Professionalism in Forensics Computing

Professionalism in Forensics Computing

For the first time following the case of Jones v Kaney [UKSC 2011, 13] experts are open to being challenged under the tort of negligence for their work. Discuss the case and its implications of risk for forensics or security experts involved in the investigation and presentation of findings within the legal process.

“Expert witnesses lose 400-year-old immunity” [1]Lawgazette.co.uk. This title appeared in the Law Society Gazette on March 30th 2011 following a Supreme Court decision in Jones v Kaney ([2011] UKSC 13) abolishing expert witnesses’ immunity from suit. The immunity of expert witnesses’ have been challenged a number of times, most of which occurred after the case of Hall v Simons ([2000] UKHL 38) [2]where advocates’ immunity has been abolished. It has been questioned whether expert witnesses should be treated the same as the witnesses of facts, and whether the immunity is necessary. The case of Jones v Kaney (2011) considered a dispute over an expert witness service provided by Dr Kaney to the court in personal injury case which also considered Mr. Jones. In that case, the claimant was involved in road accident causing him physical and psychiatric injuries. His solicitor has then instructed Dr Kaney to advise the court about the (psychiatric) health condition of the claimant. In her initial report she stated that the victim suffered from Post-Traumatic Stress Disorder (PTSD). The other side raised an objection on the basis that the expert witness hired on behalf of the insurance company acknowledged that it may only have been exaggeration by Mr Jones which may or may not have been conscious. After the raised dispute, the expert witnesses’ were instructed to hold a discussion, which took place in November 2005. It was then held in the form of the joint statement signed by the both parties that Kaney agreed that the psychiatric injury that Jones has suffered was not PTSD, but only an adjustment reaction. She has also suggested that he might, in purpose, give the experts incorrect information. When Kaney was asked for reasoning of her indecisiveness she explained that she felt to be under the pressure of agreeing to the document and that it did not exactly represent her view. Whilst being interviewed she upheld that Jones suffered from PTSD however it was no longer relevant after the joint statement was signed. Her actions have weakened Jones’ claim significantly, and subsequently, the personal injury claim was settled outside the court room.[3] Jones issued a claim for professional negligence against Kaney in respect of a road traffic case which had to be settled for considerably lesser amount due to Kaney’s change of her expert witness statement. He argued that “It was alleged (but not proved, because the case proceeded as a strike out application on assumed facts) that she had negligently agreed the terms of a joint statement with the opposing expert without seeing her opponent’s report, under pressure to sign and despite the fact that it did not truly reflect her view” https://www.kchgardensquare.co.uk/[4] Although Kanye did try to strike out on the basis that Stanton v Callaghan 1998 case upheld that the expert witness may not be sued for negligence when preparing the joint statement, a certificate under section 12 of the Administration of Justice Act 1969 was granted (in the high court) allowing Jones to go straight through Supreme Court. The appeal was heard in January 2011 by 7 judges, which by majority (5/7) allowed the appeal which at the same time meant overruling the Stanton v Callaghan 1998. It also meant that the immunity from suite for expert witness is abolished by the decision of the Supreme Court. The majority decision considered that it was up to the Kaney to justify why the immunity from the suite should be upheld. It was a concern for the judges whether the joint statement should remain immune from the suit. Lord Phillips expressed his surprise that the immunity from the suite in regards to the expert witnesses have not yet been challenged. He noted that the immunity was first upheld in Cutler v Dixon (1585) before the tort of negligence was hardly developed. Lord Phillip stated that the experts’ witnesses are benefiting the court voluntary and doing so for the payment. He felt that abolishing the immunity from suit would not impact the evidence giving at court, even though it will be possible to suit them for negligence. He notes that the aspect of giving the evidence at could will be looked upon differently, however it should not discourage expert witnesses’ from giving their testimony at court. Lord Phillips comment the decision of Hall v Simons (2001) to be incorrect in the respect that it failed to distinguish between the expert witnesses’ and witnesses’ of facts. He states that the expert witness besides of having a duty to serve the court, also have a binding contract agreement with the client. At this occasion he states that the expert witnesses are more like advocates in the respect of having a duty to the court and the client. It is in his opinion that removing the immunity from the advocates has not lead to any decrease of such professionals performing their duty. He then concluded that there was no justification to uphold the immunity for breach of duty and should therefore be abolished. Lord Brown has added that the abolishing the expert witnesses’ will impact the quality of the services provided positively and so that it will limit the experts to give exactly what they were asked for to avoid embarrassment. This was to be due establishing initially by the experts whether their client case is not too high, or inflexible. Lord Collins has also added that it will give the client the right to retrieve appropriate remedy for insufficient services provided by the expert witnesses’. Lastly Lord Kerr adds that there should be no fear about changing the decision from the original if such need is required. As long as it is held truthfully and there are strong grounds to do so. On the other side, there were 2 judges that were voting to uphold the decision to maintain the expert witnesses’ immunity from being suit. Lord Hope and Lady Hale felt not to be in the position of removing the “long standing” immunity, and they have expressed that it should be up to the consideration of the Law Commission and Parliament and not the Supreme Court at all. Lord Hope expressed that the immunity was in place for the expert witnesses’ to come and give their testimony voluntarily without being in fear of being suit by the employing party. It was his concern that removing the immunity was one way process and without the legislation it will not be possible to overrule the decision. His fears are that the decision will destabilise the protection give to witnesses in general. Lord Hope disagrees with the concept of getting a remedy for what has been done wrong because of the impact it will have on experts’ work. He establishes a potential problem that derives from the decision, namely how to amend the decision to allow the expert witnesses’ be suite under the negligence but not for defamation. He pointed out that the roles of advocates and expert witnesses differ and therefore cannot be compared. Lady Hale was concerned about the consequences of the decision. She pointed than rather than changing their original submission, the expert witnesses will be more likely to confirm the original decision, even if they believed it is wrong, in order to prevent being suit for the negligence. This may have substantially impact the duty to court and the reliability on which the court has to base the decision. She concluded stating that the decision was irresponsible in the context of law, and the decision should not be made by the judges but the legislative body. Historically the immunity for the expert witnesses was first establishedin Curtler v Dixon (1585). Originally immunity from suite was known as an absolute privilege to all the parties that took part in the legal proceeding, and was also recognised (Dawkins v Rokeby (1873)LR 8 QB 255)[5], and was later clarified in the form of immunity from suit(Hargreaves v Bretherton [1959] 1QB 45)[6]. The justifications, as stated in Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435[7] for immunity of witnesses in general stated:

• To protect witnesses who have given evidence in good faith from being harassed and vexed by unjustified claims.
• To encourage honest and well meaning persons to assist justice.
• To secure that the witness will speak freely and fearlessly.[8]

What is more appealing to the expert witness’ immunity is the case of Stanton v Callaghan [1998]EWCA Civ 1176 (which was overruled by Jones v Kaney). The case has upheld that immunity had protected Callaghan who was accused for breach of retainer and negligence. It must be mentioned at this point that Jones have not suit Kaney on the basis that she changed her decision – which is allowed by the Civil Procedure rule Part 35(para 2.5)[9], if there are reasonable grounds to do so. Jones has accused Kaney of being negligent by signing a document because of the outside pressures. Furthermore she has not seen the opposing party expert’s report, the joint statement did not set out what were her reflections and still, she has signed it. Once the expert witnesses’ immunity from suit was abolished, the case returned to High Court. There were a number of risks that was carried with the overruling decision some of which were expressed by Lord Hope and Lady Hale. The identified risks was decrease in the truthfulness on the expert witness side because rather than changing their original decision and exposing themselves with a possibility of being suite, it would be rather easier to go with what has been already submitted. There was a possibility in the decrease of the expert witnesses’ willing to take part in the trail from the fear and the pressure that was put upon the expert witnesses. On the same level, there is a problem in regards to the difference between the negligence and defamation. The dfference between the two terms is very thin however these are still two completely different terms. Defamation refers directly to the words spoken, and is more sophisticated word for “lying”. It is defamation when the person is not telling the truth, the information given was hearsay and the words have harmed or caused a loss to an individual. Whereas the negligence is neither intentional, nor planned but may have cause some type of injury. It is therefore unclear as to where the border line draws, although only the immunity for being suit for negligence has been abolished. Some of the judges have also mentioned the Civil Procedure Rules that applies to this case. There is a specifically designed part in the CPR that relates directly to the expert witnesses’, CPR Part 35 and accompanying supplement which is directed to the reports. CPR Part 35 set’s out the rules for the advocates and the expert witnesses’ as to the correctness of information, duties in court, requirements for the expert witness report, single joint experts and so on. It is important that the Justice system provides such professional with guidelines which should be followed when serving the court. Some may argue that if an individual will apply the guidelines into the investigation and presentation process, it is safe to say that the negligence would not apply. However it must be remembered that the negligence is the unconscious act, and therefore there is no guarantee that that the expert will be completely safe. Besides of CPR which outlines the correctness of the report, and the structure that is applied when the expert witness is hired, there is also an ACPO guideline. The ACPO guides the experts whose job is to investigate a case with 4 principles which should have been maintained at all times. “No data should be changed, the data may only be changed if it is a necessity, an audit of trail must be kept at all times, and person in charge is responsible for the evidence”. Although I is not directly relevant to the negligence claims being allowed, if at least the two guidelines were applied to the investigation and the person himself, it would substantially decrease the chance of being negligent at any stage of the investigation or presentation. Unfortunately, in reality these are only the guidelines for the expert witness. The drawback of it is that it does not give the individual guarantee to not be suit. For this reason it may be that the experts will apply what I refer to as “minimalist approach”. What I mean about the minimalist approach is that the investigation for the case will be kept to the bare minimum to decrease any chances of being negligent at any stage of investigation/presentation. This may also impact the amount of information provided by the expert witnesses, because they only perform the tasks they were specifically asked to perform. The drawback may be enormous. Because the experts are only performing to the minimal standards set out by the client, the information provided back will also be minimal. If this would influence the amount of work which may now decrease due to fear of being suit, it may be possible to observe the success rate of the convictions which