litigation and avoiding re-litigation. An individual’s right of access to the courts is not barred entirely; he has the right to claim damages for, e g malicious prosecution or malicious process where a defendant has maliciously abused the process of the court. No balancing of the importance of the legitimate aims of the immunity rule against any loss of access can take place in the context of this absolute immunity without identifying the first of the legitimate aims, namely, that the administration of justice should not be impeded or hampered: the integrity of the judicial process, which refers merely to such re-litigation and hampering of justice as is sought to avoid. There is no blanket immunity in this case: compare Osman v United Kingdom 29 EHRR 245. Claims can be brought where conduct falls outside the investigative process. The public is protected against dishonest or corrupt police officers by prosecution for perjury or conspiracy. [Reference was also made to Hill v Chief Constable of West Yorkshire[1989] AC 53; Elguzouli-Daf v Comr of Police of the Metropolis [1995] QB 335 and Ashingdane v United Kingdom (1985) 7 EHRR 528.]

Osman v United Kingdom 29 EHRR 245 (see the judgment of the European Court of Human Rights, pp 314, 315 and 316, paras 143, 146 and150) is distinguishable. The court concluded that, in the circumstances of that case, the application of the exclusionary rule, founded on a general immunity of the police from actions for negligence when carrying out their functions of controlling and keeping down the incidence of crime (see Hill’s case [1989] AC 53), amounted to a blanket immunity and as such a disproportionate restriction on the applicant’s right of access to a court; there was accordingly a violation of article 6(1). In so far as Osman’s case 29 EHRR 245 is relevant in the present context the principles enunciated therein have not been breached because the immunity in this case is not a blanket immunity. The plaintiffs could have had access to the court had their prosecution been without reasonable and probable cause. The refusal to consider their action was not, therefore, an obvious denial of justice. Osman’s case, by which the defendant is not bound, has been the subject of strong, and justified, judicial and academic criticism: see per Lord Browne-Wilkinson in Barrett v Enfield London Borough Council [1999] 3 WLR 79; Lord Hoffmann, “Human Rights and the House of Lords” (1999) 62 MLR 159, 163-164 and Tony Weir, “Down Hill-All The Way?” [1999] CLJ 4.

In the circumstances, the exclusionary rule did not constitute a disproportionate restriction on the right of access to a court taking into account the torts based on malicious process in respect of which the police have no such immunity.

Newman QC in reply. The proper question is not whether there was reasonable and probable cause but whether the action being impugned was sufficiently proximate (the United States Supreme Court’s formulation) to the judicial phase of the trial process. The defendants’ test must be too wide, otherwise it would apply where a police officer drives negligently in the course of an investigation. For the action to be sufficiently proximate to the judicial process, the process must have started. Even as regards the judicial process, the immunity of magistrates has historically been limited to when acting within their jurisdiction or in good faith: see In re McC (A Minor) [1985] AC 528; Stone’s Justices’ Manual, para 1-3760; section 52 of the Justices of the Peace Act and Gatley on Libel and Slander, 9th ed (1998), ch 26. “In the investigative process” must mean acting within his powers. [Reference was made to Buckley v Fitzsimmons 113 S Ct 2606, 2617 and the Prosecution of Offences Act 1985.]

As to malicious prosecution, the plaintiff can only sue the instigator of the prosecution, not everyone involved: see Clerk & Lindsell on Torts, 17th ed (1995), paras 15-05, 15-07, pp 741 and 742-743; Three Rivers District Council v Governor and Company of the Bank of England (No 3) [1996] 3 All ER 558, 582, 584 and Hunter v Chief Constable of the West Midlands Police[1982] AC 529.

Osman v United Kingdom 29 EHRR 245 is not limited to the Hill v Chief Constable of West Yorkshire [1989] AC 53 situation. The observations of the European Court of Human Rights should not be limited to misfeasance.

Their Lordships took time for consideration.

27 July.

PANEL: Lord Hope of Craighead, Lord Mackay of Clashfern, Lord Cooke of Thorndon, Lord Clyde and Lord Hutton

JUDGMENTBY-1: LORD HOPE OF CRAIGHEAD

JUDGMENT-1:
LORD HOPE OF CRAIGHEAD: My Lords, when a police officer comes to court to give evidence he has the benefit of an absolute immunity. This immunity, which is regarded as necessary in the interests of the administration of justice and is granted to him as a matter of publicpolicy, is shared by all witnesses in regard to the evidence which they give when they are in the witness box. It extends to anything said or done by them in the ordinary course of any proceeding in a court of justice. The same immunity is given to the parties, their advocates, jurors and the judge. They are all immune from any action that may be brought against them on the ground that things said or done by them in the ordinary course of the proceedings were said or done falsely and maliciously and without reasonable and probable cause: Dawkins v Lord Rokeby (1873) LR 8 QB 255, 264, per Kelly CB. The immunity extends also to claims made against witnesses for things said or done by them in the ordinary course of such proceedings on the ground of negligence.

No challenge is made in this case to what may conveniently be described as the core immunity. It is not suggested that police officers who participate in the proceedings as witnesses should no longer have the benefit of it in regard to things said or done by them while they are actually in the witness box. The question that has been raised relates to the further extent of the immunity. Where are the boundaries to be drawn? It arises because there is another factor that must always be balanced against the public interest in matters relating to the administration of justice. It is the principle that a wrong ought not to be without a remedy. The immunity is a derogation from a person’s right of access to the court which requires to be justified.

The background to the case has been explained by my noble and learned friend, Lord Hutton, whose speech I have had the advantage of reading in draft and with which I agree. The plaintiffs claim damages against the police for conspiracy to injure and misfeasance in a public office. If their claims related only to things said or done by the police officers while they were in the witness box they would be excluded by the core immunity. It was on the ground of the immunity that the claims were struck out by Maurice Kay J, whose judgment was upheld by the Court of Appeal (Millett, Auld and Schiemann LJJ). But the police officers to whose conduct the claims relate did not enter the witness box. The trial and all further proceedings on the indictment were stayed as an abuse of process. The claims are based on allegations about things done by the police while they were engaged in the investigation of crime and during the process of preparing the case for the trial. If the allegations are true, the police would, but for the immunity, be liable to the plaintiffs in damages.

The first step that must be taken in order to identify the extent of the immunity is to examine the grounds of public policy which explain the basis for the immunity. In Silcott v Comr of Police of the Metropolis (1996) 8 Admin LR 633, 637, Simon Brown LJ said:

“(2) The public policy purposes underlying the immunity are essentially twofold. First, per Fry LJ in Munster v Lamb (1883) 11 QBD 588: ‘to protect persons acting bona fide, who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending actions.’ Second, as Lord Wilberforce said in Roy v Prior [1971] AC 470, 480: ‘to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again … ‘ “

The second of these two policy reasons relates only to the core immunity, as it is limited in its application to things said or done in court. LordWilberforce made this clear, in Roy v Prior [1991] AC 470, 480, when he said that the immunity which he was considering was that of witnesses “in respect of evidence given in court” and when he referred to the fact that the trial process, in the subjection of witnesses to cross-examination and confrontation with other evidence, contains some safeguard against careless, malicious or untruthful evidence. The plaintiffs’ allegations relate to things done outside the courtroom, so it is the first policy reason only which is relevant to this case. In the Court of Appeal Auld LJ said:

“The whole point of the first public policy reason for the immunity is to encourage honest and well-meaning persons to assist justice even if dishonest and malicious persons may on occasion benefit from the immunity.”

As Lord Hoffmann put it in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, 208, the absolute immunity rule:

“is designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say.”

It is clear that, if that objective is to be achieved, it would not be satisfactory to confine the immunity to evidence given by witnesses while they are actually in the witness box. Witnesses seldom enter the witness box without having been interviewed beforehand by a solicitor or an investigating police officer. As the Earl of Halsbury LC said in Watson v M’Ewan; Watson v Jones[1905] AC 480, 487, the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence extend to the preliminary examination of witnesses to find out what they can prove. In Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 it was held that the immunity was available to potential witnesses in criminal proceedings at a time when such proceedings were merely in contemplation but had not yet commenced. The same view was taken in the case of an expert’s report prepared in the knowledge that, if there was evidence to bring proceedings for child abuse, proceedings would be brought and the report would form part of the evidence in those proceedings: X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 755g, per Lord Browne-Wilkinson. In Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 it was held that the immunity extended also to statements made out of court which could fairly be said to be part of the process of investigating a crime or a possible crime with a view to prosecution. In the course of my speech, at p 218g, I referred in this connection to investigators and the prosecuting officials with whom they are required to communicate. The protection of the immunity is available even if the trial does not take place: Stanton v Callaghan [2000] 1 QB 75

A similar extension of the immunity to statements given by police officers who later gave evidence or were potential witnesses at the trial can be justified on public policy grounds. Here again it is normal for police witnesses to undergo a preliminary examination during the preparatory stage in order to find out what they can prove. Prosecutors and defence solicitors require this information in order that they may take an informed decision as to which witnesses to call and whether they should be cross-examined and, if so, on what grounds. The trial process would be inhibited if police witnesses and potential police witnesses were to be exposed to action for things said or done by them during the preparatory stage when they are undergoing this preliminary examination. The same approach can properly be taken to the preparation of technical reports by police officers with expertise in such matters as ballistics, explosives or fingerprinting. As in the case of other expert witnesses, it would unduly inhibit the trial process if they did not have the protection of the immunity in regard to the content of the reports which they had prepared with a view to giving evidence should the matter come to trial.

But there is a crucial difference between statements made by police officers prior to giving evidence and things said or done in the ordinary course of preparing reports for use in evidence, where the functions that they are performing can be said to be those of witnesses or potential witnesses as they are related directly to what requires to be done to enable them to give evidence, and their conduct at earlier stages in the case when they are performing their functions as enforcers of the law or as investigators. The actions which the police take as law enforcers or as investigators may, of course, become the subject of evidence. It may then be necessary for the police officers concerned to assume the functions of witnesses at the trial to describe what they did or what they heard or what they saw. But there is no good reason on grounds of public policy to extend the immunity which attaches to things said or done by them when they are describing these matters to things done by them which cannot fairly be said to form part of their participation in the judicial process as witnesses. The purpose of the immunity is to protect witnesses against claims made against them for something said or done in the course of giving or preparing to give evidence. It is not to be used to shield the police from action for things done while they are acting as law enforcers or investigators. The rule of law requires that the police must act within the law when they are enforcing the law or are investigating allegations of criminal conduct. It also requires that those who complain that the police have acted outside the law in the performance of those functions, as in cases alleging unlawful arrest or trespass, should have access to a court for a remedy.

In Silcott v Comr of Police of the Metropolis 8 Admin LR 633, 640 Simon Brown LJ said:

“Protection must extend to the preparation of evidence equally as to its presentation … I see no difference in principle between a police officer fabricating a record of interview in writing, and the equivalent in times past, a police officer verballing an accused; nor between say, an officer planting a brick or drug on an accused so that someone else will give truthful evidence of having found it, and an officer giving false evidence that he himself found such a brick or drug. In my judgment Drake J was correct in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 to have held that the immunity covers all conduct that can fairly be said to be part of the investigatory and, I would add, preparatory process. To Lord Williams’ submission that there is no public interest in protecting those who create false evidence or, for that matter, those who destroy sound evidence, I would answer that thatmisses the essential point: the public interest is in the protection of those who might otherwise be falsely accused of such conduct.”

I would hold, with respect, that Simon Brown LJ went too far when he said that the protection of the immunity must extend to such acts to procure false evidence as the planting of a brick or drug or the fabrication of a record of interview. He overlooked the distinction which I would draw between the act itself and the evidence that may be given about the act or its consequences. This distinction rests upon the fact that acts which are calculated to create or procure false evidence or to destroy evidence have an independent existence from, and are extraneous to, the evidence that may be given as to the consequences of those acts. It is unlikely that those who have fabricated or destroyed evidence would wish to enter the witness box for the purpose of admitting to their acts of fabrication or destruction. Their acts were done with a view to the giving of evidence not about the acts themselves but about their consequences. The position is different where the allegation relates to the content of the evidence or the content of statements made with a view to giving evidence, and not to the doing of an act such as the creation or the fabrication of evidence. The police officer who is alleged to have given false evidence that he found a brick or drug in the possession of the accused or that he heard an accused made a statement or a remark which was incriminating is protected because the allegation relates to the content of his evidence. He is entitled to the immunity because he was speaking as a witness, if he made the statement when he was giving evidence, or was speaking as a potential witness, if he made it during his preliminary examination with a view to his giving evidence.

In Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184, 191h Drake J said that the immunity must extend not only to the giving of evidence in court and formal statements made in preparation for the giving of evidence but also to the acts of the witness in collecting or considering material on which he may later be called to give evidence. While that decision was correct on its own facts, I would not accept for all purposes this description of the extent of the immunity. The explanation which the judge gave was that, if the immunity was not so extended, a convicted person could sue the police officers for the allegedly negligent manner in which they had investigated the crime. But I think that this tends to confuse the functions of the witness with that of the investigator. It is important also not to confuse the immunity rule which extends to witnesses with the question whether or not in particular circumstances a duty of care is owed by the police or by prosecutors: see Hill v Chief Constable of West Yorkshire [1989] AC 53 and Elguzouli-Daf v Comr of Police of the Metropolis[1995] QB 335. The purpose of the immunity rule is to protect the witness in respect of statements made or things done when giving or preparing to give evidence. The acts of the witness in collecting material on which he may later be called to give evidence are not protected by the immunity. The immunity extends only to the content of the evidence which the witness gives or is preparing to give based on that material. I think that Sir Richard Scott V-C described the position correctly when he said in Bennett v Comr of Police of the Metropolis (1997) 10 Admin LR 245, 252d-e that the immunity extends to statements made or agreed to be made out of court “if these were clearly anddirectly made in relation to the proceedings in court, for example, witnesses’ proofs of evidence …”

In the present case the allegations that have been made against the police officers are not related only to the content of evidence that they might have given if they had been called upon to give evidence at the trial. They relate, at least in part, to things done by the police during the initial stage when they were acting as investigators. I do not think that it can be asserted without hearing the evidence that these allegations fall within the boundaries of the immunity. This is a matter which should be considered in the light of the facts as they emerge at the trial. I would allow the appeal and make the order that has been proposed by my noble and learned friend Lord Hutton.

JUDGMENTBY-2: LORD MACKAY OF CLASHFERN

JUDGMENT-2:
LORD MACKAY OF CLASHFERN: My Lords, I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Hutton. I agree with him that this appeal should be allowed and that the order he proposes should be made.

In view of the importance of the case, I state my reasons briefly. The action has been struck out by the Court of Appeal affirming the judgment of Maurice Kay J for the reason that “the immunity rule” applied and that if that rule is to be true to the public policy reasons for it, there is no logical basis for distinguishing between making witness statements and investigation and other preparatory conduct with a view to making them.

By the end of the 19th century, after a long history, it was settled that witnesses taking part in a trial could not be sued for anything written or spoken in the course of the proceedings. In Watson v M’Ewan [1905] AC 480 the House of Lords held that the privilege which surrounds the evidence actually given in a court of justice necessarily involves the same privilege in the case of making a statement to a solicitor and other persons who are engaged in the conduct of proceedings in courts of justice when what is intended to be stated in the court is narrated to them.

In Taylor v Director of the Serious Fraud Office[1999] 2 AC 177 this House held that the immunity extended also to out-of-court statements which could fairly be said to be part of the process of investigating crime with a view to prosecution. However it is vitally important to note that Lord Hoffmann with whom Lord Goff of Chieveley, Lord Hope of Craighead and Lord Hutton agreed said, at p 214:

“The policy of the immunity is to enable people to speak freely without fear of being sued, whether successfully or not. If this object is to be achieved, the person in question must know at the time he speaks whether or not the immunity will attach.”

At p 215 he said: “As the policy of the immunity is to encourage freedom of expression, it is limited to actions in which the alleged statement constitutes the cause of action.”

In the present case, the summary of the plaintiffs’ allegations, which we have to assume for the purpose of this striking-out application are true, includes allegations of police officers knowingly instructing undercover agents to breach police instructions of operation, in particular that a police officer must not act as an agent provocateur, and that the police officers manipulated a police informer to prevent the plaintiffs having a fair trial in particular by refusing to comply with the judge’s directions on pre-trialdisclosure. The pleaded causes of action are that there was a conspiracy to injure the plaintiffs by use of unlawful means and that police officers committed the tort of misfeasance in a public office.

The only ground on which it was claimed that this action should be struck out was that the defendant was protected by the immunity to which I have already referred. In my view there are materials in these allegations which do not depend as a cause of action on alleged statements relating to the preparation of evidence for proceedings and go beyond matters of freedom of speech either at, or in the course of preparation for, a criminal trial. It follows that in my opinion the immunity claimed cannot apply to these allegations and consequently the action cannot be struck out.

In the course of the argument before us reference was made to the judgment of Drake J in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184. After referring to earlier authorities Drake J said, at pp 191-192:

“If this object is to be achieved I think it essential that the immunity given to a witness should also extend to cover statements he makes prior to the issue of a writ or commencement of a prosecution, provided that the statement is made for the purpose of a possible action or prosecution and at a time when a possible action or prosecution is being considered. In a large number of criminal cases the police have collected statements from witnesses before anyone is charged with an offence; indeed sometimes before it is known whether or not anycriminal offence has been committed. If immunity did not extend to such statements it would mean that the immunity attached to the giving of evidence in court or the formal statements made in preparation for the court hearing could easily be outflanked and rendered of little use. For the same reason I think that the immunity must extend also to the acts of the witness in collecting or considering material on which he may later be called to give evidence. If it does not so extend then a convicted person could, for example, sue the police officers for the allegedly negligent manner in which they had investigated the crime, by complaining that they had wrongly assessed the evidential value of certain matters or had failed to interview possible witnesses whose evidence was thought by the accused to be favourable to him.”

It is clear on looking at the nature of the claim made in that case that it was based upon the report of the post mortem and analysis results which had been prepared by the individual defendants in various capacities as a result of which proceedings had been taken against the plaintiff. In so far as the defendants’ conduct was alleged to be negligent this was relevant only because this negligence led to the making of the report in the terms which were the subject of the complaint. I conclude that Drake J’s decision did not extend the immunity to alleged negligent conduct not reflected in a written report or statement. In Silcott v Comr of Police of the Metropolis 8 Admin LR 633, 637 Simon Brown LJ quotes from the judgment of Drake J in the Evans case [1981] 1 WLR 184, 192c-d in such a way as to leave open the possibility that the immunity extends to conduct which is not related to the preparation of a report or statement in writing. Simon Brown LJ goes on, at p 640:

“The same policy considerations as underlie the immunity rule in its most direct and obvious application, i e, where statements have been prepared for proceedings and evidence has then been given, to my mind apply with equal force to the present situation. Protection must extend to the preparation of evidence equally as to its presentation. Similarly, it must extend to encompass any subsequent section 17 inquiry, such as here took place. I see no difference in principle between a police officer fabricating a record of interview in writing, and the equivalent in times past, a police officer verballing an accused; nor between say, an officer planting a brick or drug on an accused so that someone else will give truthful evidence of having found it, and an officer giving false evidence that he himself found such a brick or drug. In my judgment Drake J was correct in Evans to have held that the immunity covers all conduct that can fairly be said to be part of the investigatory and, I would add, preparatory process.”

I have found the last part of this quotation unacceptable as it seems to me to stretch the immunity beyond an immunity in respect of statements made for the purpose of court proceedings to an immunity not related to any statement made in court proceedings. For example, in the illustration where a police officer plants a brick or drug on an accused person I would find it hard to envisage that any statement is likely to be made by him to that effect and therefore an immunity which stretches so far is not based on protecting a statement to be made by the person who does the planting. The person who subsequently innocently finds the drug or brick on the accused and makes a statement that he so found the brick or drug will be protected in respect of the statement by the immunity but I see no reason to extend it to the conduct of the officer who does the planting, who has no intention whatsoever of disclosing this in any statement. In my view, this part of Simon Brown LJ’s judgment applies the judgment of Drake J more widely than its context in the Evans case warrants. The essential character of the immunity as described in the passages I have quoted from Lord Hoffmann in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, 214, 215 limits the application of the immunity to conduct which can be called in question only by a founding on a statement in court or a statement which is part of the preparation of evidence for court proceedings.

I should also wish to say that in applying some formulations of the immunity in the authorities as it affects judges, the decision of this House In re McC (A Minor) [1985] AC 528 requires to be kept in view and particularly I should refer to the speech of Lord Bridge of Harwich, at pp 540-541.

JUDGMENTBY-3: LORD COOKE OF THORNDON

JUDGMENT-3:
LORD COOKE OF THORNDON: My Lords, “But my experience leads me to believe that Her Majesty’s servants are made of sterner stuff” said Lord Reid in Dorset Yacht Co Ltd v Home Office [1970] AC 1004, 1033, rejecting an argument that public policy required immunity for the Home Office lest the risk of claims could inhibit officers from allowing Borstal boys out of the institution on training exercises. It is essentially for the same reason that I would reject the contention that immunity protects the kind of conduct alleged against police officers in the present case.

An agreed summary of the allegations appears in the speech of my noble and learned friend, Lord Hutton. In terms of the test proposed by Drake J in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184, 192, on which the defendant relies, it is obvious that none of the alleged conduct could fairly be said to be part of the process of investigating a crime. The fabrication of evidence, for instance, is almost the antithesis of investigation; it is creation. The argument has to be and is, however, that without immunity investigating police officers would be deterred from carrying out their duty by fear of vexatious actions. The reasoning involved is in substance that of Fry LJ in Munster v Lamb (1883) 11 QBD 588, 607, in a well-known passage explaining why defamation actions cannot be brought against judges and witnesses. It is encapsulated in a statement of Simon Brown LJ in Silcott v Comr of Police of the Metropolis 8 Admin LR 633, 640, which was cited and followed by Auld LJ in the judgment now under appeal:

“To Lord Williams’s submission that there is no public interest in protecting those who create false evidence or, for that matter, those who destroy sound evidence, I would answer that that misses the essential point: the public interest is in the protection of those who might otherwise be falsely accused of such conduct.”

Absolute immunity is in principle inconsistent with the rule of law but in a few, strictly limited, categories of cases it has to be granted for practical reasons. It is granted grudgingly, the standard formulation of the test for inclusion of a case in any of the categories being Sir Thaddeus McCarthy P’s proposition in Rees v Sinclair[1974] 1 NZLR 180, 187, “The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice …” Many other authorities contain language to similar effect.

There is nothing new in allegations against the police of pre-trial misconduct. A common type of allegation, familiar to any judge who has had to preside frequently over criminal trials, has been of some impropriety in the obtaining of statements from an accused person. Very often these allegations are found to be false. Usually police officers confronted with such allegations in the witness box face them philosophically and firmly. They are part of the policeman’s lot, a well-recognised professional hazard. I think that it would be unrealistic to suppose that the risk of such false allegations has over the years operated as a significant disincentive to the conscientious discharge of police investigatory duties. It would seem equally unrealistic to suggest that this has been due to an understanding that pre-trial investigations were immune from tort claims. Not until Silcott’s case, 8 Admin LR 633 in 1996 had an English court articulated the law in that way. In my opinion it certainly cannot be said that protection has proved to be absolutely necessary in the interests of the administration of justice.

A police officer who gives evidence or a proof of proposed evidence is entitled to the same immunity as any other witness or potential witness. And to prevent the evasion of this immunity it is necessary to rule out also allegations of conspiracy to give false evidence, as was held in Marrinan v Vibart [1963] 1 QB 528. There may be some borderline cases where it is not easy to draw the line as to the precise extent of witness immunity. The solution of these cases may be helped to some extent by bearing in mind thatwitness immunity is a general doctrine applying to all persons called upon to give evidence, whereas the function of official investigation is limited to the police and various other public officials. Conduct which is primarily and naturally to be seen as belonging to the investigatory function, even though it may have some ultimate link with the giving of evidence, should not be within the general protection.

Many of the authorities cited in argument were concerned to uphold absolute privilege in defamation or the absence of a duty of care in negligence. It would be unsafe to convert what has been said about immunity in such cases to use in respect of the kind of conduct alleged in the present case. Thus Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 did not require any consideration of the planting of evidence; it was simply a case of the bona fide but allegedly negligent preparation of evidence. Drake J’s proposition was entirely apt for such a case, but to give it some wider influence could be dangerous. It is noteworthy that in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, 215 Lord Hoffmann thought that Evans’s case [1981] 1 WLR 184 might nowadays have been decided on the ground that the defendants owed the plaintiff no duty of care. That is how Evans’s case happens to have been seen in New Zealand: South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282, 302-303.

Taylor’s case [1999] 2 AC 177 itself was a defamation action in which the defendants were held (by a majority in your Lordships’ House) entitled to absolute privilege. To cite Lord Hoffmann again, at pp 214-215:

“In my view it is necessary for the administration of justice that investigators should be able to exchange information, theories and hypotheses among themselves and to put them to other persons assisting in the inquiry without fear of being sued if such statements are disclosed in the course of the proceedings.”

All the speeches dealt with the subject in similar terms. The fabrication of evidence was never mentioned. It is well understandable that the freedom of police investigators to communicate inter se and with others should be inviolate. The planting of evidence, such as the brick or drug postulated in Silcott v Comr of Police of the Metropolis 8 Admin LR 633, takes one from the field of freedom of speech into different territory. I do not think that Taylor’s case [1999] 2 AC 177 can have been intended to be a guide in that territory. Each category of immunity requires separate consideration and justification, while each set of facts requires full examination in determining whether it can be brought within a particular category.

Your Lordships have had the advantage, not enjoyed by the Court of Appeal in this case nor evidently in Silcott’s case 8 Admin LR 633 of citations of American jurisprudence. Not surprisingly in this difficult field, there have been line-drawing differences; but there appears to have been general agreement on a functional test. A convenient starting point is Imbler v Pachtman (1976) 424 US 409 where the United States Supreme Court held by a majority that a state prosecutor who acted within the scope of his duties in initiating and pursuing a criminal prosecution and in presenting the state’s case was absolutely immune from a civil suit for damages for alleged deprivations of the defendant’s constitutional rights; and that the absolute immunity was applicable even where the prosecutorknowingly used perjured testimony, deliberately withheld exculpatory information, or failed to make full disclosure of all facts casting doubt on the state’s testimony. It was said that these activities were intimately associated with the judicial phase of the criminal process, as distinct from the administrative or investigatory role.

A case on the other side of the line, where a majority of the Supreme Court denied absolute immunity, was Buckley v Fitzsimmons (1993) 113 S Ct 2606. It was held that a prosecutor’s alleged misconduct when endeavouring to determine whether a bootprint at the scene of the crime had been left by the suspect was closer to the investigatory and administrative function than to the prosecutorial. The prosecutors were therefore entitled only to qualified immunity-approximating to the position in English law of a defendant in an action for misfeasance in public office: see Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2000] 2 WLR 1220. The misconduct alleged in Buckley v Fitzsimmons 113 S Ct 2606 was described as fabricating evidence. It was claimed that, when three separate laboratory studies failed to make a reliable connection between the bootprint and the suspect’s boots, the respondents obtained a positive identification from a person known for her willingness to fabricate unreliable expert testimony.

A similar very recent case is Spurlock v Satterfield(1999) 167 F 3d 995 (United States Court of Appeals, Sixth Circuit). The defendants were a deputy sheriff and other law enforcement officials. The court said, at p 1004:

“Plaintiffs do not allege that Satterfield and others merely presented false testimony. Indeed, they allege that something much more egregious was at work here. Specifically, that not only did Satterfield and other defendants know that Apple’s testimony was false, but that they provided Apple with information regarding the Malone murder, fabricated probable cause, created a second tape recording to conceal the events of the first recording, gave Apple ‘hush money’ after plaintiffs’ first trials, and recorded and re-recorded Apple’s statements. We find it incredible that Satterfield now contends that these non-testimonial acts fall within the ambit of the aforementioned absolute testimonial immunity case law. Considering the facts as alleged by plaintiffs, we decline to broaden the scope of absolute testimonial immunity to encompass the non-testimonial acts alleged here.”

The American cases appear to me to provide support for the kind of functional approach which I have outlined earlier. Some support may be gained also, I think, from Osman v United Kingdom(1998) 29 EHRR 245. This decision of the European Court of Human Rights seems to be somewhat controversial in England, and its facts are remote from those of the present case. It has some relevance, nevertheless, in its rejection of blanket immunities for the police. The United Kingdom courts can undoubtedly take it into account in developing the common law in grey areas; and this will be obligatory when the Human Rights Act 1998 is brought into full force.

The defendant seeks to repel any suggestion of blanket immunity by stressing that a claimant who has been a victim of unsuccessful criminal proceedings may be able to sue for malicious prosecution if he can prove an absence of reasonable and probable cause for the prosecution. Thisargument appears to prove too much. Public policy does not altogether shut out such actions in the interest of protecting honest police prosecutors from the vexation of unfounded claims. The cumulative ingredients of the tort place a series of hurdles in the plaintiffs’ way, but pre-trial investigatory work is not sacrosanct. Moreover, although on the moral scale framing a guilty person may be less heinous than framing an innocent one, in both cases the conduct is totally unacceptable. I would not accept that it is a sound rule of public policy to prevent scrutiny of the investigation by a civil action in a case which may fall within one of the two classes while allowing it in a case which may fall within the other.

For these reasons I would allow the appeal and make the order proposed by Lord Hutton.

JUDGMENTBY-4: LORD CLYDE

JUDGMENT-4:
LORD CLYDE: My Lords, in 1993 the plaintiffs faced trial in criminal proceedings. On 28 September 1993 the trial was stayed for an abuse of process. They have claimed damages from the police for conspiracy to injure and the tort of misfeasance in public office. But the claim has been struck out. The issue in the present case is a narrow one: whether an absolute immunity necessarily attaches to police officers who among other things, as is alleged, along with an informer fabricated statements against the plaintiffs and themselves conspired to cause them to be charged with offences which they knew or believed to be false. The immunity claimed is that which is associated with witnesses in judicial proceedings. Immunity has in the past been recognised in respect of the judge, the jurors, the advocates, the witnesses and the parties themselves, at least within the confines of the court proceedings. But since it may be that distinct considerations may apply to some or all of the other four groups it is proper to restrict the present discussion to the immunity of witnesses.

The case is not presented as one of malicious prosecution and an argument was presented that it was an attempt to side-step the formal requirements of that form of action. But at least in relation to this application for strike-out I am not persuaded that the existence of an arguable case must be determined by the form of action adopted.

So far as concerns the principles regarding the immunity of witnesses in connection with judicial proceedings, those principles should be of general application regardless of the particular form of the action. Thus, for example, whether the action is one of defamation or of negligence or, as in the present case, of conspiracy to injure and misfeasance in a public office, the same principles should apply. In Marrinan v Vibart [1963] 1 QB 528 Sellers LJ stated, at p 535:

“Whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings must suffer the same fate of being barred by the rule which protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given.”

A like view was expressed by Starke J in the earlier Australian case of Cabassi v Vila (1940) 64 CLR 130, 140-141.

It is temptingly easy to talk of the application of immunities from civil liability in general terms. But since the immunity may cut across the rights of others to a legal remedy and so runs counter to the policy that no wrong should be without a remedy, it should be only allowed with reluctance, andshould not readily be extended. It should only be allowed where it is necessary to do so. As McCarthy P observed in Rees v Sinclair [1974] 1 NZLR 180, 187: “The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice …” Furthermore the idea of a universal immunity attaching to a person in the performance of some particular function requires to be entertained with some caution. As Lord Wilberforce observed in Roy v Prior [1971] AC 470, 480: “Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest.” Once a situation has been identified as deserving of immunity it may readily be accepted that the immunity is in its quality absolute. But the process of identification may require to be undertaken with a particular eye to an evaluation of the public interests involved. The quality of an immunity may be absolute, but its application may not be invariable.

On the other hand there has to be some degree of certainty about the existence of an immunity for it to be effective. The matter cannot be entirely left as one to be determined on each and every occasion. For the immunity of a witness to be effective it is necessary that the person concerned should know in advance with some certainty that what he or she says will be protected. So even although the matter may depend in any case upon a balancing of interests it ought to be possible to predict with some confidence whether or not an immunity will apply. The law has sought to achieve this by making it clear that the substance of the evidence presented to the court in judicial proceedings will be immune from attack. But a more difficult question arises with regard to the preparation of material and the investigation of a case before the matter comes before the court.

Two reasons can be identified for the justification for granting an immunity to witnesses from civil process. They were expressed by Lord Wilberforce in Roy v Prior in these terms, at p 480:

“The reasons why immunity is traditionally (and for this purpose I accept the tradition) conferred upon witnesses in respect of evidence given in court, are in order that they may give their evidence fearlessly and to avoid a multiplicity of actions in which the value or the truth of their evidence would be tried over again.”

So far as the first of these reasons is concerned it may be considered necessary that witnesses should be granted an immunity so as to secure that they may enjoy a freedom to express themselves without fear of any consequences to themselves. In the interests of the judicial process a witness should not be exposed to the risk of having his or her evidence challenged in another process. Those engaged in the judicial process should be under no restraint from saying what has to be said and doing what has to be done for the proper conduct of that process. As Salmon J observed in Marrinan v Vibart [1963] 1 QB 234, 237:

“This immunity exists for the benefit of the public, since the administration of justice would be greatly impeded if witnesses were to be in fear that any disgruntled and possibly impecunious persons against whom they gave evidence might subsequently involve them in costly litigation.”

As regards the second reason the law favours a termination to litigation and in various ways endeavours to prevent a rehearing of a matter which has already passed through the courts. If witnesses were open to a challenge upon the substance of the evidence which they have given in court proceedings, the whole matters to which the evidence related would again be canvassed before another court and in effect the case would be being retried. To allow such a proceeding would enable a collateral attack to be made upon the earlier decision and the law is opposed to that kind of repetitive litigation. That principle was recognised in Hunter v Chief Constable of the West Midlands Police[1982] AC 529, where an attempt was made to open up in a civil action allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. That was held to be a collateral attack amounting to an abuse of process. The decision was not in terms exploring the limits of police immunity, but the effect was to provide an immunity.

The immunity attaches essentially to what persons who may be called to give evidence say or do before the court. It is an immunity “in respect of evidence given in court” (Roy v Prior [1971] AC 470, 480), or, to quote Crompton J in Henderson v Broomhead (1859) 4 H & N 569, 579, “for words spoken or written in the course of any judicial proceeding”. But the immunity would be worthless if it were confined to actual giving of evidence in the court. Thus, as was recognised in Watson v M’Ewan[1905] AC 480, the immunity should cover what is said at the stage when a witness provides a statement of the evidence which he or she is going to give in court, since the immunity relating to what occurs in the trial could otherwise readily be circumvented. Even if a potential witness provides a statement but is not in the event called as a witness, nevertheless the immunity ought to apply. As the Earl of Halsbury LC recognised in Watson v M’Ewan, the practical answer to the fear of hardship caused by the allowance of an immunity in such a case is that no one would know anything about the statement; it would simply slumber in the solicitor’s office. But at the stage of the obtaining of the statement it would not be possible to affirm with certainty whether or not the evidence which it contained was to be used in court and the possibility is enough to support the immunity. The immunity cannot depend upon the chance of the particular person being called as a witness in court.

That same consideration of avoiding a circumvention of the immunity should serve to justify its application at the early stages of a litigation or a prosecution where evidence is being collected with a view to court proceedings. It may be that here some delicate questions of fact may arise as to whether or not the material in question was or was not provided with a view to court proceedings. But while the line may be difficult to draw in some cases the distinction in principle is clear. In the case of statements, as Drake J recognised in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184, 191, the statement must be made “for the purpose of a possible action or prosecution and at a time when a possible action or prosecution is being considered”. The test which he formulated was, at p 192:

“the protection exists only where the statement or conduct is such that it can fairly be said to be part of the process of investigating a crime or apossible crime with a view to prosecution or possible prosecution in respect of the matter being investigated.”

It is then not enough that there be an investigation; the investigation must also be with a view to an action or to a prosecution which is already under consideration. Before that stage is reached it would be very difficult to justify the grant of an immunity. Even after that stage, if proceedings are commenced, it does not necessarily follow that all that is said or done in connection with the proceedings will be immune. A helpful distinction has been drawn in the American jurisprudence between matters of advocacy and matters of detection. In Imbler v Pachtman 424 US 409 it was recognised that an absolute immunity was appropriate to the conduct of prosecutors which was intimately associated with the judicial phase of the criminal process. In Buckley v Fitzsimmons 113 SCt 2606 the matter was further developed. In that case it was alleged that the prosecutors had conspired to manufacture false evidence which would link the petitioner’s boot with a bootprint of a murderer. The Supreme Court held that immunity was given to the actions of a prosecutor not simply because the actions were performed by a prosecutor. A distinction was drawn between the functions which attracted the immunity and those which did not. As Justice Stevens observed, at p 2616:

“There is a difference between the advocate’s role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective’s role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand.”

That the police may mount prosecutions or that prosecutors may engage in detective work should not obscure the critical consideration of the function which is being performed. It is to the function that the immunity attaches rather than to the individual who performs it.

Some activities which may be described as investigative may thus be covered by the immunity, such as the preparation of reports with a view to these forming part of the evidence to be given in court. In Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 it was held that the collection and analysis of material relevant to an offence or a possible offence under investigation, in that case the recovery and analysis of organs from a deceased child, fell within the scope of the immunity. Thus a statement of claim seeking damages for alleged negligence in allowing the organs to become contaminated in a post mortem examination was struck out. In that case those who had been engaged in the examination and analysis would have been potential witnesses and their evidence would have covered the recovery of the organs and the result of the analysis. In X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 755 Lord Browne-Wilkinson stated:

“The psychiatrist must have known that, if such abuse was discovered, proceedings by the local authority for the protection of the child would ensue and that her findings would be the evidence on which those proceedings would be based. It follows in my judgment that such investigations having such an immediate link with possible proceedings inpursuance of a statutory duty cannot be made the subject of subsequent claims.”

I do not understand that the views expressed in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 innovated upon this position.

But that is not to say that everything said or done by anyone in the investigation or preparation for a judicial process is covered by the immunity. In drawing the line in any particular case it may be necessary to study precisely what was being done and how closely it was linked with the proceedings in court. No immunity should attach to things said or done which would not form part of the evidence to be given in the judicial process. The reason for admitting to the benefit of the immunity things said or done without the walls of the court is to prevent any collateral attack on the witness and circumvention of the immunity he or she may enjoy within the court. As Devlin LJ observed in Lincoln v Daniels [1962] 1 QB 237, 263:

“I have come to the conclusion that the privilege that covers proceedings in a court of justice ought not to be extended to matters outside those proceedings except where it is strictly necessary to do so in order to protect those who are to participate in the proceedings from a flank attack.”

The protection is granted to a witness in the interest of establishing the truth and to secure that justice may be done. But the witness is not immune from a charge of perjury and that possibility remains as a deterrent against an abuse of his position. Immunity from that would not serve the interests of justice in the case. So also before matters have reached the stage of trial the immunity should not be available to give protection for matter which is designed to defeat the ends of justice rather than to serve them. In Spurlock v Satterfield, 167 F 3d 995 Circuit Judge Nathaniel R Jones stated, at pp 1003-1004:

“The doctrine of absolute immunity for testimony is a shield to ensure that those individuals intimately involved in the judicial process are able to carry out their responsibilities without the constant threat of vexatious lawsuits, not a sword allowing them to trample the statutory and constitutional rights of others. By virtue of being a witness, Satterfield is not entitled to absolute immunity in performing any non-testimonial or pre/post-testimonial acts. What plaintiffs, in essence, allege here is the fabrication of probable cause, and contrary to Satterfield’s argument, the fabrication of probable cause cannot be immunised by later providing false testimony. Obviously, the two alleged acts, manufacturing the evidence and later presenting that false evidence in the form of testimony, are inextricably linked. Nonetheless, we find that adopting Satterfield’s reasoning would lead to the untenable result that officials who fabricate evidence or manufacture probable cause could later shield themselves from liability simply by presenting false testimony regarding that evidence.”

