In a meeting room in the City of London, eight men and women finish cups of coffee, pin on name badges and take their seats at a long oak table in a room lined with leather-bound books. They are here for the first day of a training course that will teach them how to become effective expert witnesses in court cases.
The course tutor, Gillian Davies, stands at the front of the class. She is meticulous, with a mind that seems capable of finding a sensible answer to even the most maverick of questions from the floor. Davies, a solicitor, is head of the expert witness group at legal training company Bond Solon.
The students introduce themselves: Mike, an orthopaedic surgeon; Christina and Jennie, both psychotherapists, specialise in child abuse and neglect; Colin, a GP, is already producing 20 expert witness reports a month; Philippa is a director of nursing in the NHS; another Mike is a general surgeon; and David, a psychiatrist who specialises in brain injury, produces reports for victims of traffic accidents.
Sitting next to me is Roxane Agnew-Davies, a clinical psychologist specialising in domestic violence, who has agreed to let me follow her through her expert witness training. She is a director of Domestic Violence Training Ltd., a mental health adviser to the Greater London Domestic Violence Project and a senior research fellow at London Southbank University. So far, she has written six reports on domestic violence. ”I want to help women who have experienced domestic violence to appear in court. I want to break the silence,” she says.
Expert witnesses can be specialists in any field, paid by one or other side (or both sides) in a court case to write reports and appear in court to give their highly credible, impartial view. They are there to enlighten judges or juries who are making decisions on subjects about which they know nothing. Yet there’s no binding regulation or training requirements for experts, and the credibility afforded them can result in grave miscarriages of justice. Most famously, in 1999, the late Sally Clark was wrongly convicted of killing two of her babies, after Professor Sir Roy Meadow, a paediatrician - not a statistician - incorrectly estimated that the odds against two cot deaths occurring in the same family at 73,000,000:1.
Despite appalling blunders, the expert witness system has improved a lot since 1996, when Lord Woolf’s final report on access to the civil justice system found that the use of experts witnesses was more of an obstruction than a help to justice. Solicitors would shop around until they found an expert witness who would side with their case. Woolf concluded that the voluntary training of professionals (compulsory training, he said, could lead to the exclusion of some valuable one-off experts) on how to be expert witnesses was of obvious benefit. Experts could be taught that, in the interest of justice, their duty was to the court, and not to the solicitor paying their bills. Eleven years on, expert witness training is big business.
After a definition of an expert witness from course leader Gillian Davies (”an expert witness helps the decision-maker to understand the case and to interpret the facts”), the class is divided into pairs. Each student has to interview the others about their journey into London and then write a report outlining whether it was the best way to travel. The men put down their pens after a few minutes. The women write several A4 sheets. ”I am not sure what this exercise has got to do with me becoming an expert witness,” a male voice ventures.
The lesson then turns to practical advice on how to prepare a written report for court (”the way you give the evidence will affect the weight given to it” and ”reports are also marketing tools,” Davies explains). Even more important is what experts should include in their report. ”You have to be able to see the opposite view,” says Davies. ”But do you include the opposite viewpoint in your report?” a voice from the back asks. Davies replies: ”You have to ask if you do that, are you giving them the ammunition to shoot you with? That is a difficult question to answer. It is better to put a range of opinion in your report, including a cogent explanation of why you disagree with the other side. You don’t want to win the case for them.”
One of the experts in the room admits he had assumed his job as an expert was to produce a report favourable to the side he was working for.
Agnew-Davies is here because she has been asked by police to report on the mental state of Gurjit Dhaliwal, a young woman from west London who committed suicide in 2005. Harcharan Dhaliwal later admitted to police that he had hit his wife, resulting in a small cut on her forehead, shortly before she hanged herself in an outhouse at their home. The police were going to charge him with common assault, but they found a diary of the last five months of Gurjit Dhaliwal’s life and wanted to raise that charge to psychological manslaughter.
