Abstract:
This is the third article in a series looking at different aspects of the roles that a child psychiatrist might play in the Crown Court. In this section the focus will look to the psychiatrist’s experience of performing his role in the court room and in particular with regard to preparing and presenting his evidence of opinion and the ways that expert evidence might be challenged.
The Expert in Court
Experts have been useful to the courts for many years when they have been able to assist judges and juries in determining an outcome in a matter that requires special knowledge. It is the expert’s opinion that is being sought rather than a reiteration of the facts. In a case that was heard in 1993 by Mr Justice Cresswell, now known by the familiar descriptor The Ikarian Reefer (Naviera v Prudential Insurance Co Ltd, [1993]) expert evidence was relied upon by one of the parties to decide a question of arson involving a Panamanian vessel that ran aground and caught fire. The judge used the opportunity to spell out the principles for best practice that should guide experts in performing their very important task. (See Appendix below– The Seven Principles of Practice)
Getting Instructed
The work of experts in children’s cases begins long before any trial in the crown court. An expert may be instructed by the prosecuting team or by the defendants’ representatives. The first expert (instructed by the prosecution) will be given a set of specific questions to answer with clearly formulated opinions. They will be provided with all the necessary documents and any video recordings. The defendant’s expert will be given the same material and the first expert’s report.
What do they want to know?
In the main those questions will be related to the fact that the witness is a child (under 18y) and the expert will be dealing with questions of competence, reliability, and specific vulnerabilities, the witness’s development and any impairment in cognition or communication skills. The expert will need to explain how any of that may impact on the management of the trial, including, for instance, the recommendation for any special measures that would facilitate the child’s evidence by reducing their stress factors as far as possible.
Evidence in Chief
The first expert’s report will form their evidence-in-chief, which will have been disclosed to the court and the parties ahead of the trial. It is not uncommon for the expert to be given fresh information, on the day, of new factors or late disclosures which may call for fresh consideration. Once the usual formalities of swearing in are completed, it is open for the defence barrister to challenge the opinions that have been expressed in the expert’s report.
This usually amounts to a systematic set of challenges which are carefully prepared with the advice of the expert instructed by the defence. (See Appendix below – The Secrets of the Seven Arrows.)
Before the Main Hearing – a Pre-Trial
Experts and their opponents may be called to a pre-trial hearing to debate issues of competence and any special measures to be deployed. This will be without a jury in attendance. This is the defendant’s chance to undermine the opinions of the prosecution’s expert and avoid a full-scale trial. There may also be a challenge to proposed special measures which the defendant may argue causes them to be disadvantaged.
In such an adversarial context, an expert may experience mounting frustration at the detailed minutiae within the opposing arguments – for instance about a child witness’s development and experiences since making a recorded ABE interview a long time previously.
Muddying the water?
Any reports from the child’s school or from the police about subsequent behaviours that seem to undermine their honesty or reliability may be presented in an attempt to disqualify a child witness. It may be that the reports signify problems related to their experiences of earlier harm and it will fall to the appointed expert to provide objective analysis of these developments and demonstrate their relevance to the current matters.
Questions arise for the expert to clarify.
It is important for the expert to remember that their role is to give evidence of their opinions which they can support in argument, if necessary, based on their knowledge and experience relating to child development and the many variations that can be observed.
Children giving evidence may be suffering from the trauma of their experiences, but they may have additional developmental problems like autistic spectrum disorder, attention deficit problems, learning disability and emotional vulnerability. The court will need to be advised of these types of issue and it is the expert’s special knowledge that can assist the court to manage the way forward without compromising the defendant’s position.
The Expert’s Role is not as an Advocate nor even a Judge!
The expert must never lose sight of the fact that their role is limited, and they are not appointed to act as the child’s advocate or representative – which would confuse their proper function. However, it is in children’s cases that emotions can run high and it is important that the expert remains objective and calmly confident without becoming argumentative. The expert needs to demonstrate that they are considering the alternatives being presented by the defence barrister without appearing to be using blanket refusal to contemplate any opposing views. This approach avoids the perception of undue defensiveness. The jury will need to understand the basis of the arguments, in accessible language, as they will have to decide whether the expert testimony of opinion is properly founded.
Whose turn next?
In cases with multiple defendants, there may be a line of barristers who will seek to minimise the force of the prosecution expert’s opinions. Any slight crack arising from previous challenges may be exploited with the effect of demoralising the expert who begins to feel that it is they who are on trial. For this reason, it is important when writing a report and preparing for cross-examination that the expert is mindful of the approaches that may be used to undermine the expert’s opinions.
“No Doubt!” – no doubt …
It is well to remember that in a criminal matter, the burden of proof is “beyond reasonable doubt”. All the challenges to the expert’s evidence of opinion will be seeking to inculcate that doubt.
On Reflection
As experts we influence decision-making which may have a profound impact on the shape of individuals’ and families’ lives. Emotions can run high as the risks for the safe development and future of children and their families can become insurmountable on occasion. We may meet along this road other experts, other professionals with shared values, or not. I recall in my early years as an expert resisting the put-downs of opposing psychiatrists who were long-serving and sometimes incompetent or even deliberately misleading in the witness box.
