The General Medical Council v Professor Sir Roy Meadow

Her Majesty's Attorney General (intervening)

[This version of the judgment has been edited by Dr Robert N Moles.
Underlining, where it occurs, is for editorial emphasis]

Link to Sally Clark appeal

Link to Sally Clark Homepage

Court of Appeal [2006] EWCA Civ 1390 26 October 2006

Sir Anthony Clarke MR:

This appeal arises out of evidence given by Professor Sir Roy Meadow, whom I will call Professor Meadow, in the prosecution of Sally Clark. In November 1999 Mrs Clark was tried for the murder of her two sons. The Crown relied in part upon Professor Meadow's evidence to refute the proposition that Mrs Clark's children may have died from Sudden Infant Death Syndrome ("SIDS"), or cot death. Mrs Clark was convicted. Her first appeal was dismissed in October 2000. Her second appeal was allowed on 29 January 2003 on the ground that the verdicts were unsafe because of material non-disclosure by the Crown's pathologist. Full argument on Professor Meadow's evidence was not heard during the second appeal but the court indicated that, if it had been, the appeal would "in all probability" have been allowed on that ground too. No retrial was ordered.

Mrs Clark's father made a complaint to the GMC alleging serious professional misconduct on the part of Professor Meadow.
The complaint was heard by the Fitness to Practise Panel ("FPP") of the General Medical Council ("GMC"), which concluded in July 2005 that Professor Meadow was guilty of serious professional misconduct and ordered that his name be erased from the register. Professor Meadow appealed to the High Court and on 17 February 2006 Collins J allowed his appeal and quashed the order of the GMC. This appeal is brought by the GMC pursuant to permission granted by Brooke LJ on 28 March 2006.

There are two distinct parts of the appeal. The first raises an important question of principle, namely whether an expert witness should be entitled to immunity from disciplinary, regulatory or fitness to practise proceedings (together "FTP proceedings") in relation to statements made or evidence given by him in or for the purpose of legal proceedings. The second entails a consideration of the GMC's challenge to the judge's decision that Professor Meadow was not guilty of serious professional misconduct. It seeks to restore the finding of the FPP that he was guilty of serious professional misconduct, although it does not seek to uphold the penalty of erasure from the register.

These two parts of the appeal are entirely separate and I will consider them separately. The Attorney General has intervened in connection with the first part but not the second. He supports the GMC's appeal.

Immunity From Fitness to Practise [Professional Conduct] Proceedings

This part of the appeal arises out of a point taken by the judge and not by or on behalf of Professor Meadow, either before the FPP or in the grounds of appeal to the High Court. It is common ground that at common law a witness, whether he is giving evidence of fact or opinion, and whether or not he is an expert witness, has immunity from civil suit in respect of evidence which he gives in court. It is also common ground that the immunity extends to any statement the witness makes for the purpose of giving evidence. Where it exists the witness has immunity even in a case where he gave his evidence dishonestly or in bad faith. The judge recognised in paragraph 10 of his judgment that before this case the immunity had not been extended to prevent the bringing of FTP proceedings.

The judge held that an absolute or blanket immunity was unnecessary but that it was necessary to balance the countervailing public interests and, having carried out the balancing exercise, he concluded that in some circumstances an expert witness should be immune from FTP proceedings.

Although the judge said that the precise boundaries of the immunity will have to be established on a case by case basis, it is plain from the above passage that he envisages that an expert witness will be immune from FTP proceedings unless his conduct is referred to the FPP (or equivalent) by the trial judge in the proceedings in which he gives evidence, whether they are civil or criminal proceedings. As I understand it, that control mechanism was the judge's idea. It was not suggested to him on behalf of the parties.

I should note in passing that the Attorney General did not intervene before the judge.

The Expert Witness Institute ("EWI") did apply for permission to intervene but did not inform the other parties of its intention. It did however send written submissions to the court. In the circumstances the judge said that he had only taken EWI's submissions into account in relation to the general duties of an expert and to the jurisdiction of FTP authorities.

The judge allowed Professor Meadow's appeal on the ground that the case against him was based upon his evidence at Mrs Clark's trial and that, in the light of the principles the judge had identified, he was immune from FTP proceedings before the FPP. The trial judge had not of course referred the matter to the GMC.

It is convenient to consider this part of the appeal under a number of headings as follows: witness immunity at common law, extending the immunity, the role and responsibility of the expert witness, FTP proceedings and the role of the common law before asking whether the immunity should be extended to FTP proceedings.

Witness immunity at common law

The immunity with which this appeal is concerned is entirely a common law concept. It is common ground that it applies to all witnesses including expert witnesses and I do not think that there is any or any significant dispute about its nature and extent as explained in cases before the decision of the judge in this case. I can therefore take the principles as accurately set out in the written submissions made by or on behalf of the Attorney General. The protection afforded by immunity from civil suit is that:

"no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without any reasonable or probable cause, in the ordinary course of any proceeding in a court of justice."

The immunity does not extend to things done at the investigative stage which could not fairly be said to form part of the witness's participation in the judicial proceedings. It does not therefore protect police officers from a claim for misfeasance in public office for having fabricated evidence: Darker. Importantly, the immunity only bars civil suits. It does not protect a witness against a criminal prosecution for perjury, for perverting the course of justice or for contempt of court. Roy v Prior [1971]: "If a witness gives false evidence he may be prosecuted if the crime of perjury has been committed but a civil action for damages in respect of the words spoken will not lie."