According to Agnew-Davies, the diary, handwritten in broken English and difficult to decipher, was the disjointed but heartfelt record of the life of a miserable woman. On one occasion, it referred to the fact that her husband had promised not to hit her again. The police asked Agnew-Davies to assess Gurjit Dhaliwal’s condition in the run-up to her death and comment on whether she had a psychiatric disorder caused by her husband that led to her suicide.
Agnew-Davies sought the help of a course because she felt out of her depth. But it wasn’t just the expert report she was worried about. The thought of being cross-examined at the Old Bailey terrified her.
The cross-examination day of the Bond Solon course has six students and two trainers, Davies and fellow solicitor Maria Byrne. The students will have to defend one of their expert reports under cross-examination and a video of their performance will be sent to Cardiff University Law School for assessment. ”The barristers,” Davies explains, ”will try every trick in the book. They’ll try and distract you so you lose your train of thought. Don’t show stress - that can undermine your credibility.” She tells them to point their feet towards the judge in the witness box, so they address him, and don’t catch the eye of the terrier-like barrister who will be looking for weakness.
”The judge will always read a report,” explains Davies. ”The expert witness report is often the most useful document because it gets to the heart of the case.”
Agnew-Davies takes her spot in the makeshift witness box. Davies and Byrne have donned black suit jackets and are speaking in deeper voices in their role of pretend barristers. Agnew-Davies’s report argues the case of a woman who wants compensation in her divorce settlement following years of beatings by her husband. The husband argues that because his wife said she loved him and kept coming back, he can’t have abused her.
Byrne and Davies want to prove that the woman discussed in the report is responsible for her own fall into mental ill health. ”Could it not be that as the woman was abused as a child that her husband cannot be held entirely responsible for her mental health?” they ask.
Agnew-Davies responds that for a woman made vulnerable by previous abuse it is even more important to be treated with respect as an adult. She tells Byrne she wants the judge to understand that the woman’s definition of love is pathological, not romantic. In this case, the wife’s love was a ”traumatic bonding forged by living in a violent situation” - similar to a hostage suffering from Stockholm syndrome.
”Great. Very measured. Your points came across very well,” says Davies. But then Nicholas, a chartered mechanical engineer, says: ”I got the impression that you were very biased towards the victim. There was no attempt to reflect on the man’s position.” Heads nod around the room, as if Nicholas has picked up on something that others were thinking, but didn’t want to say.
Agnew-Davies comes to her own defence. ”I want to counteract the social biases that I see and that judges also have. Maybe I have a tendency to overstate the case,” she admits. Byrne steps in: ”But you need to be careful. Counsel might let you go on so that you come across as partisan - again, that can damage your credibility.”
Several weeks later, Agnew-Davies and I have lunch in south London. After the report writing and cross-examination courses, Agnew-Davies did two modules in law and procedure and one in courtroom skills, and has now passed the course. ”I have learnt to tie my opinion to facts, and to include in my report that there are other ways to see the case. Being in court is very different to sweeping people along and carrying them on a yarn,” she says.
But could she ever work as a single joint expert, court-appointed to act for both sides, which would mean she would have to give her view on the victim and the perpetrator? ”No,” she says. ”My expertise comes from working with hundreds of women. My duty to the court is to confine myself to what I know. I see it as a moral issue. The character profile of abusive men is that they tell lies, they blame other people. They minimise and discredit the other side. It is not just my bias, it is in the research. I don’t want to sit with someone who’ll lie.”
But is a woman not capable of lying, too? ”I have an experience of a tiny proportion of women who may present the facts in a way that is misleading. That, yes, they have experienced domestic violence but it was 15 years before... that is not to say that the effects can’t last 15 years, but they do not have an acute need for housing, for example. Being an expert is a moral challenge as well as an intellectual challenge. I have to know myself that I have covered as wide an area as possible, that I haven’t excluded anything, haven’t brought my personal biases into a report.”
