The cost of justice

Professor Roy Meadow's reputation lies in tatters after his role in the conviction of innocent 'cot-death' mothers. But for many expert witnesses, the fees keep rolling in . . . Robert Verkaik reports

For more than 20 years Professor Sir Roy Meadow was Britain's foremost expert on cot death. His respected opinion was often the deciding factor in separating children from their mothers or in the launch of a policemurder investigation after the death of a baby. But last week Professor Meadow's reputation was in tatters after the Court of Appeal overturned the conviction of Angela Cannings, wrongly imprisoned for the murder of her two babies. Professor Meadow's expertise was also used to help convict Sally Clark and Trupti Patel, two more mothers whose convictions have been ruled unsafe.

The toppling of Professor Meadow from his pedestal should have been a wake-up call for the expert-witness industry that services the criminal and civil justice systems. Instead, it has merely spawned a new breed of expert, specialising in knocking down the established wisdom of the causes of cot death and championing the alternative theories of genetic disorder that helped to free Mrs Cannings.

The expert-witness business is now worth millions of pounds a year, with the country's very best doctors, scientists and mathematicians being able to supplement their day jobs to the tune of as much as £250,000 a year. Some are paid at a higher rate than the barristers they face across the witness box. They have become the hired guns of litigation, with a clear financial interest in moulding their expertise to suit the objectives of their paymaster. Those who know how to play the game will reap the rewards with a steady stream of profitable instructions from solicitors.

In the last 10 years a number of associations have sprung up to market the talents of expert witnesses. The Law Society's own Directory of Expert Witnesses has more than 1,000 names and is used widely by solicitors looking for specialists to work on their cases. Such has been the growth in this industry, that there are now few areas of dispute that cannot be settled with the help of an expert.

One such is Barian Baluchi, who established himself as Britain's leading expert on post-traumatic stress suffered by asylum seekers. In the last five years he has built up a niche practice, preparing reports in up to 1,500 cases, often appearing in court to testify about the terrible distress of those who have fled persecution in their own countries. Solicitors have come to recognise that a case backed by a Baluchi medical report has a 66 per cent chance of success. But Mr Baluchi may not be the expert that he claims to be. The Metropolitan Police are now investigating an allegation that the 42-year-old Iranian is a fraud who has been working as a bogus doctor in this country since he registered with the General Medical Council in 1998. Many of the cases in which he has given evidence may now have to be re-examined.

In another case, an architect who gave evidence in a dispute concerning copyright in architectural drawings has been referred for investigation by the Royal Institute of British Architects (RIBA). The judge found that the "expert" evidence was so biased and irrational that the architect had failed in his duty to the court.

Although many experts do a conscientious job, Mark Solon, a solicitor who trains expert witnesses, says that the problem facing the industry is that the culture of the hired gun has allowed some professionals to forget that their first duty should be to the court, and not to the solicitor who is instructing them. "It is clear that many experts get into trouble when they have one eye on the next job, rather than concentrating on the justice of the evidence that they are being asked to give," says Mr Solon.

Lord Woolf, the Lord Chief Justice, tried to address this problem when he was Master of the Rolls. His new rules for the conduct of litigation were aimed at cutting the expense of using several expert witnesses to support a case when one would do. Solicitors can now be penalised in costs if they come to court with an army of experts intent on intimidating the judge. But nothing has been done to stop solicitors seeking out the expert who will support their case. The lawyer may dismiss dozens of experts who hold opinions contrary to their client's position, but the judge will not know this when the case comes before him. Cynical lawyers know that the client with the biggest pockets will usually find an expert to support their arguments. In criminal law it is common practice to shop around for an expert who may be able to help overturn a miscarriage of justice.

When these witnesses appear in court, judges are often over-deferential. Solicitors have no such respect. A survey of expert witnesses, carried out this year by Bond Solon, the UK's leading witness and evidence training and consultancy company, showed that they often come under pressure to change their evidence.

The expert witness is by no means a new phenomenon in British litigation. There were grave misgivings when, in 1925, Norman Thorne was found guilty of murdering his fiancée. Thorne claimed that he was the victim of "Spilsburyism", named after Sir Bernard Spilsbury, the star pathologist in all the major murder cases of the day.

At the trial Sir Bernard explained with customary confidence that the marks on the victim's neck were creases, not bruises from a rope. This contradicted Thorne's claim that his fiancée had hanged herself. When asked whether he had inspected specimens from the neck microscopically, he dismissed the suggestion as "quite unnecessary". He also doggedly declared that she had died from blows to the head using Thorne's Indian clubs, even though it was found that her "skull was as thin as blotting paper", yet was unbroken. Three doctors gave evidence to the contrary, but the glamorous Sir Bernard had won over the jury and Thorne was found guilty, and then executed.

Angela Cannings was more fortunate. We no longer have a death penalty in this country, so the expert evidence that imprisoned her did not end her life. That must be some consolation to Professor Meadow and other expert witnesses whose testimony, many years later, proves to be flawed.

BRITAIN'S TOP WITNESSES - AND THE AMATEUR WHO TOOK ON THE SYSTEM

Professor Peter Fleming is the medical expert on whose work Professor Roy Meadow based his cot-death statistics. His evidence has also been used in criminal investigations into alleged murders of babies. He claims that in 6 to 7 per cent of cot deaths abuse is the main contributing factor. Sir Roy went further than that, arguing that one cot death was a tragedy, two were suspicious and three was murder.

John Ellison is the accountant solicitors turn to when they need an expert to interpret complicated financial evidence. As a leading member of the team of forensic accountancy at KPMG, he has a reputation for getting to the bottom of the figures. He has appeared in many sensitive commercial disputes in the English courts.

Peter Bristowe is a mobile-telephone expert who was called by the prosecution in the Soham murder trial. The tests he conducted showed that one of the places where Jessica Chapman's mobile telephone could have finally been switched off was outside Ian Huntley's house.

Maureen Ward Gandy has established herself as one of the leading experts in handwriting in this country. She has forged a specialism in historical handwriting and is an expert on the writings of Christopher Columbus and Queen Victoria. But lawyers use her to help clients prove the identity of the authors or the circumstances in which someone was writing.

Kevin Callan, a lorry driver, was convicted in 1992 of shaking his girlfriend's four-year-old daughter, Mandy Allman, to death. Callan set about demonstrating to the Crown's lawyers that the child, who suffered from cerebral palsy, had died from injuries caused by a fall. In his prison cell, Callan pored over medical and legal textbooks and eventually proved that the expert testimony given at his trial was flawed. In 1996 he was freed by the Appeal Court.