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Danger in deep water or just ripples in the pool: Has the Pool judgment changed the law on expert evidence?

  • Keith Rix, Anthony Haycroft and Nigel Eastman
Summary

The professional regulatory cases of the psychiatrist Dr Richard Pool and the neuropathologist Dr Waney Squier have given rise to concerns among expert psychiatric witnesses, and indeed medical experts in general. Here we restate the law on expert evidence with particular reference to the judgment of the Supreme Court in the case of Kennedy v Cordia. We emphasise that Pool does not change the law regarding ‘what is expertise’; in particular, the case does not establish restrictive, status-based tests governing the admissibility of expert evidence such as according to whether an expert psychiatric witness has undergone higher training, is on the specialist register as a specialist in a particular field or is a consultant. Rather, expertise continues to be legally defined in terms of a combination of qualification, knowledge and experience. Crucially, the test of medical expertise in legal proceedings is a legal test and not one determined within a medical paradigm.

Learning Objectives

• Understand the law defining admissible expert evidence, in particular the distinction between ‘admissibility’ of evidence as ‘expert’ and the evidential ‘weight’ that courts may accord to admissible expert evidence

• Understand the issues that arose from the cases of Dr Pool and Dr Squier, and why they caused (unnecessary) medical concern

• Understand the factual relevance to being an expert witness of having undergone higher training, being on the specialist register as a specialist in a particular field, and being a consultant

Copyright
Corresponding author
Correspondence Professor Keith J. B. Rix, The Fermoy Unit, Queen Elizabeth Hospital, Gayton Road, King's Lynn PE30 4ET, UK. Email: keith.rix@nsft.nhs.uk
Footnotes
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1

This is the first of two articles by Rix et al that consider the Pool judgment. The second, ‘After Pool: good practice guidelines for expert psychiatric witnesses’, will appear in the next issue. Ed.

a.

Now known as the Health and Care Professions Council.

b.

The Medical Practitioners Tribunal Service has now become the Medical Practitioners Tribunal.

c.

Whereas the Supreme Court is the highest court of appeal for criminal cases in England, Wales and Northern Ireland, in Scotland the highest court of appeal in criminal cases is the High Court of Justiciary.

d.

The Judicial Committee of the Privy Council is the final court of appeal for many Commonwealth jurisdictions and its judges are the judges of the UK Supreme Court. The Judicial Committee of the Privy Council sits in the Supreme Court building.

Declaration of Interest

None

Footnotes
References
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Criminal Law Revision Committee (1972) Eleventh Report (Cmnd 4991). HMSO.
Crown Prosecution Service (2006) Disclosure Manual – Annex K. Disclosure: Experts' Evidence and Unused Material – Guidance Booklet for Experts. CPS.
General Medical Council (2013) Acting as a Witness in Legal Proceedings. GMC (http://www.gmc-uk.org/static/documents/content/Acting_as_a_witness_in_legal_proceedings.pdf).
Malek, HM (ed) (2013) Phipson on Evidence (18th edn). Sweet & Maxwell.
Ministry of Justice (2016) The Criminal Procedure Rules: The Criminal Practice Directions. October 2015 Edition. Ministry of Justice (https://www.justice.gov.uk/courts/procedure-rules/criminal/docs/2015/criminal-procedure-rules-practice-directions-2015.pdf).
Ormerod, D, Perry, D (2017) Blackstone's Criminal Practice. Oxford University Press.
Piper, A, Merskey, H (2004) The persistence of folly: critical examination of dissociative identity disorder. Part II. The defence and decline of multiple personality or dissociative identity disorder. Canadian Journal of Psychiatry, 49: 678–83.
Richardson, PJ (2016) Archbold Criminal Pleading, Evidence and Practice. Sweet & Maxwell.
Rix, KJB (2006) England's first expert witness? The Expert and Dispute Resolver, 11(2): 1518.
Rix, KJB (2015) When is an expert not an expert? Question time for expert psychiatric witnesses. BJPsych Advances, 21: 295303.
Rix, K, Eastman, N, Haycroft, A (2017) After Pool: good practice guidelines for expert psychiatric witnesses. BJPsych Advances, in press.
Sayles, GO (1936) Select Cases in the Court of King's Bench under Edward I. Bernard Quaritsch.
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BJPsych Advances
  • ISSN: 2056-4678
  • EISSN: 2056-4686
  • URL: /core/journals/bjpsych-advances
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Danger in deep water or just ripples in the pool: Has the Pool judgment changed the law on expert evidence?

  • Keith Rix, Anthony Haycroft and Nigel Eastman
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