In this internet age we need to maintain proper boundaries around our personal and professional information. An expert witness is no longer protected from civil actions arising from their work. Postings on social media platforms may leave people open to negative or hostile comment. Expert witnesses stand alone with very special responsibilities to the court that we serve in the interests of justice. We live in litigious times and the avenues for complainants and disaffected people are wider than the statutory systems, which people seem to mistrust. Obtaining redress may be an elusive path to find.
Know your place.
The relationship between the assessing expert psychiatrist and the child witness and their family is based on a very specific function – the formation of soundly based opinions that address the instructions of the legal representatives. There must be no confusion between a psychiatrist who is commissioned for this forensic task and the very different relationship that a traumatised child may have with a treating psychiatrist. It is inadvisable to allow one psychiatrist to fulfil both functions.
Look after yourself!
As has been seen in the foregoing content, the expert will come to face accounts of extreme perversion, cruelty and sadism which may have its own impact on the professional. Psychological supervision on a regular basis will give the expert a means of keeping the clinical and medico-legal work separate from personal issues. Identification with the people under assessment will undoubtedly impact on the need for objectivity and clarity.
Do’s and Don’ts
In conclusion, I have developed a set of rules which I have learned to apply during 35 years of working in different courts and tribunals. They have served me well – but they are not exhaustive. (See Appendix below: The Golden Rules)
Useful References
- Youth Justice and Criminal Evidence Act 1999, s 16
- Youth Justice and Criminal Evidence Act, 1999, s 17 (4)
- Youth Justice and Criminal Evidence Act, 1999, s 53 (3)
- Crown Prosecution Service, 2017, Victims and witnesses. [https://cps.gov.uk Victims and witnesses]
- Crown Prosecution Service, 2020, Special Measures: legal guidance) [https://cps.gov.uk/special measures]
- Ministry of Justice, 2011, Achieving Best Evidence in Criminal Proceedings – Guidance on interviewing victims and witnesses and guidance on using special measures.
- Re B (AChild) (Sexual Abuse: Expert’s Report) [2000] 2 WLUK 784
- Vernon v Bosley (No 3): CA,19Dec 1996
- Jones v Kaney [2011] UKSC 13 (Expert Evidence)
- Pinkus v Direct Line Group [2018] EWHC QB
- Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer No 1) [1993] 2 Lloyds Rep 68
- Crawford E, Bull R. (2006) Child witness support and preparation: are parents/caregivers ignored? Child abuse review vol 15 issue 4. Chichester: Wiley.
- Hayes D, Bunting L, Lazenbatt A, Carr N, & Duffy J. (2011) The Experiences of Young Witnesses in Criminal Proceedings in Northern Ireland. Department of Justice (NI).
- Plotnikoff J and Woolfson R. (2004). In their own words: The experiences of 50 young witnesses in criminal proceedings. London, NSPCC
- Plotnikoff J and Woolfson R. (2009). Measuring Up? Evaluating implementation of Government commitments to young witnesses in criminal proceedings. London: NSPCC.
- Plotnikoff J and Woolfson R, (2019). Falling Short? A snapshot of young witness policy and practice. London: NSPCC.
- Rix K, Mynors-Wallis L, & Craven C, (eds.) Rix’s Expert Psychiatric Evidence (2nd edition), Cambridge University Press. 2020
- Rix K, and Nathan R, Chapter 7 Special Measures in Rix K, Mynors-Wallis L, & Craven C, (eds.) Rix’s Expert Psychiatric Evidence (2nd edition), Cambridge University Press. 2020
- Rix KJB, 2011. Expert Psychiatric Evidence. Cambridge: Royal College of Psychiatrists.
- Rix KJB, 2008. The Psychiatrist as an Expert Witness, Part 2: Criminal cases and Royal College of Psychiatrists’ Guidance. Advances in Psychiatric Treatment. 14. pp 109-114
The Author
Dr Tony Baker qualified in 1974 at Westminster Hospital Medical School. He joined the British Army during his period of clinical studies and on successful completion of his pre-registration probationary years in medicine and surgery, he took up his post as a general duties medical officer in Dusseldorf, W.Germany – where he remained for two-and-a-half years before embarking on a training course in psychiatry. After a year in a British Military Hospital in Germany, he returned to the UK to complete his professional training in psychiatry leading to Membership of the Royal College of Psychiatrists (1980).
He then embarked on a course of higher professional training at Great Ormond Street Children’s Hospital and St George’s Hospital in Tooting. During the early 1980’s he became concerned with the fate of children who are abused, including sexual abuse and exploitation and he developed training for professionals in psychology, psychiatry, social work, police and education. To this end he co-founded a charitable organisation to facilitate interprofessional training and increase awareness in all levels of those with responsibility for children. Dr Baker has conducted research into the prevalence of sexual abuse in the 80’s in the UK and he also worked to develop therapeutic methods in respect of children and their families in the aftermath of disclosure.
The lack of therapeutic availability in the NHS prompted the setting up of a new charity to raise funds to enable post-abuse survivors to access independent therapy, The Emily Appeal Fund, which also offered free training to social workers and children’s care home workers.
In a rich and varied career in NHS practice and in the independent sector, Dr Baker has run a residential addiction detox and group rehab service in parallel with his work with children and families.
He has also developed a practice to provide expert assessment and reports to the Family Courts and to present evidence to a variety of court settings and tribunals including Criminal Courts.
Dr Baker has developed specialist consultancy services for children in care, both with residential homes and with fostering. He has also developed assessment and therapeutic support initiatives for children and young adults with complex developmental issues like ADHD and Autism.