I would accept the Attorney General's submission that the underlying rationale for the immunity from civil suit is ordinarily expressed as promoting two objectives. Those two objectives are:

1. ensuring that witnesses give evidence "freely and fearlessly" (Darker), "in an atmosphere free from threats of suit from disappointed clients" (Stanton v Callaghan), with the corollary that "persons who may be witnesses in other cases in the future will not be deterred from giving evidence for fear of being sued for what they say in court"; and

2. "to avoid multiplicity of actions in which the value or truth of their evidence would be tried over again" (Roy v Prior).

Darker, "The whole point of the first public policy reason for the immunity is to encourage honest and well-meaning persons to assist justice even if dishonest and malicious persons may on occasion benefit from the immunity."

The courts have shown a marked reluctance to extend the immunity. "the general rule is that the extension of absolute privilege is viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated": Mann v O'Neill (1997)

The immunity is only conferred "grudgingly" because "the immunity may cut across the rights of others to a legal remedy and so runs counter to the policy that no wrong should be without a remedy": Darker

"the protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice": Rees v Sinclair [1974] NZLR.

The Attorney General has also referred us to this statement of Lord Hoffmann in Taylor:

"The policy of the immunity is to enable people to speak freely without fear of being sued, whether successfully or not. If this object is to be achieved, the person must know at the time he speaks whether or not the immunity will attach."

The judge had well in mind the principle that, since where it exists the immunity is absolute, any extension of the existing immunity should be confined as narrowly as reasonably possible. That was why he rejected the notion of a blanket immunity. Such immunity for expert witnesses from FTP proceedings arsing out of statements made as a witness is not necessary. Ms Davies says that there should be no immunity from FTP proceedings where the evidence or statements relied upon amount to a crime, but in all other cases she submits that the expert is or should be immune from FTP proceedings in the same circumstances as he would be immune from civil suit. She thus says that, save in her excepted cases, the immunity is absolute. This is I think a new suggestion not made in any previous case. I will return to it.

The question whether there should be any extension of the immunity of expert witnesses to FTP proceedings should I think be answered with the role and responsibilities of expert witnesses in mind.

The role and responsibilities of the expert witness

The judge quoted well-known principles identified in National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] approved in Stanton v Callaghan and now accepted and understood throughout the expert witness community:

"The duties and responsibilities of expert witnesses in civil cases include the following: 1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (Whitehouse v Jordan [1981]).
2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise (see Polivitte Ltd v Commercial Union Assurance Co plc [1987] and In re J [1990]). An expert witness in the High Court should never assume the role of an advocate.
3. An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion (In re J).
4. An expert witness should make it clear when a particular question or issue falls outside his expertise.
5. If an expert's opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one (In re J). In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report (Derby & Co Ltd v Weldon 1990).
6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side's expert's report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court.
7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports."

The expert witness will know that he must give evidence honestly and in good faith and must not deliberately mislead the court. He will not expect to receive protection if he is dishonest or malicious or deliberately misleading.

Those principles have recently been reflected and expanded in an important document entitled "Protocol for the Instruction of Experts to give evidence in civil claims", which was prepared in the light of work done by the EWI and the Academy of Experts and others. Paragraph 4 of the protocol is entitled "Duties of experts" and includes the following:

"4.1 Experts always owe a duty to exercise reasonable skill and care to those instructing, and to comply with any relevant professional code of ethics. However when they are instructed to give or prepare evidence for the purpose of civil proceedings in England and Wales they have an overriding duty to help the court in matters within their expertise. This duty overrides any obligations to the person instructing them or paying them. Experts must not serve the exclusive interests of those who retain them".

The Attorney General also drew our attention to Harmony Shipping Co SA v Orri [1979] where it was held that there is no property in an expert witness (in that case a handwriting expert) and that any contract purporting to impose an obligation to give evidence for only one side in a dispute would be contrary to public policy:

"There being no such property in a witness, it is the duty of a witness to come to court and give his evidence in so far as he is directed by the judge to do so."

The Attorney General submits that both limbs of the rationale underlying the immunity from civil suit, which may be summarised as the need for fearless testimony and the need to prevent multiple litigation apply with less force to experts than they do to witnesses of fact. Stanton v Callaghan:

"There is, if I may say so, no difficulty in recognising the need for immunity in relation to the investigation and preparation of evidence in criminal proceedings - or in child abuse cases - in order to ensure that potential witnesses are not deterred from coming forward. For my part, however, I find it much more difficult to recognise an immunity founded on the need to ensure that witnesses are not deterred from giving evidence by the possibility of vexatious suits in a case where the witness is a professional man who has agreed, for reward, to give evidence in support of his opinion on matters within his own expertise - a fortiori, where the immunity is relied upon to protect the witness from suit by his own client, towards whom, prima facie, he owes contractual duties to be careful in relation to the advice which he gives. I think that there is much force in the observation of Mr. Simon Tuckey QC, when sitting as a deputy judge of the Queen's Bench Division in Palmer v Durnford Ford [1992]: ".. . I do not think that liability for failure to give careful advice to his client should inhibit an expert from giving truthful and fair evidence in court."