These observations seem to me to be in point in the present appeal.

The only case which counsel for the plaintiffs identified as being contrary to his submission was that of Silcott v Comr of Police of the Metropolis 8 Admin LR 633. In my view the approach there taken to the scope of theimmunity was too widely expressed. To extend it to cover all conduct that can fairly be said to be part of the investigatory or preparatory process takes it beyond the length of the intimate connection with the court proceedings and the extent which is necessary for the purposes for which it is granted. The planting of a brick or a drug by a police officer so that it can be found by another is not matter which would be expected to form part of the prosecution case in court and there is no necessity for such activity to have the protection of an immunity.

If one seeks to apply the reasons which justify an immunity to the present case it seems to me that it would not be proper to strike out the statement of claim. So far as the first purpose of the immunity is concerned, the necessity to secure that witnesses will speak freely and fearlessly, this justification is substantially irrelevant to the present case. What is alleged here is not the telling of lies about facts which had occurred but a deliberate fabrication of facts which had not occurred. What is under attack is not the investigation of possible realities but the preparation of a fiction. In so far as the immunity granted to a witness relates to the substance of the evidence which he or she gives or is to give, the matters of which the plaintiffs complain will almost certainly not be the intended substance of the evidence of those who were engaged in the conspiracy. It cannot be that everything which is said or done in the preparation for judicial proceedings is necessarily immune. Where evidence is fabricated or statements concocted, protection from attack should not be gained by a subsequent presentation of false testimony in court. So far as the second purpose of the immunity is concerned, the desirability of avoiding repeated litigation on the same issue, that too has no relevance to the present case. In the event there was no concluded trial. The proceedings were stayed on the ground of an abuse of process. There is no decision against which a collateral attack can be made.

If one turns to consider the other factors which may weigh in deciding whether or not in the circumstances of the present case an immunity should be recognised, it should be noticed that the plaintiffs have been subjected to significant periods in custody, so that in the event they can justifiably complain of some injury. Furthermore the allegations which they present are of machinations by members of a police force of some seriousness. The arranging for the presentation of false evidence to be given by the witness Titley would, if true, constitute a grave abuse of the duties of the police. On the other hand in balancing all the relevant considerations it is right to bear in mind that there may well be grounds for questioning the innocence of the accused. But that cannot affect their entitlement to have access to the courts. The form of action which they have adopted is not a matter for consideration at this stage of the process. Nor are we concerned to explore questions of qualified immunity and malice. The sole question is whether the claim made is so clearly countered by an absolute immunity as to require it to be struck out. In all the circumstances I am not able to return an affirmative answer to that question. I would allow the appeal.

JUDGMENTBY-5: LORD HUTTON

JUDGMENT-5:
LORD HUTTON: My Lords, the work done by a police officer prior to the commencement of a criminal prosecution may relate to the investigation of a suspected crime, to the questioning of a suspect, to the obtaining of witness statements from prospective witnesses and to the preparation of a witness statement relating to the evidence which he himself may give at theprospective trial. The issue which arises on this appeal concerns the width of the absolute immunity from civil action granted to the police officer in respect of such work.

The plaintiffs Head, Lamont and Clark together with David Stanley Docker (now deceased who sues by his personal representative) were indicted on counts alleging conspiracy to import cannabis resin. The plaintiffs Lamont, Rhodes, Clark and Docker were indicted on a count alleging conspiracy to forge American Express travellers’ cheques. The plaintiffs were charged following an undercover operation conducted by members of No 4 Regional Crime Squad. The undercover operation involved the use of two undercover police officers and a police informant named Titley. The arrest of the plaintiffs took place between 16 May and 15 July 1992. All the plaintiffs were remanded in custody, and some remained in custody until the trial commenced in August 1993 in the Crown Court at Wolverhampton before Judge Gibbs QC. The trial was beset with a number of problems, many of which stemmed from the fact that the defence were dissatisfied with the disclosure made by the prosecution. This resulted in the trial judge making orders for disclosure which, regrettably, were not complied with. The fault for this lay with the police and was not due to any default by prosecuting counsel or the Crown Prosecution Service. In addition, the informant Titley, who was to be called as a prosecution witness, proved to be elusive and Detective Constable Ledbrook, a police officer central to the prosecution and to the allegations by the plaintiffs of wrongdoing by the police, was unavailable for attendance at court for medical reasons. On 28 September 1993 the trial judge gave a lengthy and careful ruling in which he held that the police had been significantly at fault in the disclosure process and he directed that the charges be permanently stayed on the ground of abuse of process and the plaintiffs were accordingly discharged.

The plaintiffs then commenced an action against the Chief Constable of the West Midlands Police claiming damages for conspiracy to injure and the tort of misfeasance in public office committed by police officers under his direction and control. No claim was brought for malicious prosecution. A statement of claim was issued and served on 24 March 1995 and an amended statement of claim was served on 6 October 1995. The Chief Constable’s defence was served on 30 January 1996. It is agreed between the parties that the plaintiffs’ allegations can be summarised as follows. (1) Two police officers, Detective Constable Ledbrook and/or Detective Chief Inspector Lowbridge, together with a police informant (Titley), fabricated statements against the plaintiffs. (2) Two police officers (Ledbrook and Lowbridge) conspired to cause the plaintiffs to be charged with offences which they knew or believed to be false. (3) Police officers (Ledbrook and Lowbridge) knowingly instructed undercover agents to breach police instructions of operation, in particular breaching the instruction that “a police officer must not act as an agent provocateur”. (4) DC Ledbrook acting as the handler for the police informer knowingly allowed and/or incited the informer to fabricate evidence. (5) Two police officers (Ledbrook and Lowbridge) manipulated the police informer to prevent the plaintiffs having a fair trial. In particular, refusing to comply with the judge’s directions on pre-trial disclosure. (6) DC Ledbrook covertly shared in the proceeds of reward moneys given to the police informer. (7) Police officers (Ledbrook,Lowbridge and others) used Titley as an agent provocateur and/or entrapper in an attempt to implicate the plaintiffs. (8) Ledbrook and/or Lowbridge acted in breach of codes of conduct and/or standing orders and/or circulars and negotiated rewards on behalf of Titley from American Express UK Ltd. (9) Lowbridge and/or Ledbrook concealed from the plaintiffs during the course of their criminal trial the fact that Titley attended the No 4 Regional Crime Squad Christmas party. (10) Ledbrook and/or Lowbridge together with Titley engaged in similar conspiracies to injure other persons in strikingly similar circumstances.

The Chief Constable applied to strike out the statement of claim and on 27 September 1996 Maurice Kay J, following the principles stated by the Court of Appeal in Silcott v Comr of Police of the Metropolis 8 Admin LR 633, struck out the amended statement of claim and dismissed the action.

The Court of Appeal dismissed the plaintiffs’ appeal in a judgment delivered by Auld LJ In his judgment the Lord Justice considered the immunity given to a witness in court proceedings and cited a portion of the judgment of Drake J in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184, 192:

“It is for these reasons that I think that the words used by the Court of Appeal in Marrinan v Vibart [1963] 1 QB 528, that immunity protects witnesses in their evidence before the court and in the preparation of the evidence which is to be given, cover and were intended to cover the collection and analysis of material relevant to the offence or possible offence under investigation, and were not intended merely to cover the preparation of the witness’s formal statement or proof of evidence … the protection exists only where the statement or conduct is such that it can fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or possible prosecution in respect of the matter being investigated.”

Auld LJ then observed that this test had been adopted by the Court of Appeal in Silcott’s case 8 Admin LR 633. The immunity which the Court of Appeal held the Chief Constable in this case was entitled to claim on behalf of the officers against whom the allegations of conspiracy and misfeasance were made is an immunity derived from the protection given to a witness in respect of his statements in court. It is therefore necessary to consider the basis of this immunity and the manner in which it has been extended.

The core of the immunity

The rule that a party or witness has immunity in respect of what he says and does in court has been established for centuries. In his submissions to the House Mr Newman cited the judgment of the King’s Bench in 1585 in Cutler v Dixon 4 Co Rep 14b:

“It was adjudged, that if one exhibits articles to justices of peace against a certain person, containing divers great abuses and misdemeanors, not only concerning the petitioners themselves, but many others, and all this to the intent that he should be bound to his good behaviour; in this case the party accused shall not have for any matter contained in such articles any action upon the case, for they have pursuedthe ordinary course of justice in such case: and if actions should be permitted in such cases, those who have just cause for complaint would not dare to complain for fear of infinite vexation.”

The rule was succinctly stated by Kelly CB in Dawkins v Lord Rokeby LR 8 QB 255, 264:

“no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without any reasonable or probable cause, in the ordinary course of any proceeding in a court of justice.”

As Auld LJ observed in the Court of Appeal the plaintiff’s claim in that case related to the defendant’s oral evidence before a military court of inquiry and also to a written statement containing in substance a repetition of that evidence which the defendant handed in to the court of inquiry immediately after he had given his evidence, and the reference to “anything … done” was probably intended to cover the submission of a written statement to a court. The reason for the rule is grounded in public policy: it is to protect a witness who has given evidence in good faith in court from being harassed and vexed by an action for defamation brought against him in respect of the words which he has spoken in the witness box. If this protection were not given persons required to give evidence in other cases might be deterred from doing so by the fear of an action for defamation. And in order to shield honest witnesses from the vexation of having to defend actions against them and to rebut an allegation that they were actuated by malice the courts have decided that it is necessary to grant absolute immunity to witnesses in respect of their words in court even though this means that the shield covers the malicious and dishonest witness as well as the honest one.

The extension of the immunity to the proof of the witness’s evidence given before trial

In order to enable a case to be prepared for hearing, a witness will before trial almost invariably give a statement of the evidence which he will give in court to the solicitor for the party who proposes to call him. It is apparent that the protection given to a witness in respect of his words in the witness box would be easily outflanked if the immunity given in respect of the words spoken in court did not also cover the words spoken by a witness or a prospective witness in giving his proof of evidence before the commencement of the trial. It was for this reason that in Watson v M’Ewan [1905] AC 480 this House held that the privilege which protects a witness from an action for defamation in respect of his evidence in the witness box also protects him in respect of a statement made to a solicitor in preparing his proof of evidence for trial, and the Earl of Halsbury LC said, at p 487:

“It is very obvious that the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justice-namely, the preliminary examination of witnesses to find out what they can prove.”

The extension of the immunity to protect witnesses against an action alleging a conspiracy by them to make false statements in court

The protection given to a witness against an action for defamation in respect of the words which he speaks in court would also be outflanked if the immunity did not operate where an action is brought against two or more witnesses or prospective witnesses alleging a conspiracy by them to make false statements in court. In Marrinan v Vibart [1963] 1 QB 528, two police officers gave evidence on a criminal prosecution against other persons that the plaintiff had behaved improperly by obstructing a police officer in the execution of his duty and subsequently gave similar evidence at an inquiry before the Benchers of Lincoln’s Inn into the conduct of the plaintiff. The plaintiff brought an action against the police officers alleging that they, together with another person, had conspired to injure him by making false and defamatory statements about him. The Court of Appeal held that the immunity given to a witness was not confined to barring an action for defamation but extended to bar an action alleging conspiracy to make false statements in court. The decision of the High Court of Australia in Cabassi v Vila 64 CLR 130 is to the same effect, Starke J stating, at p 141:

“But it does not matter whether the action is framed as an action for defamation or as an action analogous to an action for malicious prosecution or for deceit or, as in this instance, for combining or conspiring together for the purpose of injuring another; the rule of law is that no action lies against witnesses in respect of evidence prepared (Watson v M’Ewan), given, adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice.”

The extension of the immunity to the preparation of evidence

Whilst it is clear that immunity applies to a statement which is prepared before the trial setting out what the witness intends to say in court, more difficult questions arise as to whether every act which could be regarded as the preparation of evidence comes within the ambit of the immunity.

In Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184, the defendants employed by the first defendant carried out a post mortem investigation on the body of the plaintiff’s son. The investigation found that certain organs in the body contained concentrations of morphine and this information was given to the police and/or the Director of Public Prosecutions in the form of statements. In consequence the plaintiff was charged with the murder of her son by morphine poisoning. After further investigation by toxicologists on her behalf the prosecution offered no evidence at her trial and she was acquitted. She brought an action claiming damages for negligence against the defendants in which she alleged that the defendants had been negligent (inter alia) in allowing the organs removed from her son’s body to become contaminated with morphine and in failing to appreciate that the high concentration of morphine revealed by analysis was unlikely to have existed in the child while he was still alive. Drake J held that the defendants were entitled to absolute immunity and upheld the decision of a master dismissing the action.

In Taylor v Director of the Serious Fraud Office[1999] 2 AC 177 an investigator employed by the Serious Fraud Office was investigating a fraud. In the course of the investigation she made observations about the two plaintiffs which they claimed were defamatory of them, and one of the persons whom she interviewed also made observations to her which the plaintiffs claimed were defamatory. This House held that the absolute immunity from suit which applied to witnesses in respect of statements made in court extended also to out-of-court statements which could fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution. Lord Hoffmann stated, at pp 214-215:

“It would be an incoherent rule which gave a potential witness immunity in respect of the statements which he made to an investigator but offered no similar immunity to the investigator if he passed that information to a colleague engaged in the investigation or put it to another potential witness. In my view it is necessary for the administration of justice that investigators should be able to exchange information, theories and hypotheses among themselves and to put them to other persons assisting in the inquiry without fear of being sued if such statements are disclosed in the course of the proceedings. I therefore agree with the test proposed by Drake J in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184, 192: ‘the protection exists only where the statement or conduct is such that it can fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or a possible prosecution in respect of the matter being investigated.’ This formulation excludes statements which are wholly extraneous to the investigation-irrelevant and gratuitous libels-but applies equally to statements made by persons assisting the inquiry to investigators and by investigators to those persons or to each other.”

In Taylor’s case the House was considering the test stated by Drake J in relation to statements and not in relation to conduct and no question arose as to the fabrication of evidence or the planting of evidence; the issue was confined to whether communications between investigators and persons assisting in the inquiry which was conducted with a view to a possible prosecution were covered by absolute immunity.

In Silcott v Comr of Police of the Metropolis 8 Admin LR 633 the plaintiff alleged that two detective officers had fabricated notes purporting to be a contemporaneous record of admissions to a murder which he had made to them in the course of an interview. At the trial of the plaintiff for the murder one of the two police officers was the only witness against the plaintiff. He produced the notes and said in evidence that the other police officer had written the notes and that he had countersigned them. He did not say that the plaintiff himself had signed the notes. It is therefore relevant to observe that the notes themselves did not constitute evidence but that they were used by the police officer in the normal way to refresh his memory in the witness box. In his action the plaintiff pleaded three causes of action: (1) conspiracy to pervert the administration of public justice; (2) misfeasance in a public office; and (3) malicious prosecution. A master struck out the first two causes of action and his order was upheld by the High Court and the Court of Appeal.

In his judgment in the Court of Appeal Simon Brown LJ, after citing the authorities relating to the absolute immunity of a witness in court proceedings and the policy considerations underlying it, stated, at p 640:

“The same policy considerations as underlie the immunity rule in its most direct and obvious application, i e, where statements have been prepared for proceedings and evidence has then been given, to my mind apply with equal force to the present situation. Protection must extend to the preparation of evidence equally as to its presentation. Similarly, it must extend to encompass any subsequent section 17 [of the Criminal Appeal Act 1968] inquiry, such as here took place. I see no difference in principle between a police officer fabricating a record of interview in writing, and the equivalent in times past, a police officer verballing an accused; nor between say, an officer planting a brick or drug on an accused so that someone else will give truthful evidence of having found it, and an officer giving false evidence that he himself found such a brick or drug. In my judgment, Drake J, was correct in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 to have held that the immunity covers all conduct that can fairly be said to be part of the investigatory and, I would add, preparatory process. To Lord Williams’ submission that there is no public interest in protecting those who create false evidence or, for that matter, those who destroy sound evidence, I would answer that that misses the essential point: the public interest is in the protection of those who might otherwise be falsely accused of such conduct.”

Auld LJ followed and endorsed this reasoning in the present case and stated:

“If the immunity rule is to be true to the public policy reasons for it, there is no logical basis for distinguishing between making witness statements and investigation and other preparatory conduct with a view to making them. Although the conduct in question must, to qualify for immunity, be of such investigatory or preparatory nature, it does not cease to be so, or the line does not move, according to the seriousness of the allegation made about it. Thus, as Simon Brown LJ observed in Silcott v Comr of Police of the Metropolis 8 Admin LR 633, the ‘planting’ of evidence or ‘fabrication’ of evidence with a view to its presentation in court is no more heinous or less entitled to protection than the giving of the false evidence based on that conduct. The evil of the conduct alleged is irrelevant; it is assumed to be true for the purpose of the rule-all for the greater good of the justice system, not to protect any individual alleged wrongdoer.”

My Lords, there are passages in the authorities which support the reasoning of Simon Brown and Auld LJJ In Marrinan v Vibart [1963] 1 QB 528, although the plaintiff’s allegation of conspiracy related to the preparation of statements of the actual evidence which the police officers would give, Sellers LJ commenced his judgment with the statement, at p 533:

“Those who take part in the administration of justice (and it is one of the important functions of police officers to obtain and bring evidence before the court) must be free from the fear of civil proceedings.”

And in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 (in a passage cited by Neill LJ in Silcott v Comr of Police of the Metropolis 8 Admin LR 633, 642) Drake J stated, at pp 191-192:

“… I think that the immunity must extend also to the acts of the witness in collecting or considering material on which he may later be called to give evidence. If it does not so extend then a convicted person could, for example, sue the police officers for the allegedly negligent manner in which they had investigated the crime, by complaining that they had wrongly assessed the evidential value of certain matters or had failed to interview possible witnesses whose evidence was thought by the accused to be favourable to him.”

Furthermore, the authorities make it clear, as both Simon Brown and Auld LJJ observe, that where the immunity exists it is given to those who deliberately and maliciously make false statements; the immunity is not lost because of the wickedness of the person who claims immunity. There is also logical force in the reasoning of the two Lords Justices. If the immunity is given to a police officer who falsely says in the witness box or in his witness statement that when he pursued the accused from the scene of a robbery he saw him carrying a knife which the accused threw away in the course of the chase and which was not recovered, why should immunity not be given to a police officer who actually plants a knife on a man whom he has caught after a pursuit from the scene of a robbery and which is found on the accused by an honest police officer who subsequently searches him? If an honest police officer who gives truthful evidence in the witness box that he pursued the accused from the scene of a crime is protected by immunity against a vexatious action, why should an honest officer who gives truthful evidence that he found a knife on the accused not be protected by immunity from a vexatious action alleging that he and another police officer conspired to plant the knife?

However, notwithstanding the logical force of the view taken by the Court of Appeal in Silcott v Commissioner of Police of the Metropolis 8 Admin LR 633 and in the present case, there are considerations of weight which point to a different conclusion. The predominant requirement of public policy is that those who suffer a wrong should have a right to a remedy, and the case for granting an immunity which restricts that right must be clearly made out. In Mann v O’Neill (1997) 71 ALJR 903 the judgment in the High Court of Australia of Brennan CJ, Dawson, Toohey and Gaudron JJ states, at p 907: “the general rule is that the extension of absolute privilege is ‘viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated’.” And in Roy v Prior [1971] AC 470, where this House held that a defendant was not entitled to the absolute immunity which he claimed, Lord Wilberforce stated, at p 480: “Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest.”

Moreover there is a danger in extending the immunity given to a witness in court proceedings merely by analogy. In Mann v O’Neill 71 ALJR 903, 912 McHugh J warned against:

“the temptation to recognise the availability of the defence for new factual circumstances simply because they are closely analogous to an existing category (or cases within an existing category) without examining the case for recognition in light of the underlying rationale for the defence.”

And in Lincoln v Daniels [1962] 1 QB 237, where the defendant claimed absolute immunity in respect of communications sent by him to the Bar Council alleging professional misconduct by the plaintiff, a Queen’s Counsel, Devlin LJ stated, at p 263:

“It is not at all easy to determine the scope and extent of the principle in Watson v M’Ewan [1905] AC 480. I have come to the conclusion that the privilege that covers proceedings in a court of justice ought not to be extended to matters outside those proceedings except where it is strictly necessary to do so in order to protect those who are to participate in the proceedings from a flank attack. It is true that it is not absolutely necessary for a witness to give a proof, but it is practically necessary for him to do so, as it is practically necessary for a litigant to engage a solicitor. The sense of Lord Halsbury’s speech is that the extension of the privilege to proofs and precognition is practically necessary for the administration of justice; without it, in his view, no witness could be called. I do not think that the same degree of necessity can be said to attach to the functions of the Bar Council in relation to the Inns of Court. It is a convenience to the public to have a central body to deal with, but that is as high as it can be put. In my judgment the defence of absolute privilege fails.”

The underlying rationale of the immunity given to a witness is to ensure that persons who may be witnesses in other cases in the future will not be deterred from giving evidence by fear of being sued for what they say in court. This immunity has been extended, as I have described, to proofs of evidence and to prevent witnesses being sued for conspiracy to give false evidence. But the immunity in essence relates to the giving of evidence. There is, in my opinion, a distinction in principle between what a witness says in court (or what in a proof of evidence a prospective witness states he will say in court) and the fabrication of evidence, such as the forging of a suspect’s signature to a confession or a police officer writing down in his notebook words which a suspect did not say or a police officer planting a brick or drugs on a suspect. In practice the distinction may appear to be a fine one, as, for example, between the police officer who does not claim to have made a note, but falsely says in the witness box that the suspect made a verbal confession to him (for which statement the police officer has immunity), and a police officer who, to support the evidence he will give in court, fabricates a note containing an admission which the suspect never made. But I consider that the distinction is a real one and that the first example comes within the proper ambit of the immunity and the other does not.

A further consideration is that there are many situations in which false and vexatious accusations may be made against police officers but where the law does not give them absolute immunity when they are sued. These situations were referred to by Sir Richard Scott V-C in Bennett v Comr ofPolice of the Metropolis 10 Admin LR 245, 254, in a passage which it is desirable to set out in full:

“Counsel have argued that the established immunity from action based on evidence given in court proceedings and from a negligence action against the police or the CPS [Crown Prosecution Service] in regard to the manner of discharge of their respective duties are all part of a general immunity that, for reasons of public policy, protects police and prosecutors from any action in tort based upon their discharge of their respective duties. This is, in my judgment, a wholly unacceptable proposition for a number of reasons. First, as Mr Newman for the plaintiff pointed out, the only connection between the immunity from suit based on evidence given in court proceedings and the freedom of the police and CPS from being burdened by a general duty of care in the conduct of their duties is that those rules are attributable to the requirements of public policy. But public policy has many manifestations and underlies very many rules of law. To argue that because for public policy reasons a blanket immunity from action is given in respect of evidence in court proceedings and because for public policy reasons the police and the CPS are relieved of a general duty of care to those who may be affected by the manner in which they discharge their duties it should therefore follow that the police and the CPS are entitled to a blanket immunity from suit arising out of the manner in which they discharge their duties is not, to my mind, respectable jurisprudence. On the contrary, it is clear law that neither the police nor the CPS are entitled to a blanket immunity against tort actions arising out of the manner in which they discharge their duties. Actions for malicious arrest or malicious prosecution can be brought. Actions against the police for assault, in using excessive force in effecting an arrest or in interrogating a suspect, can be brought. Why should an action for misfeasance in public office not be brought? I can see no reason why not. The police and the CPS, like everyone else, are subject in the discharge of their duties to the rule of law. There is no public interest that requires them to be afforded immunity against actions based on malicious or knowing abuses of their powers.”

Therefore there is no general principle that in order to prevent honest police officers from being vexed and harassed by unfounded actions brought by hostile persons whom they have arrested, they should be given absolute immunity in respect of their actions in carrying out their duties, and that in order to protect the many honest police officers from the vexation of rebutting unfounded allegations the immunity should also extend to protect the few dishonest police officers.

The policy underlying the immunity which it is contended justifies the extension of the immunity to cover this case is that it is given so that persons who may be involved in future cases will not be deterred from playing their part by fear of a civil action being brought against them. Although police officers who give evidence in court or who prepare statements of the evidence which they will give in court are entitled to the same immunity as other witnesses, I think the reality is that police officers are accustomed to having false accusations made against them by suspects whom they arrest in the course of their duties and are much less likely than other persons to bedeterred from doing their duty by a fear that suspects may bring civil actions against them which they know will, save in the most exceptional circumstances, be defended on their behalf by the Commissioner or Chief Constable of their force. Police officers are not deterred from arresting or interrogating a suspect by the knowledge that they will not have absolute immunity from suit if the suspect brings a civil action against them alleging improper force in arresting or interrogating him, and I do not think that police officers will be deterred from noting the answers of suspects in interviews or from searching suspects for weapons or drugs if they know that they will not have absolute immunity in respect of a civil action alleging fabrication of interview notes or the planting of an incriminating object.

Mr Austin-Smith for the Chief Constable submitted that the existence of the tort of malicious prosecution (where immunity cannot be claimed) ensures that the proper balance is struck between the public interest in bringing criminals to justice and the protection of those engaged in doing so from harassment by vexatious actions on the one hand and the public interest in providing redress to a citizen against dishonest and malicious actions by police officers in the investigation of crime on the other hand. However, to establish the tort of malicious prosecution the plaintiff must prove absence of reasonable and probable cause for a prosecution, and in my opinion notwithstanding that there is reasonable and probable cause to prosecute a suspect should be entitled to sue the police for malicious and dishonest conduct in fabricating evidence against him.

In Taylor v Director of the Serious Fraud Office[1999] 2 AC 177, this House approved the test stated by Drake J in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184, although Lord Hoffmann expressed no view on the actual outcome of the case, stating [1999] 2 AC 177, 215:

“Actions for defamation and for conspiracy to give false evidence plainly fall within the policy of the immunity and actions for malicious prosecution fall outside it. In between, there is some disputed ground. In Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 Drake J held that it precluded reliance on the statement in an action for negligence in which it was alleged that a carelessly prepared post mortem report had led to the plaintiff being unjustifiably arrested and charged with murder. I express no view on this case, which I think might nowadays have been decided on the ground that the defendants owed the plaintiff no duty of care.”

On the facts of that case I consider that the decision of Drake J that the defendants were entitled to absolute immunity was correct. Although the plaintiff alleged that it was done negligently, the organs were removed from the body and examined for the genuine purpose of making a report which would constitute a statement of evidence for a possible prosecution and therefore, in my opinion, came within the ambit of the immunity. But I consider that the position is different where, as alleged by the plaintiffs in this case, steps are taken prior to the making of a statement of evidence, not for the purpose of making a statement of evidence which the maker intends to be an accurate and truthful one, but for the wrongful purpose of fabricating false evidence which would be referred to in an untruthful statement of evidence. In my opinion immunity should not be extended tocover the wrongful fabrication of evidence or of a note which will purport to be used to refresh the memory of the witness in the witness box and which will give the impression to the jury that there is support for the witness’s false statement that the suspect made an admission. This view is not in conflict with the principle that immunity (where it exists) is given to a malicious and dishonest witness as well as to an honest witness, and I think that the honest (though negligent) examination of articles to enable a statement of evidence to be made comes within the concept of the preparation of a statement of evidence, whereas the deliberate fabrication of evidence to be referred to in a statement of evidence does not come within that concept. It follows that, in my opinion, the Court of Appeal in Silcott v Comr of Police of the Metropolis 8 Admin LR 633 was in error in stating the immunity rule as widely as it did.

In the present case I consider, for the reasons which I have given, that the statement of claim should not have been struck out and the action should not have been dismissed. In my opinion the police officers against whom the allegation of conspiracy and misfeasance in public office are made are not entitled to absolute immunity save in so far as an allegation against them is grounded on their statements of the evidence which they would give when the case came to trial. Therefore I would allow the appeal and would order that the action be remitted to proceed in the High Court. I express no opinion on the extent to which the 10 allegations summarised by the parties constitute causes of action in tort against the police.

DISPOSITION:
Appeal allowed with costs.

SOLICITORS:
Solicitors: Warren & Allen, Ilkeston; Sharpe Pritchard for Solicitor, West Midlands Police Authority, Birmingham.

M G

(c)2001 The Incorporated Council of Law Reporting for England & Wales

The charge against the respondent was for having in his possession 65 obscene DVDs on 22.4.2006, thereby committing an offence under s.5(1)(a) of the Film Censorship Act 2002 and punishable under s.5(2) of the same Act. This is an appeal against the decision of the learned magistrate made on 2 December 2008 wherein the respondent was acquitted and discharged without calling for his defence: Pendakwa Raya v Kok Seong Yoon (Malaysia)

[2009] MLJU 0935

Malayan Unreported Judgments
Pendakwa Raya v Kok Seong Yoon
2009 MLJU 0935
RAYUAN JENAYAH NO MT(5) 41-66-2008
HIGH COURT (JOHOR BAHRU)
DECIDED-DATE-1: 4 AUGUST 2009
HUE SIEW KHENG, JC
Mohd Fazaly Ali bin Mohd Ghazaly (TPR, Pejabat Penasihat Undang-Undang Negeri Johor) bagip pihak perayu
Azmi Ahmad Bakri (Azmi Asram Shujaa & Co) bagi pihak responden
Hue Siew Kheng, JC:

Background

[1] This is an appeal against the decision of the learned magistrate made on 2 December 2008 wherein the respondent was acquitted and discharged without calling for his defence.

[2] The charge against the respondent was for having in his possession 65 obscene DVDs on 22.4.2006, thereby committing an offence under s.5(1)(a) of the Film Censorship Act 2002 and punishable under s.5(2) of the same Act.

[3] The petition of appeal discloses 7 grounds but can be broadly categorized under 2 main grounds: that the learned magistrate had erred in law and in fact in holding that the prosecution had not proved possession and also the adverse inference pursuant to s.114(g) of the Evidence Act 1950 should not have been invoked due to the failure to call 2 other persons who were also arrested together with the respondent on the night of the raid.

Brief facts

[4] On 21.4.2006 at about a quarter to midnight, SP1 one ASP Nik Mathelan bin Nik Mohamed led a raid on the premises of Sky Video Trading at No. 6, Danga Bay, Lot 20704, Batu 4 ½ Jalan Skudai, Johor Bahru. It was a crime prevention operation, targeted at pornography and prostitution.

[5] During the raid, 3 persons were arrested, including the respondent. The other 2 persons arrested were subsequently released as the police were of the view that they were customers at the said premises.

[6] A search of the premises revealed 65 pornographic DVDs which were found beneath the counter rack. The raiding party also found 120 DVDs and 19 VCDs without the “Sijil B”, an offence under s. 18(4) of the Film Censorship Act 2002 for which the respondent was also charged.

[7] The respondent had pleaded guilty to the offence pursuant to the s. 18(4) charge and fined accordingly. However, in respect of the charge under s.5(1) for being found in possession of the 65 DVDs alleged to be obscene, the respondent claimed trial. After full trial was conducted, the learned magistrate had acquitted and discharged him without calling for his defence.

The charge

[8] The charge preferred against the respondent under s.5(1) of the 2002 Act requires proof of 2 main ingredients i.e. that-

(i)   the respondent at the material time was in possession of the 65 obscene
films in the form of DVD; and

(ii)  that the 65 films (DVDs) are obscene.

[9] Having read the appeal record and the Written Submission of the appellant and having heard both parties, I am in agreement with the learned deputy public prosecutor that the element of possession has been proved through the prosecution witnesses SP1, 2 and 3 who were members of the raiding party.

[10] The 65 DVDs alleged to be obscene were found under the counter of the premises and at the material time of the raid, the respondent was alone in the premises manning the counter. He attempted to flee when SP1 identified himself as a police officer.

[11] The facts of this case are similar to Mohd. Ibrahim v PP [1963] MLJ 289 wherein the appellant was found to be in possession of 65 copies of the book “Tropic of Cancer”. The impugned books were found under the counter of his shop. The appellant in Mohd. Ibrahim (supra) was employed to manage the sale of books and though an attempt was made to absolve himself of knowledge as he could not read English, nevertheless the court held that the inference was irresistible that the 65 copies found in the shop for the purpose of being sold and that the appellant was the person in charge of selling of the books on the shop was in possession of them and in possession of them for purposes of sale. He also failed in his argument that knowledge was negated by his ignorance of the English language as the court held that he could have obtained the services of an English – speaking clerk in ordering the books.

[12] In this case, there was the uncontroverted evidence of SP1 and SP3 that the 65 DVDs were found under the counter and the respondent was found at the time of raid, behind this counter. Knowledge can also be inferred from the fact that he attempted flight when SP1 identified himself as a public officer. Therefore, viewed in its totality the prosecution had proved the element of possession.

[13] There is no cause for the adverse inference to be invoked as it is trite that the calling of witnesses is at the discretion of the prosecution and the burden is on the prosecution throughout to prove its case. I find no gap here, neither can it be said that there was any suppression of evidence.

[14] Therefore the learned magistrate had erred in holding that the element of possession was not proved and in invoking the adverse presumption.

Screen testing for obscenity

[15] However, I find that the second vital ingredient in this case, i.e. that the 65 DVDs are obscene was not proved.

15.1  There is no evidence at all that the 65 DVDs were subject to a screen
test (uji tayang) for the court to make a finding that the 65 DVDs are
obscene.

15.2  SP1 merely testified that he was satisfied that the 65 DVDs were
obscene by looking at the covers of the DVDs.

15.3  SP4, the I.O. of the case, said he had screen tested them at random in
his office and found them to be obscene.

15.4  Although at one point of the proceedings the learned APP applied to
reserve screen-testing of the DVDs, the learned defence counsel had
responded that there was no need for screen-testing (pg. 29 of Appeal
Record). Unfortunately the court appeared to have agreed with learned
defence counsel because nowhere in the Notes of Evidence does it appear
that screen testing was done.

[16] In the case of PP v Chung Wan Li [2005] 8 CLJ 501 , the learned High Court Judge held that “the screening of each and everyone of the 18 VCD’s is necessary to determine whether they were obscene films”. In Chung’s case (supra), the learned High Court Judge did not approve of the random testing that was conducted during the trial.

[17] His Lordship Mohd. Zawawi Salleh, J.C., concurred with the learned High Court judge in the case of PP v Lee Swee Sing [2009] 1 CLJ 320 . His Lordship held in Lee Swee Sing’s case that there is no provision in the Film Censorship Act 2002 which allows for random testing. A comparison was drawn with the provision of s.37(j) of the Dangerous Drugs Act 1952 which allowed for a 10% of the sample of the drugs to be tested.

[18] In this case, there was no screen testing at all carried out during the trial. How then can the court arrive at a finding that the 65 DVDs are obscene? It is patently clear that the prosecution had failed to prove that the 65 DVDs were obscene and the learned magistrate should have so found.

For the reasons as adumbrated above the acquittal and discharge of the respondent is hereby affirmed as the prosecution had failed to prove a prima facie case against the respondent as per the charge.

The appeal is accordingly dismissed.

LOAD-DATE: 01/12/2010

Evidence – Expert evidence – Credibility – Whether experienced chemist without formal training regarded competent or expert – Analysis of dangerous drugs – Whether amount used for analysis grossly inadequate: Public Prosecutor v Chong Vui Hyen (Malaysia)

The Malayan Law Journal

PDF Print Format
Public Prosecutor v Chong Vui Hyen
[2009] 8 MLJ 164
CRIMINAL TRIAL NO 45–08 OF 2005
HIGH COURT (TEMERLOH)

DECIDED-DATE-1: 24 MARCH 2009
AKHTAR TAHIR JC
CATCHWORDS:
Criminal Law – Dangerous drugs – Trafficking in heroin and monoacetylmorphine – Storage of drug exhibits – Proof – Incomplete entries – Failure to furnish sufficient details as to movement in and out of store – Whether sufficient evidence tendered on storage of drugs

Criminal Law – Dangerous Drugs Act 1952 – s 39B(1)(a) – Presumption of trafficking – Car raided almost immediately on arrival at parking lot – Whether premature raid – Whether sufficient to raise presumption of trafficking

Evidence – Expert evidence – Credibility – Whether experienced chemist without formal training regarded competent or expert – Analysis of dangerous drugs – Whether amount used for analysis grossly inadequate

HEADNOTES:
Upon receiving an information with regard to a car with the registration No WER 5240, SP6 led a group of police men to the toll plaza at Lanchang. After waiting for 45 minutes, SP6 and his men spotted the said car arriving at the toll plaza and immediately approached the car. After identifying himself to the driver of the car, SP6 seized a packet which the accused was holding in his right hand. On opening the said packet, SP6 found white powdery substance believed to be drugs. The accused and the drugs were later handed to SP7, the investigating officer (‘IO’) of the case. The IO photographed the drugs and handed the drugs to the store for safe keeping and subsequently to the chemist at the Chemist Department. SP2, the chemist, who analysed the drugs confirmed the drugs were heroin and monoacetylmorphine with a weight of 10.33g and 7.05g, respectively. After the drugs were analysed they were placed in a sealed envelope. The IO collected the envelope together with the chemist report and kept them at the store until produced at the court. The defence raised the following issues: (a) that there was break in the chain of evidence as to the safe keeping of the drugs; (b) that a mere possession did not attract the presumption of trafficking; and (c) the competence of the chemist and the insufficiency in the amount of drug analysed.

[*165]

Held, acquitting and discharging the accused of the charge:
(1)   Although there appeared to be weaknesses in the keeping of the record
at the police store it did not in any way affect the identity of the
drugs as the markings made by both SP6 and SP7 were still discernable
from the packet tendered in the court. The court was satisfied from the
totality of the evidence and that the markings on the exhibits revealed
that the drugs were the same as that found from the accused (see paras
12 & 15).
(2)   There should be an indication that the accused had the intention to
part with the packet of drugs to someone else. Merely holding the drugs
does not convey the intention, more so when there are no people around
for the drugs to be handed over (see para 21).
(3)   The fact that the police raided the car in question almost immediately
as it arrived at the parking lot did not give the police an opportunity
to ascertain the real intention of the accused in parking his car at
the toll plaza. The police should have allowed the accused to move
towards more incriminating circumstances instead of rushing to raid the
vehicle. This was a case of premature raid, insufficient to raise the
presumption of trafficking (see para 22).
(4)   The chemist had analysed only 1.3g of the total amount of 222g of
powder which was handed to him. This amount was grossly inadequate as
it represented less than 1% of the powder found. The law does not
formulate the amount of drugs to be analysed apart from s 37(j) of the
Dangerous Drugs Act 1952 which stipulates at least 10% of the amount
should be analysed. Using s 37(j) as the bench mark, the court was of
the opinion that at least 10% of the drugs should be analysed
especially in a case where the difference in quantity of drugs
determines a matter of life or death (see paras 30, 33 & 34).

