Newsflash Business Crime & Financial Services 16th Mar 2018

When is an Expert not an Expert?

A strong Court of Appeal with Gross LJ presiding has finally handed down the long awaited and much anticipated judgment in the case of Pabon [2018] EWCA Crim 420 – the LIBOR appeal.

Despite upholding the conviction, the court was coruscating in its criticisms of the SFO’s so-called expert and it is the court’s guidance on expert evidence as opposed to a desire to ‘rubber-neck’ at the car crash that was Mr Rowe’s evidence which makes this case essential reading.

However, to save you the trouble of doing so (we’re all heart at 2 Hare Court) the key points to take away re expert witnesses are as follows (this is very basic stuff but given the expert’s drastic shortcomings the court felt it necessary to reiterate it in some detail):

  • Experts must be aware of and abide by their obligations to the court (in particular under Part 19 of the Criminal Procedure Rules) – the court was understandably shocked that the expert had signed the declaration in his report without reading either the applicable rules or any other material. When questioned on this, Mr Rowe stated that he might have “glanced at something.”  Overall, the Court of Appeal noted that Rowe had “signally failed to comply with his basic duties as an expert.”
  • Expert evidence must be expert – any evidence given must be within the expert’s particular sphere of expertise; evidence given by an expert outside his area of expertise is useless to the jury and “corrosive of the trust” placed in experts generally. The Court noted that Mr Rowe had almost certainly strayed beyond his areas of expertise, making him no more than an “enthusiastic amateur”.  In this regard, the test for establishing expertise was given by Bingham LJ (as he was) in the case of R v Robb [1991] 93 Cr App R 161: “The question is, is he peritus? Is he skilled? Has he an adequate knowledge? Looking at the matter practically, if a witness is not skilled the judge will tell the jury to disregard his evidence.”  The Court further noted that there was no evidence to suggest that Mr Rowe had at any stage informed the SFO of the limits of his expertise in relation to certain matters in issue.
  • Experts must not pass off the work of others as their own expert evidence – the Court was highly critical of the fact that parts of Mr Rowe’s report had been drafted by someone else entirely. Moreover, Mr Rowe had exchanged messages with a number of other individuals in order to discuss areas outside his purported expertise.  Mr Rowe made no mention of the fact that he had consulted others on these matters.
  • Experts must not discuss their evidence with anyone whilst giving evidence – having been told not to discuss his evidence whilst in the witness box, Mr Rowe proceeded to call a number of people shortly after leaving court one day in a desperate attempt to bolster his understanding of certain matters he was being questioned on.

In the end, the Court found that Mr Rowe was only suitable as an expert witness in relation to basic banking and finance matters that were not in fact in dispute.

When instructing experts, lawyers should therefore be very careful to (i) ascertain the limits of the expert’s expertise, and (ii) ensure that the expert is aware of his basic obligations to the court.  As I said ‘basic stuff’ but as this case illustrates you’ve got to get the basics right.

Brian O’Neill QC

Categories: Newsflash