It is important to keep in mind that expert witnesses have the safeguard, in common with other professional men, that they will not be held liable for negligent advice unless that advice is such as no reasonable professional, competent in the field and acting reasonably, could give. I find it difficult to believe that the pool of those who hold themselves out as ready to act as expert witnesses in civil cases, on terms as to remuneration which they must find acceptable, would dry up if expert witnesses could be held liable to those by whom they are instructed for failing to take proper care in reaching the opinions which they advance. Indeed, I would find it a matter of some surprise if expert witnesses offer their services at present on the basis that they cannot be held liable if their advice is negligent."

The AG submits that the conclusion that expert witnesses are or may be expected to be more robust than their lay counterparts is supported by this statement in Palmer v Durnford Ford:

"Generally I do not think that liability for failure to give careful advice to his client should inhibit an expert from giving truthful and fair evidence in court. … I can see no good reason why an expert should not be liable for the advice which he gives to his client as to the merits of the claim, particularly if proceedings have not been started, and a fortiori as to whether he is qualified to advise at all."

However, different considerations may apply in different parts of the justice system, and there may indeed be good reason why some greater measure of protection to expert witnesses than exists at present should be afforded to some classes of expert, perhaps in the field of family justice, in order take proper account of what the Attorney General correctly recognised is " a countervailing public interest in not unnecessarily discouraging competent expert witnesses from giving evidence." However, the question is whether the introduction of such a measure of protection into an area where such protection has not been afforded hitherto is a matter for the development of the common law (and if so what) or whether it is a matter for Parliament. Both the Attorney General and the GMC say that it is the latter.

In the instant case it is said there should be a measure of protection against FTP proceedings.

FTP proceedings

While this appeal is of course concerned with FTP proceedings before a GMC panel, there are many other professions and occupations which are regulated in one way or another by detailed regulations and there are many disciplinary panels of different kinds. We were referred to a considerable number of different regulatory and disciplinary bodies in different areas of modern life. In addition to the GMC, they include Dental, Chiropractic, Osteopathic, Optical, Social Care, Health Professions, Nursing and Midwifery. The statutory procedures are similar to those of the GMC and require the Council in each case to investigate complaints or to refer an allegation to the relevant FPP for investigation. None of them contains a provision entitling the person being investigated to object to the jurisdiction of the Council or FPP on the ground that the complaint relates to evidence in court and that he is immune from FTP proceedings.

The same is true of boards set up under the Royal Prerogative. They include the Home Office Policy Board for Forensic Pathology and the Council for the Registration of Forensic Pathologists. The lawfulness of the former was recently upheld in R (Heath) v Home Office Policy and Advisory Board for Forensic Pathology 2005. Architects are regulated under a statutory scheme and many professions, including accountants, actuaries, engineers and surveyors are regulated by professional bodies incorporated under Royal Charter. Amendments to the relevant bye-laws, including FTP provisions, require the approval of the Privy Council, which only gives approval after consultation with the relevant Government Department. Typical bye-laws have similar provisions.

The purpose of all these bodies is to regulate the profession or occupation concerned for the benefit of the public. It has been held that the essential purpose of FTP proceedings is to protect the public and not to punish the practitioner. Thus Ziderman v General Dental Council [1976] said:

"The purpose of disciplinary proceedings against a dentist who has been convicted of a criminal offence by a court of law is not to punish him a second time for the same offence but to protect the public who may come to him as patients and to maintain the high standards and good reputation of an honourable profession."

Gupta v GMC [2002] approved the approach in Bolton v The Law Society [1994], where it was said a professional body was not primarily concerned with matters of punishment. I do not think that the judge was quite right to say or suggest in his judgment that FTP proceedings of this kind against an expert are "seeking to penalise him". That may their effect but it is not their purpose.

The purpose of FTP proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past. It would to my mind be very striking, not to say astonishing, if the way in which an expert gave evidence or the content of that evidence showed that he was not fit to practise in a particular discipline, but the FPP could not consider it because the expert was immune from disciplinary proceedings by some absolute common law immunity. That would especially be so if the only evidence of unfitness to practise derived from evidence given in court. It was no doubt in part at least for those reasons that the judge did not hold that expert witnesses are entitled to a blanket immunity of the kind which witnesses enjoy from civil suit.

In the present context, we are considering whether a professional should have immunity from FTP proceedings at common law, and if so in what circumstances. The importance of the statutory provisions which govern the GMC is that they are similar to those which regulate other professions and occupations. Although the need for fearlessness and the avoidance of a multiplicity of actions has been held to outweigh the private interest in civil redress, hence the immunity from civil suit, those public policy benefits do not and cannot (or at least should not) override the public interest in the protection of the public's health and safety enshrined in the GMC's statutory duty to bring FTP proceedings where a registered medical practitioner's fitness to practise is impaired.

Given the fact that the judge limited the immunity to cases in which the trial judge in civil or criminal proceedings does not refer the matter to the GMC, so that in a case where no such referral is made (like this) the FPP has no jurisdiction, whereas where a referral is made the expert has no immunity and the FPP's jurisdiction is unfettered by any such common law rule, the question arises whether there is anything in the relevant statutory provisions which supports such an approach. The answer is that there is not and nobody has suggested that there is.

The powers and duties of the GMC have been governed by the Medical Act 1983 for many years. When the matter was before the FPP, the powers exercised by the panel were those set out in section 36 of the Act, as then amended. Those powers were exercisable where a fully registered medical practitioner was judged by the panel to be guilty of serious professional misconduct. The matter having been referred to the panel, it was the duty of the panel to decide whether Professor Meadow was guilty of serious professional misconduct.