Apabila mendapat maklumat berkenaan sebuah kereta bernombor pendaftaran WER 5240, SP6 mengetuai sepasukan polis ke plaza tol Lancang. Setelah menunggu selama 45 minit, SP6 dan pasukannya mengecam kereta tersebut yang tiba di plaza tol tersebut dan mendekatinya. Setelah memaklumkan identiti dirinya kepada pemandu kereta tersebut, SP6 kemudiannya merampas satu bungkusan yang berada dalam tangan kanan tertuduh. Apabila membuka bungkusan tersebut, SP6 mendapati serbuk putih yang dipercayai dadah. Tertuduh dan dadah tersebut diserahkan kepada SP7, pegawai penyiasat (IO) kes tersebut. IO mengambil gambar dadah tersebut dan menyerahkannya ke stor untuk disimpan dan kemudiannya dihantar kepada ahli kimia di Jabatan Kimia. SP2, ahli kimia yang  [*166] menganalisis dadah tersebut mengesahkan bahawa dadah tersebut merupakan heroin dan monoacetylmorphine yang masing-masing seberat 10.33g dan 7.05g. Setelah dadah tersebut dianalisis, dadah tersebut dimasukkan ke dalam sampul yang diperekatkan. IO mengambil sampul tersebut bersama-sama dengan laporan kimia dan menyimpannya di stor sehingga dibawa ke mahkamah. Pihak pembelaan membangkitkan isu-isu berikut: (a) rantaian keterangan putus dalam hal penyimpanan dadah tersebut; (b) bahawa milikan semata-mata tidak memberi anggapan pengedaran dadah; dan (c) kecekapan ahli kimia dan juga kekurangan berat dadah yang dianalisis.

Diputuskan, melepaskan dan membebaskan tertuduh terhadap pertuduhan:
(1)   Walaupun ada menunjukkan bahawa wujudnya kelemahan dalam menyimpan
rekod di stor polis, kelemahan itu tidak menggugat pengenalpastian
dadah tersebut kerana tanda-tanda yang dibuat oleh SP6 dan SP7 masih
boleh dibaca daripada bungkusan yang dikemukakan di mahkamah. Mahkamah
berpuas hati dengan keseluruhan keterangan tersebut dan juga
tanda-tanda pada ekshibit-ekshibit menunjukkan bahawa dadah tersebut
merupakan dadah yang sama dijumpai daripada tertuduh (lihat perenggan
12 & 15).
(2)   Seharusnya ada petanda bahawa tertuduh mempunyai niat memberikan dadah
tersebut kepada orang lain. Semata-mata memegang dadah tersebut tidak
menunjukkan niat, lebih-lebih lagi ketika itu tiada sesiapa pun dadah
itu boleh diberikan (lihat perenggan 21).
(3)   Fakta bahawa pihak polis menyerbu kereta tersebut dengan serta-merta
ketika kereta tersebut sampai di tempat letak kereta tidak memberi
peluang kepada polis untuk mengenal pasti niat tertuduh apabila dia
meletak kereta di plaza tol tersebut. Pihak polis seharusnya membiarkan
tertuduh bertindak dalam keadaan yang menunjukkan dia bersalah daripada
terus menyerbu kenderaan tersebut. Kes ini merupakan kes serbuan
terlalu awal, tidak mencukupi untuk membangkitkan anggapan mengedar
(lihat perenggan 22).
(4)   Ahli kimia hanya menganalisis sejumlah 1.3g daripada keseluruhan 222g
serbuk yang diberikan kepadanya. Jumlah ini tidak mencukupi kerana
hanya mewakili 1% daripada serbuk yang ditemui. Undang-undang tidak
merumuskan jumlah dadah yang perlu dianalisis selain daripada s 37(j)
Akta Dadah Berbahaya 1952 yang menetapkan sekurang-kurangnya 10%
daripada jumlah yang ditemui harus dianalisis. Mengguna pakai s 37(j)
sebagai tanda aras, mahkamah berpendapat bahawa sekurang-kurangnya 10%
daripada jumlah dadah  [*167] yang dijumpai harus dianalisis
terutamanya dalam kes yang mana perbezaan jumlah dadah menentukan hidup
atau mati seseorang (lihat perenggan 30, 33 & 34).

Notes
For a case on credibility, see 7(2) Mallal’s Digest (4th Ed, 2006 Reissue) para 1437.
For cases on s 39B(1)(a) of the Dangerous Drugs Act 1952, see 4 Mallal’s Digest (4th Ed, 2005 Reissue) paras 320–446.
For cases on trafficking in heroin and monoacetylmorphine, see 4 Mallal’s Digest (4th Ed, 2005 Reissue) paras 138–139.

Cases referred to
PP v Lin Lian Chen [1991] 1 MLJ 316, HC
PP v Nik Ahmad Aman bin Nik Mansor [2002] 5 MLJ 641, HC
PP v Samundee Devan a/l Muthu Krishnan [2006] 4 MLJ 777; [2006] 3 CLJ 161, HC

Legislation referred to
Dangerous Drugs Act 1952 ss 37(j), 39B(1)(a), (2)

Mohd Najmi bin Daud (Deputy Public Prosecutor, Attorney General’s Chambers) for the prosecution.
Richard Bong (Bong & Co) for the accused.

Akhtar Tahir JC::

THE CHARGE

[1] The charge against the accused is as follows:

Bahawa kamu pada 24 Februari 2005 jam lebih kurang 5.45 petang
bertempat di tempat letak kereta berhadapan pejabat bangunan tol
Lanchang, di dalam daerah Temerloh, di dalam negeri Pahang Darul Makmur
telah didapati mengedar dadah berbahaya iaitu sejumlah berat 17.38 gram
(10.33 gram heroin dan 7.05 gram monoacetylmorphines) dan dengan itu
kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a)Akta
Dadah Berbahaya, 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta
yang sama.

THE PROSECUTION’S CASE

[2] The prosecution called a total of nine witnesses to prove its case against the accused.

[3] The sum total of the prosecution’s evidence was that SP6 ASP Azhar bin  [*168] Ahmad upon receiving information with regards to a car with the registration No WER 5240 led a group of police men to the toll plaza at Lanchang. After waiting for 45 minutes SP6 and his men spotted the said car arriving at the toll plaza. Upon seeing the car SP6 and his men immediately approached the car.

[4] SP6 identified himself to the driver of the car identified in the court as the accused. SP6 saw the accused holding a packet in his right hand. SP6 seized this packet and on opening the packet found white powdery substance believed to be drugs.

[5] The accused and the suspected drugs were taken to the police station whereby SP6 lodged an arrest report as well as marked the exhibit.

[6] The accused and the drugs were later handed to the investigating officer (‘IO’) of the case SP7 Chief Inspector Nik Amin Shah Nik Ahmad. The IO photographed the drugs and handed the drugs to the store for safe keeping. The drugs were then sent by the IO to the chemist at the chemist department.

[7] The chemist Khairol Hadi bin Hj Abdul Raof (SP2) who analysed the drugs confirmed the drugs were heroin and monoacetylmorphine with a weight of 10.33g and 7.05g respectively. After drugs were analysed they were placed in a sealed envelope. The IO later collected the envelope together with the chemist report. The drugs were kept at the store until production in court at the trial.

[8] The defence did not seriously challenge the fact that the drug was in the possession of the accused at the material time. The court also found the evidence to be sufficient to prove that at the material time the drugs were under the possession of the accused.

[9] However the defence raised three issues which I considered important to address to come to a determination of this case.

IDENTITY OF THE DRUGS

[10] The first issue raised was the identity of the drugs which the defence alleged was in doubt as there was break in the chain of evidence as to the safe keeping of the drugs. According to the testimony of the IO the drugs were kept at the store in the police station. Every item kept in the store was registered in a record book which kept entries of items kept by noting amongst others the brief description of the item kept.

[*169]

[11] It was the defence contention that there was no mention in the book of an entry of an envelope marked C contrary to the evidence of the IO that he had kept the packet of drug in an envelope marked C. Further it was the contention of the defence that the entries were not complete and did not give enough details as to the movement in and out of the store for example the case number as well as the particulars of the court.

[12] In my opinion although there appeared to be weaknesses in the keeping of the record at the police store it did not any way affect the identity of the drugs as the markings made by both SP6 and SP7 were still discernable from the packet tendered in the court.

[13] The defence also further contended that the entries in the records were tampered with as when a page of the record was earlier tendered and marked as ID 10 it had different entries on the same page later tendered as P14.

[14] The storekeeper SP3 L/Kpl Ghazali bin Mohd Noh admitted having altered the entries as to date and case number.

[15] I concluded there appeared to be and in fact it was confirmed by the storekeeper himself that there was alteration nevertheless in my opinion this alteration had no significant effect on the identity of the drugs tendered. I was satisfied from the totality of evidence and the markings on the exhibits that the drugs were the same as that found from the accused.

PRESUMPTION OF TRAFFICKING

[16] The second issue raised by the defence was that a mere possession did not attract the presumption of trafficking. The defence relied on the case of Public Prosecutor v Nik Ahmad Aman bin Nik Mansor [2002] 5 MLJ 641 at p 650 where Kang Hwee Gee J said this:

But even assuming that the prosecution has successfully made out a case
of possession, trafficking in the context of the instant case cannot be
proved by mere passive possession alone.

A cursory reading of the definition of ‘trafficking’ in s 2 of the Act
tends to convey the impression that trafficking may be proved only by
adducing evidence that the accused had done any of the acts mentioned
in the section, that is to say, manufacturing, importing, exporting,
keeping, concealing, buying, selling, giving, receiving, storing,
administering, transporting, carrying, sending, delivering, procuring,
supplying or distributing the drug. But as Augustine Paul J said in
Public Prosecutor v Hairul Din bin Zainal Abidin [2001] 6 MLJ
146, the definition of ‘trafficking’ contemplates acts that go beyond
mere or passive possession of dangerous drugs.

[*170]

As indicated in the judgment, that proposition was first mooted in the
judgment of the Privy Council on appeal from the Court of Appeal
Singapore in Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64,
wherein the judicial committee had to decide on the meaning of ‘
trafficking’ under the Misuse of Drugs Act 1973 of Singapore. It was
even more emphatically defined under section 2 to mean ‘sell, give,
administer, transport, send, deliver or distribute’.

Speaking for the judicial committee, this was what Lord Diplock said:

To ‘traffic’ a controlled drug so as to constitute the offence of
trafficking under s 3 involves something more than passive
possession or self-administration of the drug; it involves doing
or offering to do an overt act of one or other of the kinds
specified in para (a) of the definition of ‘traffic’ and ‘
trafficking’ in s 2. Even apart from any statutory definition,
the ordinary meaning of the verb ‘to traffic’, in the particular
context of trafficking in goods of any kind, imports the
existence, either in fact or in contemplation, of at least two
parties: a supplier and a person to whom the goods are to be
supplied. This concept, involving transfer of possession, is
reflected in the statutory definition itself. Of the seven verbs
used to describe the various kinds of overt acts which constitute
trafficking, ‘transport’ is sandwiched between ‘sell, give,
administer’ which precedes it and ‘send, deliver or distribute’
which follows it.

All of these other verbs refer to various ways in which a
supplier or distributor, who has drugs in his possession, may
transfer possession of them to some other person. ‘Transport’,
although it must involve possession of the drugs by the person
who transports them, is the only member of the heptad of verbs
that is not inconsistent with the retention of possession of the
drugs by him after their transport. It must mean moving the drugs
from one place to another; it may mean moving them also to
another person, but it need not do so. Whether it bears the wider
or the narrower meaning depends upon the context in which the
verb appears. In Their Lordship’s view, the immediate context of
the verb ‘transport’, to which attention has been drawn, attracts
the maxim noscitur a sociis. This, and the fact that it
appears in the definition of the verb to ‘traffic’, of which the
natural meaning in the context of trafficking in goods involves
dealings between two parties at least, and that the evident
purpose of the Act is to distinguish between dealers in drugs and
the unfortunate addicts who are their victims, all combine to
make it clear that ‘transport’ is not used in the sense of mere
conveying or carrying or moving from one place to another, but in
the sense of doing so to promote the distribution of the drug to
another. Supplying or distributing addictive drugs to others is
the evil against which s 3 with its draconian penalties is
directed.

[17] At p 652 the learned judge said as follows:

I am persuaded by the reasoning in Ong Ah Chuan that to prove that
the accused was trafficking in the context of the instant case, it
would still be necessary to prove that he transferred, or at least
intended to transfer, possession (or at least custody and control) of
the drug to another party. Had it been the intention of the legislature
to make the mere acts of transporting, carrying, sending, delivering,
[*171] procuring, supplying or distributing the drug an offence
punishable by death, it would have said so directly in clear language
avoiding altogether the word ‘trafficking’.

I am therefore bound to find that the mere act of transporting,
carrying, sending, delivering, procuring, supplying or distributing by
the accused in the instant case, (acts which he could conceivably be
perceived to do as the driver of the car under the circumstances) would
not be enough to constitute an act of trafficking in the absence of any
evidence that the drug was to be transferred or conveyed to another
party. The fact that the Ford Lynx had been observed to have parked for
that very brief moment behind the Honda Accord without more, is in my
view insufficient to convey any such intention on the part of the
accused.

[18] In this case whether there was mere possession or a further intention to ‘traffic’ by the accused depended on the evidence of SP6 and SP9 a member of the raiding party as both were present at the place of the incident.

[19] The defence contended there was a contradiction of evidence between SP6 and SP9 of the presence of people and other vehicles at the place where the accused was detained. The officer who led the raid SP6 said that there were no other people apart from the accused and the police team or any other vehicle apart from the police car the accused car and a Pajero, whereas SP9 said there were other people and cars in that area.

[20] Under normal circumstances the presence of other people at the scene might not be significant but it becomes important to determine the intention of the accused especially on the question whether presumption of trafficking arises.

[21] On this issue I agree with the decision of Kang Hwee Gee J that there should be an indication that the accused had the intention to part with the packet of drugs to someone else. Mere holding the drugs in the hand does not convey the intention more so when there are no people around for the drug to be handed over.

[22] In this case even if there were other people around, the fact that the police raided the car in question almost immediately as it arrived at the parking lot did not give the police an opportunity to ascertain the real intention of the accused in parking his car at the toll plaza. The police should have allowed the accused to more incriminating circumstances instead of rushing to raid the vehicle. To me this was a case of premature raid insufficient to raise the presumption of trafficking.

THE CHEMIST EVIDENCE

[23] However to me it is the third issue raised by the defence which sealed  [*172] the fate of the case. The third issue raised was the evidence of the chemist. The defence raised two weaknesses in the testimony of the chemist. The first was the competence of the chemist and second was in the insufficiency in the amount of drug analysed.

[24] On the competence of the chemist Mohtar Abdullah J in the case of Public Prosecutor v Lin Lian Chen [1991] 1 MLJ 316 at p 317 said this:

In other words the prosecution should first establish the expertise of
the witness. The opinion which he is asked to give must relate to a
matter concerning which his special knowledge will assist the court.
The expert may not give an opinion on matters outside the field of his
expertise.

Although the court takes judicial notice of the common fact that a
government chemist is called upon to examine and analyse exhibits sent
to the chemistry department by the police and other law enforcement
agencies, it cannot by the mere fact that the witness is a government
chemist of some standing, hold that the witness in question is an
expert in the particular field of expertise in the case before it. A
Bachelor of Science (Honours) degree majoring in chemistry, does not
necessarily imply that the witness concerned has an expert knowledge of
heroin — nor does 13 years experience in the chemistry department
similarly clothe the witness with the expertise in the analysis of
heroin!

[25] It was the testimony of the chemist in this case that he had no formal training on analysing of drugs and what ever he had learnt was from the on job training. He further testified that he had been analysing drugs from the year 1994.

[26] In my opinion there is no necessity for a chemist to have formal training to be regarded as competent or as an expert. To me on the job training is equally important in imbibing the necessary knowledge and skill. However for a judge to conclude on the competence of a witness all the necessary facts must be made available to the court.

[27] In this case there was just a bare statement from the chemist that he had been analysing drugs since 1994. No further details were elicited from the witness for instance to the number of cases of drugs analysed by the witness since 1994. The witness might have been analysing drugs for a number of years but if he has analysed only a very small number of cases he could not be regarded as having the necessary skills and knowledge.

[28] The chemist also testified that he had given evidence in court on a number of occasion but again he did not say the nature of cases he had given evidence for. From his testimony it seems to suggest that he had only attended courses in relation to rape, murder and firearms cases and there is a possibility that he had only testified for such cases.

[*173]

[29] From the facts it was unsafe for me to conclude that the witness possessed the necessary skills and knowledge to be regarded as an expert or at least a competent chemist for analysis of drugs.

[30] The amount of drugs analysed by the chemist enhanced my belief that the chemist was incompetent. The chemist had testified that he had analysed only 1.3g of the total amount of 222g of powder which was handed to him. In cross-examination he maintained that this was a sufficient amount for analysis.

[31] The court cannot just accept the expert’s testimony when he says the amount is sufficient without further explanation. In this case the prosecution did not deem it necessary to ask further during re-examination the reasons for the chemist saying the amount was sufficient. It is for the court to determine the accuracy and sufficiency of the test conducted by the chemist.

[32] On this point I would like to quote from the case of Public Prosecutor v Samundee Devan Muthu Krishnan [2006] 4 MLJ 777; [2006] 3 CLJ 161 (HC), where at pp 786–787 (MLJ); pp 171–173 (CLJ) Hishamuddin Yunus J said as follows:

The learned Deputy Public Prosecutor, Encik Azhar Iruan bin Mohd
Ariffin, however, argued that the court was bound by the opinion of the
expert, the government chemist, on the question of the adequacy of the
sample. The learned DPP referred to Gunalan a/l Ramachandran &
Ors v Public Prosecutor
[2004] 4 MLJ 489; [2004] 4 CLJ 551. In
that case, Abdul Hamid Mohamad JCA (as he then was) delivering the
majority judgment of the Court of Appeal said (at pp 515–516 (MLJ), pp
577–578 (CLJ)):

Clearly, the court did not lay down the rule that 10% of the
total weight of the plant material must be taken as sample for
the purpose of the tests. However, in the circumstances of that
particular case the amount taken was found to be adequate by the
court. So, I do not think that it is correct to say that the case
laid down the principle that at least 10% of the total weight
must be taken as sample for the purpose of carrying out the
tests. Indeed, I do not think that that case laid down any
general principle. The decision was confined to the circumstances
of the case and, as stressed by the court, what would be an
adequate quantity would depend on the particular circumstances of
the case and, as stressed by the court, what would be an adequate
quantity would depend on the particular circumstances of each
case. Even then, the question is: In the absence of a specific
provision of the law, who is to determine what is the adequate
quantity that should be taken as sample (s) for the purpose of
carrying out the tests. The court or the chemist? Who is the
expert? Who carries out the test? The answer must be the chemist.

[*174]

With the greatest respect, whilst I agree that the Supreme Court in
Leong Boon Huat did not lay down any ‘10% principle’, I am, however,
unable to share the view, as expressed above by Abdul Hamid JCA, that
the Supreme Court in that case did not lay down any general principle
at all. In my opinion the following principles can be abstracted from
the judgment of the Supreme Court:

(1)   A chemist analysing a substance to determine whether it contains
any dangerous drug must carry out the analysis based on an
adequate sample.

(2)   Whether or not a sample used by the chemist for the purpose of
the analysis is adequate is for the court to determine.

(3)   Whether or not the quantity of the sample is adequate has to be
determined from (to quote the Supreme Court) ‘the particular
circumstances of each case’.

(4)   Where the court, after having given due consideration to the
particular circumstances of the case, including the adequacy of
the sample taken for analysis, is left in doubt as to whether the
accused has committed an offence in a lower or higher degree of
seriousness, the court should make a finding in the lower degree,
particularly where a finding in a higher degree will give rise to
a mandatory sentence of death.

I do of course accept that a court of law must give due weight to the
evidence of an expert witness such as a chemist especially when the
evidence is not disputed by another expert. Indeed, by the words ‘the
particular circumstances of each case’ the Supreme Court must have
meant that the opinion of the chemist must also, besides other factors,
be seriously considered before a decision is made. But it is trite law
that the chemist (or any expert for that matter) does not have the
final say. It is the judge who makes the final determination. True, the
judge is not an expert in this field. But he is not all that helpless.
He has his general knowledge to rely on. He has his experience in
hearing many drug trafficking cases. He is familiar with all the
various tests normally carried out by the chemist when analysing a
given substance to detect the presence of drugs, and if present to
determine the nature and the weight of the same. He has his common
sense, and his sense of justice and fairness, to guide him. An opinion
of an expert is just an opinion. It is not conclusive. I must stress
here that in the present case I am not rejecting outright the opinion
of the chemist. I respect and accept the opinion of the chemist as to
the nature of the drugs, that is to say, the substance contained heroin
and monoacetylmorphines; but my only reservation is that I had some
doubts as to accuracy of his analysis regarding the quantity of the
drug.

[33] To me the amount analysed in this case was grossly inadequate as it represented less than 1% of the powder found. To compound matters only a small percentage of this 1.3g was found to contain heroin and morphine. The  [*175] law does not formulate the amount of drugs to be analysed apart from s 37(j) which stipulates at least 10% of the amount should be analysed.

[34] I am aware that this section has no application to the present case but it can be gleaned from the provision that it was the intention of the law that a sufficient and a minimum quantity of drug be used for analysis. Using this provision as a bench mark I would think that at least 10% of the drugs should be analysed especially in a case where the difference in quantity of drugs determines a matter of life or death.

[35] Further the chemist testified in this case of the amount analysed 4.66% was heroin and 3.18% was monoacetylmorphine. He then said according to his calculation the total weight of the drug was as 10.33g heroin and 7.05g monoacetylmorphines. What his calculations were leading to this amount was not elaborated upon. The court was therefore left with the task of guessing what the calculation was.

FINAL VERDICT

[36] For the reasons stated above it is my finding that the prosecution has failed to prove a prima facie case against the accused and the accused is therefore acquitted and discharged of the charge against him.

ORDER:
Accused acquitted and discharged of the charge.

LOAD-DATE: 07/24/2009

Evidence – Expert evidence – Handwriting expert – Whether gazetted document examiner more qualified to give evidence: Kum Wah Sdn Bhd v RHB Bank Bhd (formerly known as Malayan Banking Corp Bhd) (United Frank Sdn Bhd & Ors, third parties)(Malaysia)

The Malayan Law Journal

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Kum Wah Sdn Bhd v RHB Bank Bhd (formerly known as Malayan Banking Corp Bhd) (United Frank Sdn Bhd & Ors, third parties)
[2009] 9 MLJ 490
SUIT NO D2–22–2139 OF 2001
HIGH COURT (KUALA LUMPUR)
DECIDED-DATE-1: 6 JULY 2009
NOOR AZIAN J

CATCHWORDS:
Banking – Banker and customer – Duty of banker – Forgery – Debits in applications for cashier’s order – Whether applications made by plaintiff – Whether plaintiff discharged onus in proving signatures on applications were not those of its signatories – Whether defendant bank negligent in its duty to customer – Whether third parties liable to defendant if latter held liable to plaintiff

Evidence – Expert evidence – Handwriting expert – Whether gazetted document examiner more qualified to give evidence

HEADNOTES:
The plaintiff was a family company that was involved as wholesaler, dealer and retailer of wine and liquor. The three directors of the plaintiff company were all brothers. The plaintiff opened its current account in the form of an overdraft facility (‘the plaintiff’s account’) with United Malayan Banking Corporate Bhd, which through a series of mergers became to be known as the RHB Bank Bhd, the defendant. The signatories to the plaintiff’s account were the three directors, although the plaintiff asserted that for the banking facility it only used a rubber stamp bearing the plaintiff company’s name. On 19 June 2001, the plaintiff’s account was debited by RM848,806.45, which was made up as follows: RM6,302.15 in favour of EON Finance; RM374,402.15 in favour of Tan Keng Pan @ Thiam Hock; and RM468,502.15 in favour of United Frank Sdn Bhd. Of these, although the first debit of RM6,302.15 was debited from the plaintiff’s account it was never paid out to EON Finance Bhd. The second sum of RM374,402.15 in favour of Tan Keng Pan @ Thiam Hock was allowed to be banked into their joint account ie Tan Keng Pan and/or Ho Thiam Hock. All the three debits were in the form of applications for cashier’s order. The plaintiff argued that its account with the defendant bank was wrongfully debited by the sum of RM848,806.45. It then filed the present suit against the defendant for breach of mandate and/or negligence resulting in the wrongful debit of RM848,806.45 from its account. By this action the plaintiff sought a  [*491] declaration that the debit was unlawful and without authority and that therefore the sum of RM848,806.45 ought to be paid by the defendant to the plaintiff. The defendant in turn filed a third party proceedings against United Frank Sdn Bhd, Tan Keng Pan and Ho Thiam Hock and claimed the sums of RM468,500 from United Frank Sdn Bhd and RM374,000 from the other two parties. The defendant claimed that it was entitled to be compensated by the third parties in respect of any damages and loss that it may have to pay in the event that it was held liable for the wrongful debits from the plaintiff’s account. The defendant submitted that it was entitled to claim for damages against the third parties for payments made under a mistake under s 73 of the Contracts Act 1950 and/or alternatively under the principles of monies had and received. There was no representation by the first third party ie United Frank Sdn Bhd but the court was informed that it was wound up. Tan Keng Pan and Ho Thiam Hock confirmed that they did not have any dealings with the directors of the plaintiff company. Ho Thiam Hock, who was in charge of daily operations of Sri Saran Daya Sdn Bhd, a money changer company, submitted that the payment of RM374,000 was for a bona fide valuable consideration ie in giving foreign currencies to an unknown person. Both the plaintiff and the defendant called their own handwriting experts as expert witnesses to verify whether the signatures that appeared on the three cashier’s order applications were those of the signatories to the plaintiff’s account. The issues to be tried were whether the three cashier’s order applications for the amount claimed were made by the plaintiff and whether the third parties were liable to the defendant in the event the latter was held liable to the plaintiff for the amount debited from the plaintiff’s account.

Held, allowing the plaintiff’s claim with costs:
(1)   The three directors of the plaintiff appeared from their demeanour to
be honest witnesses. As such there was no reason to doubt their
evidence that they had not given the defendant bank the mandate to
issue the three cashier’s orders (see para 20).
(2)   The expert witness that the plaintiff called upon to give evidence at
the trial was more qualified to give evidence in respect of whether the
signatures on the three cashier’s order applications were forgeries
because he is a gazetted document examiner. This witness was convincing
in concluding that the signatures on the three cashier’s order
applications were not those of the plaintiff. As such, the plaintiff
had discharged its onus of proof as required under s 101 of the
Evidence Act 1950 in establishing that the three signatures were not
those of its signatories. Further, on the balance of probabilities the
documents did not have the mandate of the plaintiff with reference to
the rubber stamp (see para 20).
[*492]
(3)   Although the defendant bank had a duty to call its customers to verify
or check in respect of cashier’s order applications above RM20,000 it
would appear that the defendant had not done so. The fact that the
defendant allowed the cashier’s order for RM374,000 issued in the name
Tan Keng Pan @ Thiam Hock to be banked into a joint account bearing the
names Tan Keng Pan and/or Ho Thiam Hock is another piece of evidence
that would support the defendant’s negligence (see paras 21–23).
(4)   Tan Keng Pan and Ho Thiam Hock acted in good faith and there was no
mistake when they were paid for exchange of currencies. It was an
unknown person who had gained by the defendant’s mistake. Thus s 73 of
the 1950 Act would not apply in this case and the third parties were
not liable to the defendant (see paras 33–34).

Plaintif merupakan syarikat keluarga yang terlibat sebagai pemborong, pengedar dan peruncit wain dan arak. Ketiga-tiga pengarah plaintif syarikat merupakan adik-beradik. Plaintif membuka akaun semasanya dalam bentuk kemudahan overdraf (‘akaun plaintif’) dengan United Malayan Banking Corporate Bhd, yang mana berikutan dengan beberapa siri penggabungan, kini dikenali sebagai RHB Bank Bhd, defendan. Penandatangan akaun plaintif adalah ketiga-tiga pengarah tersebut, walaupun plaintif menegaskan bahawa bagi tujuan kemudahan perbankan, plaintif hanya menggunakan cap getah nama syarikat plaintif. Pada 19 Jun 2001, akaun plaintif didebitkan sebanyak RM848,806.45, yang mana pecahannya adalah seperti berikut: RM6,302.15 untuk EON Finance; RM374,402.15 untuk Tan Keng Pan @ Thiam Hock; dan RM468,502.15 untuk United Frank Sdn Bhd. Daripada kesemua ini, walaupun jumlah pertama sebanyak RM6,302.15 telah didebitkan daripada akaun plaintif tetapi jumlah tersebut tidak pernah dibayar kepada EON Finance Bhd. Jumlah kedua RM374,402.15 untuk Tan Keng Pan @ Thiam Hock dibenarkan dimasukkan ke akaun bersama iaitu Tan Keng Pan dan/atau Ho Thiam Hock. Ketiga-tiga debit ini dalam bentuk permohonan untuk perintah juruwang. Plaintif berhujah bahawa akaunnya dengan bank defendan telah salah didebitkan dengan jumlah RM848,806.45. Plaintif kemudiannya memfailkan tindakan ini terhadap defendan atas kemungkiran mandat dan/atau kecuaian kerana debit salah sejumlah RM848,806.45 daripada akaunnya. Menerusi tindakan ini, plaintif memohon pengisytiharan bahawa debit tersebut adalah menyalahi undang-undang dan tanpa kebenaran dan jumlah RM848,806.45 harus dibayar kepada plaintif oleh defendan. Defendan pula memfailkan prosiding pihak ketiga terhadap United Frank Sdn Bhd, Tan Keng Pan dan Ho Thiam Hock dan menuntut sejumlah RM468,500 daripada United Frank Sdn Bhd dan RM374,000 daripada dua pihak yang lain tersebut. Defendan  [*493] menyatakan bahawa defendan berhak dipampas oleh pihak-pihak ketiga atas sebarang kerugian dan pampasan yang defendan mungkin kena bayar jika defendan didapati bertanggungan atas salah debit daripada akaun plaintif. Defendan berhujah bahawa defendan berhak untuk menuntut ganti rugi terhadap pihak-pihak ketiga untuk bayaran yang telah dibuat atas kesilapan di bawah s 73 Akta Kontrak 1950 dan/atau secara alternatif di bawah prinsip-prinsip wang yang ada dan telah diterima. Tiada perwakilan bagi pihak ketiga yang pertama iaitu United Frank Sdn Bhd tetapi mahkamah dimaklumkan bahawa United Frank telah digulung. Tan Keng Pan dan Ho Thiam Hock mengesahkan bahawa mereka tiada urusan dengan pemgarah-pengarah plaintif syarikat. Ho Thiam Hock, yang bertanggungjawab atas urusan harian Sri Saran Daya Sdn Bhd, sebuah syarikat penggurup wang, menyatakan bahawa bayaran sebanyak RM374,000 adalah untuk balasan bernilai bona fide iaitu memberikan wang asing kepada orang yang tidak dikenali. Kedua-dua plaintif dan defendan memanggil pakar tulisan masing-masing sebagai saksi pakar untuk mengesahkan sama ada tandatangan-tandatangan yang tertera di atas ketiga-tiga permohonan perintah juruwang merupakan penandatangan akaun plaintif. Isu-isu yang perlu diputuskan ialah sama ada ketiga-tiga permohonan perintah juruwang bagi jumlah yang dituntut dibuat oleh plaintif dan sama ada pihak-pihak ketiga bertanggungan terhadap defendan jika defendan diputuskan bertanggungan terhadap plaintif untuk jumlah yang didebitkan daripada akaun plaintif.

Diputuskan, membenarkan tuntutan plaintif dengan kos:
(1)   Melihat kepada tingkah laku ketiga-tiga pengarah plaintif menunjukkan
bahawa mereka saksi yang jujur. Oleh itu, tiada alasan untuk meragui
keterangan mereka bahawa mereka tidak memberikan mandat kepada defendan
bank untuk mengeluarkan tiga perintah juruwang (lihat perenggan 20).
(2)   Saksi pakar yang dipanggil plaintif memberi keterangan di perbicaraan
lebih berkelayakan untuk memberikan keterangan sama ada
tandatangan-tandatangan pada ketiga-tiga permohonan perintah juruwang
adalah palsu oleh sebab dia merupakan pemeriksa dokumen yang
diwartakan. Saksi ini amat meyakinkan apabila menyimpulkan bahawa
tandatangan-tandatangan pada ketiga-tiga permohonan perintah juruwang
bukanlah milik plaintif. Oleh itu, plaintif berjaya membuktikan atas
beban pembuktian seperti yang dikehendaki di bawah s 101 Akta
Keterangan 1950 dalam mengesahkan bahawa ketiga-tiga tandatangan
tersebut bukanlah milik penandatangan plaintif. Selanjutnya, atas
imbangan kebarangkalian,  [*494] dokumen-dokumen tersebut tidak
mendapat mandat daripada plaintif dengan merujuk kepada cap getah
tersebut (lihat perenggan 20).
(3)   Walaupun defendan bank bertanggungjawab menghubungi
pelanggan-pelanggannya untuk mengesah atau memeriksa
permohonan-permohonan perintah juruwang yang berjumlah RM20,000 ke
atas, tetapi defendan tidak berbuat demikian. Fakta bahawa defendan
membenarkan perintah juruwang untuk sejumlah RM374,000 atas nama Tan
Keng Pan @ Thiam Hock dimasukkan ke dalam akaun bersama atas nama Tan
Keng Pan dan/atau Ho Thiam Hock merupakan satu lagi bukti kecuaian
defendan (lihat perenggan 21–23).
(4)   Tan Keng Pan dan Ho Thiam Hock betindak secara suci hati dan tiada
kesilapan apabila mereka dibayar untuk penukaran wang asing. Adalah
tidak diketahui siapakah yang mendapat keuntungan atas kesilapan
defendan. Maka s 73 Akta 1950 tidak terpakai atas kes ini dan
pihak-pihak ketiga tidak bertanggungan terhadap defendan (lihat
perenggan 33–34).

Notes
For cases on duty of banker, see 1 Mallal’s Digest (4th Ed, 2005 Reissue) paras 1818–1824.
For cases on handwriting expert, see 7(2) Mallal’s Digest (4th Ed, 2006 Reissue) paras 1465–1473.

Cases referred to
Bank Bumiputra Malaysia Bhd v Hasbudin Haslin [1998] 2 CLJ Supp 332, CA
Barclay’s Bank Ltd v WJ Simms & Cooke (Southern) Ltd [1980] 1 QB 677, QBD

Legislation referred to
Contracts Act 1950 s 73
Evidence Act 1950 s 101

David Hoh (Kingston Tan and HQ Kwong with him) (Heiley Hassan, Tan & Partners) for the plaintiff.
Kumar Kanagasingam (Suhaiza Zakaria with him) (Lee Hishamuddin Allen & Gledhill) for the defendant.
NS Guok (SK Thong with him) (Thong Seng Kong & Assoc) for the third parties.

Noor Azian J:

[1] On 19 June 2001, the plaintiff’s (Kum Wah Sdn Bhd) account with the defendant, RHB Bank Bhd (formerly known as United Malayan Banking  [*495] Corp Bhd) was debited by the sum of RM848,806.45 which the plaintiff alleged was wrongfully done by the defendant.

[2] The plaintiff then filed this suit against the defendant for breach of mandate and/or negligence resulting in the wrongful and unilateral debit from the plaintiff’s account with the defendant of the sum of RM848,806.45.

[3] The plaintiff prayed for a declaration that the debit of the said sum from the plaintiff’s account was unlawful and without authority and that the said sum be paid by the defendant to the plaintiff.

[4] The defendant filed third party proceedings against United Frank Sdn Bhd (‘FTP’) and Tan Kang Pan (‘STP’) and Ho Thiam Hock (‘TTP’).

[5] In respect of the third party proceedings, the defendant claimed that it had made payments to FTP, STP and TTP in the following amounts:

(1) FTP — RM468,500; and
(2) STP/TTP — RM374,000.

[6] The defendant claims that it is entitled to be compensated by the STP and TTP in respect if any damages and loss that it may have to pay in the event the defendant is held responsible to the plaintiff for the amount the plaintiff claimed was wrongfully paid by the defendant to the STP and TTP under s 73 of the Contracts Act 1950 or amount that was had and received by both the STP and the TTP.

[7] For the trial the plaintiff called five witnesses, they being:

(1) PW1 — Tai Lai Kee.
Former bank manager of RHB
Bank, Pudu branch.
(2) PW2 — Look See Kuan.
One of the three directors
of the plaintiff.
(3) PW3 — Look See Kee. One
of the three directors of
the plaintiff.
(4) PW4 — Bala Shanmugam
a/l M Vadivelu. Forensic
document examiner.
(5) PW5 — Look Kan Chai.
One of the three directors
of the plaintiff.

[*496]

[8] The defendant called six witnesses:

(1) DW1 — Aziz bin
Abdullah. Assistant
superintendent of police.
(2) DW2 — Goh Sing Min.
Defendant’s branch
manager
(3) DW3 — Leong Fang Lang.
Head cashier with the
defendant.
(4) DW4 — Aw Peng Onn.
Defendant’s
manager.
(5) DW5 — Mohd Azmi Mohd
Yusoff. At one time an
assistant bank manager of
the defendant.
(6) DW6 — Harcharan Singh
Tara. Chemico-Legal and
Forensic consultant.

[9] The third parties called one witness:

(1) TPW1 — Ho Thiam Hock in
charge of daily operations
of Sri Saran Daya Sdn Bhd,
a money changer company.
Gave foreign currencies to
unknown person who had
banked in the RM374,000
into the RHB bank account
No
2–14213–9000292–7.

[10] The brief facts of the case is that the plaintiff was established since 21 June 1978 as a family company involved as wholesaler, dealer and retailer of wine and liquor.

[11] There are three directors of the plaintiff’s company ie PW2, PW3 and PW5 and they are all siblings being 66 years old, 72 years old and 65 years old respectively.

[12] On 19 June 2001 the plaintiff’s account was debited for the following sums:

(1) RM6,302.15 — In favour of EON
Finance Bhd;
(2) RM374,402.15 — In favour of Tan
Kang Pan @ Ho Thiam Hock;
and
(3) RM468.502.15 — In favour of
United Frank Sdn Bhd.

[13] Although the RM6,302.15 was debited from the plaintiff’s account with the defendant, the defendant never actually paid out this amount to EON Finance Bhd.

[14] The TTP confirmed that they did not have any dealings with the plaintiff nor with the directors, PW2, PW3 and PW5.

[15] The plaintiff opened its current account in the form of overdraft facility with the defendant (then known as United Malayan Banking Corp  [*497] Bhd which through a series of mergers became to be known now as RHB Bank Bhd) since 12 November 1979 ie 22 years prior to the relevant date. Initially, the plaintiff’s account was at the defendant’s Pudu branch (located in Sg Besi) where upon merger with the defendant’s Jalan Pasar branch in May 2001, the plaintiff’s account was transferred to the Jalan Pasar branch.

[16] Originally the plaintiff’s overdraft facility was RM700,000 but in 1979 it was increased to 1.5m vide the defendant’s letter of offer of 26 December 2000 — exh ‘P3’. The overdraft was for a working capital.

[17] The signatories to the plaintiff’s account were three ie PW2, PW3 and PW5 as well as the plaintiff’s rubber stamp. The plaintiff asserted that for the banking facility it only used the rubber stamp as in exh ‘P18(a)’.

[18] After a trial of 29 days, four days before the first trial judge, one day before the second trial judge and 24 days before myself and notes of evidence totaling 269 pp, I allowed the plaintiff’s claim with cost and ordered the defendant to refund the amount debited with interest from the date the amount was debited ie 19 June 2001 until 19 November 2007. The defendant’s claim against the STP and TTP was dismissed with cost.

[19] The issue before the court is a question of fact ie whether the applications for the cashier’s order for the amount claimed were made by the plaintiff. The relevant application forms for this case are marked as exhs ‘D4’, ‘D5’ and ‘D6’.