have employed expert witness. Moreover, on top of what has already been discussed, there are a number of factors that may impact individual experts, and their opinion. In my opinion the most common factor will be the additional stress that lies upon the experts, to pedantically apply to the procedures and rules in order not to leave any chances of being suit. A pressure, which made Dr Kaney sign the joint statement will now be even more affecting the experts and their opinion. Although there are a number of risks associated with the abolition of the immunity from being suite, there are also potential benefits that may serve the court as well as the client. It is now on behalf of the expert witnesses’ to ensure the best quality of service is provided. This includes assessing the data/information more carefully and providing the parties with the more accurate statements and balanced reasoning. On the client side, it provides an assurance policy that if the expert was neglect at any stage of the trail; it gives the possibility to seek the remedy. It is now clear what was the reasoning behind the overruling the decision which was upheld in Stanton v Callaghan ([1998]EWCA Civ 1176) and the impact it had on the forensic and security expert witnesses. The question now is, why was the decision overruled, abolishing the experts immunity from being suit after 400 years. Well, Lord Phillips give us an indication of why it might have been. At the time the immunity was established (1585) the tort of law negligence was not much developed. It was assumed for a number of years that the expert witnesses’ had to be correct about their proceedings and testimonies, only in the late 19th century it started to be questioned. However the immunity was upheld for another 100 years. It was then challenged a lot more frequently as society got more educated and mishaps were discovered. Abolishing the immunity as described during the Jones v Kaney was a “healthy development”[10], which was directed to refresh the legal system in this domain. One may argue that the decision was reasonable. It provided the client with the assurance of being able to suit the expert witness for his negligence. A number of cases up until this point have tried and not succeeded in this area, making the expert witnesses untouchable even if there was a clear evidence of his negligent behaviour. On the other hand it may be argued that the decision was not reasonable, and as Lady Hale has pointed out, was not up to the Supreme Court to decide on such important and long lasted legislation. It has opened up a new broad area not only in expert witness field but also in witness of facts. Moreover it has to be distinguished between the negligence and defamation. One of the arguments that cannot be argued is that the decision was in benefit for the public interest. The only concern may be an opening floodgate for negligent claims regarding the expert witnesses. The final point to be made in this article is the analysis of the risks balancing benefits and whether abolishing the immunity was for better or for the worst? It must be considered that the abolition of the immunity was challenged by 7 judges out of which 5 voted to remove it, and so it was. The rationale behind it was that the world has moved on since 1585 and a number of things have changed. One of the major impacts was the technological advancement that took place over the last 50 years. In regards to the forensics and security experts this causes a lot of issues to follow the most recent technological trends, know all the software and devices that has to be investigated, and it keeps changing on a day-to-day basis. This have made it harder to proceed with established procedures and chances for negligent action is fairly high as compared to, for example the medicine. On the benefit side it must be considered that it has been abolished for the public interest, giving the clients more manoeuvring space when it comes to negligence by the expert that was hired. It must be concluded that the risks are balancing the benefits and there are people that support the idea and those that are opposite. The importance now, is that the immunity has been abolished and every efforts needs to be put in by the expert witnesses’ to make sure to comply with the rules, regulations and the guidelines set by the governing body. It must be remembered at all times that the law is designed to benefit the experts giving them a number of tools, which if followed correctly will not cause issues. Word Count: 2994 Page | 1

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[1] https://www.lawgazette.co.uk/59804.article [2] Link do sprawy [3] High Court decision, paras. 4–5 [4] https://www.kchgardensquare.co.uk/userfiles/files/KCHGS-JonesvKaney.pdf [5] [6] [7] [8] [9] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35/pd_part35#IDAXKD2 [10]

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