It is, as I understand it, common ground that there is nothing in the 1983 Act or any of the rules made under it which suggests that Professor Meadow was immune from proceedings before the panel by reason of the fact that the allegations against him arose out of his conduct as an expert witness. Indeed, it is common ground that, absent such an immunity, it was the duty of the Registrar of the GMC to investigate the complaint under regulation 6 of the GMC Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 ("the 1988 Rules") and to consider whether it should be referred to the Preliminary Proceedings Committee. On such a reference it was the duty of the Preliminary Proceedings Committee to determine whether the case should be referred to the Professional Conduct Committee ("the PCC") and, in the case of an allegation of serious professional misconduct, it was its duty in making a reference to "indicate … the matters which in their opinion appear to raise a question whether the practitioner has committed serious professional misconduct". There are then detailed rules as to the formulation of charges before the PCC and as to the procedure before the Committee which are set out in Parts IV and V of the 1988 Rules. It was those rules which applied to the proceedings before the FPP in this case, as it made clear when it made its findings of fact.

Nobody suggested before the panel that it adopted the wrong procedure or that it lacked jurisdiction. Equally nobody suggested that the FPP could not investigate the question whether Professor Meadow was guilty of serious professional misconduct because the alleged misconduct occurred in connection with evidence prepared and given in court and did not arise out of a clinical or doctor and patient relationship. This is scarcely surprising since there is ample authority for the proposition that a professional may face FTP proceedings, not just for conduct strictly within his professional capacity, but also for conduct in his private capacity: see eg A County Council v W (Disclosure) [1997], approved by the Privy Council in Roylance v GMC (No 2) 2000. This is of course a case in which the allegations related to conduct within Professor Meadow's professional capacity. Moreover, there have been cases in which a judge has referred the conduct of an expert witness to his professional body, or in which the conduct has been referred as a result of criticisms of a trial judge: see Hussein v William Hill Group 2004, and  National Employers Life Assurance Co v ACAS [1979].

It was the judge who made the suggestion for the first time that the FPP might lack jurisdiction because Professor Meadow might be entitled to immunity from FTP proceedings. It seems to me that the effect of the judge's decision that Professor Meadow was immune from such proceedings is to modify the jurisdiction of the FPP to consider whether a registered medical practitioner was guilty of serious professional misconduct, in circumstances where, but for the immunity, the GMC would be under a duty to investigate and, in an appropriate case, the FPP would be under a duty to consider and determine the questions raised by the Act.

Section 35C of the Act provides for the powers of an Investigation Committee in relation to allegations of, among other things, whether a person's fitness to practise is impaired by misconduct. By section 35C(4) the Investigation Panel "shall investigate the allegation" and decide whether it should be considered by an FTP and in that event, by subsection (5), it "shall give a direction to that effect to the Registrar". In the event that the matter is referred to an FTP, it is for the FTP to decide whether the person's fitness to practise is impaired, in which case it has certain powers under section 35D.

It is inconceivable that the draftsman of any of these provisions could have thought that a person against whom there was a case to answer that he was guilty of serious professional misconduct or, now, that his fitness to practise was impaired, would or might be entitled to an immunity of the kind suggested here. Such immunity would, to my mind, be inconsistent or potentially inconsistent with the principle that only those who are fit to practise should be permitted to do so.

The role of the common law

The Attorney General submits that, whatever changes might be desirable, it is inappropriate for a fresh immunity to be created by the common law. Any such change is a matter of policy which should be made by Parliament after suitable public debate. He submits that that would be so if what was suggested was a wholesale extension of the immunity of a witness from civil suit to encompass an immunity from FTP proceedings. He submits that in any event the common law should not permit a partial extension of the immunity, either of the kind suggested by the judge, or at all.

I would accept those submissions, although in doing so I do not intend to say that the common law could never extend a recognised common law immunity, if principle required an extension. After all, the common law is always capable of development to meet new challenges. However, all depends upon the particular context. I turn therefore to the question whether the common law immunity should be extended in this context.

Should the immunity be extended to FTP proceedings?

This involves considering whether there should be a wholesale (or blanket) extension and, if not, whether there should be a partial extension and, if so, what. I would answer this question in the negative. Indeed nobody suggests that the answer is yes. The above discussion shows that the courts have shown a marked reluctance to extend the immunity from civil suit at all. To my mind there is no principled basis for extending the immunity to all FTP proceedings. The judge did not think that it should be so extended and he was in my opinion correct so to hold. The purpose of FTP proceedings is distinct from the purpose of civil proceedings. It is to ensure, so far as reasonably possible, that those who are not fit to practise do not do so. If the conduct or evidence of an expert witness at or in connection with a trial, whether civil or criminal, raises the question whether that expert is fit to practise in his particular field, the regulatory authorities or FPP should be entitled (and may be bound) to investigate the matter for the protection of the public.

I would accept the Attorney General's submission that in general the threat of FTP proceedings is in the public interest because it helps to deter those who might be tempted to give partisan evidence and not to discharge their obligation to assist the court by giving conscientious and objective evidence. It helps to preserve the integrity of the trial process and public confidence both in the trial process and in the standards of the professions from which expert witnesses come. As stated earlier, the purpose of FTP proceedings is the protection of the public.