[20] In considering the plaintiff’s claim for breach of mandate and/or negligence resulting in the wrongful and unilateral debit from the plaintiff’s account with the defendant of the sum of RM848,806.45, the following were considered:

No mandate given by the plaintiff for issuance of exhs ‘D4’, ‘D5’ and
‘D6’

(1)   Direct evidence of PW2 and PW3 denying giving mandate

I have no reason to doubt the evidence of PW2, PW3 and PW5 who at such
ripe ages of 66 years, 72 years and 65 years are running a family
business. Observing their demeanor they appear simple people and I
agree that they bear out as honest witnesses.

(2)   Signature of PW2 and PW3 as found in exhs ‘D4’, ‘D5’ and ‘D6’ are
forgeries

Both parties called their own expert witnesses and it was their
evidence that took up most of the trial time. That was why the trial
took so long.

[*498]

Bala Shanmugam (PW4) was the expert witness for the plaintiff and
Harcharan Singh Tara (DW6) was the expert witness for the defendant.

Based on their qualifications and experiences, I am more inclined to
accept that PW4 is more qualified to give evidence in respect of
whether the signatures on exhs ‘D4’; ‘D5’ and ‘D6’ are forgery. DW6 may
have been the director general of the Malaysian Chemistry Department
but he was never gazetted as a document examiner in the government
service. He said ‘I am not a gazetted document examiner. I have never
produced a technical report. Yes, a technical report can only be
produced by a gazetted document examiner
.’. As such I am of the
considered opinion that PW4 is more qualified and experienced to give
testimony in respect of signatures on the three documents mentioned.

From the elaborate evidence adduced through PW4 and the extensive
cross-examination of the same witness by the defendant’s counsel, I am
satisfied on the balanced of probabilities that the two signatures on
all the three exhibits are not those of PW2 and PW3.

I will not elaborate in detail but suffice if I were to say that the
plaintiff’s expert witness (PW4) was able to convince me that the
signatures on the three documents are not that of the plaintiff’s.

The plaintiff had discharged their onus of proof as required by s 101
of the Evidence Act 1950 in establishing that the signatures on the
three documents are not those of the signatories to the plaintiff’s
account with the defendant.

(3)   Plaintiff’s forged rubber stamp

I totally agree that there is a difference in the rubber stamp used on
the three documents. PW2 and PW3 had described the discrepancy in the
rubber stamp, they used for banking facility and the one used on the
documents ie ‘No:’ (with colon) as opposed to ‘No.’ (with full
stop).

On the balance of probabilities also, I am satisfied that the documents
did not have the mandate of the plaintiff with reference to the rubber
stamp.

(b) Negligence by the defendant

[21] From the testimonies of the defendant’s witnesses, the defendant had a duty to call its customers to verify/check in respect of applications for cashiers orders exceeding RM20,000. DW2 gave evidence to this effect.

[22] Here again, considering the witnesses, PW2, PW3 and PW5, the simple old brothers who ran the family business I am more inclined to believe  [*499] them ie they did not receive any phone calls from anybody from the defendant to check/verify if the plaintiff had applied for the cashier’s order.

[23] Another piece of evidence that would support the sheer negligence of the defendant is that the cashier’s order for RM374,000 issued in the names of STP @ TTP (Tan Kang Pan @ Ho Thiam Hock) was allowed to be banked into their joint account (Tan Kang Pan and/or Ho Thiam Hock). This demonstrates the extreme carelessness on the part of the defendant. Judicial notice can be taken that in banking procedure, @ is an account of one person identified by more than one name whilst joint account is an account of more than one person.

[24] I am therefore of the considered opinion, based on the aforesaid reasons that the application for the cashier’s order were never made by the plaintiff. The plaintiff’s claim against the defendant was therefore allowed with cost.

[25] In respect of the third party proceedings, only the STP and the TTP were represented.

[26] The defendant alleged that as a result of payment to the STP and the TTP without mandate of the plaintiff and/or under a mandate, the defendant is entitled to recover damages against the STP and the TTP under s 73 of the Contracts Act 1950 and/or alternatively under the principles of monies had and received.

[27] The defence of the STP and TTP is essentially that the payment of RM374,000 on 19 June 2001 into their joint account held by them was for a bona fide valuable consideration ie in consideration that Sri Saran Daya Sdn Bhd (a company operating a money changer business) changing a sum of USD30,000, Pound Sterling 30,000, Hong Kong Dollar 200,000 to a person not known to both the STP and the TTP.

[28] The agreed issues to be tried between the parties are as follows:

(a)   whether the STP and TTP are liable to pay the defendant for the
judgment sum in the event the defendant is held liable to the plaintiff;

(b)   if the defendant is liable to pay the plaintiff, whether the defendant
had made a mistake in making the payment to the STP and TTP as pleaded;
and

(c)   whether the defendant is entitled to claim for damages against the STP
and TTP for payment under mistake under s 73 of the Contracts Act 1950
and/or alternatively under monies had and received.

[*500]

[29] The relevant evidence adduced in respect of the third party proceedings were:

(a)   Three applications for cashier’s order exhs ‘D4’, ‘D5’ and ‘D6’ was for
the following:

(i)   RM468,500 — For United Frank Sdn Bhd; ‘D4’.

(ii)  RM374,000 — For Tan Kang Pan @ Ho Thiam Hock; ‘D5’.

(iii)  RM6,300 — For EON Finance Bhd; ‘D6’.

(b)   In respect of the cashier’s order for RM374,000 it was banked in into
the joint account of the STP and TTP in spite of the cashier’s
order bearing their names as alias.

(c)   The money was banked in as payment for various foreign currencies
mentioned earlier.

(d)   The TTP had given the currency to a person who came to the premises of
the TTP’s company.

[30] I have no doubt about the evidence given by TPW1. However I would like to state again that the defendant’s branch that accepted the cashier’s order for the sum of RM374,000 was definitely careless in allowing a cheque bearing the names of the STP and TTP as alias to be banked in into their joint account.

[31] The STP and TTP into whose account the cashier’s order was banked in gave valuable consideration.

[32] It was in fact the defendant who was negligent in not verifying the three application forms and subsequently allowing the cashier’s order for RM374,000 to be banked in into the joint account of the STP and the TTP. If the bank staff had been vigilant and careful and noticed the discrepancy, it would ring a bell and the cashier’s order would be stopped.

[33] Section 73 of the Contracts Act 1950 is in respect of the liability of a person to whom money is paid, or thing delivered, by mistake or under coercion. In the case as for the STP and TTP there was no mistake, they were paid for exchange of currencies. They acted in good faith. It was unknown person who had gained by the defendant’s mistake. In the case of Bank Bumiputra Malaysia Bhd v Hasbudin Haslin [1998] 2 CLJ Supp 332, the case of Barclay’s Bank Ltd v WJ Simms & Cooke (Southern) Ltd [1980] 1 QB 677 was referred to where Geoff J said:

[*501]

It follows that the payee has given consideration; with the consequence
that although the payment has been caused by the bank’s mistake, the
money is irrecoverable from the payee unless the transaction of payment
is itself set aside.

[34] Based on the aforesaid, I find that the STP and TTP is not liable to the defendant who is found liable for the plaintiff’s losses. Therefore, the defendant’s counterclaim against STP and TTP is dismissed with costs.

[35] With respect to the FTP, the court was informed that it was wound up (exh ‘P25’). Since there was no representation for the FTP and the defendant did not ask for any order, I would strike out the claim against the FTP.

ORDER:
Plaintiff’s claim allowed with costs.

LOAD-DATE: 11/11/2009

Coroner’s inquiry – Application to revise magistrate’s ruling made at coroner’s inquest: Re Teoh Beng Hock (Malaysia)

The Malayan Law Journal

PDF Print Format
Re Teoh Beng Hock
[2010] 1 MLJ 715
CRIMINAL REVISION NO 43–41 OF 2009
HIGH COURT (SHAH ALAM)
DECIDED-DATE-1: 15 SEPTEMBER 2009
YEOH WEE SIAM JC

CATCHWORDS:
Criminal Procedure – Revision – Coroner’s inquiry – Application to revise magistrate’s ruling made at coroner’s inquest – Magistrate made ruling to allow suspect who was investigated by the Malaysian Anti-Corruption Commission to be called as witness to tender his police report – Whether magistrate had erred in making ruling – Criminal Procedure Code s 328

Evidence – Similar facts – When admissible – Whether magistrate had erred in allowing similar fact evidence to be considered – Whether similar fact evidence had material bearing on matters to be decided by magistrate at inquest – Evidence Act 1950 ss 11(b) & 15

HEADNOTES:
At the coroner’s inquest into the cause of death of Teoh Beng Hock (‘the deceased’), counsel for the family of the deceased attempted to introduce a police report (‘the police report’) made by one Sivanesan (‘the complainant’), a suspect who was investigated by the Malaysian Anti-Corruption Commission (‘the MACC’). In the police report the complainant had complained of alleged intimidation, torture, violence and abuse perpetrated against him by the MACC officers in the course of their investigations. Counsel for the deceased’s family had sought to introduce the police report during the cross-examination of an officer from the MACC but the Director of Legal Matters and Prosecution (‘the director’) of the MACC objected to the introduction of the police report during the cross-examination of the MACC officer on the grounds that such police report could only be tendered if the complainant, ie the maker of the police report, was called as a witness. Further the MACC contended that they had not been served with a copy of the police report. Upon this application by the director of the MACC, the magistrate hearing the inquest directed that a copy of the police report be served on the MACC. When the magistrate resumed hearing, the director informed the court that the police report was not relevant because there was no nexus between the complainant’s police report and the death of the deceased in this case. The director pointed out that the complainant had been interrogated as a suspect in his case whereas the deceased was interrogated as a witness in this case. The director therefore contended that the prejudicial  [*716] effect of allowing the evidence of the complainant to be admitted far outweighed the probative value of such evidence and urged the magistrate to change his ruling. Counsel for the deceased’s family went on the basis that there was similar fact evidence in that the contents of the police report related to the same place and the same witness. He submitted that since the main purpose of the inquest was to discover the cause of death of the deceased under s 328 of the Criminal Procedure Code (‘CPC’) the admission of the complainant’s evidence and the police report would aid this purpose. Counsel for the Selangor State Government submitted that there was no prejudice caused to the MACC by the magistrate’s ruling in allowing the complainant to testify and allowing the police report. He also brought to the magistrate’s attention the fact that there was already evidence adduced of pre-fall injuries on the deceased, as stated by the pathologist, which were consistent with the conclusion that there was an assault on the deceased. The magistrate after hearing the parties did not change his ruling as to the admissibility of the police report and the calling of the complainant as a witness. Based on the magistrate’s ruling the complainant took his stand as a witness and gave his evidence at the inquest. The director of the MACC then filed the present application for a revision of the magistrate’s ruling and also applied for the complainant’s evidence to be expunged from the court. The sole issue for determination in this application for revision made pursuant to s 323 of the CPC was whether the magistrate had erred when he made the ruling to allow the complainant to be called as a witness to tender his police report.

Held, dismissing the MACC’s application for revision and stay of execution:
(1)   From the record of proceedings it was found that counsel for the
deceased’s family had intended to introduce the police report and the
complainant as a witness to show that the MACC officer who had
questioned the deceased was not telling the truth when he said that no
violence was used against any suspect by the MACC or its officers and
to show that actual violence and other violence had been perpetrated by
the MACC officers in the office where the deceased was interrogated
before his death. To support his ruling to call the complainant as a
witness the magistrate had cited ss 11(b), 14 and 15 of the Evidence
Act 1950 (‘the Act’). However, based on ss 11(b) and 15 of the Act
alone it was apparent that the magistrate did not err in law to allow
similar fact evidence to be considered. It was in the interest of
justice that the family of the deceased be given the opportunity to
bring in the complainant to rebut the evidence given by the MACC
witnesses who deny any form of violence being perpetrated by them.
Although there was no nexus between the complainant’s case and the
present case in terms of the date of the interrogation, the person
involved and the subject matter of the interrogation, the nexus that
existed between these  [*717] two cases was the similar fact
evidence that the deceased’s family was seeking to establish. The
magistrate was also correct and fair in limiting the scope of the
complainant’s evidence, by stating that the police report be tendered
through the complainant and allowing the MACC to recall its witness
(see paras 56–57& 60).
(2)   Upon a perusal of the record of proceedings and after hearing the
submissions of the relevant parties it was found that there was nothing
incorrect, illegal or improper about the magistrate’s ruling. The
magistrate had not erred in fact or law or in any way misdirected
himself to cause any miscarriage of justice in his ruling. There was
therefore no need to expunge the complainant’s evidence, the police
report and photographs from the records of the inquest. As the whole
purpose of the inquiry was to find out the cause of death of the
deceased the magistrate should be given the independence to decide who
to believe and make his own findings in order to arrive at a verdict
(see para 65).
(3)   With regard to the oral application for a stay of execution pending an
appeal to the Court of Appeal, there were no special circumstances to
justify such a stay. Giving notice of an intention to file an appeal to
the Court of Appeal did not amount to special circumstances (see para
69).

Pada inkues koroner mengenai sebab kematian Teoh Beng Hock (‘si mati’), peguam bagi pihak keluarga si mati cuba untuk mengemukakan laporan polis (‘laporan polis’) yang dibuat oleh Sivanesan (‘pengadu’), suspek yang disoal siasat oleh Suruhanjaya Pencegahan Rasuah Malaysia (‘SPRM’). Dalam laporan polis tersebut, pengadu mendakwa intimidasi, seksaan, keganasan dan penderaan yang dilakukan terhadapnya oleh pegawai-pegawai SPRM semasa menjalankan penyiasatan mereka. Peguam bagi pihak keluarga si mati menuntut untuk mengemukakan laporan polis semasa pemeriksaan balas pegawai daripada SPRM tetapi Pengarah Perundangan dan Pendakwaan (‘pengarah’) SPRM menghalang pengemukaan laporan polis semasa pemeriksaan balas pegawai SPRM atas dasar bahawa laporan polis tersebut hanya boleh dikemukakan sekiranya pengadu, iaitu orang yang membuat laporan polis, dipanggil sebagai saksi. Selanjutnya SPRM menghujah bahawa mereka tidak menerima salinan laporan polis tersebut. Melalui permohonan ini oleh pengarah SPRM, majistret yang membicarakan inkues mengarahkan agar salinan laporan polis diberikan kepada SPRM. Apabila mahkamah menyambung semula perbicaraan, pengarah memaklumkan mahkamah bahawa laporan polis tersebut tidak relevan kerana tiada perhubungan di antara laporan polis pengadu dan kematian si mati dalam kes ini. Pengarah menegaskan bahawa pengadu telah disoal siasat sebagai suspek dalam kesnya  [*718] manakala si mati disoal siasat sebagai saksi dalam kes ini. Oleh itu pengarah tersebut menghujah bahawa kesan prejudis membenarkan keterangan pengadu diterima melebihi nilai probatif keterangan tersebut dan mendesak majistret untuk mengubah keputusannya. Peguam bagi pihak keluarga si mati menghujah atas dasar terdapat keterangan fakta yang sama dalam kandungan laporan polis berkenaan tempat dan saksi yang sama. Dia menghujah bahawa memandangkan tujuan utama inkues ialah untuk mencari punca kematian si mati di bawah s 328 Kanun Prosedur Jenayah (‘CPC’), penerimaan keterangan dan laporan polis boleh membantu bagi mencapai tujuan ini. Peguam Kerajaan Negeri Selangor menghujah bahawa tiada prejudis kepada SPRM oleh keputusan majistret dalam membenarkan pengadu untuk memberi keterangan dan laporan polis. Dia juga membawa kepada perhatian majistret mengenai fakta bahawa terdapat keterangan sedia ada dikemukakan sebelum si mati jatuh, seperti dinyatakan oleh ahli patologi yang konsisten dengan kesimpulan bahawa terdapat serangan ke atas si mati. Selepas perbicaraan pihak-pihak, majistret tidak mengubah keputusannya merujuk kepada kebolehterimaan laporan polis dan memanggil pengadu sebagai saksi. Berdasarkan keputusan majistret, pengadu menjadi saksi dan memberikan keterangan di inkues. Pengarah SPRM kemudiannya memfailkan permohonan ini untuk semakan keputusan majistret dan juga memohon agar keterangan pengadu ditolak daripada mahkamah. Satu-satunya isu untuk ditentukan dalam permohonan untuk semakan ini menurut s 323 KPJ ialah sama ada majistret membuat kesilapan apabila dia membuat keputusan untuk membenarkan pengadu dipanggil sebagai saksi untuk mengetengahkan laporan polisnya.

Diputuskan, menolak permohonan MACC untuk semakan dan penggantungan pelaksanaan:
(1)   Daripada rekod prosiding-prosiding, didapati peguam bagi pihak keluarga
si mati cuba untuk mengemukakan laporan polis dan pengadu sebagai saksi
untuk menunjukkan bahawa pegawai SPRM yang menyoal siasat si mati tidak
berkata benar apabila dia berkata bahawa tiada keganasan yang digunakan
terhadap mana-mana suspek oleh SPRM atau pegawai-pegawainya dan untuk
menunjukkan bahawa keganasan sebenar dan keganasan lainnya telah
dilakukan oleh pegawai-pegawai SPRM di pejabat di mana si mati disoal
siasat sebelum kematiannya. Bagi menyokong keputusan beliau untuk
memanggil pengadu sebagai saksi, majistret merujuk ss 11(b), 14 dan 15
Akta Keterangan 1950 (‘Akta’). Walau bagaimanapun, berdasarkan ss 11(b)
dan 15 Akta adalah jelas bahawa majistret tidak membuat kesilapan dalam
undang-undang dalam membenarkan keterangan fakta yang sama untuk
dipertimbangkan. Adalah dalam kepentingan undang-undang bahawa keluarga
si mati diberi peluang untuk  [*719] membawa pengadu bagi
mematahkan keterangan yang diberikan oleh saksi SPRM yang menafikan
sebarang bentuk keganasan yang dilakukan oleh mereka. Walaupun tidak
terdapat sebarang kaitan antara kes pengadu dan kes ini mengenai tarikh
soal siasat, individu yang terlibat dan perkara subjek soal siasat,
perkaitan yang wujud di antara kedua-dua kes tersebut adalah keterangan
fakta yang sama yang ingin dibuktikan oleh keluarga si mati. Majistret
juga betul dan adil dalam menghadkan skop keterangan pengadu dengan
menyatakan bahawa laporan polis perlu dikemukakan melalui pengadu dan
membenarkan SPRM untuk memanggil semula saksinya (lihat perenggan 56–57
& 60).
(2)   Setelah meneliti rekod prosiding-prosiding selepas mendengar
hujahan-hujahan pihak-pihak yang relevan, didapati bahawa tiada apa-apa
yang tidak benar, menyalahi undang-undang atau salah mengenai keputusan
majistret. Majistret tidak membuat kesilapan dalam fakta atau
undang-undang atau dalam apa-apa cara tersalah arah dan menyebabkan
salah laksana keadilan dalam keputusannya. Oleh itu keterangan pengadu,
laporan polis dan foto-foto daripada rekod inkues tidak perlu ditolak.
Memandangkan tujuan siasatan dijalankan adalah untuk mencari punca
kematian si mati, maka majistret perlu diberi kebebasan untuk
menentukan siapa untuk dipercayai dan membuat dapatannya bagi mencapai
keputusan (lihat perenggan 65).
(3)   Berhubung dengan permohonan lisan untuk penggantungan pelaksanaan
sementara menunggu rayuan ke Mahkamah Rayuan, tidak terdapat keadaan
istimewa untuk menjustifikasikan penggantungan tersebut. Memberi notis
niat untuk memfailkan rayuan ke Mahkamah Rayuan tidak bermaksud keadaan
istimewa (lihat perenggan 69).

Notes
For a case on coroner’s inquiry, see 5(2) Mallal’s Digest (4th Ed, 2007 Reissue) para 3125.
For cases on when admissible, see 7(2) Mallal’s Digest (4th Ed, 2006 Reissue) paras 2283–2288.

Cases referred to
Director of Public Prosecutions v Boardman [1975] AC 421, HL
Harris v Director of Public Prosecutions [1952] 1 All ER 1044, HL
Loh Kah Kheng, Re (deceased) [1990] 2 MLJ 126, HC
Makin v Attorney-General for New South Wales [1894] AC 57, PC
R v Raju & Ors v R [1953] MLJ 21, HC
Retnarasa a/l Annarasa v PP [2008] 8 MLJ 608; [2008] 4 CLJ 90, HC  [*720]

Legislation referred to
Courts of Judicature Act 1964 ss 31, 35, 35(2), 36, 37
Criminal Procedure Code ss 323, 324, 325, 326, 327, 328, Chapter XXXI
Evidence Act 1950 ss 11, 11(b), 14, 15

Abdul Razak Musa (Manoj Kurup and Wong Chiang Kiat with him) (Director of Legal Matters & Prosecution, MACC) for the applicant.
Gobind Singh Deo (Karpal Singh and Sangeet Kaur Deo with him) (Gobind Singh Deo & Co) watching brief for the family of the deceased.
Malik Imtiaz Sarwar (Sreekant Pillai with him) watching brief for the State of Selangor.
M Visanathan (June Lo with him) watching brief for the Bar Council.

Yeoh Wee Siam JC:

THE APPLICATION

[1] This is an application for revision made on behalf of the Malaysian Anti-Corruption Commission (‘the MACC’) by YBhg Dato’ Abdul Razak bin Musa (‘Dato’ Razak’), the director of legal matters and prosecution, regarding the ruling made on 8 September 2009 by the magistrate sitting in his capacity as the coroner in the Shah Alam Magistrate’s Court in Inquest No 88–10 of 2009 pertaining to the cause of death of the deceased, Teoh Beng Hock (‘the deceased’).

FACTS

[2] Briefly, the background facts are as follows.

[3] On 8 September 2009, in the course of the cross-examination of the 19th witness in the inquest, SI19, ie Mohd Ashraf bin Mohd Yunus (‘Ashraf’), learned counsel who was watching brief for the family of the deceased, Mr Gobind Singh Deo (‘Mr Gobind’), attempted to introduce a police report made by a complainant, one T Sivanesan (‘the complainant’) on 11 September 2008 ie Shah Alam police report 11/006917/08 (‘the police report’).

[4] Dato’ Razak, on behalf of the MACC, objected to the introduction of the police report in such manner, stating that there is no procedure in an inquest to allow cross-examination of a witness based on a police report. Moreover, MACC had not been served with a copy of the police report.

[5] After hearing the submissions of all parties, at about 12.20pm, the magistrate ordered Mr Gobind to give a copy of the police report to Dato’ Razak for him to look into the matter.

[*721]

[6] When the magistrate resumed hearing at 12.42pm, Dato’ Razak, informed the court that the police report is not relevant and that Ashraf’s name is not contained in the police report. He submitted that if the police report is to be produced, then the maker or the complainant has to be called as a witness. At that stage, the magistrate made a ruling that the police report would be tendered through the complainant, and not through the cross-examination of SI19 by Mr Gobind.

[7] The learned deputy public prosecutor (‘the DPP’) also agreed that the complainant should be called as a witness.

[8] Dato’ Razak then stated that he could not see the relevancy of calling the complainant.

[9] The DPP, when requested by the magistrate to state his stand on relevancy, stated that both parties had agreed to call the complainant, and MACC has the right to challenge his evidence.

[10] The magistrate then made the following ruling (see p 14 of the notes of proceedings on 8 September 2009):

On the issue of relevancy the guidelines in the court of inquest would
also be the Evidence Act, ss 11(b), 14 and 15 are on similar fact
evidence that seek to be introduced in this proceeding on the basis
that it happened at the same location in SPRM Selangor and might
involve the same persons who are witnesses in this case and it might
relate to same form of pressure being applied or interrogation, those
facts might be similar or relevant. The test, principle in common law
case ofDirector of Public Prosecutions v Boardman [1975] AC 421
and Makin v Attorney-General for New South Wales [1894] AC 57 to
show that if the facts are strikingly similar to the facts in issue
then the court is allowed to admit those evidence. Pihak-pihak telah
berhujah, based on police report, facts are relevant to this inquest,
but the scope to admit those report is just for the purpose of
determining whether there is interrogation, use of force and whether
SI19 is involved in it. To tender the report through the complainant,
SPRM can recall witness.

[11] The records show that on 9 September 2009, Dato’ Razak made an oral application to the magistrate to review his above ruling and not to allow the complainant to be called as a witness. He submitted that there would be no probative value in calling the complainant and the prejudicial effect of calling him would be great considering that the investigations on the complainant as a suspect by the MACC on another matter have not been completed yet. Moreover, he found the police report rather suspicious and he needed other documents eg the complainant’s medical report and results of police investigation on the matter. After hearing all parties, the magistrate  [*722] decided not to review his ruling made on 8 September 2009 but to proceed with the inquest in an open manner and with transparence, taking into account the concerns of all parties.

[12] Just before the complainant started giving his evidence in the inquest on the morning of 9 September 2009, Dato’ Razak wrote the letter of application to the High Court, Shah Alam for revision of the magistrate’s ruling. However, he only filed it with the High Court Shah Alam in the Petaling Jaya registry in the afternoon of 9 September 2009.

[13] By the time, the High Court Shah Alam sat in Petaling Jaya to hear the application, the complainant, SI20, had already given his evidence after being questioned by Mr Gobind.

[14] The proceedings in the inquest were automatically stayed under s 35(2) of the Courts of Judicature Act 1964 when the High Court called for the records of the magistrate’s court, regarding the inquest on the afternoon of 9 September 2009 after receiving the application for revision.

[15] The application was heard by me in open court on 10 September 2009.

Submissions of the MACC in support of the application

[16] The main points of the applicant’s submissions as stated in the letter of application and the written and oral submissions are as follows.

[17] The evidence given by the complainant, SI20, is totally prejudicial to the MACC and has no nexus to the inquiry at hand. It tantamounts to ‘collateral proceedings’ with no other than an oblique purpose to smear, taint and tarnish the image of the MACC. SI20 ’s evidence and the police report (I-67) are pure speculation and conjecture on a so-called pattern of behavior attributed to an entire organisation. It does not show that SI19 (Ashraf) assaulted the deceased.

[18] The coroner erred in law when he held that the testimony of SI20 is admissible under ss 11(b), 14 and 15 of the Evidence Act 1950 on the basis that ‘… berlaku tempat yang sama, melibatkan pihak yang sama dan mungkin guna cara yang sama’.

[19] Evidence of similar facts should be excluded unless such evidence has a really material bearing on the issues decided (see R v Raju & Ors v R [1953] MLJ 21 and Harris v Director of Public Prosecutions [1952] 1 All ER 1044).  [*723] The coroner’s purpose in allowing SI20 ’s evidence based on ‘mungkin guna cara yang sama’ was not clear at all. It was speculative and undirected. The end result would be prejudicial evidence that would besmirch the entire organisation of the MACC.

[20] The magistrate erred when he mentioned ‘sama ada kekerasan digunakan’. The uncontroverted testimony of the pathologist, SI15, was that there were no pre-fall bodily injuries on the deceased. There was nothing to suggest that SI19 used force on the deceased. Whether SI20 was assaulted by SI19 or others would not assist the coroner in determining what the cause of death of the deceased was.

[21] The police report and SI20 ’s testimony relate to an entirely different case where he was the suspect and investigations have not been completed. It relates to an entirely different period. The police report was lodged on 11 September 2008 ie ten months before the deceased’s death. There is no nexus between that incident that happened to SI20, if it happened at all, and the deceased’s death.

[22] The magistrate had earlier on expunged other evidence in the same inquest on grounds that it impinged on the credibility of others. Likewise, the High Court, in exercising its revisionary powers, can expunge the testimony of SI20 and the two exhibits ie the police report (‘I-67’) and the photographs showing the injuries suffered by SI20 (‘I-68’).

Mr Gobind’s submissions on behalf of the family of the deceased

[23] Under s 328 of the Criminal Procedure Code (‘the CPC’), the meaning of ‘cause of death’ also includes all matters necessary to enable an opinion to be formed as to the manner in which the deceased came by his death. The magistrate’s duty is to find out the cause of death. In Re Loh Kah Kheng (deceased) [1990] 2 MLJ 126 at p 127 (pp 27–28 of his bundle of authorities), even hearsay evidence can be admitted in an inquest.

[24] SP19, Ashraf, was an officer at the MACC who interrogated the deceased. There is reason to believe that he assaulted the deceased. In cross-examination, SP19 denied torture during MACC interrogation. He said he himself was not involved.

[25] Mr Gobind’s instructions are that SP19 had been involved in an assault at the same place. He just wanted to put forward this evidence and let the magistrate decide whether to believe SP19 or not.

[*724]

[26] Mr Gobind was not maligning the MACC. The MACC can deny the allegations and cross-examine SI20. How can the magistrate be said to be in error if he feels that this witness is necessary to help him come to a finding?

[27] Looking at the sequence of events, the police report was first put in during the cross-examination of SP19; Dato’ Razak then objected. He said the proper way was to call this witness. When Mr Gobind brought in the witness, Dato’ Razak turned around and said that it is wrong. The magistrate ruled the police report is relevant. This is a complete misconduct by Dato’ Razak, unconscionable and unacceptable at the Bar.

[28] Mr Tan Hock Chuan, acting on behalf of the prosecution, had no objections to the police report being adduced but said that the court is to limit the evidence.

[29] Regarding similar fact evidence, the magistrate read the police report and said that the contents relate to the same place and the same witness. The MACC will deny that there was violence on the 14th floor of the MACC building and say that the deceased committed suicide. The magistrate referred to s 11 of the Evidence Act 1950 on similarity, same place and same witness.

[30] At the end of the inquest, Mr Gobind will submit that the MACC witnesses cannot be believed. If the MACC is allowed to bring in its own witnesses, why can’t the family of the deceased do so?

[31] The High Court ought not to interfere, but should let the magistrate carry on with the inquest. The magistrate can decide at the end of the day on who to believe.

Submissions by Encik Malik Imtiaz Sarwar, counsel watching brief for the Selangor DE State Government

[32] Mr Manoj Kurup said that there were no pre-fall injuries. That is not true. The pathologist testified that there were such injuries. The MACC is mischievous and supplanting the coroner’s court.

[33] The matter falls squarely under s 11(b) of the Evidence Act 1950. There is a nexus ie someone falling out of the same window nine months later. This is similar fact evidence.

[34] There is no prejudice caused to the MACC by the coroner’s ruling in allowing SI20 to testify. Mr Gobind kept within the perimeters set by the  [*725] coroner’s court. There is no question of prejudice or embarrassment in inquisitorial proceedings and not to allow it will be prejudicial to the right to know the truth (see Retnarasa a/l Annarasa v Public Prosecutor [2008] 8 MLJ 608 at p 609; [2008] 4 CLJ 90 at p 91).

HIGH COURT’S DECISION

[35] The High Court’s revisionary powers for criminal proceedings are provided in ss 31, 35, 36 and 37 of the Courts of Judicature Act 1964, and Chapter XXXI, ss 323 to 327 of the CPC.

[36] Under s 323 of the CPC, a judge of the High Court ‘may call for and examine the record of any proceeding before any subordinate criminal court for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of that subordinate court’.

[37] Under s 326 of the CPC, ‘No party has any right to be heard, either personally or by advocate, before a Judge when exercising his powers of revision’.

[38] Notwithstanding s 326 of the CPC, in the interest of justice, I fixed the revision case for hearing in order to hear the submissions of the relevant parties.

[39] After perusing the record of proceedings of the magistrate’s court and after considering submissions of the applicant, Mr Gobind and Encik Malik Imtiaz Sarwar, I am of the following opinion.

[40] The sole purpose of the inquest is for the coroner to find out the cause of death of the deceased under s 328 of the CPC.

[41] When the magistrate holds the inquiry, he shall under s 337 of the CPC, ‘inquire when, where, how and after what manner the deceased came by his death and also whether any person is criminally concerned in the cause of the death’.

[42] Practice Note No 1 of 2007 on guidelines on inquest formulated by the Chief Judge of Malaya and which came into effect on 1 February 2007 has aptly explained in para 1 of p 1 that an inquest is not like a trial. There are no parties to prosecute and to defend. It is only an inquiry by a magistrate  [*726] as to the cause of death. The public prosecutor is there not to prosecute anyone but only to assist the court with the examination of witnesses for the purpose of giving evidence.

[43] In para E of p 7 of the same Practice Note, it states, inter alia, that ‘the procedure and rules of evidence are not to be strictly applied. The procedure and rules of evidence which are suitable for the accusatorial process are unsuitable for inquisitorial process’.

[44] The Practice Note is not law but it serves well as an administrative guideline to all magistrates who sit as coroners in any inquest.

[45] I have perused the contents of the police report made by SI20. It is true, as submitted by the MACC, that SI20 ’s report is about another incident that allegedly happened ten months before the death of the deceased in this case. SI20 had alleged intimidation, torture, violence and abuse perpetrated against him by the MACC officers in the course of their investigations against him as a suspect for some possible offence. I also note that nowhere in the police report was Ashraf’s name mentioned. That is why Dato’ Razak persistently maintained his stand that the police report is not relevant because there is no nexus between SI20 ’s police report and the death of the deceased in this case. He said that SI20 was interrogated as a suspect in his case whereas the deceased was interrogated as a witness in this case. He also contended that the prejudicial effect of allowing the evidence of SI20 to be admitted, on the MACC, far outweighs the probative value of such evidence being admitted.

[46] From the record of proceedings on 8 September 2009, I find that Mr Gobind had two main reasons to introduce the police report and also SI20 as a witness, namely:

(a)   to show that SI19 was not telling the truth when he said that no
violence was used against any suspect by the MACC or its officers; and

(b)   there was actually violence and other abuse that were perpetrated by
the MACC officers on the same 14th floor of the MACC office at Plaza
Masalam, where the deceased was interrogated immediately before his
death.

[47] Mr Gobind went on the basis that there was similar fact evidence and contended that ‘if we don’t inquire into what had happened then we would never find out who were involved if there were criminal activity involved … It’s not a normal occurrence that people fall from the 14th floor while they were being investigated by the MACC; for that reason alone we seek to be given a latitude’.

[*727]

[48] The DPP then referred to para 2 of Practice Note No 1 of 2007 where it is provided that ‘the proceedings and evidence at an inquest shall be directed solely at ascertaining’, inter alia, ‘(b) how, when and where the deceased came by his death’. He was of the view that the ‘family of the deceased has the right to forward question which may assist the court in determining how, when and where the deceased came by his death’. He agreed that some level of latitude be given to the family and MACC when asking questions. He stated that if Dato’ Razak was given a copy of the police report then the magistrate ‘can allow questions which are relevant …, challenging the credibility of witness is also pertinent’.

[49] Encik Malik Imtiaz Sarwar also brought to the magistrate’s attention that there was already evidence adduced of pre-fall injuries on the deceased, as stated by the pathologist, which led to the conclusion that may be consistent with an assault on the deceased.

[50] The magistrate did allow Dato’ Razak to state his views and objections after the latter was supplied with a copy of the police report. He again did hear the submissions of all parties before making his ruling (see pp 9–13 of the notes of proceedings on 8 September 2009). On record, Dato’ Razak had stated that if the police report was to be tendered, then the complainant has to be called as a witness (see p 12 of the notes of proceedings on 8 September 2009).

[51] From the notes of proceedings on 8 September 2009, it is clear that the magistrate had considered all the views of all the parties, and with their agreement, including Dato’ Razak’s, had decided to make the ruling to allow SI20 to be called as witness to tender his police report.

[52] Regarding the magistrates’ ruling to call SI20 as a witness (see p 14 of the notes of proceedings on 8 September 2009), the magistrate cited ss 11(b), 14 and 15 of the Evidence Act 1950 on similar fact evidence. His basis is that ‘it happened at the same location in SPRM Selangor and might involve the same persons who are witnesses in this case and it might relate to same form of pressure being applied or interrogation, those facts might be similar or relevant’. He also followed the principle in Director of Public Prosecutions v Boardman [1975] AC 421 and Makin v Attorney-General for New South Wales [1894] AC 57, to show that if the facts are strikingly similar to the facts in issue then the court is allowed to admit those evidence.

[53] The magistrate did not go into detail regarding ss 11(b), 14 and 15 of the Evidence Act 1950. I note that s 14 is regarding the relevancy of facts showing the existence of the state of mind or of body or bodily feeling. Section 14 is relevant, but I think ss 11(b) and 15 are more relevant here.

[*728]

[54] Section 11(b) of the Evidence Act 1950 provides:

11 Facts not or otherwise relevant are relevant —

(a)   …

(b)   if by themselves or in connection with other facts they make the
existence or non-existence of any fact in issue or relevant fact
highly probable or improbable.

[55] Section 15 of the same Act provides:

15 Facts bearing on questions whether act was accidental or intentional

When there is a question whether an act was accidental or intentional
or done with a particular knowledge or intention, the fact that the act
formed part of series of similar occurrences, in each of which the
person doing the act was concerned, is relevant.

[56] Based on ss 11(b) and 15 of the Evidence Act 1950 alone, I am of the opinion that the magistrate did not erred in law to allow similar fact evidence to be considered ie to allow SI20 to be called as a witness to give evidence of torture and violence being perpetrated against him at the same place and by the MACC officers during an investigation. Such similar fact evidence does have material bearing on the issues to be decided by the magistrate in the inquest (see R v Raju & Ors v R and Harris v Director of Public Prosecutions as cited by the MACC). The magistrate’s ruling will allow the family of the deceased the leeway to rebut the evidence of SI19 and the MACC that they do not threaten or torture anyone under investigation or interrogation by them. There is evidence given by the pathologist of pre-fall injuries. The family of the deceased do not believe that the deceased committed suicide; they believe that there must have been assault that led to the deceased’s fall from the 14 floor of Plaza Masalam. It is in the interest of justice that the family of the deceased be given the opportunity to bring in SI20 to rebut the evidence given by the MACC witnesses who deny any form of violence being perpetrated by them. As Mr Gobind had submitted before me, if the MACC can be allowed to bring in their own witnesses to testify that there was no violence perpetrated by them, then why can’t the family of the deceased be allowed to bring in their witness to prove otherwise?

[57] As submitted by the MACC, there is no nexus between SI20 ’s case and this case in terms of date of interrogation, the person involved and the subject matter of the investigation. SI20 was a suspect being investigated for two other matters; the deceased was interrogated as a witness for another case not related to SI20 ’s matters. However, the nexus that can exist between these two cases is the similar fact evidence that the family of the deceased is seeking to  [*729] establish ie just as SI20 was being tortured and abused during investigation by the MACC officers at the 14th floor of the MACC office, so did such torture and abuse happen to the deceased during the investigation and his interrogation by the MACC officers at the same place.

[58] I bear in mind that the whole purpose of the inquiry is to find out the cause of death. As correctly submitted by Mr Gobind, under s 328 of the CPC, ‘cause of death’ includes ‘also all matters necessary to enable an opinion to be formed as to the manner in which the deceased came by his sudden death and as to whether his death resulted in any way from, or was accelerated by, any unlawful act or omission on the part of any other person’.

[59] The magistrate did not make an open-ended ruling to allow SI20 to give his evidence on the police report. Instead, he rightly limited the scope of SI20 ’s evidence to determine the following three matters:

(a)   whether there is interrogation;

(b)   whether there is use of force; and

(c)   whether SI19 is involved in it.

[60] The magistrate ended his ruling by stating that the police report was to be tendered through the complainant (‘SI20 ’) (as previously suggested by Dato’ Razak) and the MACC be allowed to recall its witness, which I think is correct and very fair.

[61] The MACC applied for revision of the magistrate’s ruling only after SI20 was called as a witness and had already given his evidence after being questioned by Mr Gobind at the inquest.