Agnew-Davies took a first-class degree in psychology from St Andrews University, an MSc in clinical psychology from the University of Surrey and a PhD at Sheffield University. Her interest in trauma began when she was in Sheffield. Following the Hillsborough disaster in 1989, in which 96 people were crushed to death at a football match in the city, she helped victims’ relatives.
It led on to other work. ”I was doing little pieces of trauma work, which have formed part of my understanding of how trauma affects people. I also had a couple of clients who were involved with domestic violence. Then I saw a job advertised to set up the psychological services for Refuge, and so I applied.”
She set up the service, seeing eight battered wives a day, and was given funding by the Department of Health to assess the effects of domestic violence and efficacy of psychological services, which involved interviews with 500 women. It was one of the biggest pieces of research into domestic violence undertaken in the UK.
The expert witness register, www.xproexperts.co.uk, lists witnesses and their history. Picked randomly from that list, one GP has written 700 reports in the past two years, and made two court appearances. Experts’ reports can end up being decisive in which cases even get to court. If an accident victim wanting compensation says he has a bad back, and the expert says that’s not true, the case will probably not get to court.
Mark James, a barrister and author of the textbook Expert Evidence: Law and Practice, says that in roughly half of all cases expert evidence is decisive in the trial. If a judge accepts their opinion you win, if he rejects it, you lose. ”The areas where most miscarriages of justice occur are where experts, in good faith, pursue their own hobbyhorse theory which is often at variance with the orthodox view,” explains James.
After the course, Agnew-Davies revisited her report into the Dhaliwal case. ”The brown envelope containing the diary sat on my desk for two days before I could open it. I felt a weight of responsibility towards Gurjit Dhaliwal, her children and the court. I read the diary several times, took notes and kept thinking about it. Several weeks later, I submitted my report.”
The report found that Gurjit Dhaliwal ”did sustain psychological injury, characterised by features of depression and post-traumatic stress disorder, as a result of the domestic violence she experienced within her marriage”. If the prosecution was successful, it would be the first time that an abuser had been formally held accountable for his partner’s death. But, in March 2006, the case was thrown out on its first day at the Old Bailey by Judge Jeremy Roberts QC, who said there was no basis on which a properly directed reasonable jury could convict Dhaliwal because they could not be satisfied that his wife suffered from a ”recognised psychiatric illness”. Two months later, three appeal court judges upheld Judge Roberts’ decision.
”I was disappointed by the outcome,” Agnew-Davies says. ”All three experts [two for the prosecution and one for the defence] agreed there were symptoms of a psychiatric disorder, but there was not enough evidence to establish that because the victim could not be interviewed. But we all agreed that she experienced domestic violence and that this had some bearing on her suicide.”
It’s February 2007 and Agnew-Davies is waiting outside the High Court, family division, before her first cross-examination is due to begin. She has been asked to assess the impact of serious marital violence on a mother’s mental health and is about to be cross-examined during a case in which the contact arrangements between the woman’s ex-husband and their children will be decided.
Members of the press are not allowed into family court proceedings involving children so I wait outside. Afterwards, a relieved Agnew-Davies concludes: ”I am certain I was more helpful to the court as a result of doing the course. At one point the barrister asked me what I thought the outcome of the case should be, and I replied: ’I think that is a matter for the court to decide.’ I felt really proud of myself. I knew what the limits of my position were. I have learnt to have a wariness about speculation.”
In October 2006, three appeal court judges rejected a proposal to give immunity from disciplinary action against experts who get it wrong. Experts have a personal imperative to ensure that their evidence is fair and considered. But every barrister I spoke to had horror stories about experts letting them - and justice - down. Often the cases involved experts whose evidence the barrister believed to be biased, but who managed to convince the court of their credibility.
Word is getting around that Agnew-Davies’s work is of a high quality. With her first confrontation with barristers behind her, she is confident in her role. ”My purpose in doing the course was to give women who had experienced domestic violence a voice, and I believe I have achieved that.”