The duties of the regulatory authority will in most classes of case have been laid down by statute or by Royal Charter or by the exercise of the Royal Prerogative and very often in mandatory terms. I do not think that it is appropriate for the common law to introduce a qualification upon those duties. Whether to do so seems to me to be rather a matter for Parliament or the relevant authorities, after suitable public debate.

The importance of the particular FTP authority exercising its own judgment is emphasised by Jowitt in R (Lannas) v Secretary of State for the Home Department 2003. In that case Dr Lannas challenged a decision of the Home Office Policy Board for Forensic Pathology ("the Board"). The Board was set up by the Home Secretary and operates a system for the accreditation of pathologists seeking appointment to the register and for their review and auditing after appointment. The decision challenged by way of judicial review was a decision removing Dr Lannas from the register. She submitted that the Board should not have acted until it knew of the outcome of the referral of her case to the GMC. Sir Edwin Jowitt rejected that submission. He said:

"[Counsel for the Secretary of State] points out that the forensic pathologist is an important figure in the prosecution case. It is very important if justice is to be done that he should be a person of ability. It is very important if the public are to have confidence in the doing of justice [that] they can be confident that [Home] Office pathologists are pathologists of real quality. The scheme is there not simply to see what standards are, or even to maintain them. [The] purpose of the scheme is to do both those things but also to raise standards where possible and to deal with matters of current interest and to see how they are dealt with so that the Board is a teaching body as well as a monitoring body. Those are important matters when it comes to public confidence in the way in which the forensic pathological service in this country is conducted on behalf of prosecutions. The scheme is one promulgated under the Royal Prerogative. It is the Minister's responsibility and duty to administer the scheme and to see that the proper standards are maintained and that they are elevated. It is for the Minister, through the Board, to set the standards which are required. Those standards, for all I know, may be more exacting than the standards of other Bodies who look into these things, but it is the Minister's responsibility. It is right that he should act in accordance with this scheme for he is responsible to Parliament for the way in which the scheme is run. It would be quite wrong if he did take a course which would amount to delegating the performance of his duty to the General Medical Council, a Body over which he has no control and whose standards are for them and are not standards devised by him through the Board."

As the Attorney General observes in his written submissions, the role of the Board, in considering whether to remove a pathologist from the register is similar to the role of an FPP in FTP proceedings. The relevance of the passage just quoted, with which I agree, is that it emphasises the importance of the relevant body, there the Board and here the FPP, being left to decide the questions which, whether by the Royal Prerogative or by statute, it is under a duty to answer.

In short, it would be wrong in principle for the court to cut across or impliedly to limit the powers of an FPP by extending the immunity from civil suit to FTP proceedings. In X (Minors) v Bedfordshire County Council [1995] the House of Lords was considering whether a local authority owed a duty of care in discharging a statutory function. The question whether there was such a common law duty and, if so, its ambit, must be profoundly influenced by the relevant statutory framework:

"… a common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties".

So here, the extension of the immunity would be inconsistent with the duty of the FPP to investigate and determine the FTP proceedings against the expert.

Partial extension?

I would also answer this question in the negative, for essentially the same reasons. To introduce the solution proposed by the judge would again cut across or impliedly limit the powers of an FPP by extending the immunity from civil suit to FTP proceedings, which would be wrong in principle. Here again it seems to me to be essentially a matter for Parliament or the relevant authorities to decide what, if any changes should be made. The Attorney General submits that the common law does not offer any criteria for determining the 'right' answer, if there is such a thing. This is I think demonstrated by the argument in this appeal as to the appropriateness of the distinction drawn by the judge and as to the problems potentially facing the courts in different fields.

The judge recognised the importance of expert witnesses assisting the court conscientiously and objectively and (I think) of the public interest referred to above but he relied upon his perception of a competing public interest that, in the absence of immunity in at least some cases, competent expert witnesses, especially doctors, would be discouraged unnecessarily from giving evidence in court for fear of FTP proceedings. The judge was struck by the problems faced, especially in the Family Justice System, in persuading doctors to give evidence. He said:

"There can be no doubt that the decision [in this case] has had a damaging effect in that it has increased the reluctance of medical practitioners to involve themselves in court proceedings, particularly in cases before the Family Court."

I quite understand the problem identified by the judge. However, as I see it, one of the difficulties with the judge's solution is to distinguish the cases in which the witness will be immune from those in which he will not. As Lord Hoffmann put it in Taylor in the passage quoted above, "the person must know at the time he speaks whether or not the immunity will attach". If the judge's solution is adopted, he will not know until the trial judge decides, presumably much later, whether to refer the matter to the GMC or its equivalent.

The judge says that a witness should not be immune from FTP when the trial judge or this court is satisfied that the conduct of the witness "has fallen so far below what is expected of him as to merit some disciplinary action". This is to make the trial judge or this court the sole arbiter of the question who should be immune and who should not. No such restriction exists in any of the statutory or other schemes which provide for investigation of the conduct of experts or for FTP proceedings. I agree with the Attorney General that the judge was here engaged on what was a legislative process, which was not appropriate.

The judge's approach seems to me to be inconsistent with the principle identified by in Darker that a common law immunity must be an absolute immunity.