[62] I found from the records that Dato’ Razak had been rather inconsistent in his stand. First, he objected to the tendering of the police report by Mr Gobind during the cross-examination of SI19, stating that it was not the right thing to do since there is no provision for such kind of cross-examination during an inquest. He submitted to the magistrate that such police report can only be tendered if the complainant, ie the maker of the police report, was called as a witness. On his application, the magistrate directed Mr Gobind to supply Dato’ Razak with a copy of the police report. The understanding of all parties, including Dato’ Razak, on 8 September 2009 is that the complainant would be called as a witness to tender his police report. Later, Dato’ Razak changed his mind and wanted the magistrate to change his ruling as well. The magistrate, after hearing all parties again, did not change his ruling made on 8 September 2009.

[*730]

[63] Based on the magistrate’s ruling, SI20 took his stand as a witness on 9 September 2009 and gave evidence at the inquest. Immediately after that, Dato’ Razak filed the application for revision, and also applied for SI20 ’s evidence to be expunged from the court.

[64] Upon a perusal of the record of proceedings, and after hearing the submissions of all relevant parties, I find that there is nothing that is incorrect, illegal or improper about the ruling made by the magistrate to allow SI20 to be called as a witness to tender the police report according to the scope or perimeters set by the magistrate. There is therefore no necessity to expunge SI20 ’s evidence, the police report and photographs from the records of the inquest.

[65] I am satisfied that the magistrate did not err in fact or law, or had in any way misdirected himself to cause any miscarriage of justice in his ruling. I believe such ruling should be upheld since the magistrate’s purpose is to find out the cause of death of the deceased. The MACC is to be given every opportunity to cross-examine SI20 and challenge or rebut his testimony. If there is nothing to hide, the MACC should not be unduly worried. The whole purpose of the inquiry is to seek the truth. At the end of the day, it is the magistrate who has to decide who to believe, and make his own findings in order to arrive at a verdict. I believe that the magistrate should be given the independence and leeway to conduct the inquiry according to law.

[66] Based on the above, there is no justification for me to revise the decision of the magistrate. Accordingly, I dismissed the application of the MACC.

[67] Mr Manoj Kurup, on behalf of the MACC applied for stay of execution pending an appeal to the Court of Appeal. Mr Gobind objected to such application and also questioned whether there is any legal provision for stay from a decision of the High Court on a revision matter. Dato’ Razak and his team were not able to furnish me with any provision on stay except s 35(2) of the Courts of Judicature 1964 which I think does not apply here. Section 35(2) only applies to a stay of proceedings in the subordinate court when the High Court calls for its record of proceedings for the purpose of revision and supervision.

[68] Be that as it may, I am of the opinion that this is a public interest case and it should be expedited. As it is, already enough time has been expended through this whole revisionary exercise. Mr Gobind also informed me that on next Monday, ie 14 September 2009, an expert witness would be flying in from Bangkok to give evidence at the inquest and all parties have already been notified.

[*731]

[69] There were no special circumstances shown to me by the MACC to justify a stay of my order. In my opinion, giving notice of an intention to file an appeal to the Court of Appeal does not amount to special circumstances.

[70] Accordingly, I did not grant the MACC’s oral application for stay of execution. I directed all parties to proceed forthwith with the inquest.

ORDER:
MACC’s application for revision and stay of execution dismissed.

LOAD-DATE: 01/22/2010

Timestamps, PC Clock, Metadata are Unreliable in Any Court: R v Dr. Harold Federick Shipman (United Kingdom)

January 29, 2010 Comments off

Transcript for Trial Day 21
Wed 10 Nov 1999

The following cases were referred to on this day:
Kathleen Grundy, Muriel Grimshaw, Ivy Lomas, Jean Lilley, Winifred Mellor, Joan May Melia, Bianka Pomfret, Marie Quinn, Irene Turner.

[COMMENT1] No. T982105

THE HIGH COURT OF JUSTICE

Sessions House,
Preston Crown Court,
Lancaster Road,
Preston.

Wednesday, 10th November, 1999

BEFORE:

THE HONOURABLE MR. JUSTICE FORBES

R E G I N A

v.

HAROLD FREDERICK SHIPMAN

____________________

MR. R. HENRIQUES, Q.C., MR. P. WRIGHT, Q.C. and MISS K. BLACKWELL appeared on behalf of the prosecution.

MISS N. DAVIES, Q.C. and MR. I. WINTER appeared on behalf of the defendant.

____________________

Transcribed from the Stenotype notes of
Cater Walsh & Co.,
Official reporters to the Crown Court at Manchester.

___________________

P R O C E E D I N G S

I N D E X

JULIE EVANS, recalled

Cross-examined by MISS DAVIES .. .. .. .. .. 2
Re-examined by MR. WRIGHT .. .. .. .. .. 41

JOHN ASHLEY, recalled

Cross-examined by MR. WINTER .. .. .. .. .. 54
Re-examined by MR. WRIGHT .. .. .. .. .. 67

ROBIN ADRIAN BRAITHWAITE

Examined by MR. WRIGHT .. .. .. .. .. .. 70
Cross-examined by MISS DAVIES .. .. .. .. .. 79
Re-examined by MR. WRIGHT .. .. .. .. .. 83

STEVEN BERNARD KARCH

Examined by MR. WRIGHT .. .. .. .. .. .. 88

Wednesday, 10th November, 1999.

MR. JUSTICE FORBES: Yes, Mr. Wright.

MR. HENRIQUES: My Lord, once Mrs. Evans has been recalled I have discussed matters with my learned friends this morning and there are no other matters that I would seek to elicit in examination-in-chief at this stage. There may be matters in due course that may require her to be recalled but on a different point entirely.

MR. JUSTICE FORBES: Right. Are you content to start your cross-examination now?

MISS DAVIES: Yes, thank you my Lord.

MR. JUSTICE FORBES: Mrs. Evans, if you would come back into the witness box please.

MR. WRIGHT: Furthermore, there is the schedule now, there is a schedule now available and will be distributed.

MR. JUSTICE FORBES: Thank you.

MISS DAVIES: My Lord, overnight we have prepared a schedule which deals with, in respect of each of the 9 exhumations, the date of death, the date of exhumation, whether or not each body was embalmed, the postmortem interval both in weeks and days, and the finding so far as Mrs. Evans is concerned, be it thigh alone or liver and thigh. I have shown it to my learned friend. He agrees it as a document and perhaps I could then hand it in.

MR. JUSTICE FORBES: Thank you very much.

MISS DAVIES: Can I also say during the course of the questioning of Mrs. Evans I will want to refer to some of the liver weights, we have put those into a chart, and also an extract from a textbook relating to weights of livers and skeleton muscles. These documents I hope Mrs. Evans received yesterday. Therefore, to avoid any delays in cross-examination perhaps I could hand all those documents in now.

MR. JUSTICE FORBES: Yes. Very well.

MISS DAVIES: My Lord, perhaps as we have now produced them they can go into the defence bundle, probably the easiest position be at the end of the defence bundle.

MR. JUSTICE FORBES: Into the front of which bundle?

MISS DAVIES: I was going to suggest the end but I don’t feel strongly, the defence bundle my Lord.

MR. JUSTICE FORBES: Yes.

JULIE EVANS, recalled
Cross-examined by MISS DAVIES

Q. Mrs. Evans, the position in the Autumn of last year was this, that you were carrying out your analysis over a period of time as samples were being produced for analysis?
A. That’s correct, yes.

Q. Because as a matter of fact bodies were exhumed over a period of time between August and the latter part of last year and as bodies were exhumed samples were taken and were sent or brought to you and you began and indeed continued your process of analysis?
A. Yes, that’s correct.

Q. And is it right to say that as you gave your evidence to the Court yesterday, beginning with the case of Mrs. Grundy and ending with the case of Mrs. Grimshaw, that represented your chronological process of analysis, save where you might go back to a case for further investigation?
A. Approximately, yes.

Q. When you began with the very first case, which was Mrs. Grundy, that was an analysis done on its own, it was the first exhumation and it was one exhumation and one exhumation alone?
A. That’s correct.

Q. In respect of that very first sampling you attempted to analyse 3 types of samples, one was blood, one was liver and the other was thigh muscle?
A. Yes.

Q. And was that in accordance with what would be perceived as good practice, namely to obtain a number of samples so that you can use them for comparative purposes?
A. Yes.

Q. Insofar as the blood was concerned you told the Court yesterday that there you encountered difficulties because the blood was solid clotted material which in your opinion had been caused by the embalming process?
A. I think that was the most likely explanation, yes.

Q. And therefore of the 3 samples that you received only one you could actually test and the testing was so limited that in fact you could take it no further at all?

A. That’s correct, yes.

Q. And is it fair to say this, that following your attempt to sample the blood on Mrs. Grundy there was no further blood sampled on any of the other bodies?
A. That’s correct yes.

Q. Then moving on to the first 4 cases, do you have a copy of this chart Mrs. Evans?
A. No I don’t.

Q. Let me give you one. It would be easier for you. I will hand you two documents to save time. It is the top document. Members of the jury, I am working off that long schedule. Mrs. Evans, what you can see there simply in chart form are the names of the various women whose bodies were exhumed, the date of birth, the date of exhumation, whether or not each body was embalmed, the postmortem interval in weeks and days and the total morphine findings both in thigh and liver, yes?
A. Yes.

Q. And I will say at once that the total morphine findings are from your reports and your evidence?
A. Yes.

Q. We can thus see that in the first 4 bodies, Mrs. Grundy, Mrs. Pomfret, Mrs. Mellor and Mr. Melia, there you did sampling of both thigh muscle and liver?
A. I did, yes.

Q. And in the remaining 5, Lomas, Quinn, Turner, Lilley and Grimshaw, you sampled only thigh?
A. Yes.

Q. Is my understanding of your evidence yesterday thus, that although you were able to analyse the liver in the first 4 cases, in the remaining 5 the state of the liver was such that you could not analyse it?
A. I could have attempted analysis but any interpretation would have been very much flawed, the decomposition was so far.

Q. So that by the time you get to the last 5 cases you have had to abandon two means or bases of analysis, namely blood and liver, and you have to rely on thigh muscle alone?
A. Yes. There were other tissues which we could have sampled but again because interpretation would have been difficult that was not attempted.

Q. When yesterday you were speaking of your decision not to sample liver in certainly Mrs. Lomas and Mrs. Quinn, in respect of Mrs. Lomas you said of the liver the extensive decay would not give a reliable result and in respect of Mrs. Quinn you said the decomposition would make meaningful interpretation extremely difficult?
A. Yes.

Q. Could you help please, why would extensive decay produce an unreliable result?
A. Just in that we could not be sure of which areas of the lobes we were sampling. You do get variations across livers anyway. There was a lack of tissues, tissue areas that were amass, there were holes evident within that liver tissue.

Q. And in respect of decomposition, for example in Mrs. Quinn, where you said it would make meaningful interpretation extremely difficult, how does a certain degree of decomposition make meaningful interpretation extremely difficult?
A. Meaningful interpretation of any liver, even a relatively fresh liver, is difficult because the differing lobes of the liver can have differing levels of a drug in them. The liver can act as a storage site. This isn’t going to apply to especially exhumed bodies, it could apply even to fresh bodies. So, given that we have these problems to deal with anyway it was felt that it was better to rely on the thigh muscle.

Q. Can I then please just for the moment and deal with the first 4 cases and your readings in respect of the liver?
A. Yes.

Q. What we have done, and it is the second document that I have handed to you Mrs. Evans, it is the shorter of the two documents, is extrapolate from the reports of Dr. Rutherford, the Crown’s pathologist, the liver weights in the cases of Mrs. Grundy, Mrs. Pomfret, Mrs. Mellor and Mrs. Melia. You see there the liver weights for the 4 cases?
A. Yes.

Q. I very much hope that you have the third document that I have handed in this morning. It is a publication the back sheet of which says that it is Current Methods for Toxic Practice. It is published in 1979 and of particular note for this part of the questioning, Mrs. Evans, is that part on the very first page, page 677, where we have percentiles of weights of normal liver. Do you have that?
A. I am afraid I don’t have it to hand.

Q. But you have seen it?
A. I have seen that one, yes. Sorry, I have not seen this one, this isn’t the document.

Q. My apologies?
A. Yes I have. It is just that it is stapled. Thank you.

Q. And it is the very first page I wanted to look at, page 677, percentiles of weights of normal liver, yes?
A. Yes.

Q. And if we look at that it is the second part of the page where we see there various columns where we can see the age of persons and the observed maximum and minimum weight, yes?
A. Yes.

Q. And if we look at the very final entry in that column in terms of age we see there age 70 to 79?
A. Yes.

Q. And we see there a maximum weight of 1,595 grams and a minimum weight of 1,100 grams, yes? Just going to the far right hand column, Mrs. Evans?
A. Right, yes.

Q. Those are the observed maximum and minimum weights and obviously there is a range between the two?
A. Yes.

Q. If we then look at the liver weights in the cases of the first 4 women, we can see that the livers of Mrs. Pomfret and Mrs. Mellor, Mrs. Pomfret let me say at once is 49 and therefore her liver weight would in fact be in the range 2,130 to 1,250,, she is in any event within the range, but one can see both in respect of Mrs. Grundy and Mrs. Melia that both those weights are lower than the normal liver weights?
A. Yes.

Q. Does that surprise you?
A. Not tremendously. I didn’t do any dehydration measurements on the livers of Mrs. Grundy and Mrs. Melia. It is possible that there could have been some dehydration of those tissues, some degradation. That is one of the reasons why we abandoned the liver testing.

Q. When you say some degradation what do you mean by that?
A. Any changes, breakdown in cells, loss of water putrefaction.

Q. You have spoken of loss of water, you have spoken of breakdown of cells. You have used the phrase putrefaction. That is rotting really, isn’t it?
A. Yes.

Q. So what you have in, let’s take the liver, there can certainly be loss of water can’t there?
A. There could be, yes.

Q. But there is also another process going on, namely the rotting process?
A. Yes.

Q. And one result of that rotting process is not simply loss of water, it is a reduction in mass?
A. Yes.

Q. And as a proposition would you accept that it is likely that certainly the reduced liver weights in Mrs. Grundy and Mrs. Melia reflect precisely that degradation, rotting process, and resulting loss of mass?
A. That is a possibility.

Q. If we then look at the correlation between the morphine finding in the thigh and the liver, while there appears to be a reasonable correlation between Mrs. Pomfret and Mrs. Mellor, 0.6 to 1 and indeed 0.7 or .9 sampling the thigh and the morphine being in the middle between the two, there is in fact as between Mrs. Grundy and Mrs. Melia in the order of a four-fold variation in the morphine reading as the between thigh and liver?
A. Yes.

Q. And those are precisely the two livers that are under weight and where you accept the possibility of degradation and rotting?
A. Yes.

Q. Just take Mrs. Melia and what again we have done is to go to the reports of Dr. Rutherford, the Crown’s pathologist, as to his findings as to the state of decomposition. As you would no doubt expect, Dr. Rutherford carried out the visual examination but also carried out a microscopic examination and histology. In respect of Mrs. Melia he attempted histology but found that decomposition was such that a full assessment could not be made. In respect of his overall examination he said all internal organs were affected by moderate decomposition with associated shrinking of organs. Now again would that be consistent with that low liver reading in Mrs. Melia of 332 grams?
A. It could be but I would suggest that would be better directed at Dr. Rutherford.

Q. In this particular case, as in others, that is Mrs. Melia, you found the amphetamine type substance which you attributed, in fact, to the process of putrefaction?

A. Yes.

Q. In other words the rotting process?
A. Yes.

Q. So what there appears to be in this case on your chemical findings the rotting process has produced results?
A. Yes.

Q. And on Dr. Rutherford’s visual findings the decomposition has resulted in shrinking of organs?
A. Yes.

Q. To be fair to you, Mrs. Evans, when you were giving the figures in Melia you put it this way, that the levels are a reasonable estimate but do not necessarily represent an accurate figure?
A. Yes.

Q. Is that because of that four-fold variation between the thigh reading and the liver reading?
A. It wasn’t because of that, it was that there was evidence of decay. You can get considerably higher levels in liver than in muscle tissue.

Q. Then just looking again at this table where we see quite clearly the different correlations, would you accept this, that Mrs. Grundy and Mrs. Melia, standing out as they do, this fourfold variability in reading, it is more likely than not that that variability is due to the process of decomposition?
A. It is certainly a probability.

Q. It being probably that it is due to that process, it must raise questions as to the reliability of any such reading?
A. In the livers, yes.

Q. And that is something which you have acknowledged in your answers?
A. Yes.

Q. Can I ask you this, you must have known having come to the end of those 4 cases that you had, certainly 2 out of 4, this fourfold variability. Was that a factor when you moved onto the next 5 which you took account in deciding, and I am not at the moment criticising you, in deciding that it wasn’t appropriate to attempt sampling in the liver?
A. Yes, it was part of the consideration.

Q. So was it really then a twofold consideration, one you had decomposed livers because in fact the liver in the next lady, Mrs. Lomas, was of very much the weight of Mrs. Melia, it was just in the 300 grams, was it a twofold consideration, one you had the decomposed organ and, secondly, you knew from your previous experience such decomposed organs were giving you difficulties in reliability of your analysis?
A. Yes.

Q. Right. So then you are left in effect with the thigh muscle?
A. Yes.

Q. Again this is not remotely a criticism, Mrs. Evans, you have tried the first line which is blood and have not been able to succeed. You have tried the second line which is liver and you have found, and properly found, it wasn’t reliable, and you have no choice but to rely on the third, which is the thigh muscle?
A. Yes. There were alternative samples, as I said earlier, but again I felt we would have had the same problems as we were encountering with the liver and given that data had been published on thigh muscle I felt that was the best course of action at this stage.

Q. Probably the greatest difficulty you faced in carrying out this analysis was the length of time that these bodies had been in the ground?
A. Yes.

Q. Because again if we just look at the longer table, the very first table, the shortest was the very first exhumation which was Mrs. Grundy. That was 38 days. In respect of Mrs. Pomfret it was 287 days; in respect of Mrs. Mellor it was 134 days; Mrs. Melia 101 days; Mrs. Lomas 501 days; Mrs. Quinn 332 days; Mrs. Turner 852 days; Mrs. Lilley 566 days; and Mrs. Grimshaw 512 days?
A. Yes.

Q. You were embarking on somewhat novel territory, weren’t you, in having to carry out this analysis on bodies exhumed for this period of time?
A. Yes. There has been very little done in terms of studies on exhumed bodies. There are relatively few exhumations for toxicology purposes anyway.

Q. And that did not make your considerable task any easier?
A. No.

Q. Because as a matter of fact morphine levels in dead bodies are generally taken from the blood if that is possible?

A. Yes. The majority of research would give you a blood level as opposed to a tissue level.

Q. That is why at first try you go for the blood because that is where the research has been done, that is where comparable levels have been produced as a result of studies and research?
A. In fairness I wouldn’t expect blood from an exhumed body to give reliable results anyway.

Q. Is that because of postmortem redistribution?
A. Yes.

Q. But in fact the whole issue of postmortem redistribution really was being talked about in the late 80s and it was only at that point there was this realisation that the readings in blood in exhumed bodies was difficult if not impossible to interpret, is that right?
A. There are great difficulties if the means of sampling is not known and a lot of the data published can now be actually deemed to be unreliable.

Q. And so for scientists like yourself working in the field, let’s take it from the late 80s, there has been this growing realisation, certainly over the last 10 years, of the unreliability of blood readings and indeed research is going on even as of now, isn’t it?
A. Yes.

Q. Were you present in Dublin when Gisela Scopp presented her paper in the summer of this year?
A. No I wasn’t.

Q. You have read it haven’t you?
A. I am aware of it.

Q. It is yet another paper that highlights the difficulty of postmortem redistribution in blood levels and morphine readings thereafter?
A. Yes.

Q. By reason of this case, Mrs. Evans, I have had to learn about postmortem redistribution but it may not be the first phrase on everybody’s lips. Could you tell us quite shortly what is meant by postmortem redistribution process?

A. In very simple terms it is the way in which drugs move around the body after death. Although the heart has stopped pumping that does not mean that everything within the body has stopped. In the same way as you can have a liquid where you have a concentrated area at the bottom, leave that to stand and it can diffuse around so that you end with a more even distribution. That can happen in a body, particularly if there is an organ close to a blood vessel that carries a high concentration such as the liver. If you were to take a blood sample close to that there is a possibility that you are not only going to draw blood from the liver but are also have an elevation of drug levels if only by simple diffusion, but that is not the whole story.

Q. It is a pretty complicated story isn’t it?
A. Yes.

Q. And it is a story in which research is going on and if anything it is throwing up more problems as to the difficulty with interpretation?
A. Yes.

Q. Notwithstanding those difficulties of interpretation, blood is still the first sample of choice?
A. It is, especially if you know the site from which blood was taken.

Q. But as we know that was a choice that simply wasn’t available to you?
A. That’s correct.

Q. So you had to move forward on the muscle tissues. The particular difficulty you faced was the absence of scientific studies on morphine levels in muscle tissue?
A. There was relatively little data on any tissue samples.

Q. And indeed such data as existed was not the result of controlled scientific studies, it was purely anecdotal?
A. That’s correct. There have been no controlled studies into this phenomenon.

Q. Because they cannot be done?
A. That’s correct.

Q. So the most one is left with is anecdotal reports of fatalities?
A. Yes.

Q. You yesterday cited the paper produced by Phelby. I think that was 1974, wasn’t it?
A. Yes, Soren Phelby.

Q. And that cited 10 cases where there was death which was attributed to morphine?
A. Yes.

Q. You told the Court yesterday that there was no report of the route of administration?

A. In the work of Phelby it says there it is intravenous, but because it is purely anecdotal I don’t think you can have 100 percent confidence in that as being the route of administration. It is the suggested route.

Q. Indeed, and that is the difficulty, isn’t it, it is anecdotal, it is not in a controlled study?
A. Yes.

Q. And in fact in the Phelby study, although there were 10 cases cited only 6 muscle readings were given of the 10 cases relied on?
A. I think you will find there were 7.

Q. I don’t doubt you are right, Mrs. Evans?
A. It wasn’t in all 10 the muscles were measured.

Q. Of the 10 cases relied upon, because some were not relied upon because other drugs were found, of the 10 cases relied upon, 6 of them gave muscle readings. There was a 7th muscle reading but there was evidence there of another drug being found?
A. That’s true, yes, there was another drug present.

Q. So confining it, because there were 14 cases in all weren’t there?
A. Yes.

Q. 4 were eliminated because other drugs were found in the blood?
A. Yes.

Q. Of the 10 cases remaining, only in 6 of those were there muscle readings given?
A. Yes.

Q. And as you told the Court yesterday the most that one can extrapolate from that is that it was a muscle but there is no information as to which muscle in the body it was?
A. That’s correct.

Q. Is it fair to say this, Mrs. Evans, that by reason of reliance on literature such as Phelby’s article, the most one can do is to make broad generalisations?
A. That’s correct, but my conclusions weren’t just based on the work of Phelby.

Q. But notwithstanding, I am willing to broaden it but is it fair to say that by reason of reliance on literature the most when it comes to levels one can do is to make broad generalisations?
A. Yes.

Q. And indeed yesterday you gave us a range, did you not, and that is extrapolated from the literature?
A. Yes.

Q. Specifically in respect of morphine levels found in muscle there is no good scientific evidence upon the interpretation of morphine levels found in muscle postmortem in an exhumed body?
A. Not under controlled conditions, no.

Q. The science behind the finding is not known, and by that I mean what is not known is the process both in the drug and the muscle which leads to the final conclusion?
A. I don’t understand.

Q. Processes go on in the dead body notwithstanding the fact that it is dead?
A. Yes.

Q. You come to a body days, weeks, months, in this case years, after the death?
A. Yes.

Q. As a scientist you will be aware of processes which can go on?
A. Yes.

Q. As a matter of fact in each of those bodies you cannot say what process and to what extent it went on?
A. That’s correct, yes.

Q. So therefore in respect of any finding of yours, although you can recognise as a scientist the processes exist, you cannot say whether that particular process went on and if it went on to what extent it went on?
A. That’s correct, yes.

Q. Another difficulty which you faced is that because no studies, scientific studies I am talking about now, have been carried out, you do not have a control group and therefore no scientific comparators against which you can interpret the levels you found?
A. No. The only interpretation that can be placed is on levels that have been found in previous muscle tissues.

Q. There is no data available on the disposition of diamorphine or morphine and their metabolites in tissues from experimental studies in controlled conditions, that’s right isn’t it?
A. That’s correct.

Q. There is no data available on the stability of morphine and morphine glucuronide in muscle tissues?
A. That’s correct.

Q. There are no studies available on residual glucuronide activities in postmortem muscle tissues?
A. There are some limited studies.

Q. And insofar as, are those the studies you referred to as Stephen studies which refer to 28 days?
A. Yes. That is the one that does some morphine in livers.

Q. That is morphine in livers?
A. Yes.

Q. So it is not even in muscle tissue?
A. No.

Q. And in fact it is outside the period in all these cases because the shortest period we have here is 38 days?
A. Yes.

Q. So as a matter of fact there are no studies on residual glucuronide activities in postmortem muscle tissues?
A. Yes, in glucuronides, yes.

Q. I have just been asked if I would ask you to explain what a residual glucuronide is?
A. Glucuronides are these breakdown products that the morphine goes to. In getting the total you are measuring morphine glucuronides and morphine.

Q. As a matter of fact the long-term stability of morphine and diamorphine in postmortem muscle tissue has not been scientifically investigated?
A. Not adequately.

Q. There is no data available on the effect of embalming and specifically the effect of formaldehyde on muscle tissue and/or morphine?
A. That’s correct, yes.

Q. There is no data available on the taking of morphine in life and how it is converted into levels subsequently found in muscle?
A. That’s correct.

Q. Crucially there is no data available as to the muscle morphine concentration produced by a therapeutic dose of morphine in life?
A. That’s correct. You could not take tissue, muscle tissues from someone in life.

Q. You, to be fair Mrs. Evans, have acknowledged the difficulties you faced in attempting to interpret such levels and you said in your report, at pages 1187 FR, that caution must be used in interpreting the levels found. Is that something you stand by now?
A. Yes.

Q. And you also added a further caveat to that in respect of the caution because you said that in respect of the data at which you had looked on which some conclusions were based, that data was in the main from relatively fresh samples?
A. Yes.

Q. As matter of fact as a scientific, Mrs. Evans, you have actually been breaking pretty new grounds in this analysis that you have been carrying out, haven’t you?
A. Yes.

Q. So you are left with some anecdotal studies which do not give you evidence upon which you can safely rely as to the route of administration?
A. Yes.

Q. You are left with anecdotal studies which at best tell you it is muscle tissue?
A. Yes. They say it is skeletal muscle tissue.

Q. And you are left, and it was a phrase you used a number of times yesterday, that it was the opinion or that the cause of death was attributed to the use of morphine?
A. No, that the levels fell within a fatal, within the range previously reported. I haven’t speculated it is actually the cause of death.

Q. I was going to the actual anecdotal studies. In respect of the anecdotal studies you said that the cause death was attributed?
A. Yes, in the studies it has been attributed.

Q. And you used that word a number of times yesterday, attributed. What one was left with as a result of reading those studies was in effect relying on the opinion of those who had played a part in the investigation?
A. Yes.

Q. Another word you used yesterday was excessive in terms of dose?
A. Yes.

Q. Would the position be this, that looking at those anecdotal studies you are inferring that the levels you have found here relate to an excessive dose because in those studies those levels have been attributed to death?
A. Not just in doing that. In those studies they also did comparisons to blood levels which given, we do have doubts on the reliability of blood levels anyway, so we have the first pointer that these were fatalities so they were indicating excessive doses from the anecdotal information. In addition to that the studies tended to show that thigh muscle tissues, muscle, skeletal muscle tissues, are generally in reasonable agreement with what you might expect from a blood level. Though they are not exact, the range could take them up to give you around 3 to 4 times actual level. Basing some very loose calculations on that it would suggest that these are not the sort of levels that you could get from somebody taking a normal over the counter preparation in a normal dosage regime.

Q. Which was evidence you gave later?
A. Yes.

Q. Can I move on now please to the way in which you calculate or the basis of your calculation because your unit of measurement is the mass of drug per unit mass of muscle, is that right?
A. Yes.

Q. There is no criticism as to your method of measuring and analysing but you are having to contemplate certainly 3 possibilities, because in all of these cases there is a significant period between death and your sampling procedure?
A. Yes.

Q. You have to contemplate what if anything could have changed between death and when you carry out your analysis?
A. Yes.

Q. The first thing that could have changed is the drug?
A. Yes.

Q. The second thing that could have changed is the muscle mass?
A. Yes.

Q. And the third are factors which could alter the concentration as between drug and muscle mass?
A. Yes.

Q. Let’s deal with the very first decomposition. You have already alluded to it, it being one the reasons you did not in fact proceed with your liver sampling. Can I ask you this, have you ever seen a decomposed exhumed body?

A. Yes.

Q. Frequently?
A. Not frequently, no.

Q. All these bodies showed some signs to a greater or lesser extent of decomposition?
A. Yes.

Q. In Mrs. Grundy the liver, and can I tell you I am obtaining this from Dr. Rutherford’s report, in Mrs. Grundy the liver showed some signs of the effects of embalming?
A. Yes.

Q. In Mrs. Pomfret decomposition had taken place and the liver showed signs of significant decomposition?
A. Yes.

Q. In Mrs. Mellor there was decomposition, the liver demonstrated significant decomposition. In Mrs. Melia exactly the same thing, decomposition, the liver demonstrating significant decomposition?
A. Yes.

Q. In Mrs. Lomas in respect of the thigh there was extensive decomposition. That is Dr. Rutherford’s finding?
A. I haven’t actually seen Dr. Rutherford’s finding in relation to that.

Q. In Mrs. Quinn there was some decomposition and there was decomposition in the left thigh muscle, were you aware of that?
A. I wasn’t aware but my visual examination suggested decomposition.

Q. In that particular body, Mrs. Quinn, Dr. Rutherford said the body was in a state of poor preservation and disintegration and in fact the disintegration of soft tissue was most marked in the left thigh, skin, ankle and foot?
A. As I say, I have not seen that.

Q. In Mrs. Turner and indeed Mrs. Lilley there was extensive decomposition and in Mrs. Grimshaw there was some. Now, as you have earlier accepted, the effect of decomposition is not just the loss of water, it is also a reduction in mass?
A. A loss or reduction in mass is due to dehydration of tissues and rotting but if you are rotting it, the mass that you take would still be the same. If you have got a hole there and you took one gram of it you would still have one gram. The hole wouldn’t weight anything. It is dehydration that accounts for a lot of the shrinkage of these organs.

Q. But it does not account for all of them, does it?
A. No it doesn’t account for all.

Q. So what you have is the loss of water, you have a chemical process going on which breaks down low volatile compounds?
A. Yes.

Q. You have loss of low volatile compounds?
A. Yes.

Q. And you have just a loss of mass?
A. Yes.

Q. Can I take the sort of example that I suspect I can more easily understand, a piece of meat. Just look at the times these bodies have been in the ground. If one put a piece of meat in the fridge, take Mrs. Grundy, for 38 days, I am sure in this Court we would all be able to, if not visualise, understand that the rotting process is not just water, it affects the whole piece, doesn’t it?
A. Yes, microbial activity breaks tissues down.

Q. And so what you are having is a shrinkage to a greater or lesser extent of that piece of meat?
A. Yes.

Q. So if there was something in that piece of meat, let’s say a drug, and there was that shrinkage, that concentration of that mass, that would increase the level of the drug wouldn’t it?
A. Only if, only in terms of, in taking one gram the area might be a bigger area if there was holes in it. You don’t actually get a shrinkage in weight. I actually have measured out one gram.

Q. But one gram might have been 2 grams but you don’t know because that shrinkage process has gone on?
A. Some shrinkage could have gone on.

Q. And the effect of shrinkage is to concentrate the mass isn’t it?
A. Parts of it, but given the water content of these, whether it was purely water or putrefactives, amounted to around what I would have expected in life. It didn’t suggest to me that there was significant shrinkage in terms of increasing that, the concentration of drug from the experiments I carried out. I can’t exclude it completely but—

Q. The other difficulty you have is that none of these bodies were weighed?

A. That’s true, yes.

Q. It is known that there is loss of weight from skeletal muscle?
A. Yes.

Q. So you have no in life comparator do you?
A. That’s correct.

Q. And you have no at time of death comparator have you?
A. No.

Q. So you acknowledge there would be loss of water you have attempted to quantify?
A. Yes.

Q. But in addition to that loss of water there has to be some loss of mass due to the process of decomposition?
A. Yes.

Q. The problem you have is you cannot quantify it can you?
A. That’s correct.

Q. And what that process of concentration will do is to increase any drug in that mass, the level of the drug in that mass?
A. To some extent, but from my visual examination I wouldn’t, it would suggest to me there wasn’t extensive concentrations. There could have been some concentration I will accept.

Q. And you also accept that if there has been some concentration the very fact of concentration would elevate the drug level in that mass of muscle it?
A. Could elevate it, yes.

Q. And whatever calculation you have done on loss of water is not the complete answer to that concentration of muscle and the resultant level of drug rising?
A. Yes.

Q. Have you also, speaking of decomposition I hope, because I did actually ask it be given to you yesterday, Mrs. Evans, have you been given an article headed Time Since Death and Decomposition of the Human Body, Variables and Observations in Case and Experimental Field Studies by Mann et al?
A. Yes I have.

Q. Have you had an opportunity to read that?
A. I have had an opportunity to read the majority of it, yes.

Q. Can I give you a copy. My Lord, I am more than happy that this be circulated. It is a short point and unless anyone wants me to for the time being I won’t. What in fact that was looking at was the findings and observation of 8 years of research which may clarify some of the questions concerning bodily decay, yes?
A. Yes.

Q. Turning to page 108 of that paper, in fact Mrs. Evans, quite inadvertently it has been marked so you probably can see the point I am going get to anyway, it is under embalming?
A. Yes.

Q. “Embalming does greatly slow the decay rate of the body Further, the pattern of decay is different in an embalmed body from one that decays naturally. For example, unembalmed bodies usually show the first signs of decay in the face whereas embalmed bodies first show decay in the buttocks and legs perhaps as a result of insufficient penetration of the embalming fluid in these areas.” Yes?
A. Yes.

Q. Do you have any reason to disagree with this article, which I know has subsequently been taken up in other textbooks, as a proposition as to the process and areas of decomposition?
A. Certainly it is a proposition. I would question just how reliable it is seeing as it is based on a single body buried, it would appear, directly into soil, but yes, I would accept that this is published and has been accepted in other works.

Q. So you accept that this has been published and accepted in other works and following from this it certainly suggests that in embalmed bodies the first sign of decay is in the buttocks and legs?
A. Yes.

Q. And we know, because you have told the Court, that in respect of the muscle that came from the thigh, ie the leg?
A. Yes.

Q. And if again we look at our chart again we can see that of the 9 bodies that were exhumed 6 of them were embalmed, Mrs. Grundy, Mrs. Pomfret, Mrs. Mellor, Mrs. Lomas, Mrs. Quinn, Mrs. Turner and Mrs. Grimshaw. I don’t think there is any dispute about that, is there Mrs. Evans?
A. There is no dispute, only that in some of the cases I didn’t have the full details about the embalming.

Q. Very well. My Lord, I am entirely in the hands of the Court. I am conscious these are not the easiest of topics, and you indicated yesterday that we would stop at appropriate moments. I am going on to a separate topic now. I am more than happy to continue with but if it is appropriate I should stop now I will do that.

MR. JUSTICE FORBES: It is a matter for you, Miss Davies, really. How long is this next topic going to take roughly?

MISS DAVIES: I can take this in about 5 minutes.

MR. JUSTICE FORBES: Right.

MISS DAVIES: Let’s just deal now please with embalming, because you told the Court yesterday that embalming fluid contains as its main active ingredient the chemical formaldehyde?
A. Formaldehyde and methanol, yes.

Q. Forgive me, you gave both. And you have already accepted that there is no research on the effect of formaldehyde on morphine levels found in muscle tissues?
A. That’s correct.

Q. The effect of formaldehyde is that it may chemically change one drug to another and by reason of that affect the concentration of the drug ultimately detected?
A. With some drugs yes, that does happen.

Q. A drug concentration determined in formaldehyde affected tissue cannot be taken at face value as the real level of the drug in the tissue before formaldehyde was added is not actually known?
A. That’s correct.

Q. The effect of formaldehyde can be different depending on whether it is in the tissue itself or in the surrounding tissue?
A. Yes.

Q. If the formaldehyde is in the tissue it can increase the mass of the tissue because basically it is adding liquid?
A. Yes, diluting out effects.

Q. However, if it is in the surrounding tissue it has a dehydrating effect doesn’t it?
A. Yes.

Q. And what it can do is extract the water into the surrounding tissue?
A. Yes it can.

Q. And therefore it would increase the concentration of the muscle mass?
A. That is the theoretical possibility. However, of the works that I have seen done with embalming fluid the majority suggest that embalming has a dilution effect, it actually is increasing mass more than decreasing it. But I would accept that if it is not actually penetrating that tissue there is a possibility that formaldehyde could draw water away.

Q. As a matter of fact in the 6 bodies that were embalmed the most you can say is that formaldehyde was used as part of the embalming process but you cannot say in any one of those samples what effect formaldehyde had on the sample you tested?
A. That’s correct.

MISS DAVIES: My Lord, could I stop there now please?

MR. JUSTICE FORBES: If that is convenient?

MISS DAVIES: Yes.

MR. JUSTICE FORBES: Very well, members of the jury, I will give you a short break for 10 minutes before we move on to the next part of the evidence.

Short adjournment

MR. JUSTICE FORBES: Yes, Miss Davies.

MISS DAVIES: Mrs. Evans, we have insofar as some questioning is concerned come thus far, it is accepted that in all of these bodies there is a greater or lesser degree of decomposition?
A. Yes.

Q. Which is wholly to be expected given the period of time between death and exhumation?
A. Yes.

Q. The process of decomposition brings about changes in the deceased’s body affecting various parts of it, including muscle, tissue and levels that can be found therein?
A. Yes.

Q. In respect of a muscle, that muscle can become more concentrated, ie can shrink down, by reason of rotting, putrefaction, call it what you will?
A. Yes.

Q. And the process of that concentration can elevate any subsequent drug level found in that piece of muscle?
A. To some degree, yes.

Q. And the difficulty that you and any other scientists like yourself have is you cannot quantify the degree to which that elevation has occurred?
A. No. Other than measuring water content there is no other means to determine that.

Q. But the water content only tells part of the story because what you cannot quantify is the loss of other compounds, materials, whatever?
A. Yes.

Q. So that for example you could have that 2 gram piece of tissue that would have been present at the time of death but when you go to carry out your sampling, by reason of this process of rotting or decomposition that 2 gram piece of tissue has shrunk down to a one gram piece of tissue?
A. That could happen, yes, but what must be remembered is that the drug isn’t just distributed in the tissue area, it is also distributed in the water content as well.

Q. But the problem that you have is that because you do not know the weight of the original tissue, and by no proper means could you know that, you have to deal with the tissue as you find it at sampling?
A. That’s correct.

Q. And you have to deal with it and you really did have to deal with these in quite difficult circumstances didn’t you, given the decomposition?
A. Yes.

Q. So we are left with this, that you are doing your professional best to analyse decomposed material and produce a level when by reason of the processes which have occurred in that tissue you do not know whether the level accurately reflects the level it would have obtained at the time of death?
A. That’s correct.

