Judge invites Crown Prosecution Service to undertake inquiry into Expert Witness

The judge in a recent murder trial has suggested the CPS undertake an inquiry after it was found that the prosecution's Expert Witness had "lost sight of his overriding duty to the court, and failed to comply with the requirements of Crim PD Part 19 and the CPS Guidance to Experts."

Concern had first been raised by the Defence team a week before the trial when they asked for the prosecutions experts evidence to be declared inadmissible.

This was for the following reasons:

1. That he had failed to comply with the requirements of Crim PD Part 19.
2. That he had failed to specify in his report the material that he relied upon.
3. That he had failed to record/retain/note his findings.

However, the judge did not have to rule on this because the "prosecution counsel, Mr Spence QC, after consultation with the CPS including the Deputy Chief Crown prosecutor, decided not to call Dr Ho as a
witness. No explanation was given for the abandonment by the prosecution of Dr Ho as an expert witness."

The judge concluded: 

" Taken as a whole and viewed in the round, the situation regarding Dr Ho is of great concern. This was a trial on a murder charge, with a mentally ill defendant. It is important, in any case, that experts obey the rules that govern the admissibility of expert evidence, but it is particularly important in a case such as this. Whether Dr Ho had potentially lost the necessary degree of independence and objectivity, his awareness of his overriding duty is to the court, and his approach to his task, are in my judgment matters that ought to be investigated by the CPS.

The lack of clear and unambiguous answers by Dr Ho to questions raised by the defence prior to the trial, which the court indicated should be answered, and which the prosecution itself accepted should be provided, is another concern. I have not reached final conclusions on any failures by Dr Ho; the application by the defence to exclude his evidence was not argued. It is unlikely, however, that the prosecution decision to abandon him as an expert witness was unconnected with these failings. Regardless of that, there is sufficient prima facie material to raise sufficient concern to justify an inquiry.

Finally, the further disclosures, after the jury went into retirement, would have presented very real issues for the integrity of the trial process had the prosecution, in fact, called Dr Ho as a witness. The decision not to do so looked increasingly justified, the more disclosures that emerged. Had that decision not been taken, there would have been a very real risk that the jury would have had to be discharged and the trial recommenced, with the considerable consequential detrimental impact on court resources and the public purse."

Simon Berney-Edwards, Chief Executive Officer of the Expert Witness Institute, said "This case is extremly concerning. Not just because of the nature of the failings of the prosecution's expert, but because this is the second time in a a few weeks that the Crown Prosecution Service have had to withdraw their expert evidence in a case before trial because of failings of the expert. (See Fraud case collapse due to lack of disclosure and conflicted Experts). We hope that the CPS will undertake the inquiry and that they will consisider the actions that should be taken to ensure that they use Expert Witnesses that are properly trained and have been vetted."