Further, I agree with the Attorney General that there is no principled basis upon which trial judges should be charged with the responsibility for deciding whose conduct should be referred to an FPP and whose conduct should not. The judge presiding over a criminal trial has many duties, some of which are very onerous. So too does a trial judge in a civil action of any complexity. Although trial judges have been free in the past (and will no doubt be free in the future) to refer the conduct of an expert to his professional body, it has never been part of a trial judge's duty to consider whether or not to do so. To impose such a duty on all trial judges in both civil and criminal cases seems to me to be inappropriate.

While I understand the judge's view that these are problems to be worked out on a case by case basis, that seems to me to underline the point that, if there is to be a system of referring some cases but not others, the relevant rules and criteria would have to be very carefully worked out. Many potential questions arise. Could the judge act only of his own motion or would it be open to an interested party (or indeed any member of the public) to apply to the judge for an appropriate direction? Would the expert have a right to make submissions? What would the test be? Would it be the same as or different from the test applied by the particular FPP or regulatory authority? These questions do not seem to me to be fanciful. They highlight the point that the answers to them essentially involve matters of policy, which in turn involve balancing the various competing public interests. They should be answered, not by a judge, but by Parliament or the appropriate authority, after considering detailed evidence – certainly much more detailed evidence than was before the judge. In short, they are not matters which can properly be determined by a judicial decision extending the kind of common law immunity described above.

Further, the present immunity from suit extends to the contents of witness statements. Many civil cases settle before the trial, in which case there is of course no trial and thus no trial judge to form a view on the particular expert. Yet the statement or statements of an expert witness might well evidence unfitness to practise. On the judge's approach such a person would be entitled to immunity at common law, whereas if the same expert had given evidence and perhaps been cross-examined on his statements before a trial judge, the immunity would be lost if the trial judge chose to refer him to his professional body.

In all the circumstances, the judge's proposal seems to me to be arbitrary and not fairly to draw the line between one expert and another. It is arbitrary from the standpoint both of the expert and of anyone aggrieved by the alleged unfitness of the expert, and as such cannot be in the public interest.

The Attorney General gave a number of examples of these problems. I refer to only two, those of Dr Heath and Dr Lannas. Dr Heath was referred to the Board by experts retained by the defence in two trials. His conduct had not been criticised by the trial judges. The trials took place in 2002 but the conviction in one of them was not quashed until 2005. In his judgment in Heath Newman J said:

"The regulation provided by the Board is of particular importance because the users of forensic pathology services are, in the main, not in a position to assess for themselves the technical standards of the work carried out by forensic practitioners. Accordingly, the Board has a vital role to underpin the proper functioning of the criminal justice system and to prevent miscarriages of justice."

I agree. So here the GMC seems to me to have a similar role. I should add that I say nothing about the merits of Dr Heath's case because I think it is ongoing. In any event I do not know what they are.

The case of Dr Lannas demonstrates a different problem, namely what to do where the trial judge is unaware of the position. In Lannas issues relating to Dr Lannas were referred to the Home Office by a number of other pathologists and two coroners. In the case of R v Kayretli [1999] EWCA, it is plain that the trial judge was not aware of the problems and did not criticise her. The Court of Appeal said:

"What neither judge nor jury nor, we are confident, the prosecution knew was that the quality of Dr Lannas' work had recently been called into question. Indeed prior to the trial commencing, the Home Office Policy Board for Forensic Pathology through its Quality Assurance and Scientific Standards Committee (which monitors the work of Home Office pathologists) had in 1996 held two of Dr Lannas' reports to be below standard." Those cases seem to me to exemplify the problems with the judge's solution in this case.

I appreciate that we have had much more detailed argument on these questions than the judge did. It may well be that, if he had had as much assistance as we have had, he would have reached a different conclusion but I do not think that it is appropriate or principled for the court to afford a paediatrician, or indeed any other expert, the kind of new conditional immunity at common law suggested by the judge, where all depends upon a subsequent decision by the trial judge or by this court. As Ms Davies in substance put it, it is wrong in principle for the jurisdiction of a regulatory body to be determined by a different body, however independent, namely the trial judge or the Court of Appeal.

Ms Davies nevertheless seeks to uphold the judge's decision that Professor Meadow was immune from FTP proceedings. She recognises I think that there are problems as to where precisely the line is to be drawn but she submits that, wherever it is, Professor Meadow is entitled to immunity. She stresses the public interest in ensuring that there are competent doctors, especially paediatricians willing and able to give evidence in sensitive and sometimes high profile cases, both in the criminal courts and in the Family Justice System. She relies upon the material which was before the judge and his conclusion of his judgment. These concerns are emphasised by Thorpe LJ in his judgment and should not in any way be belittled. Certainly nothing in this judgment is intended to belittle them.

Ms Davies submits that both limbs of the rationale for the immunity from suit discussed above apply to paediatric experts, namely that to ensure that witnesses give evidence freely and fearlessly and that they are not exposed to a multiplicity of litigation going over the same ground by disgruntled litigants, often with hopeless cases. She focuses particularly on paediatricians rather than on expert witnesses generally and submits that it is or may be appropriate to treat different professions differently, relying upon Stanton v Callaghan.

Ms Davies does not argue for the same immunity as the immunity from civil suit. Her proposal is different from that of the judge. She recognises that expert witnesses have never been immune from contempt proceedings or from criminal process. Thus they can be prosecuted for perjury or conspiracy to pervert the course of justice. She also accepts that, like any witness, a civil action will not lie against an expert witness on the basis of anything said as a witness, whether or not what is said amounts to a crime: see eg Darker. However, she proposes that FTP proceedings should be permitted in respect of any statement made by a witness which amounts to a crime. So, for example, a witness could be sued for conspiracy to injure.