Q. Can I now please just deal with one example and it is the longest period, it is Mrs. Turner. If we look at our chart Mrs. Turner died on the 11th July 1996. The postmortem interval was 852 days and in fact it was in, I am sorry?
A. It is okay. I have my own table anyway.

Q. In respect of Mrs. Turner that gave the highest level of all your morphine readings, the reading in the thigh muscle being 1.4 to 1.6?
A. Yes.

Q. When you carried out your analysis of water content Mrs. Turner was the lowest, wasn’t she?
A. Yes, she was. There was around about a 7 percent reduction from what you would normally expect.

Q. I think it was 67 percent when you gave the average reading as being 74 percent?
A. Yes.

Q. Insofar as autopsy findings were concerned, I am now going to Dr. Rutherford’s report again Mrs. Evans, he describes the decomposition there as moderate and characterised by fatty tissue turning to soap. There is in fact a particular description of that, is there not?
A. There is. I am afraid I can’t recall exactly the term at the moment.

Q. I think it is adiposae but I may not be pronouncing it correctly?
A. Yes.

Q. He also found patchy parchmentation affecting the skin and subcutaneous tissue and the internal tissue?
A. Yes.

Q. Were you aware of that?
A. I was aware of that.

Q. And another word for patchy parchmentation would be drying?
A. Yes.

Q. He found drying of the skin, subcutaneous and internal tissue?
A. Yes.

Q. Were you aware that when Dr. Rutherford attempted histology on the body of Mrs. Turner he found that the degree of post mortem degenerative changes precluded meaningful interpretation?
A. Yes.

Q. In toxicological terms it was found that it was suggestive of extensive decomposition?
A. Yes.

Q. Given that in Mrs. Turner’s case we have one of the longest intervals between death and exhumation, on your analysis of water content it is 7 percent below normal, on Dr. Rutherford’s findings there is decomposition, there is drying affecting internal tissue and degenerative changes precluding histological interpretation, do you think it is simply coincidence that the reading you have there found is the highest morphine reading?
A. I think in part there was dehydration to account, so that is going to have devaluated it possibly by some 10 percent but I would still put it above 1, especially given that I took the areas deep within the muscle tissue where there was some reddening so I deliberately targeted where there was less decomposition. There obviously is going to be some contribution from the decomposition, the extent of which I can’t measure, but I couldn’t say that entirely accounted for that being the highest level.

Q. And we have this don’t we, we have the highest level which you say firstly is likely to be affected by the reduced water content?
A. Yes.

Q. You accept that decomposition would affect that reading but you cannot quantify the extent?
A. Yes.

Q. And can I just deal please with your point on the decomposition. You went in to try and find a deeper level of tissue, is that right?
A. Yes I did.

Q. The process of decomposition is caused by bacteria, is it not?
A. That is one of means of decomposition, yes, bacterial invasion.

Q. And the bacteria would come from the lower abdomen?
A. Yes.

Q. It would work from the inside out?
A. Assuming that the skin surface was intact. We know that some of the skin surface was not intact, therefore you would get microbial invasion from the surface as well, but yes.

Q. Therefore when you are going into that deeper tissue you are actually going deeper to the path of bacteria that is coming out, aren’t you?

A. Only if you are also tracking upwards. If we were just tracking down, all I looked for was the areas that looked most like you would normally expect to encounter in a fresh sample, so yes, they went deeper into it in that I have a skin surface and then I just tracked down. That does not necessarily mean that it was closer to the abdominal cavity.

Q. You cannot say?
A. I can’t say.

Q. And to be fair to you again you are trying to do your professional best but this wasn’t a scientific finding, it was a visual finding?
A. It was.

Q. But you accept the process of bacteria would be working from that lower gut out?
A. Yes.

Q. Insofar as you carried out again your water content calculations, the two where you found reduction in the heart were Lomas and Quinn, were they not? I think you found a 29 percent reduction in each?
A. Yes.

Q. Mrs. Quinn, together with Mrs. Grimshaw, was the lowest morphine reading, it was 0.3 to 0.4?
A. Yes.

Q. Given that you had found reduced water content in the heart which again can affect the concentration of an organ, can’t it?
A. It can affect?

Q. The concentration of an organ, the reduced water content?
A. In the heart, yes.

Q. The only other sampling that you dealt with in Mrs. Quinn was that of the thigh?
A. Yes.

Q. Insofar as you carried out this analysis of water content you said in your report, page 1187 FK, it was the paragraph after you cited your percentage findings, you said, “The water content of muscle tissue is generally regarded as approximately 74 percent. Thus my findings suggest that little dehydration had taken place in the tissues used in the morphine determination in these 9 women. It is, however, by no means certain that the water present in the muscles was that present at the time of death. It may be that some exchange has occurred.” What has happened, Mrs. Evans, in that process?

A. In that a lot of these were in very watery ground, some of the coffins were actually water filled. I can’t be sure that the water I was determining was the water that was present at the time of death. It is, of course, possible there was some dehydration but then you have tissues sat in a watery solution and rehydrating from the water surrounding the body.

Q. So if we have one fluid coming in and moving around, yes?
A. Yes.

Q. Drug would be in fluid form, wouldn’t it?
A. The drug from the body could have gone out into the liquid in the coffin and then subsequently been reabsorbed, yes.

Q. So as you have this exchange of water fluid there could also be movement of drug fluid, couldn’t there?
A. There could if the drug has gone out into this solution, which is a distinct possibility. It could then be reabsorbed in the muscle tissue. But it had to have come out of the body in the first place to be reabsorbed.

Q. That creates another uncertainty as to the level of drug subsequently found?
A. Yes.

Q. And within the fatty tissues in the muscle there can be pooling of blood, can there not?
A. Yes.

Q. It can drain muscle of blood?
A. As I understand it, yes.

Q. And it can go the other way and congest it by adding to the blood in the tissue?
A. Yes.

Q. Because all the time a body is in the ground there is this physical process of diffusion going on?
A. Yes.

Q. So again that can effect any subsequent reading in muscle?
A. Yes.

Q. Within the muscle is fat, isn’t there?
A. Yes.

Q. The morphine is a highly fat soluble drug?
A. Relatively speaking it is fat soluble, yes.

Q. As a matter of common sense the amount of fat in any one person varies?

A. Yes.

Q. And therefore the amount of the fatty streaks in the muscle is going to vary person to person?
A. Yes.

Q. And therefore in those fatty streaks there could be different concentrations of a drug?
A. That is a possibility, yes.

Q. It is accepted, isn’t it, that within one person, taking drug levels in muscle there is muscle variability?
A. From one muscle to the next yes there is. There don’t appear to be significant variations within the same muscle as long as it is a remote skeletal muscle, such as the thigh muscle.

Q. There are some variations?
A. There are some variations, I think as much as a fourfold variation has been reported, but I did take 2 different areas and did have good correlation suggesting there wasn’t significant variation within the muscle tissue I was sampling.

Q. You took two samples?
A. In the cases, yes, I took two samples of muscle tissue.

Q. But the difficulty is this, isn’t it, that within that sample procedure, and I am not criticising you Mrs. Evans, please don’t think that, accepting that there is this muscle variability even within one piece of muscle, you cannot be confident that a third or fourth reading would have produced a different result?
A. I would doubt that it would within the muscle tissues I had. I suspect partly as a result of the fact they had been deep, they had been in the ground so long that an equilibrium had been established. It may be a factor that these bodies had been in the ground so far that we weren’t seeing significant variation across the muscle tissue, as opposed to some of the studies where they have seen these differences which were in relatively fresh samples.

Q. This issue of variability, the muscle variability, is another aspect of the process which can be affected by postmortem redistribution, isn’t it?
A. Yes.

Q. And the most you can proffer, and properly proffer, is an opinion that the muscle tissue is less likely than blood to be affected by post mortem redistribution, but it is still susceptible to it?
A. Yes.

Q. And the difficulty that you encounter is that, accepting that a postmortem redistribution will affect that tissue, you do not know to what extent because you have not been able to carry out any trials prior to your sampling?
A. Correct, in the same way as the people who conducted the original studies couldn’t know that.

Q. That is a difficulty which any scientist in your position would face?
A. Yes.

Q. Can I now please deal with the drug. We have already seen that within the body. Let’s just take the first 4 cases. There are differences in levels. I mean the starkest example are two of those cases where there is a fourfold difference?
A. Yes.

Q. As you have already accepted, notwithstanding the fact that a body is dead and indeed buried, there is still diffusion within that body?
A. Yes.

Q. And as you have accepted there is, for example, diffusion of blood, there is also diffusion of drug?
A. Yes.

Q. And again one of the difficulties that you would have encountered is that although as a scientific you know that that diffusion will have taken place, in respect of any specific body you do not know the nature or the extent of that procedure in any one body?
A. That’s correct.

Q. Putting it very shortly, Mrs. Evans, you do not know as a matter of fact where and at what level any drug was in the body at the time of death?
A. That’s correct.

Q. The most you have been able to do, and properly been able to do, is achieve a level which you believe to be, as you described it yesterday, representative?
A. The most representative level that we would expect in tissues of these types.

Q. But the major difficulty is you cannot say as a scientist that it accurately reflects the level of the drug at the time of death?
A. That’s correct.

Q. Would you just allow me one moment. One of the other difficulties that you encounter, or it may be you don’t even have to apply your mind to this, tell me if that is the case, is that although you find a level you are not able to say whether that represents one dose or more than one dose?
A. I can’t say.

Q. What I would like to do now, Mrs. Evans, is just move on to the individual cases please and just deal with some of the factors that arose within them. If at any time you want to look at any more documentation please don’t hesitate to say so?
A. Thank you.

Q. In respect of Mrs. Grundy, I am going to take them in the order that you gave evidence to the Court, in respect of Mrs. Grundy you were aware, were you, that according to the pathologist the liver showed some of the effects of embalming?
A. I was not aware at the time of the analysis but I have subsequently been made aware of that.

Q. And we have already dealt with the effect of formaldehyde and I am not going to go through that again. You said in this case, as you did in others, that you did not undertake testing for all drugs?
A. That’s correct. It is impossible to test for every drug anyway.

Q. And again, I am not putting that as a criticism, it is a fact you go so far and you stop?
A. Yes.

Q. It was a further finding by Dr. Rutherford that in respect of the internal organs of Mrs. Grundy all were affected to a greater or lesser degree by embalming. Were you aware of that?
A. Yes I was.

Q. Now after you carried out the analysis of the samples obtained from the body of Mrs. Grundy you were asked then to analyse one particular tablet which was found near a bedside table?
A. Yes.

Q. And you found that in fact to be nitrazepam?
A. Yes, a 5 milligram nitrazepam tablet.

Q. Which is a sleeping tablet?
A. Yes.

Q. And you were asked about that and about the overdose produced by the taking of too many of those tablets and you described certain symptoms. As a matter of fact have you ever had to treat or deal with anyone suffering from nitrazepam overdose?
A. No, my comments were based on literature reports.

Q. In other words you went to the textbooks?
A. Yes.

Q. Because your field is that of science, you are a chemist you are not a doctor?
A. Correct.

Q. In your report, and indeed in the evidence that you gave to the Court yesterday, you said that in respect of nitrazepam it is not stable in biological specimens which are not stored under refrigerated conditions?
A. That’s correct, yes.

Q. As a matter of fact Mrs. Grundy, obviously her body was not stored in refrigerated conditions. You accepted in the report that you made to the Court the possibility that any nitrazepam present at the time of death may have been lost?
A. Yes.

Q. That is because of the basic instability of the drug in unrefrigerated conditions?
A. Yes.

Q. In respect of Mrs. Pomfret there decomposition had taken place. In respect of Mrs. Pomfret’s liver there were signs of significant decomposition. In respect of Mrs. Pomfret your finding was positive for opiates, benzodiazepine and amphetamine type substance, and this was probably the first of the cases, wasn’t it, where you attribute the initial finding of the amphetamine type substance to the process of putrefaction?
A. Yes.

Q. Rotting?
A. Yes.

Q. You were subsequently asked in the case of Mrs. Pomfret to consider the issue of lithium?
A. Yes.

Q. I don’t know how much you know about this lady’s medical history. Were you aware there was a rather lengthy psychiatric history and she been in receipt of medication?
A. I was aware of medicines she was in receipt of over a period. In terms of her actual medical conditions I could only surmise from the medicines prescribed that that was the case.

Q. Were you aware that when this lady died her treating psychiatrist, Dr. Tait, got in touch with Dr. Shipman because he had a fear that she may have committed suicide?
A. I have only recently been made aware of that, yes.

Q. And you were asked to consider whether or not this lady had died from a lithium overdose?
A. Yes.

Q. Does it follow from the answer you gave in respect of nitrazepam that you have never seen nor indeed had to treat any person suffering from a lithium overdose?
A. That’s correct.

Q. Does it follow that any evidence that you gave as to any such symptoms comes, as in the previous case, from textbooks or medical literature?
A. Yes it does.

Q. As a matter of fact you did not analyse to see if lithium was present, did you?
A. I didn’t, no.

Q. Lithium is an element, one of the most basic forms of chemical, isn’t it?
A. Yes.

Q. It would not have deteriorated so if you so tested you would have been able to discern whether it was there or not?
A. Yes, but the levels wouldn’t have been interpretable given that we were looking at thigh muscles. Again we are back to how do you interpret what you find anyway.

Q. Is that why you did not carry out that particular procedure?
A. Yes.

Q. Can I turn please to Mrs. Mellor. Again the liver, significant decomposition, again here was another body where you found the putrefaction, the chemical evidence of putrefaction on that initial screening of an amphetamine type suggestion?
A. Yes.

Q. And again, like Mrs. Grundy, again not a criticism, such testing as you carried out was not exhaustive, not all drugs were excluded?
A. That’s correct.

Q. Mrs. Melia. We can probably do it this way, Mrs. Evans, do you have pages 423 and 424 in our bundle of your statement of the 26th October 1998? If it is easier for you to deal with it in this way it is pages 4 and 5 of your statement of the 26th October 1998?
A. I don’t actually have your bundle at all. This is my own.

Q. Let’s make sure you have those 2 pages. I will tell you at once it is to do with the medication found in respect of this lady. Do you have your statement in respect of Mrs. Melia of the 26th October 1998?
A. I do.

Q. Then let’s just turn to that. Have you got it in front of you?
A. I have.

Q. Do you have pages 4 and 5?
A. Yes.

Q. At page 4 of your statement, page 423 of our bundle, you there set out the medication which you were given, your understanding being it was medication found at the home of Mrs. Melia at the time of her death?
A. All I knew it was passed to the police by a relative.

Q. I see, and then it was subsequently passed to you?
A. Yes.

Q. And there you list the medication. The first is amoxicillin?
A. Yes.

Q. And you there say, “This bottle contained 6 small red tablets whose appearance was not consistent with that of amoxicillin tablets. Preliminary testing of these tablets suggested them to be prednisolone and their appearance was consistent with this identification.” Amoxicillin is an antibiotic isn’t it?
A. Yes?
A. What is prednisolone?
A. It is a steroid type drug.

Q. Used for what?
A. I am afraid I am not exactly sure without just checking.

Q. Very well. Putting it very shortly, the wrong tablets were in the wrong bottle?
A. Yes.

Q. And when you did your preliminary testing what testing did you do?
A. They were identified on the basis of their appearance and their markings.

Q. The sort of markings that we all of us have seen on tablets?
A. Yes.

Q. What were the next tablets you found or were given to you?
A. It was a bottle labelled as being metronidazole.

Q. Do you know what they are?
A. There are an antimicrobial drug.

Q. And you did not carry out any specific testing, you worked on the basis of similar markings, is that right?
A. Yes.

Q. And then some more amoxicillin was given in a bottle and again you dealt with appearance without specific testing and you found those to be amoxicillin?
A. Yes.

Q. Then penicillin was found in a bottle and again you dealt with appearance but not specific testing?
A. Yes.

Q. Quiet life, I think these are probably herbal preparations, aren’t they?
A. Yes they are.

Q. And again you dealt with appearance but not specific testing?
A. Yes.

Q. Calms, that is a natural plant remedy, yes?
A. Yes.

Q. You found 94 white tablets there. You did not test them, again you went on appearance?
A. Yes.

Q. And what was the next one please, Mrs. Evans?
A. It was a box has was labelled theophylline.

Q. What exactly is theophylline?
A. It is a bronchodilator. It can be used in the treatment of things like asthma.

Q. You found tablets in foil blister packs. Again no testing, you went on the appearance?
A. Yes.

Q. And the final box was ferrograd. Do you know what that is?

A. Ferrous sulphate used in the treatment of iron deficiency.

Q. Again you went on appearance, no specific testing?
A. Yes.

Q. That is all I want to deal with. I just wanted to identify the drugs that certainly had been handed to you. Now in respect of Mrs. Melia this was the one body where you found morphine in the stomach?
A. It was the only one we actually had stomach contents.

Q. I see, it was the only one where you had stomach contents?
A. Yes.

Q. Because what in fact you found in Mrs. Melia, just allow me one moment, you found in the stomach a viscose green brown liquid, yes?
A. Yes.

Q. Does it follow from the answer that you have given that in respect of the other bodies you examined the stomach contents but there are none?
A. In the majority no stomach contents were submitted to the laboratory. Presumably the stomachs had been washed anyway in the embalming process.

Q. I see. So insofar as you have been able to carry out an analysis of these stomach contents, you were precluded from doing any other cases because none were for, warded to you?
A. Yes, presumably none being available.

Q. In respect of those stomach contents you said that they were a viscose green brown liquid. There was no obvious tablets or is it particulate matter?
A. Particulate matter.

Q. And what is particulate matter?
A. Any sort of solid material, whether it being just granules as opposed to whole tablets, so it could be a tablet that had broken down or even a granular preparation of drug.

Q. So what you were analysing was this viscose liquid?
A. Yes. There wasn’t a lot of it and it did actually resemble bile.

Q. Because of the colour?
A. Yes.

Q. Greeny brown?

A. Yes, but at the same time it could just have been some food that had putrefied in the stomach.

Q. On your finding you found 2 milligrams of morphine, yes?
A. Very approximately. It wasn’t accurately determined but yes, approximately 2 milligrams.

Q. 2 milligrams of morphine in this greeny brown liquid?
A. Yes.

Q. Are you aware of the colour of certain forms of oral morphine?
A. I am not exactly sure in terms of what they would look like once they have reacted with stomach acid.

Q. Are you aware of a form of morphine known as cervadol?
A. I have not actually seen that preparation no.

Q. Are you aware of its existence?
A. Yes.

Q. Are you aware that it is pale green?
A. I have seen in the literature there are reports of it being pale green. How pale that green is I don’t know.

Q. This Court has heard on more than one occasion of MST tablets. They are used certainly for pain relief and certainly for those suffering from particularly painful illness?
A. Yes.

Q. Are you aware that MST tablets are green?
A. I think some of them can be green, yes.

Q. Are you aware of capsules known as MXL capsules, oral morphine, particularly high dosage, 120 milligram capsules?
A. I am not actually aware. I have never actually seen one of those preparations.

Q. Are you aware of their existence?
A. Yes.

Q. Are you aware that they are green?
A. I wasn’t, no.

Q. In respect of this finding of morphine in the stomach you postulated two scenarios, one was that it was the result of what you describe as enterohepatic recirculation?
A. Yes.

Q. But you also said you could not entirely exclude the possibility of it being residual from an orally administered dose of morphine?
A. That’s correct, yes.

Q. Can we in the first instance please deal with this procedure, that is the wrong word, this concept of enterohepatic recirculation?
A. Yes.

Q. Could you please explain to the Court what that procedure entails?
A. In part it is as blood goes round the body it goes to the liver and from the liver you have the gall bladder, inside the liver there is the gall bladder. Any blood that is circulating within the system can subsequently go into the bile that is contained in the gall bladder and subsequently back into the stomach. Alternatively you can get reabsorption of drug from blood vessels surrounding the stomach back into the—

THE SHORTHAND WRITER: Sorry, can you slow down a little please?

MISS DAVIES: If I were you, Mrs. Evans, I would start again. I think we are giving the shorthand writer quite a difficult time and I hold myself responsible.

MR. JUSTICE FORBES: Start that answer again if you would please, Mrs. Evans?
A. As the blood goes around the body and a drug has been absorbed into it, whether it be from the stomach itself, from intravenous administration, or an intramuscular administration or any other route, to have an effect it must go into the blood. Then the blood in circulating around the body calls into the liver and the liver has within it the gall bladder and the gall bladder contains bile. This bile can then subsequently have drug within it and bile feeds back into the stomach. There is, also there are vessels surrounding the stomach itself. These leak back into the stomach and thus put drug back into the stomach. Drug that may not ever have been in the stomach originally just as a result of circulation can end up in the stomach.

MISS DAVIES: So what you are saying is that for this process of enterohepatic recirculation to have taken place the drug in question has to move from the blood, it moves into the gall bladder, yes?
A. Yes, that is one route, yes.

Q. It concentrates in the gall bladder, yes?
A. Yes.

Q. And it then has to move from the gall bladder into the small intestine, yes?
A. The gall bladder can actually by means of the hepatic portal vein feed back into the stomach or into the small intestine.

Q. And then from the small intestine it can go back into the stomach?
A. Yes.

Q. Are you aware of the effect of morphine and the sphincter in the gall bladder?
A. No.

Q. You don’t know that one effect of morphine on that sphincter is to constrict it?
A. No I didn’t.

Q. If you would accept from me that that effect is one of constriction, that would slow up such a process, would it not?
A. Yes it would.

Q. If you cannot answer this next question because it is simply beyond your expertise please don’t hesitate to tell me. On this process of recirculation as you describe it, how long are we talking about?
A. I couldn’t accurately determine that. It is outside my field.

Q. In respect of the quantity that you found, 2 milligrams, that is a not insignificant quantity, is it?
A. It is not insignificant. It could amount to a therapeutic dose of a drug.

Q. Can I move on then please to Mrs. Lomas. Mrs. Lomas, by reason no doubt of the period between death and exhumation, her body was decomposed and in respect of the thigh there was extensive decomposition, is that correct?
A. Yes.

Q. Again this was one of these occasions where you found chemical evidence of the putrefactive process?
A. Yes.

Q. This was a case where you tested positive for opiates, benzodiazepine and what was found to be the chemical evidence of the putrefactive process?
A. Yes.

Q. You, as I understand it, did not attempt to identify the benzodiazepines which led to the positive testing, am I correct as to that?
A. That’s correct.

Q. Insofar as the other findings were concerned you mentioned that pholcodine had been prescribed. We know in fact it had been prescribed on the 16th May 1997 and Mrs. Lomas had died on the 29th May of that year so it had been prescribed in the month of her death?
A. Yes.

Q. As a matter of common sense, and I put it no higher Mrs. Evans, although you were working out the supply of pholcodine no-one in this Court knows to what extent and when Mrs. Lomas took the pholcodine tablets?
A. That’s correct, and it is also available over the counter as well.

Q. You are aware that pholcodine can break down?
A. Yes.

Q. And it can break down into morphine?
A. Under extreme conditions, yes.

Q. As a matter of fact morphine can, I beg your pardon, as a matter of fact pholcodine can break down totally into morphine?
A. Under very extreme conditions yes, but not under the conditions I would expect within the bodies.

Q. In the case of Mrs. Lomas your finding in the thigh muscle was 0.9 percent, yes – 0.9, I beg your pardon.
A. Yes.

Q. As a matter of fact you are unable to say whether that level represents in part or in whole any of the breakdown of pholcodine?
A. There may be a very small contribution from pholcodine. Testing that I have done as a result of this case, I have actually had samples that have been spiked up with pholcodine and have been allowed to putrefy for the last 12 months and in that 12 month period no detectable morphine has been detected under naturally occurring conditions. If we treat those samples with a concentrated acid then we can get conversion.

Q. Acid can be produced in the body, can’t it, when the body is in the ground?
A. It can, yes, same as with any decomposing tissues, and these tissues have been left to decompose.

Q. So therefore there would have been this agent present which could in whole or in part have broken down pholcodine to pure morphine?
A. I would not expect it to go entirely to morphine, I would expect to find some pholcodine.

Q. As a matter of fact the agent was present which could convert some of the pholcodine to morphine?
A. Acidic conditions do exist in these bodies, yes.

Q. As a matter of fact those acidic conditions could have broken down the morphine in whole or in part and converted the pholcodine into morphine?
A. I would expect in part. In my opinion I would not expect it to go to completion.

Q. If you accept in part that there could have been this conversion process, it follows doesn’t it that of that finding you have made of 0.9 you cannot say what part of that represents the breakdown of pholcodine to morphine?
A. I would say there could be some contribution to that from pholcodine, yes.

Q. But as a matter of fact you cannot quantify that contribution?
A. From the experiments I have done I would suggest it is a small part.

Q. But as a matter of scientific fact you cannot say of that 0.9 level what is represented by the break down of pholcodine to morphine?
A. That’s correct.

Q. The next lady please, Mrs. Quinn. This was a body described by Dr. Rutherford as being in a state of poor preservation. The disintegration of the soft tissues was most marked in the left thigh, skin, ankle and foot. As a matter of fact, Mrs. Evans, your sample came from the left thigh muscle?
A. Yes.

Q. And therefore the area identified by Dr. Rutherford as demonstrating the most marked disintegration?
A. Yes.

Q. Therefore we have decomposition probably at its most active in this particular part of Mrs. Quinn’s body?
A. With the exception that again I sampled the areas where there was still considerable reddening so therefore it was minimal.

Q. You say that, but one, that is only reddening to your eye isn’t it?
A. Yes.

Q. And you have accepted that in going in you are moving further into that area where bacteria are moving inside out?
A. I am moving deeper, I am not necessarily moving closer to the abdomen, but yes, the decomposition process is where they were present.

Q. They were more than present, the decomposition processes rendered this body in a state of poor preservation according to Dr. Rutherford?
A. Yes.

Q. Mrs. Quinn represents, together with Mrs. Grimshaw, the lowest of the levels that you found, 0.3 to 0.4?
A. Yes.

Q. And this is a body where the effects of decomposition appear certainly on the face of it to be at their highest?
A. Yes.

Q. You simply cannot say in that badly decomposed sample that you were doing your best to analyse what the state of that sample was at the time of death?
A. No.

Q. It follows, doesn’t it, that from the very low reading that you have obtained there, and I am saying low in the range that you have told the Court of, you simply cannot say what any such reading would have been at the time of death?
A. No.

Q. This was a lady who 11 months prior to her death had been prescribed co-codamol?
A. Yes.

Q. In respect of the next lady, Mrs. Turner we have dealt with when I was dealing specifically with the liver and I don’t need to take up your time or this Court’s time any further on that particular case. Can I move on then please to Mrs. Lilley. ere again was a body where there was extensive decomposition noted by Dr. Rutherford. This was where you found chemical evidence of the process of putrefaction, yes?
A. Yes.

Q. And by reason of such findings you said that the levels do not – I won’t pursue that. I am concerned I have not accurately recorded what you said. It was a case insofar as Dr. Rutherford was concerned where the liver was too degenerate for meaningful appraisal?
A. Yes.

Q. And there was obvious degradation apparent in the tissues?
A. Yes, even on my visual examination.

Q. Even on your visual examination?
A. Yes.

Q. And in the case of Mrs. Grimshaw again we have decomposition present?
A. Yes.

Q. And this again, like Mrs. Quinn, was the lowest of the readings produced by yourself, 0.3 to 0.4?
A. Yes.

MISS DAVIES: Mrs. Evans, would you allow me just one moment please. I have no further questions thank you.

Re-examined by MR. WRIGHT

Q. So far as you are concerned is there any problem in the reliability of the evidence that you have given as to the finding of morphine within the body by the fact that the sample has been obtained and analysed from the thigh?
A. No, morphine is definitely present in these samples.

Q. So far as the choice of the thigh muscle in order to perform your analysis in each of these 9 cases, was there a distinct preference or order of preference that you undertook?
A. Yes.

Q. And which, please, is the preferred site of sample in each of these cases?
A. Preferred site would still be the thigh muscle. It is a peripheral muscle.

Q. And in general please, so far as the body is concerned and the preference by way of sample site generally, what would be the preferred site?
A. In cases of exhumed material I would still say the thigh muscle.

Q. Is there anything in the literature that causes you to consider that that may be wrong?
A. No.

Q. In fact, is there anything in the literature that may confirm your opinion?
A. The reported levels in terms of stability, the reported stability suggests that thigh muscle is the one least susceptible to microbial invasion and therefore the best specimen of choice.

Q. Is there any dissent among this field of expertise?
A. Not that I have come across.

Q. Is there any dissent in the material that you have considered in relation to this enquiry?
A. Not that I am aware of.

Q. Has any report of any form been drawn to your attention that may seek you to cause to reconsider your view?
A. No.

Q. Is it so far as you are concerned appropriate to infer that the thigh was the third option?
A. The third option?

Q. The least favourable of the 3, blood, liver, thigh?
A. In an exhumed body, no, I wouldn’t say it was the third option. I would still say it would have been a sample of choice.

Q. And so what is the purpose in seeking to analyse liver and blood?
A. Just to show that there was additional support for its presence in the thigh muscle, that it was in the general circulation and in other areas of the body, and that what we were looking at was maybe an injection had been given into a thigh muscle after death and therefore this was just present there for no other reason.

Q. So how many different areas of the thigh did you then seek to obtain samples from?
A. 2.

Q. How deep within the thigh did you seek to obtain the sample?
A. Until I found areas of reddening. In most cases that was quite deep. We were looking at a few inches below the surface.

Q. A few inches below the surface?
A. Yes.

Q. Were you aware of the concept of postmortem redistribution in blood at the time that you performed these tests?

A. Yes I was.

Q. And therefore did the concept of postmortem redistribution in blood affect your preferred source of sample?
A. No.

Q. Why is that?
A. The only reason that affected the decision was that of the reports that are available concerning postmortem redistribution. These suggest that the femoral, which is the vessel in the leg, is the one least susceptible to change.

Q. Do continue?
A. Thus in deciding on a skeletal muscle to choose I chose the one that was nearest to a vessel that would give the representation if we were looking at a fresh autopsy.

Q. Does the concept of postmortem redistribution in blood effect the total level of morphine?
A. If we were looking at blood, yes.

Q. Does it affect the total level in the sample of thigh tissue?
A. Theoretically yes it could, because it depends on how reliable data is but as I am comparing like with like, I was comparing muscle to muscle, I take those to be minimal considerations.

Q. So far as the total level is concerned, is it possible by postmortem redistribution to increase the total level?
A. Only by—

Q. Sorry?
A. Only by way of concentration and in my opinion there was no significant concentration effects evident in these muscles.

Q. So consequently the converse of that is whether it may effect a decrease in the total level?
A. There is a possibility of a decrease, yes.

Q. So there may be a decrease from death but the increase is in the terms, the potential for increase is in the terms in which you have explained?
A. Yes.

Q. And that is of what extent?
A. That is a negligible consideration.

Q. So is the problem of postmortem redistribution a problem with the reliability of the findings of morphine or with an interpretation of the level found?
A. The problems are with the interpretation of the level found. Morphine was present.

Q. So far as the deep thigh is concerned and postmortem redistribution being by blood, yes?
A. Yes.

Q. Then in the deep thigh muscle itself, how approximate is that to the major blood vessels?
A. In all the reported literature on comparisons of muscle to blood they give an average of 1, ie that the blood is approximately equal to that in the tissues. The range goes from .4 to 3.3. But I didn’t seek to do a comparison to blood because of the problems of postmortem redistribution and the unreliability of data. I merely looked to compare thigh muscle tissue to other muscle tissue.

Q. It is put that by the process of decay you can get considerably higher levels in liver to muscle tissue?
A. Yes.

Q. And you would accept that?
A. Not just because of the decay, you can get higher liver levels than muscle tissue.

Q. Tell us why that is please?
A. The liver is effective a storage organ. Drugs can actually accumulate within the liver?

Q. Is the thigh muscle a storage organ?
A. It is not a storage organ for drugs.

Q. Is it really an organ?
A. No.

Q. You were asked to consider the report of Phelby, yes?
A. Yes.

Q. Soren Phelby. Morphine Concentrations in Blood and Organs in Cases of Fatal Poisoning?
A. Yes.

Q. Is that an article with which you are familiar?
A. Yes.

Q. It was put to you that that was anecdotal by way of study?

A. It is anecdotal in terms of these were people that died but they were not under controlled conditions, therefore they were reliant on information provided to them either by the police or witnesses to the death that the mode of death was from morphine.

Q. Does the literature also include the range indicating whether these deaths were in the morphine naïve or in the morphine user?
A. In the study by Phelby he suggests that most of them had some degree of addiction.

Q. And that the range incorporating that detail was one within which these individual deceased with which we are dealing fell?
A. Yes.

Q. And the lowest end of the scale, the end of the range was what please?
A. 0.1.

Q. And so in dealing with a figure of 0.3 as being the lowest here in the cases of Mrs. Grimshaw and Mrs. Quinn, what number fold increase in the level of morphine does that actually indicate?
A. Threefold.

Q. A threefold increase in the level?
A. Yes.

Q. Would it be fair to deal with that in terms of percentage as being a 300 percent increase?
A. Yes.

Q. In the actual level of morphine?
A. Yes.

Q. And this is in an anecdotal report of the deaths of intravenous morphine users?
A. Yes.

Q. Whilst you were asked about the anecdotal nature of that particular report, have there been any animal studies into this particular field?
A. There have but most of those have been on rats and they are not reliable results for a small animal.

Q. So far as the long-term stability of diamorphine or morphine in muscle tissue is concerned, have you yourself performed any control tests in that regard?

A. I have for the preceding 12 months had samples spiked not with diamorphine or morphine but with other drugs that could be considered potential drugs that morphine could be produce from, ie pholcodine, codeine, and in that 12 month period I have found no measurable morphine, just the parent drug. I have also spiked those same things with embalming fluid as well and I have still not detected any free morphine from those.

Q. Did you spike them with the embalming fluid of the type used in each of these individual cases?
A. Yes I did.

Q. In which the deceased were embalmed?
A. Samples that were submitted that were of the type used in some of these, yes.

Q. Any morphine?
A. No.

Q. Dealing with the pholcodine point and the conversion of pholcodine to morphine, you accept as a proposition that pholcodine may in certain circumstances be converted to morphine?
A. Yes.

Q. And converted in its entirety?
A. In laboratory conditions, yes.

Q. That is what I wanted to ask you about, laboratory conditions. Firstly, what does that involve?
A. It involves adding a strong acid, such as hydrochloric acid, at a very low pH to those samples and allowing them to stand in the presence of that acid for a period of time.

Q. Now hydrochloric acid, very strong acid, for a very long period of time?
A. Yes.

Q. You were asked specifically in relation to Ivy Lomas about the pholcodine point?
A. Yes.

Q. Firstly, does embalming fluid contain hydrochloric acid?
A. No.

Q. Secondly, was Ivy Lomas even embalmed?
A. From the records I have then, no.

Q. From our schedule, no. Therefore, so far as the presence of hydrochloric may be concerned, or an acid of similar strength, is there anything to indicate from your analysis of the tissue in the case of Ivy Lomas that there was present hydrochloric acid?
A. No.

Q. You say that pholcodine may be so converted over a lengthy period of time?
A. Yes.

Q. What sort of length of time are you talking about?
A. We are only talking about a few hours in the presence of that under laboratory conditions.

Q. In hydrochloric acid?
A. Yes.

Q. Insofar as acids produced by any putrefactive process post death, are there any acids produced by that process that are akin to hydrochloric acid?
A. Not within the putrefactive process. Hydrochloric is present in the stomach, so if that was to come into context then there is a possibility, but as the stomach does not directly contact the thigh muscle….

Q. It was a point I was going to investigate with you. Hydrochloric acid in the stomach, your sample was from the thigh?
A. Yes.

Q. Furthermore, so far as pholcodine is concerned what percentage, if you can deal with it in those terms, is the active ingredient of codeine, sorry morphine?
A. Of pholcodine.

Q. Yes?
A. Zero.

Q. How then does pholcodine convert to morphine?
A. It is by processes involving acidic breakdown.

Q. In your view how likely is the prospect of pholcodine converting entirely to morphine?
A. Extremely unlikely. In my experience you cannot actually get the tissues to degrade pholcodine to morphine.

Q. Why is that?
A. Because the acidic conditions developed during the decomposition are not strong enough to convert it.

Q. Did you find any pholcodine by way of parent drug?
A. No.

Q. As far as the levels that you found of total morphine within the tissue samples analysed by yourself, you said this, these are not the sort of levels you could get from an over the counter regime?
A. Yes.

Q. Could you explain what you mean by that please?
A. If someone was to purchase for instance kaolin and morphine or any of the over the counter preparations and take them as the dosage indicated on the bottles, then you could not achieve levels like this.

Q. I will return to that topic briefly when asking you about an analysis of the stomach content a little later, but dealing with analysis of the thigh tissue and the state of decomposition of the bodies, what please was the state of decomposition of the samples taken from the thigh of these 9 respective deceased?
A. There was some evidence of decomposition in the majority of them but the samples I actually took were the ones where there was reddening and the least amount of degradation, although there would be some degradation.

Q. Where does the decomposition manifest itself?
A. In the ones I examined the greatest amount of decomposition was closest to the skin.

Q. Your sample was, as you told us, that number of inches away from?
A. Yes.

Q. Having regard to the matters brought to your attention so far as decomposition is concerned and the analysis that you undertook upon the thigh muscle, thigh muscle that you obtained, have you any cause to reconsider your opinion?
A. No.

Q. Does anyone suggest that morphine occurs naturally as a decomposing product?
A. No.

Q. Have you considered the literature available in this case?
A. I have, yes.

Q. And have you considered various reports served for your consideration?
A. I have, yes.

Q. Is there anything that causes you to reconsider that particular expressed opinion?
A. No.

Q. Dehydration. On the tests that you performed a degree of dehydration in the organs was revealed?
A. In the heart and lung, yes, negligible in the muscle tissue.

Q. Negligible in muscle tissue?
A. Yes.

Q. Therefore, does that factor of dehydration cause you at all to review your opinion?
A. No.

Q. Or to reconsider it?
A. No.

Q. Does the concentration of morphine, total morphine, in the thigh tissue by dint of any dehydration, negligible or otherwise, does the fact of dehydration affect the concentration of total morphine?
A. If the tissue was dehydrated then yes, it would raise the level, but I found no evidence of dehydration.

Q. So you accept the principle?
A. Yes.

Q. And did you apply it in practice?
A. Yes.

Q. And are you therefore able to consider and reject the prospect of that having affected the calculation?
A. I did consider it in drawing my conclusions and I did reject it.

Q. Now you were also referred to the literature from the Journal of Forensic Sciences, a report by Robert Mann and others, Time Since Death and Decomposition of Human Body, Variables and Observations in Case and Experimental Field Studies?
A. Yes.

Q. And you were asked to consider paragraph 12 of that particular report at page 108?
A. Yes.

Q. And the effect of embalming?
A. Yes.

Q. Firstly, that particular paragraph and the report upon embalming, how many bodies were involved in that particular study?
A. It would appear one.

Q. Do we know anything about the circumstances in which the embalming took place?
A. No.

Q. Do we know how that embalming was undertaken?

A. No.

Q. Was the body of the deceased in that particular case buried in a coffin?
A. On the basis of what is here it would appear that it wasn’t.

Q. Was the body of the deceased in that case buried to any noticeable or considerable depth?
A. No, it says it was in a shallow depression.

Q. Is that particular anecdotal report so far as you are concerned of any assistance in the matters that were undertaken by you?
A. No.

Q. Or in the considerations that you have in giving your opinion?
A. No.

Q. Formaldehyde and embalming. Does morphine, forgive me, does formaldehyde have any component constituent chemical that is susceptible to conversion to morphine?
A. No.

