A court cannot ignore an unchallenged expert report

The Case

The appellant was appealing the dismissal by the Crown Court of an appeal against an order made by a District Judge for the immediate destruction of a dog, called Yosser, under s.4(1) of the Dangerous Dogs Act 1991. A key issue in the appeal was the status of an uncontested expert report.

The destruction order

Following two incidents involving Yosser, the North West London Magistrates made a Contingent Destruction Order (“CDO”), which required Yosser to be walked on a lead and muzzled when in a public place. Following a further incident involving Yosser (who was subsequently seized by the police), the District Judge made a Dog Destruction Order (“DDO”) on the basis that there was already a CDO and the appellant was not a fit and proper person to own a dog.

The decision of the Crown Court

The appellant appealed to the Crown Court which refused the appeal because it was not satisfied that the dog did not constitute a danger to public safety. The evidence before the Crown Court included two pieces of evidence that had not been before the District Court:

• an expert’s report from Helen Howell, and
• an unequivocal statement from the appellant’s brother that he was willing to take control of and look after the dog.

The Crown Court noted that, in reaching its decision, it had given due weight to the expert report. The court’s sole concern with the report was that that Ms Howell had not seen Yosser in a public area.

The expert evidence

Ms Howell provided an expert report which described her examination of Yosser including the dog’s behaviour during the examination. In her opinion, Yosser presented as a nervous but gentle dog and the appellant’s brother’s house was suitable for housing the dog. Ms Howell noted that her opinion of Yosser was “based on [her] professional judgment, experience and scientific knowledge and is an assessment of the risk [she felt] Yosser poses to public safety.”

She concluded that "[w]ith the following measures in place I am of the opinion that Yosser would not pose a danger to public safety:

• Ownership and care of Yosser be transferred to Mr Terry Fitzgerald
• Yosser should be walked on a lead and muzzled when in public."

On receiving Ms Howell’s report, the Crown Prosecution Service (“CPS”) responded saying that "[n]o issue is taken with the expert’s report/the expert’s report is not disputed. There is no need, therefore, for the expert to attend the public hearing.”

Consequently, the Crown Court had before it unchallenged expert evidence that Yosser would not pose a danger to public safety if walked on a lead and muzzled in public.

The High Court

Lord Justice Coulson noted that in R v Brennan (2014) EWCA Crim 2387, which is the leading case on unchallenged expert evidence in a criminal case, the court noted that “even if the ultimate conclusion was always for the jury, where there was no rational or proper basis for departing from uncontradicted and unchallenged expert evidence, the jury was not entitled to do so”.

He also noted that, there being no jury in this case, it was closer to a civil dispute. In the leading civil case on uncontested expert evidence, TUI UK Ltd v Griffiths (2023) UK SC48, the Supreme Court found that a party who challenged the evidence of a witness on a material point was obliged to cross-examine that witness. As that did not happen, and the possible exceptions to that rule did not apply, the trial judge should not have departed from the expert’s unchallenged conclusions.

None of the possible exceptions set out at paragraphs 61 to 68 of TUI UK Ltd v Griffiths applied in this case. Consequently, “if the CPS had wished to challenge Ms Howell’s conclusion about Yosser, they were obliged to require her to attend for cross-examination.” As the CPS did not do so, “the Crown Court was bound by her conclusion, unless there was a reason why that conclusion could be fairly ignored or discounted.”

The Judge was wholly unpersuaded that the Crown Court’s concern that Ms Howell had not seen the dog in a public place was a basis to fairly ignore or discount her evidence. He went on to note that if this were a real point of doubt, “she should have been asked about it, rather than her report and recommendations simply being set to one side.”

As the CPS did not identify a valid reason for departing from Ms Howell’s opinion, the Crown Court was bound to accept her conclusion.

Learning points

Learning points for instructing parties:

• The court is bound to accept unchallenged expert evidence unless the possible exceptions set out at paragaph 61-68 of TUI UK Ltd v Griffiths apply.
• If you intend to challenge the opposing party’s expert evidence, you should either adduce your own expert evidence or cross-examine the opposing party’s expert witness on the points you wish to challenge.