This is an entirely new suggestion which has not, so far as I am aware, been made before. It does not have the defects of the judge's solution, so far as it depends upon the decision of the trial judge, to which I have referred at some length, but it has what to my mind is the same underlying difficulty. It involves the extension of the common law immunity from civil suit to a common law immunity from FTP proceedings. It seems to me that the same objections apply to this extension as apply to the blanket immunity discussed above. In particular, such an immunity would cut across and interfere with the statutory responsibilities of the GMC or its equivalent. It would limit the power (and duty) of the GMC to investigate an allegation that an expert is unfit to practise except in cases where the facts alleged amount to a crime. I see no principled basis upon which the common law could impose such a limit. I would not therefore adopt Ms Davies' proposal.

I should add that in reaching these conclusions I have not overlooked the problems adverted to by the judge and emphasised by Thorpe LJ in his judgment. He has set out there some of the history of recent events in the particular field with which this case is concerned. It is to be hoped that a solution to the particular problems identified can be found by discussion between those directly concerned, and that, if appropriate, changes can be made, including changes to the relevant rules governing the GMC. In particular, it does seem to me that it should be possible to devise a scheme which reduces to an absolute minimum the risk of expert witnesses being vexed by unmeritorious complaints to regulatory bodies like the GMC.

However, for the reasons that I have given, it seems to me that the solution to particular problems in particular professions must be reached by discussion and, if appropriate, rule change, not by what to my mind would be an unprincipled extension of the common law immunity from civil suit. Ms Davies was right not to challenge the jurisdiction of the GMC, either before the FPP or before the judge. For these reasons I would allow this part of the appeal and hold that the FPP had jurisdiction to entertain the allegations against Professor Meadow.

Serious Professional Misconduct

This part of my judgment should be read after and in the light of the judgments of Auld and Thorpe LJJ, which I have read in draft. They have set out the facts in considerable detail and it would serve no useful purpose for me to do the same. They have concluded that the judge was correct to allow the appeal from the decision of the FPP that Professor Meadow was guilty of serious professional misconduct. It follows that the GMC's appeal on this question will be dismissed. I have reached a different conclusion from the other two members of the court and thus find myself in a minority. In these circumstances I do not think that it is appropriate for me to do any more than shortly to express the reasons for my conclusion that Professor Meadow was guilty of serious professional misconduct.

Professor Meadow is not a statistician and had no relevant expertise which entitled him to use the statistics in the way he did. I entirely accept the point that he made a mistake which other non-statisticians have made but that does not seem to me to exonerate him. He gave the evidence as part of his expert evidence and, moreover, did so in a colourful way which might well have been attractive to a jury without expressly disclaiming any expertise in the field on an issue the only possible relevance of which can have been to support the prosecution's case that the children had both died from unnatural causes. He knew that he had no such experience and should have expressly disclaimed any. To my mind, that amounts to serious professional misconduct, as the FPP held.

I appreciate that this view is different from that of both the judge and of my Lords and that their views are based to a significant extent upon the views expressed by the first court of appeal. In particular, I appreciate the force of these considerations, which are accurately described in detail by Auld LJ:

i) The case against Mrs Clark as presented to the jury, which of course included the evidence of Dr Williams, was a strong one. It was that the deaths were not from natural causes and that the children must have been murdered.

ii) The evidence of the statistics was a side show at the trial because it was not the defence case that the deaths were SIDS deaths. The defence case was that the deaths were caused by natural causes. By the end of the trial, as Henry LJ put it in paragraph 166 of the first court of appeal's judgment, the precise measure of rarity was not a significant issue.

iii) The central issue in each case was whether the prosecution could exclude death by natural causes. The effect of the medical evidence as a whole was that neither child was the subject of a SIDS death and the lowest common denominator (as Henry LJ put it) was that each death was unexplained and consistent with an unnatural death.

iv) There was a considerable amount of evidence in addition to that of Professor Meadow, including the evidence of Dr Williams, and the essential basis of his evidence was not the statistical evidence of which complaint is made.

v) As appears in paragraph 144 of Henry LJ's judgment, the court concluded that Professor Meadow's opinion was based on his expert assessment of the medical and circumstantial evidence and not on the statistical material.

vi) The first court of appeal rejected the suggestion that Professor Meadow contributed to the danger of misinterpretation (paragraph 155). The 1 in 73 million figure was merely a distraction (paragraph 162). Professor Meadow did not misuse the figures, although he did not help to explain their limited significance (paragraph 163).

vii) The defence was aware of the point about squaring, Professor Berry made the point and, indeed, the judge reminded the jury about Professor Berry's evidence in his summing up (paragraph 139 of Henry LJ's judgment).

viii) The criticism which the first court of appeal made of the trial was not misuse by Professor Meadow of the statistics but of the direction given to the jury by the judge in the course of his summing up. The court's concern was that counsel for the prosecution should not have said to the jury in his closing speech that the existing injuries led to "… even longer odds …" than the 73 to 1.

ix) The court's concern can be seen in paragraphs 166 and 168 which are quoted by Auld LJ in paragraph 165:

"166. We have made clear what the judge should have told the jury: that it was the prosecution's case that to have one unexplained infant's death with no suspicious circumstances in the family was rare, and for there to be two such in the same family would be rarer still. That was the only relevance of … [the table], and the statistics were capable of showing that, but nothing more. They could not help as to whether the defendant was guilty or not guilty. … The difficulty we feel …is that by the time of the speeches, rarity was largely accepted, so the measure of rarity, the CESDI Study was not important. The 73 million figure should have been cleared away as a distraction. Instead the judge considered that the statistics could be considered. Might the jury have been misled into attributing to those statistics a significance they did not have, i.e. as lengthening the odds against the deaths being natural?