Q. So far as the levels of total morphine ascertained by yourself as being present in the thigh muscle of each of the deceased is concerned, insofar as there may be any variable or any variation from the matters that have been drawn to your attention, could the total level at death have been higher?
A. Yes, it is a possibility that it was higher at the time of death than that I found during my analysis.

Q. Could the level have been lower?
A. I think it unlikely.

Q. Why is that?
A. Because if a drug is unstable it is going to breakdown, it is going to be lost, but there is no reports of spontaneous production of morphine in tissues so it is not being produced within the body, there was no measurable dehydration in these muscle tissues to suggest that we were getting a concentration effect. So in my opinion there is nothing to suggest that these levels may have been lower, though it is conceivable that they were higher.

Q. Muscle variability please. You are aware of the literature in relation to that particular concept?
A. Yes.

Q. And also the tests reported by, is it Professor Pounder?

A. Yes.

Q. Did he test for morphine when dealing with muscle variability?
A. No.

Q. So far as the first 4 cases are concerned, Grundy, Pomfret, Mellor, Melia, you were asked to consider the difference in levels present in the thigh?
A. Yes.

Q. What may explain the difference in levels?
A. It may be that different doses were administered, it may be that because the older bodies were showing the lower levels that, as I suggested, maybe the drug does become unstable after very prolonged periods and therefore you get a reduction.

Q. A reduction?
A. Yes.

Q. But not an increase?
A. No.

Q. You can go down but you cannot go up?
A. In my opinion, yes.

Q. Speaking of those that had been buried for longer of course, and looking at our schedule briefly, Mrs. Turner was 852 days, the longest?
A. Yes.

Q. Yet her reading in the thigh was 1.4 to 1.6?
A. Yes.

Q. How many fold is that increase from the level of 0.1 referred to in Phelby?
A. A 15 fold increase.

Q. 15 fold increase?
A. Yes.

Q. Is that 1,500 percent increase?
A. Yes.

Q. Nitrazepam please. I am going to turn, and I hope very briefly my Lord to the individual cases. Nitrazepam, Mrs. Grundy, sleeping tablet?
A. Yes.

Q. Morphine?

A. Not present within nitrazepam and wouldn’t break down to give morphine.

Q. Mrs. Pomfret, benzodiazepine, susceptible to conversion to morphine?
A. No.

Q. Lithium, susceptible to conversion to morphine?
A. No.

Q. Mrs. Melia, amoxicillin, susceptible to conversion to morphine?
A. No.

Q. Any of the tablets or the capsules that you were supplied with and asked about by my learned friend susceptible to conversion to morphine?
A. No.

Q. Stomach content analysis please of Mrs. Melia. Viscose liquid that resembled bile?
A. Yes.

Q. Did you find any tablets or particulates within that liquid?
A. No.

Q. Enterohepatic recirculation. From the material that you have considered in the case of Mrs. Melia is there anything that leads you to conclude that the residue, that the liquid found within the stomach and containing 2 milligrams of morphine, was the residue of morphine tablets, capsules or syrup?
A. I can’t exclude the possibility.

Q. Is there anything that has been brought to your attention by way of report or document that leads you that conclusion?
A. The only thing I can say is that I found nothing in the medical records to suggest that she was on anything morphine related.

Q. Furthermore, you say that the 2 milligrams is not insignificant, it could amount to a therapeutic dose of the drug?
A. Yes.

Q. That would be the 2 milligrams found in the stomach content?
A. Yes.

Q. Of Mrs. Melia?

A. Yes.

Q. Then what please of the 0.7 to 0.9 total morphine found in the thigh?
A. They are greatly in excess of what would be expected from therapy.

Q. If there are 2 milligrams in the stomach how does the total morphine get to the thigh?
A. Could be from another route of administration, from injection.

Q. Mrs. Lomas, I have dealt with, touched upon, the pholcodine point. Just one matter. We know that she was not embalmed in any event and the acidic conditions that are required you have dealt with so far as hydrochloric is concerned?
A. Yes.

Q. Are you also aware of any report by a Professor Forest?
A. I am aware of a number of reports by Professor Forest.

Q. And as to the alkaline or acidic state of any cadaver?
A. Yes.

Q. What please is the situation so far as the alkaline or acidic state of a cadaver is concerned?
A. In terms of Professor Forest’s reports I would prefer if I could actually relate to that report as opposed to doing it from memory.

Q. Whether I need to pursue it further, may I at 2.15. Otherwise that concludes the matters I would seek to raise by way of re-examination.

MR. JUSTICE FORBES: Subject to that then we will break off now, members of the jury, and resume again at 2.15. Mrs. Evans, you still remain giving your evidence until after the lunch break. If you would like to go with your usher, members of the jury.

Lunch adjournment

MR. JUSTICE FORBES: Yes, Mr. Wright.

MR. WRIGHT: I am sorry, forgive me, I did convey the message that it is not a point I wish to explore further. There is no re-examination of Mrs. Evans, I have no further questions thank you.

MR. JUSTICE FORBES: Thank you very much. Thank you, Mrs. Evans. You are free to go. Thank you very much.

MR. WRIGHT: Would you forgive me just for a moment whilst I just confirm something. May we now turn to computer evidence by the calling for cross-examination of Detective Sergeant Ashley. I acknowledge that it is interposed during what is a complex area, but there are reasons why it is not possible for Detective Sergeant Ashley, or indeed anyone representing the interests of the defendant so far as this field is concerned, to be both here at court on any other day.

MR. JUSTICE FORBES: Yes very well. Let Detective Sergeant Ashley be brought into court.

JOHN FREDERICK ASHLEY, recalled

MR. JUSTICE FORBES: You are still under oath you understand?
A. Yes my Lord.

MR. WRIGHT: Would you wait there, there may be some questions for you.

Cross-examined by MR. WINTER

Q. Detective Sergeant, before I ask you some questions might I just explain, my Lord, the device that has appeared in the right hand corner of the court, so that the witness understands what has happened and so that your Lordship and the members of the jury can follow. Detective Sergeant, what you see to your right is, as you will probably immediately recognise, a lap top computer. It is connected to a projector just to the side of his Lordship which is projecting upon that screen what you would ordinarily see appear on the screen of the computer. The screen of the computer is in fact blank and you will therefore be asked to look at the screen in due course rather than the screen of the computer. And the programme that has been loaded on that lap top is the programme and the patient histories that was seized by you, in other words copied from the surgery computer, in the way in which you described when you gave your evidence. Do you follow? So a copy of what you removed has been placed upon that computer and we now have access here to the same Microdoc programme?
A. So this is the record on the day that I seized it?

Q. That’s correct. Do you follow that?
A. Yes.

Q. Before I ask you to access that programme I would like to ask you one or two questions about the nature of Microdoc because you have given evidence both orally and the jury has heard a number of statements of yours read to them, wherein you describe the finding upon the computer in relation to the specific patients with which we are concerned, entries which appear to have been backdated?
A. Yes.

Q. Now the Microdoc programme is designed, is it not, specifically to enable that to take place?
A. The Microdot programme is designed as a computerised medical records data base.

Q. But intrinsic with it is an ability to make an entry at any time within a patient’s history details?
A. Yes.

Q. And it carries with it what is known as an audit trail whereby it records the time at which that particular entry was made?
A. That is attached to each record, yes.

Q. And that is an intrinsic feature, isn’t it, of the programme?
A. Yes.

Q. Details of how one does that and how one would view the audit trail are included within the manual to the programme?
A. Yes.

Q. So, for example, if one makes an addition, we will do this shortly, to a patient’s record, and dates that addition some years previously or sometime previously, let’s say a year previous to the time it is being entered, the entry itself becomes part of the patient history chronologically. In other words if you make it for the 10th December 1997 it would work its way into the patient’s history at that time?
A. Yes.

Q. And you would then by simple procedure be able to analyse the audit trail part of the programme in order to be able to establish when that entry was placed upon the computer?
A. Yes.

Q. Have you seen a copy of a report prepared by Mr. Jonathan Beck?
A. I would need to see the report. I have seen a report.

Q. I am just going to ask you one short question, I hope, about it. Did you also receive with that a rather large volume of printout patient codes?
A. Yes.

Q. Which was a print out of the total number of backdated entries for whatever patient that were recorded within that computer?
A. I believe that was what it was supposed to be, yes.

Q. Did you perform any checks on it?
A. No.

Q. Do you have any reason to believe other than, as Mr. Beck states, that that is a printout of every backdated entry on the computer?
A. No.

Q. It does not matter as to specifics but there are a very large number of those entries, aren’t there?
A. Yes.

Q. Probably in excess of 20,000?
A. Possibly yes.

Q. I am grateful to my learned friend, just over 19,000, 19,206. The programme has to be entered by way of a code?
A. Yes.

Q. And perhaps if you would turn to the computer now and assist us because do we see on the screen that the very first screen that one finds when one has logged into the Microdoc one is about to embark upon entering patient histories?
A. That is a screen, when the computer, the server, has been powered up that is the screen that, when it has gone through power up process you are faced with. You are not actually into the Microdoc system as yet, that is the menu that allows you to go into it.

Q. This is the menu to gain access and one can see the third entry Microdoc, so would you be kind enough to enter that. It tells us it is loading Microdoc and appears, there two spaces with the flashing cursor. That is where one needs to enter the code?
A. Yes.

Q. There was in fact, do you understand, in effect only one code used by all the staff in the surgery?
A. I believe so but that is not a matter of fact to me. I have not spoken to anybody about that.

Q. That is from your understanding, it is not something you have been able to understand from the computer itself?
A. No.

Q. That is agreed. I am very grateful. And I hope this will work, if you enter HFS ACP222?
A. The way I normally enter the system is by a super user pass word, not his way.

Q. There are two ways of gaining entry, that is the way the normal user would gain entry but there is a super user which is the word “Bowls?”
A. Yes.

Q. Whichever route you prefer. Having therefore entered Microdoc, entered the user code, the first page that you see is a page that states in the centre of it the date?
A. Today’s date as picked up from the computer.

Q. I am going to come back to this in a little more detail but the way that computers work is that they don’t have an understanding of what today’s actual date is, they are told by the user what the date is?
A. I can enter any time and date on there I wish. The date and the time we are seeing is actually picked up from the computer itself. So there is a record within the computer of what today’s time and date is now.

Q. But that has come from it having been entered into the computer at some earlier stage?
A. Probably at manufacturer.

Q. Quite possibly. But the computer will calculate today’s date from the date that has been entered into it either by the manufacturer or by some other person?
A. Yes.

Q. In other words, if the manufacturer entered the wrong date for some reason, we would not be seeing today’s date, we would be seeing a different date?
A. Correct.

Q. At the bottom of that it clearly states, does it not, an ability to change the date by using D, to change the time by using T, and once having done that to confirm that it is correct by pressing enter?
A. Yes.

Q. Would you for the moment confirm we are at the 10th November and move to the next page. The next page is the main menu?
A. Yes.

Q. For the particular part of the programme in Microdoc that would be of use to a doctor in a general medical practitioner’s surgery?

A. Yes.

Q. And one can see there a list of the various possibilities available. If one goes to M?
A. M.

Q. M, one sees Medical Summaries. Would you press that please. And comes up a refined menu so one is narrowing the field, is that correct?
A. Yes.

Q. And on that summary menu there are 4 choices on the left and a cohort histories choice on the right, but of the 4 one can see there is Histories, Medical, Summary, and then an entry for removing summary. Do you understand, don’t press this button because it takes a very long time to do it but do you understand if you were to press R you would remove a particular patient’s summary completely from the programme?
A. Yes. You would be required to input the patient’s registration number or identity and then you could remove that patient’s whole summary.

Q. Exactly. So that would be a way of going about removing someone completely from the practice, for example if they left the practice?
A. Yes.

Q. Could you, however, press M again please for medical summaries. I am sorry, I have gone wrong already, I knew this was going to happen. Could you press escape to go back and press H for Histories. We need the full histories. This is now inviting the user to enter a particular patient’s history and obtain access to that set of records?
A. The patient’s registration number, that is what it is waiting for.

Q. Would you please enter the registration number for Mrs. Pomfret which I shall tell you is number 31082. It immediately comes into her record and also flashes that she is deceased?
A. Yes.

Q. So would you please press escape to enter her full history. Then do we see access as you have described, and we have seen photocopies of these records in our bundle. We have entered the particular history of Bianka Pomfret?
A. It is. This is not the way that I normally enter by reference to my statements.

Q. I appreciate that but as a user following simple steps through the operation of the Microdoc programme this is a route to gain access to the summary?

A. Yes obviously, yes.

Q. It has highlighted, has it not, in fact for the 11th December a particular entry?
A. That will be the last entry, I presume, of the record, yes.

Q. If you press the arrow keys you can go up to select a particular entry so would you perhaps select the first one for the 10th December. In order to look in greater detail as to that entry one goes simply to Display, doesn’t one?
A. F6.

Q. Or F6 makes the same route. Just before you do that can I point out through you that at the top of the page just under where it has the patient number and Mrs. Bianka Pomfret there is a box under the heading “Patient history” which has various possibilities listed horizontally?
A. Yes.

Q. The first is Add, by which one would simply add an entry. The second is Display, by which one enters a specific entry in order to analyse it further. The third is Correct, if one wishes to make amendment to an entry. The fourth is Remove if one wished to remove a specific entry. Do you agree that here set out in very easily understandable terms intrinsic to the programme is the ability to amend, to add, to remove, to deal with as you see fit entries in that patient’s history?
A. What you are referring to there is a drop down menu system. We can actually go to that menu and display all the options that appear under each of those words. So yes, basically what you have said is correct. There may be other functionality available within that drop down menu.

Q. Precisely. That is the route in to remove an item, for example?
A. That is one way, yes, definitely.

Q. Would you kindly enter the display part of that. I think that is F6. So by pressing that button one then gets the full entry in this case for the 10th December?
A. The Display History Details yes, in that central box.

Q. And would you confirm, I will show you the manual if you need to but it may be that you know this in any event, all of this is set out in the user manual?
A. Yes.

Q. If the user wanted to know when that particular entry had been made one can see that it is dated on the left the 10th December 1997, but if one wished to discover when that particular entry had been made, it is a very simple step isn’t it?
A. Yes.

Q. One simply goes into Info that we see on the second box down under Display History Details?
A. Yes.

Q. So would you perhaps do that please. You pressed, did you press “I” for Info?
A. Yes I did.

Q. And we can see that was created, as we see there, on the 10th December at 15.52. So do you agree with this suggestion, not only is it very straightforward to analyse a particular entry, it is equally straightforward and an intrinsic part of the programme to discover when that entry was made?
A. Yes.

Q. Would you please return to the main history menu by pressing escape. I am grateful. Could you please be shown the first volume of the jury’s bundle and might I invite your Lordship and the members of the jury’s attention to the first bundle. Under the flag for Mrs. Pomfret, maybe you have got the second, may I invite attention under the divider for Mrs. Pomfret to page 721.

MR. JUSTICE FORBES: Can I have the reference again?

MR. WINTER: Page 721 which is towards the rear of the divider labelled “Pomfret.” Before we come to refresh our memory of this and another related document, can I just ask you this. You said when you gave your evidence to my learned friends who prosecute that it was quite possible in your view that the user of the computer would not know that a particular entry was being timed. Can you remember? It is a long time ago. Can you remember saying that?
A. Yes.

Q. Well, that might be the case but it would only be the case of a user who had not (a) read the manual and (b) looked in Info as we just did on the computer?
A. The manual being, I would estimate, in excess of 300 pages.

Q. It is a very very lengthy, I agree?
A. Not the easiest thing to read.

Q. And not the easiest thing to read, but in the paragraph that tells you how to make an entry, that very paragraph goes on to explain how you can examine through the Info button when that entry was in fact created?
A. Yes.

Q. So you might not read the entire 300 pages but if you looked in order to discover how to make an entry, all of this information is included at that part of the manual?
A. It exists in the manual.

Q. And as we have just seen even a mildly curious user would be able to access that information?
A. If you looked in that section you would find the answer, yes.

Q. Can I just refresh the memory of the ladies and gentlemen of the jury. At page 721, do you have that there?
A. I do.

Q. We have an entry dated 28th April 1997 with an end date of the 10th December and if you look at the previous page that was created on the 28th April but removed on the 10th December. It is page 721 and 720?
A. Yes.

Q. If you turn now to page 691?
A. Yes.

Q. We see an entry again for the 28th April 1997, this time with no end date, which over the page is said to have been created on the 10th December 1997?
A. Yes.

Q. And what is said by the prosecution is that page 721 was removed on the 10th December and in its place page 691 was put on the machine?
A. Yes.

Q. If you look please at the times involved, so at page 691 the time of that entry if you move over the page is 15.59 and 8 seconds on the 10th December?
A. Yes.

Q. That is precisely the same time, is it not?
A. Yes.

Q. At which the entry for page 721 was removed?
A. Yes.

Q. You find that at page 720, 15.59 and 8 seconds. What happens is this, if a correction of any form is made to an entry the computer regards the process that has taken place as the removal of one entry and the replacement of it by a new entry?
A. Yes, I am aware of that.

Q. Do you agree with that?
A. Yes I am aware of it, I agree with it.

Q. In effect what is happening is that an entry is simply replacing another entry?
A. In this case the entry on the 28th of the 4th existed within the record and on the 10th December at 15.59.08 that entry was altered. The original entry was placed into the removed section of the data base and it was replaced with the entry that was created at that time on the 10th of the 12th.

Q. Exactly. The point being this, that even if you were to go in and correct a spelling mistake, for example, the computer regards the entry which was corrected as having been removed and a new entry as having been put in its place?
A. That is correct.

Q. The previous entry, as you say, goes into a list of entries that have been removed from the computer and can be accessed as we will see in due course?
A. Yes.

Q. And that explains, doesn’t it, why on the occasions when the date and time are precisely the same, what has happened is that some form of amendment has taken place to an entry?
A. Yes, definitely.

Q. For example, the top of the page you see the word filters?
A. This page.

Q. Yes, forgive me, top of the screen?
A. Yes.

Q. You see the entry for filters immediately under Histories in the top box?
A. Yes.

Q. Would you be kind enough to enter Filters. By going into that entry do you see the 4th entry down you have got, Read, Code, Date, Range, Context, Show, Remove. If you access that you go into a list of entries that have been removed. So do you agree again with this proposition, that it is an intrinsic function of this computer that when an entry is amended the previous entry is there stored in a list of entries that have been at some point either removed or amended?
A. Yes.

Q. And we can see there the relevant entry, it is the second one down, “28th April 1997, Seen in GP’s surgery.” That is the entry which we saw at page 721 as being amended in some way and therefore the original entry has simply been placed in a list of entries that have been amended or removed? You agree with that?
A. Yes, I agree.

Q. Yes. Would you return please to the main menue. Escape I believe. Sorry, I didn’t mean you to do that. Can you enter Mrs. Pomfret’s number again, 31082. Right. Can you now show us what happens please when one wants to remove an entry. So one accesses Remove. The entry which has been previously highlighted is there, and it is thereby possible simply by pressing the Remove word on the left of that box – do you want to do that please? Have you done that?
A. Yes. I presume you want to go to the Filters menu.

Q. Now we need to go to the Filters to see that it has been removed and you can see there the entry which you have just removed. So in pretty much two very simple steps you can remove any entry of your choice?
A. Yes.

Q. Could you now please press the Add function.
A. You can’t from this screen. You have to go back to the Main History.

Q. I think if you go back to Filters. It is 31082. Now can we go to Add please. So if somebody has, for example, come into the surgery and it is necessary to make an entry, by pressing Add this box appears. And this is the box that prints out in the form that we have seen for example at page 721, when it is completed, the printout, the information is coming from this box?
A. The information probably is coming from there. This isn’t any function I have ever done with this data base. I wasn’t required to add records to it.

Q. Can we just have a look at it please. Now the first that is highlighted is Term keys. Do you understand within the programme there are a very large number of short cut routes into making an entry?
A. Yes. We can list them at this point if you wish to.

Q. Would you just do that so that we can see. There are various headings under which you might want to have a look. So would you go to one of those, it does not matter which. And you have got Administrations at the bottom. Can you then display a list of possibilities under Administration Detail?
A. I am not sure.

Q. It is easier if I do it this way, type in the word “seen,”
S-E-E-N, and enter that. Right. Different form?
A. I can’t understand why that is.

Q. Try if you would 9N1?
A. Do you want me to try something else?

Q. Try 9N1. Sorry, forgive me, you have to press F9 first to show the Read codes.

MR. JUSTICE FORBES: Have you read the manual?

MR. WINTER: I have my Lord?
A. It is complex.

Q. It is very complex. Just F9. Yes. Can I just summarise it in this way?
A. Please do.

Q. There are an awful lot of Term keys like 9N1?
A. I believe you.

Q. Which will come out at the end of the day as saying things like “Seen in own home,” “Seen in surgery,” “At hospital?”
A. Abbreviations would be a better word.

Q. Which are short cuts into placing for example “Seen in GP’s surgery” into the computer?
A. Time saving lists.

Q. Precisely. The Comment, which is the next box down, is a box which must be completed by the user. It is very faint at the moment. Can you go down to it. Don’t worry about entering it?
A. You have got to put something in the Code field.

Q. Precisely, but under comment the user simply makes whatever comment is appropriate and there he has to make an entry if he wants anything to be recorded?
A. I don’t know.

Q. Right. The next entry down is Date and again any particular date can be entered by the user?
A. Yes.

Q. The next entry down is End Date and again the user can place a date there, for example if someone has had an illness for a specific period of time but has come to an end, that particular part of the entry can be concluded by putting a date in at that point. Review is simply you might want to ask the computer to pull up this patient in the future if she needs to come back, for example, for a 3 monthly check, is that right?
A. I don’t know.

Q. You don’t know. But Where, is the point I am getting to, you told the jury when you gave evidence earlier that Where related to where the entry had been made. Do you recall giving that evidence?
A. No.

Q. What do you understand the Where to mean?
A. I understand that by default in this data base, as we see there, every record will have “Here (this practice)” unless anything else is entered there instead of.

Q. Precisely. The default entry means this, does it not, that unless you enter something specifically for that entry the computer automatically records “Here (this practice)?”
A. Yes.

Q. So where we see for example on page 721 the words “Here (this practice),” that may specifically have been entered by the user or the computer may have entered it as its default entry because no other entry was put there?
A. I would suspect the computer has done it because it is identical to what we see on the screen now.

Q. Yes. It is therefore impossible from an analysis of the computer to know whether that entry was deliberately and specifically placed in or is simply there as a result of the functioning of the machine?
A. I think it is more important to look at the difference between the two entries as opposed to the timings perhaps. We know that the entry on the 28th April existed in the data base and on the 10th of the 12th was amended. So if we examine the contents of the 10th of the 12th as amended, we will see the alterations from the 28th April’s original record.

Q. Precisely. I am merely using this page as an example. You cannot say, can you, from this machine whether the entry “Here (this practice)” was specifically and deliberately entered in at the time the entry was made?
A. No, I suspect that is put in automatically by the system.

Q. Precisely. Now finally I hope, this, if I wanted to make an entry for the 10th December, for example today I want to make an entry for the 10th December, but I do not want the computer to record that I have made it today on the 10th November, there is a very simple way of going about that, isn’t there?
A. I don’t think so, no. Try and enlighten me.

Q. Would you go back please to the front of the computer where we saw the time page?

MR. JUSTICE FORBES: Do I understand this is a way of avoiding the audit trail?

MR. WINTER: Yes.

MR. JUSTICE FORBES: Thank you.

MR. WINTER: Would you enter your code please. Would you apply Change the Date, so press D, and put the date the 10th December 1997. Leave the day of the week, it doesn’t matter. Now apply please to change the time. Would you please type in 15.59. Would you confirm that please? Enter again the medical Summaries, the Histories, and the code 31082. Would you please apply now to Add an entry. Now press F9 please for the Read code and put in please 6144, just an example of a particular code. I promise you I wasn’t aware that was coming. Can you put a Comment now please, perhaps you would write “Test” and the date 10th December 1997. And save that as an added entry. So you press Add. Would you please return to the previous page. Do you see there that we have the entry you have just made for the 10th highlighted for the 10th December 1997 with the details and your word Test?
A. Yes.

Q. Now please analyse to see when the computer thinks that entry was made. The computer thinks that entry was made on the 10th December 1997. Do we understand therefore by that, by the simple changing of the internal computer clock at the outset of the programme, one can completely alter the effective operation of the computer?
A. This data base was held on a separate server. The actual data base manipulation would take place at work stations throughout the surgery.

Q. Although it has a central server?

A. It could be done in the manner in which we have done it, but obviously all entries made thereafter would be incorrect. One would have to come back out of the data base and reenter the correct time for all the other entries then to pick up the right time. Quite in overall a lengthy operation.

Q. In order to put it back to where it was before one simply changes the date at the outset?
A. One comes back to the screen we were in, changes it back to the correct, and then, yes.

Q. If one wanted to create computerised records that purported to show that they were created at the time and date which is entered upon the patient’s history, that is, is it not, a very simple way of doing it?
A. That is a way to do it deceptively, yes.

MR. WINTER: Thank you very much.

Re-examined by MR. WRIGHT

Q. Using that particular illustration, what would happen thereafter whenever you then made a further entry?
A. Without going back and changing the time and date all further entries would follow on chronologically. That clock is now ticking. It is probably, at the moment it is 16.03 so any further additions would also be incorrect.

Q. So the clock on the computer would think that it is now the 10th December 1997 and it is 42 seconds past 4 o’clock?
A. Yes.

Q. And so if then anybody within the practice was then to use the computer?
A. From any of the other work stations.

Q. From any other work station and enter in any details in relation to any other patient?
A. Yes.

Q. Then the date and time that would be displayed upon that entry would be what?
A. Incorrect by the number of days we are amending it or whoever is amending it.

Q. And just to remind us, how many work stations were there please in this surgery?
A. Excluding the actual server there were 5 work stations.

Q. And including the server?
A. 6.

Q. What about if there are 3 successive late entries, each of different dates for example. How could that be done?
A. In an individual record?

Q. Yes?
A. It means that by that methodology one would have to go and change the clock 3 times.

Q. And then put it back to the correct time?
A. Yes.

Q. In other words, once you have put in 3 entries for December 97, September 97 or April 98, you would then have to return to the correct time being the 10th November 1999?
A. Yes.

Q. The user manual that you were asked about, the Microdoc programme user manual, does that set out how you are able to perform that exercise?
A. I would think it probably does. I can’t say specifically. I would think the user is probably explained the relevance of that screen where you are able to change the actual time and date. I am sure it is included in the software to provide the facilities to put it to the correct time and date should your computer’s clock be faulty, which does occur. I am sure it is not designed to be put in there to allow users to use it for this subterfuge.

Q. Furthermore, if we look please at the Bianka Pomfret entries for a moment, and using the schedule as we have it please ladies and gentlemen in our volume 1.

MR. JUSTICE FORBES: The A3 schedule?

MR. WRIGHT: The A3 schedule my Lord, yes thank you. And using the examples that were given to us earlier, so we look at the deletion and creation of the entry dated 28th April of 1997, yes?
A. Yes.

Q. You were able to ascertain from an interrogation of the record information held within the computer the time of the creation of that entry and the deletion of the previous entry?
A. Yes.

Q. At 15.59.08?
A. Yes.

Q. We know that the body was found at 5 pm, that is 17.00 on that day. Now insofar as those entries are concerned is the time of the 15.59.08 a manual creation by the process that we have been having described to us?
A. I can’t say whether it was or it wasn’t. It could have been. The data base can be used in that fashion.

Q. So either the time that was ticking on the clock was the time that day, namely 2 hours, an hour and a half, no, an hour before the discovery of the body, or it was a time deliberately selected by manual entry in the way that we have just undertaken here?
A. One of the two, yes.

Q. And after that the computer itself was then reset?
A. Yes.

Q. Does the user manual explain also that if the date is changed then the audit trail is also necessarily changed?
A. I don’t know. I think the computer manual is so lengthy, computer manuals are generally not anything that anybody particularly likes to read, particularly if one is not overly computer literate. And it may well be that even a regular user of this system would not be aware of all the facilities of the software and all that was contained in the manual.

Q. That with respect does not answer my question. It is more a comment really, isn’t it?
A. It is.

Q. What I am seeking to explore with you is whether or not, whilst the facility may be explained within the manual, is the consequence also likely to be explained within the manual so far as the audit trail is concerned?
A. I would doubt it is because that is not what it is intended to be used for.

MR. WRIGHT: I have no further questions.

MR. JUSTICE FORBES: Thank you very much Detective Sergeant Ashley, you are free to go.

MR. WRIGHT: My Lord, before return to t, oxicology is that a convenient moment?

MR. JUSTICE FORBES: Yes.

MR. WRIGHT: At that stage we can remove the screen and remove the various pieces of equipment.

MR. JUSTICE FORBES: That sounds like a very good idea.

MR. WRIGHT: And resume transmission, as it were.

MR. JUSTICE FORBES: Members of the jury, if you would like to go with your usher for ten minutes we will dismantle all this technology.

(Short adjournment)

ROBIN ADRIAN BRAITHWAITE, sworn
Examined by MR. WRIGHT

Q. What is your full name please?
A. Robin Adrian Braithwaite.

Q. And what is your occupation?
A. I am a Consultant in Toxicology and Head of the Regional Laboratory for Toxicology which is based at City Hospital in Birmingham.

Q. Are you a Consultant Clinical Scientist in Toxicologist?
A. Yes.

Q. And Director of the Regional Laboratory for Toxicology and Super Regional Assay Service?
A. Yes I am.

Q. Honorary Senior Clinical Lecturer in the Division of Medical Sciences at the University of Birmingham?
A. Yes.

Q. Senior Research Fellow at the Institute of Occupational and Environmental Health?
A. Yes I am.

Q. Were you also trained in analytical, clinical and forensic toxicology at Guy’s Hospital, London?
A. Yes.

Q. Do you have over 25 years’ experience in this field?
A. Yes I do.

Q. And have you held a variety of appointments involving medical toxicology, clinical pharmacology, clinical research both here and abroad?
A. Yes I have.

Q. And is an area of particular interest analytical and forensic toxicology and drug and substance abuse?
A. Yes it is.

Q. Have you also published a large number of papers concerning various aspects of human pharmacology and toxicology?
A. Yes I have.

Q. Is that something in the region of 160 such papers?
A. Yes I have.

Q. Senior adviser to the World Health Organisation?
A. Yes I am.

Q. Amongst other particular positions that you hold?
A. Yes that’s correct, yes.

Q. I want to ask you please firstly, and this is page 1187 GH, 1 is the starting point, my Lord.

MR. JUSTICE FORBES: I have it thank you.

MR. WRIGHT: I want to ask you please firstly general matters concerning the metabolism of diamorphine and morphine. This is little 4 within that section. GH(iv).

MR. JUSTICE FORBES: Thank you.

MR. WRIGHT: We heard described by Professor McQuay the arterial road map of the body?
A. Yes.

Q. The motorway of the body?
A. Yes.

Q. And using that as the description of the blood the system together with the approaches to the brain being the big city?
A. Yes.

Q. Is that a particular analogy that you would accept?
A. Yes, I think it is attractive analogy to use.

Q. Diamorphine may enter the blood circulation by a variety of routes, may it not?
A. Yes, that’s correct, either by intravenous injection into a vein or injection into a muscle or by mouth, a variety of routes.

Q. Once it has entered into the body thereafter is diamorphine then rapidly converted?
A. Yes it is. It is rapidly converted to another product which has a long name of 6 monoacetyl morphine, or 6 MAM for short, which is then further converted relatively rapidly to morphine.

Q. That was the halfway stage that Professor McQuay spoke of?
A. That’s correct.

Q. And the time over which such a metabolism or conversion takes place?

A. Yes. Diamorphine will convert to 6 monoacetyl morphine within minutes and this intermediate product is relatively unstable and further converts to morphine in a period of maybe half an hour to an hour.

Q. Now we have heard reference to in this case on a number of occasions both what is called free and total morphine. I don’t propose to spend a great deal of time dealing with the distinction but could you just explain to us please what happens to morphine within the body as to how it is metabolised or conjugated?
A. Right. Morphine continues to be metabolised in the body so morphine is converted to what is called glucuronide metabolite and this largely takes place in the liver and—

Q. Just pause for a moment. Glucuronide metabolite?
A. Yes.

Q. In other words that is morphine and its metabolites?
A. Yes, well the glucuronide is the metabolite so morphine is converted to another product which we know as morphine glucuronide. There are two different, slightly different forms of this but this is the next product which we call glucuronide metabolite. When we talk about total morphine generally this means morphine plus that morphine which is present as its glucuronide metabolite. So it is the total amount of drug that is present that is either as morphine or its metabolite.

Q. So would it be fair to put it in these terms, it is the total amount of morphine together with that part of the morphine that has been metabolised?
A. That’s correct, yes.

Q. What then please is free morphine?
A. Morphine, sorry, free morphine is the unmetabolised morphine so it is actually morphine itself. The molecule has not undergone that change so it is morphine which, as I say, is termed free morphine. It is the unmetabolised part of morphine before it is converted into this glucuronide metabolite.

Q. So putting it another way, squaring the circle, free plus metabolite?
A. Equals total.

Q. Equals total?
A. Yes.

Q. You heard the evidence of Professor McQuay so far as the administration and the effect of various quantities of diamorphine and morphine administered either intramuscularly or intravenously?
A. Yes I did.

Q. Do you seek to dissent in any way from that?
A. No, I would fully support what he said.

Q. May I turn please to codeine, because we have had reference to codeine in this case. What is codeine?
A. Codeine is the sort of 3-methyl derivative of morphine so it is a chemical derivative of morphine that is commonly used in many over the counter preparations combined with paracetamol or aspirin. It is a well known over the counter pain-killer.

Q. But is combined with other chemical substances?
A. Very often. I mean, it can be used on its own but it is most commonly in medicines which are bought over the counter in a pharmacy. It is often combined with either paracetamol or codeine or it may be in other medicines where it is combined with other products.

Q. Is codeine known to convert to morphine in the body?
A. Yes, it is well known that codeine or part of the codeine will be metabolised in the body to produce morphine.

Q. But does it metabolise entirely into morphine?
A. No, it will go through other routes to produce other products, so part of its route is to produce morphine.

Q. And so as part of it produces morphine would you expect to find if codeine were administered and part converts into morphine, the presence of other substances?
A. Yes.

Q. Within the tissue?
A. One would expect to find codeine and a smaller quantity of morphine.

Q. Pholcodine please?
A. Is a morphine like drug, sorry, it is a derivative of morphine that is used in cough medicines, so it is a chemical derivative of morphine that is widely used in a lot of over the counter preparations, particularly for treatment of coughs.

Q. When you say derivative, is it thought to convert to morphine in the body?
A. No, there is no good evidence to show that it is converted. It seems to be remarkably resistant to conversion to morphine in the body.

Q. So is the high water mark that it may convert?
A. It may convert.

Q. Is there any evidence of that?
A. There is no real evidence that it does actually convert to any significant degree.

Q. Dealing with conversion to any significant degree, what would you expect to find if there had been some conversion of pholcodine to morphine?
A. One would expect maybe to find a small trace quantity of morphine but a much larger quantity of the parent drug pholcodine also present.

Q. And why is that?
A. Because very little, from what we know of pholcodine, virtually none of it is converted to morphine. One would expect because it is really metabolised so little in the body that you would largely find unchanged drug pholcodine there in samples of tissue and other tissues and fluids.

Q. I am going to turn to page 1187 F X my Lord.

JUSTICE FORBES: It occurs to me, Mr. Wright, that the members of the jury may have a little difficulty from time to time understanding the names of the various drugs to which reference is made. I merely cast out the thought. Is that so, members of the jury, or are you following the names of these drugs? Very well, I was going to suggest perhaps just a list of the names.

MR. WRIGHT: We could provide a glossary of those terms.

MR. JUSTICE FORBES: Would that help?

MISS DAVIES: Certainly, my Lord.

MR. JUSTICE FORBES: Members of the jury, we will take steps to provide you with a glossary of the names of the drugs. Yes, Mr. Wright.

MR. WRIGHT: Did you receive a bundle of documents in July of this year concerning the forensic investigations carried out by Julie Evans?
A. Yes I did.

Q. And also by Dr. Rutherford?
A. Yes I did.

Q. And also various reports prepared by Dr. Grenville?
A. Yes I did.

Q. We also are aware of documentation concerning a Dr. Karch, the gentleman seated in the middle of the middle row here, from the United States, and also from Julie Evans?
A. Yes I did.

Q. And as a consequence of considering those particular documents did you then review these findings?
A. Yes I did.

Q. And did you prepare a report to that effect?
A. Yes I did.

Q. And from that report was a statement prepared?
A. Yes it was.

Q. And would you wish to refer to that statement whilst giving your evidence?
A. I can do, yes.

MR. JUSTICE FORBES: There is no objection so yes, Dr. Braithwaite, you may refer to it.
A. Thank you.

MR. WRIGHT: We are at page FY. It may assist if you turn, as it were, towards the ladies and gentlemen of the jury, Dr. Braithwaite, and use that part of witness box. Do you have it?
A. Yes. I will just find it.

Q. That should have been done for you by me. I am sorry about that. You have consider the conclusions drawn by Julie Evans and also Dr. Rutherford concerning the cause of death in each of those 9 cases?
A. Yes.

Q. And do you dissent at all from the considered opinion of those two individuals?
A. No, I would support what they have said.

Q. Does there appear to be any other rational or feasible explanation?
A. Not that I know of.

Q. On the material that you have considered does there appear to be any other rational or feasible explanation?
A. No, I am not aware of any.

Q. You have been seated in court whilst Julie Evans gave her evidence?
A. Yes.

Q. Matters were raised by way of cross-examination?

A. No, I would still agree with what I have written in the report and what other experts have said.

MR. JUSTICE FORBES: Can I just be sure, rational or feasible explanation for what, Mr. Wright?

MR. WRIGHT: For the death of the 9 individuals in this case?
A. Yes they, that they probably took or were administered a substantial dose of morphine or diamorphine shortly before death, which is what I wrote.

MR. JUSTICE FORBES: Thank you.

MR. WRIGHT: So far as dosage may be concerned, would it be fair to say this, it is not possible to seek to extrapolate any precise form of measurement from the figures that have been obtained and considered?
A. Yes, it is unwise to do that.

Q. But is there any general conclusion that you are able to give so far as dose is concerned from the figures that you have been made aware of?
A. From the postmortem tissue measurements one would surmise that a substantial dose of morphine or diamorphine had been given or had been taken by the deceased.

Q. And insofar as the range, the bracket that we are aware of the Phelby paper?
A. Yes.

Q. Of deaths from morphine poisoning?
A. Yes.

Q. Are you satisfied that these particular deaths fall within that bracket?
A. Yes, they fall within that range reported in that particular paper.

Q. And so in considering the nature and terms of the dose, what is your opinion so far as that is concerned?
A. Again a large dose, potentially fatal dose of morphine or diamorphine.

Q. Have you considered the method by which the samples were extracted by Julie Evans?
A. Yes. I have seen copy of her report and the methods which she has used and they are acceptable.

Q. And insofar as the, paragraph 7 my Lord.

MR. JUSTICE FORBES: Yes.

MR. WRIGHT: So far as the use of the thigh tissue is concerned, what is your considered opinion as to the use of that particular tissue above any other?
A. I think one would regard it as a recommended specimen to take in many cases and that it has many advantages over other specimen types such as liver or even blood.

Q. Does the fact of the taking of simply thigh tissue, albeit from two separate areas, two separate sites?
A. Yes.

Q. In any way cause you to express any concern as to the reliability of the findings?
A. Well, I think samples were taken from separate sites and showed remarkably good agreement, so one draws the conclusion that what was measured was measured reproducibly and an accurate estimate of the amount of drug in that sample.

Q. Paragraph 11 of the report.

MR. JUSTICE FORBES: Thank you.

MR. WRIGHT: Postmortem redistribution. Is this a concept with which you are familiar?
A. Yes indeed.

Q. Is also a concept of the problems that are attached to it, also matters with which you are familiar?
A. Yes.

Q. Is there in any way any restriction or confinement to the problems of postmortem redistribution that you are aware of?
A. In what respect?

Q. Do they apply equally on blood as they may do to thigh tissue across the gamut of specimens that may be obtained from the deceased?
A. They are a far greater problem with specimens of blood and this is widely discussed in the scientific and forensic literature about those problems. Problems can occur with other tissues but probably muscle tissue, to some extent the postmortem redistribution changes one has mentioned, are probably minimised or least effected in the case of muscle tissue in comparison certainly with blood specimens.

Q. How does the absence of any good in-house data or research on muscle with which to compare these case findings affect your conclusions?

A. It does not affect them substantially. I think one would, it is very difficult to do such studies. Perhaps in a perfect world one might have the opportunity to do those sorts of studies but it does not affect the conclusions which I draw in terms of the significance of those values.

Q. So far as those values are concerned, acknowledging the limitations that may apply to them or attach to them, how do you view the calculations themselves and the figures obtained in relation to thigh muscle?
A. In what respect? The value, the magnitude of the values?

Q. Yes?
A. They are substantial, they are significant toxicologically and one would associate them with, as has been done in the Phelby set of data and other data sets, that they are consistent with the administration of a substantial dose of morphine or diamorphine and not inconsistent with death.

Q. We heard some evidence of the stomach content of Mrs. Turner?
A. Yes.

Q. And a therapeutic dose of morphine?
A. Yes.

Q. 2 milligrams. How do these compare at all with a normal therapeutic dose of morphine?
A. Probably on the low side. I mean 2 milligrams perhaps as compared with a therapeutic dose of morphine maybe of 5 milligrams to 10 milligrams.

Q. How do the figures by way of thigh tissue in relation to the deceased compare?
A. That the values from the thigh measurements would indicate a substantially greater dose than that.

Q. You considered the evidence of dehydration?
A. Yes, yes.

Q. In the various organs with which we have been concerned?
A. Yes.

Q. And you have listened and considered the matters raised this morning?
A. Yes.

Q. Do they cause you any concern?
A. No, I don’t think they are a substantial factor.

Q. Stability of morphine in postmortem material, that too is something that has been reviewed?

A. Yes.

Q. In the evidence thus far?
A. Yes.

Q. And was that also reviewed by you?
A. Yes. There is perhaps limitations on the amount of data available for thigh tissue. There is data available on blood and other materials, and broadly it appears to be relatively stable in postmortem material.

Q. So far as total morphine is concerned is there any observation you would wish to make on that particular topic?
A. As regards total morphine it would seem to be quite stable.

MR. WRIGHT: Thank you. Would you wait there.

Cross-examined by MISS DAVIES

Q. Dr. Braithwaite, your experience, and if I may say so looking at your statement your considerable experience, is in the field of toxicology?
A. It is, yes.

Q. And you have held a number of positions in that field at specialist centres?
A. Yes.

Q. In the course of this case it is clear from your statement that you were asked to look at the reports of Dr. Rutherford, the pathologist?
A. Yes.

Q. And you appear to have been asked to consider those reports. Would you hold yourself out as an expert in the field of pathologist?
A. Not forensic pathologist, no. I was aware of the reports and tried to take from them the major conclusions.

Q. Yes, and that is in effect what you were doing?
A. Yes.

Q. Please don’t think for one moment I am seeking to minimise your expertise in your specialist field, but you were relying on the conclusions of another specialist in another field?
A. Yes.

Q. And for reasons I am sure everybody in this court will understand you did not seek to challenge those conclusions, his experience being wholly different to your own?

A. Absolutely.

Q. As no doubt he would defer to your conclusions in the field of toxicology?
A. Yes.

Q. So far as Dr. Rutherford is concerned you relied on his conclusions in coming to the views you have expressed to the Court today?
A. Yes.

Q. Can I please turn not at great length to your own field, that of toxicology. The greatest, I beg your pardon, one of the major difficulties of dealing with levels in muscle tissue is that there is no good scientific data to assist the interpretation of such levels?
A. I think it is very limited, it is limited should I say.

Q. By all means, limited. It is ground I went over this morning, I am not going to go through it at length now. The fact is that there are no controlled scientific studies, the best literature that can be produced is anecdotal?
A. Not necessarily anecdotal. I think in all of toxicology, particularly forensic toxicology, it is almost impossible to do controlled studies by the very nature of the subject.

Q. Indeed?
A. One perhaps can only do control studies in animal studies.

Q. And therefore insofar as there is any attempt to interpret the findings in this case with anything in published literature, I think you have used on one occasion the word “consistent,” on another in your statement you have used the phrase “broadly comparable?”
A. Yes.

Q. That really is as far as one can go?
A. Yes.

Q. The other difficulty is this, that by reason of the period between death and exhumation in all of these cases, and by reason of the processes which would have continued in each of the 9 bodies, although there is a level that has been subsequently analysed by Mrs. Evans, one cannot say that level accurately reflects the level of the drug at the date of death?
A. No. I wouldn’t wish to state that it is inaccurate. It is an index of.

Q. It is an index of. And can I please deal just with one other separate point. You have raised the issue of dehydration, namely the loss of water content. You have heard me no doubt deal at some length this morning with the issue of concentration of the mass?
A. Yes.

Q. Would you accept the proposition that during any process of decomposition there is a concentration of mass which is due not simply just to loss of water but, for example, to the low volatile compounds and other factors?
A. There may be loss of some volatile compounds but the actual concentration of the drug is perhaps not changed. If the water contents is broadly the same, one is still measuring the amount of drug in one gram of material. It is still one gram of material that one is taking.

Q. But the real difficulty is one does not know at the date of sampling what that one gram of material represented at the date of death?
A. There is some, there is likely to be change due to putrefaction within that tissue and, as you say, it may not be exactly the same gram of material, but it is again a representative amount of material—

Q. It is a, I do beg your pardon?
A. …that one is comparing with.

Q. It is a representative sample but as a matter of fact the person carrying out that analysis does not know if that sample represents the same weight as at the date of death?
A. I think the biggest problem is the loss of water and dehydration rather than loss of other materials.

Q. There is the loss of other materials as well isn’t there?
A. I think that is not quite so well documented as loss of water which would be the major factor that one would perhaps be concerned with.

Q. Can I please deal with something that arose this morning which you touched on briefly in your evidence, namely the finding of morphine in the stomach of one of the ladies, Mrs. Melia, where something in the order of 2 milligrams was found?
A. Yes.

Q. Two propositions were put forward. One is it was the result of enterohepatic recirculation?
A. Yes.

Q. Could you explain that please?

A. This is where a drug and metabolites is excreted in the bile from the liver and enters the small intestine. Then it can be converted by microorganisms in the gut, so in the case of the morphine metabolites that might release some free morphine which then can be reabsorbed back into the body. So it is a sort of recirculation, recycling process.

Q. Are you able to say over what period of time such a process would take?
A. Maybe over some hours.

Q. And that is what we are talking about, a period of some hours?
A. Yes.

Q. And it would be a period of some hours in a living person?
A. Yes, yes.

Q. So that in order for the two milligrams of morphine to be subsequently found in the stomach of Mrs. Melia, for that process of recirculation to have taken place there would have had to have been a period of some hours in life during which that morphine could have been recirculated for it to result in being in the stomach?
A. It would also depend on the validity of that stomach sample and whether it is contaminated in some way or, you know, within the body.

Q. But if one explanation, and in fairness to Mrs. Evans she allowed for two, if one interpretation is the presence of the morphine in the stomach is enterohepatic recirculation, that has to take account of morphine in the body in life for some hours?
A. I wouldn’t want to put a very precise time scale on it. I am saying it is some hours.

Q. Indeed. The point I was seeking to make is we are dealing with hours as opposed to minutes?
A. Yes.

Q. Dr. Braithwaite, as you were giving your evidence I was handed a tone which is entitled, The Disposition of Toxic Drugs and Chemicals in Man. It may be a tone well known to yourself and it is to do with the point on pholcodine and the breaking down into morphine?
A. Yes.

Q. I have not had an opportunity to give you a copy of it, not at least because the evidence you have given is not in your report. I wonder in those circumstances it is probably much easier if I hand the book to you for one simple passage in it. I apologise to yourself and the members of the jury, it wouldn’t be the way I would normally do it?
A. Thank you very much.

Q. If I can hand this out on a limited basis. It is a short point. Is the book known to you?
A. Oh, yes indeed. It is probably the very latest edition. I haven’t actually seen it yet.

Q. And if we turn to page 705 of it we find the part that deals with pholcodine, yes?
A. Yes indeed.

Q. It deals with the occurrence and usage, blood concentrations and page 706 at the beginning of the second paragraph deals with metabolism and excretion and there are various diagrams which replicate diagrams you have produced for the Court?
A. Yes.

Q. It would seem, would it not, that that certainly contemplates the breaking down or conjugation of pholcodine into morphine?
A. Yes, it does, it shows the structure of morphine down at the bottom left-hand side, yes.

Q. And the book to which I have referred you, it is very much one of the recognised books in the particular field of toxicology?
A. Yes. I mean, it is very much a review book and so the author takes, reviews work from all sorts of sources, so the original work might have been done by the somebody else, not the editor of the book himself. So I am not sure without reading it in more detail who he is citing there as the author of this metabolic plan.

Q. Dr. Braithwaite, I have literally shown it to you. If you want any more time to look at it—
A. No, no, it is fine.

MISS DAVIES: That being the case I have no further questions thank you.

Re-examined by MR. WRIGHT

Q. Does it necessarily mean when dealing with the stomach contents, this was Mrs. Melia?
A. Yes.

Q. And the two milligrams of morphine found within the liquid within the stomach, does it necessarily mean that the patient was alive for that period of time, a couple of hours?
A. No, I wouldn’t want one to be categorical about that. I think it is very difficult to be precise.

Q. And this is considering the concept enterohepatic recirculation?
A. Yes.

Q. Is that the only route by which the morphine may actually have been eventually distributed into the stomach?
A. No, it might have diffused from the blood.

Q. And—
A. And been trapped in that sort of fluid in the stomach.

Q. So it may have diffused from the blood. Would that involve also the problems or the problem area of postmortem redistribution?
A. It is part and parcel of that problem.

Q. So the quantity found within the stomach could be quantitatively identified through a process postmortem as opposed to premortem?
A. Yes.

Q. In other words it could have occurred after death rather than before it?
A. Either, yes.

Q. Could it also be in the stomach from contact with the liver?
A. Yes. Again part of postmortem diffusion.

Q. So we have leakage from blood vessels, postmortem redistribution from the liver?
A. Yes.

Q. As well as enterohepatic recirculation?
A. All those potentially.

Q. All of the above really?
A. Yes.

Q. So is it possible say precisely how this morphine within the stomach may actually have arisen?
A. In honesty no.

Q. In terms of quantity is it of significance?
A. It is a small quantity.

Q. You were asked a few points on the factor of dehydration. Does that particular factor and the matters that have been raised cause you to review in any way your stated considered opinion?
A. Not at all.

Q. As to the cause of death in each of those cases?
A. No.

MR. WRIGHT: I have no further questions.

MR. JUSTICE FORBES: Thank you, Dr. Braithwaite. You are free to go. Thank you very much.

MR. WRIGHT: I can’t now remember just precisely how many breaks we have had this afternoon. It has been one of those days I am afraid. The next witness I propose it call is Dr. Karch. It is a little different by topic although still essentially toxicological, but there are also clinical findings to be dealt with. Might we have a few moments just to stretch our legs?

MR. JUSTICE FORBES: Of course you may. Members of the jury, we will break off for a short while whilst Mr. Wright regroups and then resume again as soon as he is ready. I imagine 5 minutes.

MR. WRIGHT: No more than that.

In the absence of the jury

MR. JUSTICE FORBES: Yes I gather you want….

MISS DAVIES: Thank you for giving me time to address you. Tomorrow the prosecution propose to recall Dr. Rutherford for cross-examination.

MR. JUSTICE FORBES: Yes.

MISS DAVIES: As, my Lord, you know my learned friend Mr. Winter and I have effectively split the cases factually between us. I am conscious this is a somewhat unusual course but insofar as individual cases are concerning cross-examination of Dr. Rutherford, would you permit us to each deal with our individual cases each so that I would, for example, deal with those cases where I have cross-examined.

MR. JUSTICE FORBES: Of course.

MISS DAVIES: Thank you very much indeed.

MR. JUSTICE FORBES: Whatever is the way which most assists you in the conduct of the defence entirely meets with my approval.

MISS DAVIES: Thank you very much. Can I also say this, I would also be seeking your leave to do exactly the same thing with Dr. Grenville.

MR. JUSTICE FORBES: You need not ask me again.

MR. WRIGHT: May I raise one matter in the absence of the jury, that in the examination-in-chief of Dr. Braithwaite I elicited, in fact it had not sunk in with me at the time I elicited it, I had a discussion with my learned friend Miss Davies about it, I elicited a response from Dr. Braithwaite as to the administration of a substantial dose of morphine.

MR. JUSTICE FORBES: Yes.

MR. WRIGHT: Which he then went on to remark was shortly before death.

MR. JUSTICE FORBES: Did he?

MR. WRIGHT: Well, there we are. It is not our case that that is asserted by the Crown. It is a matter that there was discussion on and we have considered the reports of experts that have been served upon us. We have been steadfast in our approach to the calculations in this case and the use merely of total morphine as opposed to any ratio between free and total, and we do not in any way seek to elicit evidence as to rapidity of death. That remark, of course, is entirely on the point of rapidity of death. It is not the way the Crown put their case. It was elicited by way of a question to which the response itself was not anticipated would incorporate that particular phrase and I thought I had better raise it at this stage so that in due course your Lordship in summing up the case, when you will remind them of the evidence of Dr. Braithwaite, that particular factor is not a factor in this case the Crown seek to rely upon.

MR. JUSTICE FORBES: Thank you for drawing it to my attention so that I should not repeat the error in the course of the summing up. Do you require me to take any other action?

MR. WRIGHT: No. We thought it preferable to deal with it in open court because the press also have interest in the evidence as it has been elicited in this case. But may I say, for the avoidance of any doubt, that that particular feature is not a feature of this case that the Crown in any way seek to rely upon. There is clear authority upon the point from the experts that rapidity is a most unreliable topic and is not one upon which there ought to be any faith at all.

MR. JUSTICE FORBES: By rapidity you mean the speed with which or the duration of the time interval between the administration of the substantial dose of diamorphine by whatever means and ensuing death?

MR. WRIGHT: Yes, by any calculation from the figures so far as the total morphine within the thigh is concerned one cannot – we have the evidence of Professor McQuay as to the effects of the administration of morphine, that is the Crown’s case, and as to the on-set of any stupor, any sleep, any sleepiness on the part of the patient and thereafter death, but what we cannot do is seek to extrapolate from the figures that in any particular case there was from the figures alone such a rapid death.

MR. JUSTICE FORBES: Yes, I understand. Thank you for drawing it to my attention. I shall take appropriate steps to ensure I make no reference to it myself. Are you content that the matter should be left on that basis?

MISS DAVIES: My Lord, yes.

MR. JUSTICE FORBES: Very well. Thank you very much.

MR. JUSTICE FORBES: Let the jury come back.

MR. WRIGHT: Would your Lordship permit one other matter? Would your Lordship consider going one stage further and directing there be no reporting of that particular facet of the evidence of Dr. Braithwaite.

MR. JUSTICE FORBES: Pursuant to what power, exhortation to the press?

MR. WRIGHT: It would have to be exhortation to the press because I don’t consider that section 4 of the Contempt of Court Act would cover the situation.

MR. JUSTICE FORBES: I am sure the press have heard what you have said. They know what I am going to do or rather what I am not going to do in the course of my summing up with regard to this particular part of Dr. Braithwaite’s answer to a question and I am sure that they will be very co-operative and make no reference to it in any report of today’s proc, eedings which they intend to publish. And I would simply ask all representatives of the press to oblige me and oblige the process of the proper conduct of this trial by co-operating in that regard.

MR. WRIGHT: Thank you.

Members of the jury returned

STEVEN BERNARD KARCH, sworn
Examined by MR. WRIGHT

Q. My Lord, this witness’s evidence is to be found at page 1187 GI which is volume 2 of 2 of the expert evidence.

MR. JUSTICE FORBES: Thank you.

MR. WRIGHT: What is your full name please?
A. Stephen Bernard Karch.

Q. Dr. Karch, what are your qualifications please?
A. I have an MD from Tulane University.

Q. And are you then a Doctor of Medicine?
A. I am a Doctor of Medicine, yes.

Q. In the United States?
A. In the United States.

Q. Do you have other further qualifications?
A. I received my Bachelors degree in Philosophy from Brown University in Providence, Rhode Island. I did graduate work in cell biology at Stamford University. I was a fellow in neuropathology at the London hospital in London. I was a resident in Neurology at Stanford University. I did an internship in general medicine at Kaiser Foundation in Oakland, California and worked for 7 years in the cardiac pathology Laboratory at Stanford University doing resuscitation research and research on the effects of drugs on the heart.

Q. Are you also the author of a considerable number of publications?
A. Yes

Q. Including publications on drug abuse?
A. Primarily on drug abuse.

Q. Are you also involved in funded investigations, including the position of investigator in the World Health Organisation in a collaborative project for sudden cardiac death?

A. Yes. I just came here from the organisational meeting. We will be starting an international project to see if we can determine risk factors from analysis of hearts of individuals who died suddenly.

Q. And do your publications also include the pathology of drug abuse?
A. Yes.

Q. Have you prepared a report in this particular case concerning the deaths of the 9 deceased exhumed in relation to this enquiry?
A. Yes.

Q. And have you also considered the post mortem reports of Dr. Rutherford?
A. Yes.

Q. The laboratory reports of Mrs. Evans?
A. Yes.

Q. Also the report of Dr. Braithwaite?
A. Yes.

Q. And of Dr. Grenville?
A. Yes.

Q. And have you also considered the report of a consultant toxicologist from whom we will hear in due course Dr. Sachs?
A. Yes I have.

Q. Dr. Hans Sachs?
A. Yes.

Q. Have you also considered a number of reports from other experts in the field concerned with this particular enquiry?
A. Yes. I received a packet of reports from experts for the defence.

Q. Have you examined any of the microscopic sections of any of the specimens from the deceased?
A. No, I have not had that opportunity.

Q. But have you considered the records of those particular histological findings?
A. Yes. My conclusions are based on Dr. Rutherford’s interpretations of the slides.

Q. I want to ask you this please, the very bottom of page GJ my Lord. In your opinion are the anatomic findings elicited by Dr. Rutherford, taken together with the findings of Julie Evans and of Professor Sachs, in your opinion sufficient to explain the deaths of the 9 deceased in question?
A. Yes, I believe they are.

Q. Have you also considered various matters drawn to your attention by way of the reports submitted to you from the defence?
A. Yes I have.

Q. Have you taken into account any abnormality as identified at postmortem examination in the hearts of any of the deceased?
A. Indeed yes.

Q. And considered whether they were sufficient to cause sudden cardiac death at any time?
A. Yes.

MR. JUSTICE FORBES: Dr. Karch, would you be assisted by referring to your report whilst giving evidence?
A. Yes sir, my Lord.

MR. JUSTICE FORBES: Have you any objection?

MISS DAVIES: No.

MR. JUSTICE FORBES: Very well, you may.

MR. WRIGHT: May I ask then please a general point so far as any abnormality of the heart is concerned. What in your opinion please is the effect of the administration of morphine to an individual suffering such a defect?
A. Well, there are a number of different effects exerted by morphine and it would be very difficult at this stage to say which effect exerted, which property of the morphine exerted the greatest effect, but morphine does two things that would exacerbate the sort of heart disease that we see in several of these individuals. The first thing that happens is that, and some of you may have had experience with seeing drug addicts, seeing train spotting, that drug addicts, particularly heroin addicts, often have scratches and it is not because of bad hygiene but it is because when you inject heroin that releases histamine and histamine causes the skin to itch and addicts are often itchy and have scratches. One of the other things that happens when the histamine is released is that it can affect the heart beats and it can also dilate blood vessels. People who have a histamine reaction get red faced and that reflects dilation of blood vessels throughout the body. If the blood vessels in the body dilate, less blood goes back to the heart and if there is less blood going back to the heart that means that less blood is available to go through the partial obstructions that were present in a number of these patients.

Q. So please how would be administration of a significant dose of morphine, diamorphine, affect an individual with any, with a heart condition?

A. Even without a heart condition we know from studies, controlled studies in humans at surgery, that their blood pressure would likely go down, histamine levels would go up, blood pressure would go down. If blood pressure goes down then the heart is not profused. Not enough blood going to the heart muscle means the heart muscle becomes irritable and may fail either electrically, in other words have an arrythmia, cardiac arrest, or may fail pump wise, in other words not pump adequately or both.

Q. You see the lady with her eyes closed here trying to keep pace with what you are saying. If you could show down a little. I am the one that gets the look that tells me that you are going too fast. Any other effect so far as the administration of morphine, diamorphine is concerned? We have dealt with the effect on the heart or on the blood vessels please, any other area, any other topic?
A. Well, there is a very big one and that is that morphine given to individuals who are not tolerant will stop them from breathing and cause respiratory arrest and subsequently death. In this particular case we are very fortunate because we have hair to look at and hair is an indicator, as we have only known for the last year, of the degree of drug use. And in the cases of the individuals here analysis of their hair shows very low levels based on Dr. Sachs’s analysis, shows very low levels of heroin. In fact the levels are comparable to the levels that are seen in people that die of heroin overdose and this is information that only was published last year in Lancet.

Q. If I can just stop you for a moment, Dr. Sachs will be called in due course to give evidence of the hair findings, but insofar as your own opinion is concerned have you taken into account the hair findings of Dr. Sachs?
A. The hair.

Q. Professor Sachs?
A. Professor, the findings of Professor Sachs in my mind are extremely important because they establish drug naïvety.

Q. In whose cases?
A. Well, one case had a level of 11 nanograms.

Q. I am not going to ask you about precise figures of each of them but so far as each of these deceased are concerned have you considered the question as to whether these individuals may or may not have been morphine naïve?
A. Yes, and I think in every single case they were. One of the individuals had somewhat more morphine in the hair than all the others but compared to known heroin addicts the levels were generally very very low.

Q. Is there an explanation for that, an innocent explanation for it?
A. No, there is no innocent explanation, except they had not taken morphine in the past.

Q. They had not taken morphine in the past?
A. No.

Q. Final general topic before turning to rather more specific findings. Any diagnosis of a stroke in the deaths here, for example in the case of Mrs. Quinn and Mrs. Grimshaw as entered on the death certificate? Can you help us please as to what the effect may be of the administration of a significant dose of morphine upon—
A. There are two kinds of strokes that people can have, one is a haemorrhagic stroke where there is bleeding into the brain and that is almost always associated with the either malformation you are born with or high blood pressure. Morphine would not raise the blood pressure so would not be associated with a haemorrhagic stroke. It seems extremely unlikely that could ever be the case. On the other hand, someone who is elderly and has atherosclerosis, furring up if you will, of the blood vessels in the brain, who has a large dose of morphine but sufficient to drop their blood pressure, might well sustain a stroke.

Q. So I would just like to ask about cause and effect really. Is the administration of morphine then necessarily connected if there were a stroke to such a stroke?
A. It might be connected to an infarction, a non-haemorrhagic stroke, but not to haemorrhagic stroke.

Q. Hydration within the organs, dehydration within the organs. You have considered evidence that has been elicited on that particular topic?
A. Yes.

Q. Do you seek in any way to disagree with the expressed opinion of Julie Evans and Dr. Braithwaite?
A. No.

Q. Do you consider that the total morphine concentration measured in each of these cases would be significantly altered by the degree of dehydration?
A. The total amount measured would be affected by the degree of hydration.

Q. To what extent?
A. Well, if dehydration were present the levels would go up but there is no evidence of dehydration, or only negligible changes.

Q. So far as the morphine levels found in the hair samples of the deceased, of which we can ask Professor Sachs in due course, do you find those levels at all an unexpected finding?

A. No. This is not a very well studied field, or as well studied as we would like it to be, but we do know that drugs end up in hair via several different routes. One way is through the little follicle that attaches the hair to your scalp but another way is from sebum and sweat secreted from your scalp. And the low levels seen here could be consistent with sweat and sebum containing drug because morphine appears very rapidly in the sweat and could have accumulated between the time the drug was given and the time the patient died. The other possibility that also exists, particularly in the one patient who has a slightly higher level—

MISS DAVIES: My Lord, I have great unease about this evidence because the primary evidence is not before the Court.

MR. JUSTICE FORBES: Sorry, I didn’t quite hear.

MISS DAVIES: I have an unease about this witness commenting on evidence when the primary evidence is not before the Court and has not yet been subject to any scrutiny.

MR. JUSTICE FORBES: How do we deal with that? There is a point there but on the other hand…

MR. WRIGHT: There is, but there ought to be, in my respectful submission, no bar to this witness giving evidence, considered as expert evidence, having regard to the reports that he has read in the case and the matters that are to be elicited by way of evidence. The mere fact that Professor Sachs has not given evidence in advance of this witness does not make his evidence on the topic inadmissible. But may I put it a different way, I don’t propose to explore it at any—

MR. JUSTICE FORBES: You are perfectly correct and in the ordinary way if I were sitting as a judge alone I would hear the evidence de bene esse and look at it again in the light of the way in which the later evidence develops, but I can’t have that luxury at the moment, so is there a way you can deal with this without asking Dr. Karch to develop his evidence too extensively on the basis of what he has read in a report of a witness who has not yet given evidence?

MR. WRIGHT: Yes.

MR. JUSTICE FORBES: If this causes any difficulty I will be sympathetic to you recalling Dr. Karch after Professor Sachs has given his evidence to give further evidence about it.

MR. WRIGHT: Thank you. There may be logistical difficulties in this regard, I think he is next headed to Sydney amongst other places, but I think it can be resolved by discussion between us as opposed to by ruling or by at this stage taking the matter any further.

MR. JUSTICE FORBES: Would you like opportunity to consider it overnight?

MR. WRIGHT: Please?

MR. JUSTICE FORBES: Does that meet with your approval, Miss Davies?

MISS DAVIES: My Lord, yes.

MR. JUSTICE FORBES: Members of the jury we will break off now and resume again at 10.30 tomorrow morning. Can I just check with you that you find the morning and afternoon, mid morning and mid afternoon breaks of assistance to you in concentrating on the evidence? I see you nodding. You don’t find it disruptive to your ability to follow the evidence in this case. Very well.

Members of the jury retired

MR. JUSTICE FORBES: Dr. Karch, I am sure I don’t have to tell you this but I must warn you that while you are still giving your evidence you must not discuss any aspect of this case with anybody at all without my permission do you understand?
A. Yes.

MR. JUSTICE FORBES: Very well. 10.30 tomorrow morning.

[COMMENT1]
354 folios

94

http://www.the-shipman-inquiry.org.uk/trialday.asp?Day=21

http://www.the-shipman-inquiry.org.uk

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Harold Shipman

Harold Shipman

Harold Shipman
Background information
Birth name: Harold Frederick Shipman
Born: 14 January 1946(1946-01-14)
Nottingham, Nottinghamshire, England
Died: 13 January 2004 (aged 57)
HM Prison Wakefield, West Yorkshire, England
Cause of death: Suicide by hanging
Killings
Number of victims: 250+
Span of killings: 1975 – 1998
Country: England, United Kingdom
Date apprehended: 7 September 1998

Harold Frederick “Fred” Shipman[1] (14 January 1946 – 13 January 2004) was a British convicted serial killer and former doctor. He is one of the most prolific known serial killers in history with 218 murders being positively ascribed to him, although the real number may be twice that.

On 31 January 2000, a jury found Shipman guilty of 15 murders. He was sentenced to life imprisonment and the judge recommended that he never be released. The whole life tariff was confirmed by the Home Secretary a little over two years later.

After his trial, the Shipman Inquiry, chaired by Dame Janet Smith, decided there was enough evidence to suggest Shipman had probably killed about 250 people, of whom 218 could be positively identified. About 80% of his victims were women. His youngest victim was Peter Lewis , a 41-year-old man.[2] Much of Britain’s legal structure concerning health care and medicine was reviewed and modified as a direct and indirect result of Shipman’s crimes, especially after the findings of the Shipman Inquiry, which began on 1 September 2000 and lasted almost two years. Shipman is the only British doctor found guilty of murdering his patients.[3]

Shipman died on 13 January 2004, after hanging himself in his cell at Wakefield Prison in West Yorkshire.

Early life and career

Shipman was born in Nottingham, Nottinghamshire, the son of Vera and Harold Shipman, who was a council lorry driver.[4] His working class parents were devout Methodists.[4] Shipman was particularly close to his mother, who died during his teenage years.[4][5] Shipman graduated from Leeds School of Medicine in 1970, and started work at Pontefract General Infirmary in Pontefract, West Riding of Yorkshire. In 1974, he took his first position as a general practitioner (GP) in Todmorden, West Yorkshire. In 1975 he was caught forging prescriptions of pethidine for his own use. He was fined £600, and briefly attended a drug rehabilitation clinic in York. After a brief spell as medical officer for Hatfield College, Durham, and temporary work for the National Coal Board, he became a GP at the Donneybrook Medical Centre in Hyde, Cheshire, in 1977.

Shipman continued working as a GP in Hyde throughout the 1980s and founded his own surgery on Market Street in 1993, becoming a respected member of the community. In 1983, he was interviewed on the Granada television documentary World in Action on how the mentally ill should be treated in the community.[6]

Detection

In March 1998, Dr. Linda Reynolds of the Brooke Surgery in Hyde—prompted by Deborah Massey from Frank Massey and Son’s funeral parlour—expressed concerns to John Pollard, the coroner for the South Manchester District, about the high death rate among Shipman’s patients. In particular, she was concerned about the large number of cremation forms for elderly women that he had needed countersigned. She claimed Shipman was, either through negligence or intent, killing his patients.

The matter was brought to the attention of the police, who were unable to find sufficient evidence to bring charges; The Shipman Inquiry later blamed the police for assigning inexperienced officers to the case. Between 17 April 1998, when the police abandoned the investigation, and Shipman’s eventual arrest, he killed three more people.[7][8] His last victim was Kathleen Grundy, a former Mayor of Hyde, who was found dead at her home on 24 June 1998. Shipman was the last person to see her alive, and later signed her death certificate, recording “old age” as cause of death.

Grundy’s daughter, lawyer Angela Woodruff, became concerned when solicitor Brian Burgess informed her that a will had been made, apparently by her mother (although there were doubts about its authenticity). The will excluded her and her children, but left £386,000 to Shipman. Burgess told Woodruff to report it, and went to the police, who began an investigation. Grundy’s body was exhumed, and when examined found to contain traces of diamorphine (heroin), often used for pain control in terminal cancer patients. Shipman was arrested on 7 September 1998, and was found to own a typewriter of the type used to make the forged will.[9]

The police then investigated other deaths Shipman had certified, and created a list of 15 specimen cases to investigate. They discovered a pattern of his administering lethal overdoses of diamorphine, signing patients’ death certificates, and then forging medical records indicating they had been in poor health.[10]

Prescription For Murder, a book by journalist Brian Masters, reports two theories on why Shipman forged the will. One is that he wanted to be caught because his life had got out of control, the other that he planned to retire at fifty-five and leave the country.

Trial and imprisonment

Shipman’s trial, presided over by Mr Justice Forbes, began on 5 October 1999. Shipman was charged with the murders of Marie West, Irene Turner, Lizzie Adams, Jean Lilley, Ivy Lomas, Muriel Grimshaw, Marie Quinn, Kathleen Wagstaff, Bianka Pomfret, Norah Nuttall, Pamela Hillier, Maureen Ward, Winifred Mellor, Joan Melia, and Kathleen Grundy, all of whom had died between 1995 and 1998.

On 31 January 2000, after six days of deliberation, the jury found Shipman guilty of killing 15 patients by lethal injections of diamorphine, and forging the will of Kathleen Grundy. The trial judge sentenced him to 15 consecutive life sentences and recommended that he never be released. Shipman also received four years for forging the will. Two years later, Home Secretary David Blunkett confirmed the judge’s recommendation that Shipman never be released, just months before British government ministers lost their power to set minimum terms for prisoners.

In February 2002, the General Medical Council formally struck Shipman off their register.

Shipman consistently denied his guilt, disputing the scientific evidence against him. He never made any statements about his actions. His defence tried, but failed, to have the count of murder of Mrs Grundy, where a clear motive was alleged, tried separately from the others, where no obvious motive was apparent.

Although many other cases could have been brought to court, the authorities concluded it would be hard to have a fair trial, in view of the enormous publicity surrounding the original trial. Also, given the sentences from the first trial, a further trial was unnecessary. The Shipman Inquiry concluded Shipman was probably responsible for about 250 deaths.[11] The Shipman Inquiry also suggested that he liked to use drugs recreationally.[12]

Despite the prosecutions of Dr John Bodkin Adams in 1957, Dr Leonard Arthur in 1981, and Dr Thomas Lodwig in 1990 (amongst others),[13] Shipman is the only doctor in British legal history to be found guilty of killing patients.[14] According to historian Pamela Cullen, Adams had also been a serial killer—potentially killing up to 165 of his patients between 1946 and 1956—but as he “was found not guilty, there was no impetus to examine the flaws in the system until the Shipman case. Had these issues been addressed earlier, it might have been more difficult for Shipman to commit his crimes.”[15] H. G. Kinnell, writing in the British Medical Journal, also speculates that Adams “possibly provided the role model for Shipman”.[16]

Death

Shipman committed suicide by hanging in his cell at Wakefield Prison at 6:20 am on 13 January 2004, on the eve of his 58th birthday, and was pronounced dead at 8:10 am. A Prison Service statement indicated that Shipman had hanged himself from the window bars of his cell using bed sheets.[17] Some British tabloids expressed joy at his suicide and encouraged other serial killers to follow his example; The Sun ran a celebratory front page headline, “Ship Ship hooray!”[18]

Some of the victims’ families, however, said they felt cheated,[19] as his suicide meant they would never have the satisfaction of Shipman’s confession, and answers as to why he committed his crimes. The then Home Secretary David Blunkett noted that celebration was tempting, saying: “You wake up and you receive a call telling you Shipman has topped himself and you think, is it too early to open a bottle? And then you discover that everybody’s very upset that he’s done it.”[20]

Despite The Sun’s celebration of Shipman’s suicide, his death divided national newspapers, with the Daily Mirror branding him a “cold coward” and condemning the Prison Service for allowing his suicide to happen. The Independent, on the other hand, called for the inquiry into Shipman’s suicide to look more widely at the state of Britain’s prisons as well as the welfare of inmates.[21]

Shipman’s motive for suicide was never established, although he had reportedly told his probation officer that he was considering suicide so that his widow could receive a National Health Service (NHS) pension and lump sum, even though he had been stripped of his own pension.[22] His wife received a full NHS pension, which she would not have been entitled to if he had died after the age of 60.[23] FBI “profiler” John Douglas asserted that serial killers are usually obsessed with manipulation and control, and killing themselves in police custody, or committing “suicide by cop“, can be a final act of control.[24]

Shortly after Shipman’s death, Sir David Ramsbotham wrote an article in The Guardian newspaper, urging that whole life sentencing be replaced by indefinite sentencing. He said indefinite sentences would be better than whole life sentences because, while a prisoner might still never be released, they would always have the hope that they might.[25]

Aftermath

In January 2001, Chris Gregg, a senior West Yorkshire detective was selected to lead an investigation into 22 of the West Yorkshire deaths.[26] Following this a report into Shipman’s activities submitted in July 2002 concluded that he had killed at least 215 of his patients between 1975 and 1998, during which time he practiced in Todmorden, West Yorkshire (1974–1975) and Hyde, Greater Manchester (1977–1998). Dame Janet Smith, the judge who submitted the report, admitted that many more suspicious deaths could not be definitively ascribed to him. Most of his victims were elderly women in good health.

In her sixth and final report, issued on 24 January 2005, Smith reported that she believed that Shipman had killed three patients, and she had serious suspicions about four further deaths, including that of a four-year-old girl, during the early stage of his medical career at Pontefract General Hospital, West Riding, Yorkshire. Smith concluded the probable number of Shipman’s victims between 1971 and 1998 was 250. In total, 459 people died while under his care, but it is uncertain how many of those were Shipman’s victims, as he was often the only doctor to certify a death.[27]

The Shipman Inquiry also recommended changes to the structure of the General Medical Council.[28]

The General Medical Council charged six doctors who signed cremation forms for Shipman’s victims with misconduct, claiming they should have noticed the pattern between Shipman’s home visits and his patients’ deaths. All these doctors were found not guilty. Shipman’s widow, Primrose Shipman, was called to give evidence about two of the deaths during the inquiry. She maintained her husband’s innocence both before and after the prosecution.

In October 2005, a similar hearing was held against two doctors who worked at Tameside General Hospital in 1994, who failed to detect that Shipman deliberately administered a “grossly excessive” dose of morphine.[29][30]

A 2005 inquiry into Shipman’s suicide found that it “could not have been predicted or prevented,” but that procedures should nonetheless be re-examined.[23]

In 2005, it came to light that Shipman might have stolen jewellery from his victims. Over £10,000 worth of jewellery had been found in his garage in 1998, and in March 2005, with Primrose Shipman pressing for it to be returned to her, police wrote to the families of Shipman’s victims asking them to identify the jewellery.[31][32]

Unidentified items were handed to the Assets Recovery Agency in May.[33] In August the investigation ended: 66 pieces were returned to Primrose Shipman and 33 pieces, which she confirmed were not hers, were auctioned. The proceeds of the auction went to Tameside Victim Support.[34][35] The only piece actually returned to a murdered patient’s family was a platinum-diamond ring, for which the family were able to provide a photograph as proof of ownership.

A memorial garden to Shipman’s victims, called the Garden of Tranquillity, opened in Hyde Park (Hyde) on 30 July 2005.[36]

Harold and Fred (They Make Ladies Dead) was a 2001 strip cartoon in Viz, also featuring serial killer Fred West. Extracts from the strip were subsequently merchandised as a coffee mug.

Shipman, a television dramatisation of the case, was made in 2002 and starred James Bolam in the title role.[37] The case was also referenced in an episode of the television series Diagnosis: Unknown called “Deadly Medicine” (Season 2, Episode 17, 2003).[38] Shipman’s activities also inspired D.A.W., an episode of the American TV series Law & Order: Criminal Intent. In it, the police investigate a physician who they discover has killed 200 of his patients.[39]

Both The Fall and Jonathan King have released songs about Shipman. The Fall’s song is, “What About Us?”, from the 2005 album Fall Heads Roll, asks the question “what about us, Shipman?”—implying Shipman should have handed out free drugs to the author (for recreational use).

King’s song became controversial when, six months after its release, it was reported to be in Shipman’s defence, urging listeners not to “fall for a media demon”.[40]

As of early 2009, families of the victims of Shipman are still attempting to seek compensation for the loss of their loved ones.[41]

In September 2009, it was announced that letters written by Shipman during his prison sentence were to be sold at auction.[42] However, following complaints from victim’s relatives and the media, the letters were removed from sale.

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