168. … we conclude that there is some substance to the criticism that the judge appeared to endorse the prosecution's erroneous approach in this particular. …".

x) Notwithstanding that conclusion the court did not consider the convictions unsafe. As quoted by Auld LJ in paragraph 166, it stated its conclusions thus:

"256. … we consider that there was an overwhelming case against the appellant at trial. If there had been no error in relation to statistics at the trial, we are satisfied that the jury would still have convicted on each count. In the context of the trial as a whole, the point on statistics was of minimal significance and there is no possibility of the jury having been misled so as to reach verdicts that they might not otherwise have reached. …

257. It follows that in our judgment the error of approach towards the statistical evidence at trial … did not render the convictions unsafe."

Although I recognise the force of my Lords' conclusions, I am not persuaded that those considerations lead to the conclusion that Professor was not guilty of serious professional misconduct when he used the statistics as he did as part of his evidence that, in his opinion, the deaths of the children were not natural. I recognise that he had other reasons for his opinion, that there was other evidence which supported it, that the defence was able to cross-examine him on the statistics and of course that he was not responsible for the way in which prosecuting counsel addressed the jury or for the way the defence conducted the case. However, to my mind, none of that justifies the evidence he gave arising out of the statistics.

None of it justifies Professor's Meadow's decision to give the evidence summarised in paragraphs 79 and 80 above in which he related the statistics to these deaths. The views of the second court of appeal quoted in paragraph 82 above are in my opinion plainly correct and, in so far as there is any difference between those views and the views of the first court of appeal, are to be preferred. My Lords have expressed the views of the second court of appeal as tentative. I would prefer to describe them as provisional.

The judge accepted that Professor Meadow could properly be criticised for not making it clear that he was not an expert statistician but ultimately expressed his conclusions in this way in paragraphs 54 and 55 of his judgment:

"54. I have no doubt that that conclusion is not justified by the evidence before the FPP. … he made one big mistake, which was to misunderstand and misinterpret the statistics. It was a mistake, as the panel accepted, that was easily and widely made. It may be proper to have criticised him for not disclosing his lack of expertise, but that does not justify a finding of serious professional misconduct.

55. Ms Davies submits that the conclusion that he had acted in good faith and that there was no evidence of calculated or wilful failure to use best endeavours to provide evidence precluded a finding of serious professional misconduct. I accept that such a finding can be made even though there has been no bad faith or recklessness. But it will only be in very rare case that such a finding will be justified. The lapse in question must be serious indeed to lead to such a finding in the absence of bad faith. I am satisfied that the lapses in this case did not justify the finding."

I accept the judge's conclusion that it will be a rare case in which a person should be held to be guilty of serious professional misconduct in the absence of bad faith and I entirely accept that Professor Meadow was held not to have acted in bad faith or to have intended to mislead the court or anyone else. I also agree that, as the judge put it, the lapse in question must be serious indeed before the conduct in question can be regarded as serious professional misconduct. Auld LJ noted in paragraph 201 that it is common ground that serious professional misconduct may take the form of incompetence or of negligence of a high degree. All depends upon the circumstances of the particular case.

It is important to have in mind that the way a case is developed at and before trial is essentially a matter for the parties and their lawyers and that an expert must not be blamed for the shortcomings of the lawyers or indeed the judge. Equally, proper account must be taken of what Auld LJ describes as the alien confines of the witness box, where the witness is giving evidence in an adversarial contest in which the judge and the lawyers hold sway. All questions of legal relevance and admissibility are for the parties and the judge and not for the expert. As Auld LJ puts it in paragraph 205, it is important to assess the expert's conduct in the forensic context in which the allegations arise and it is of great importance to take account of the circumstances in which he came to give the evidence and of the potential effect on the outcome. I do not think, however, that it is relevant in deciding the question whether he is guilty of serious professional misconduct (as opposed to the question of penalty) to take account of the actual outcome.

On the other hand, I agree with Auld LJ that none of this absolves the expert from what he calls in paragraph 207 professional or forensic impropriety in the presentation and form of his evidence, although his conduct must be judged in the context of the particular circumstances in which he or she is placed.

The difference between the view that I have formed and that formed by my Lords is not on the question whether Professor Meadow was guilty of professional misconduct but whether he was guilty of serious professional misconduct. I agree with the conclusions which Auld LJ sets out in paragraph 210, which expresses in this way:

"210. The first [starting point] is that Professor Meadow was undoubtedly guilty of some professional misconduct. In his preparation for, and presentation of evidence at, the trial of Mrs Clark he fell below the standards required of him by his profession. Although not an expert in the use of statistics or calculation of probability, he put forward a theory of improbability of recurrence of unexplained and seemingly natural infant deaths, applicable only where recurrence occurred in familial, environmental and economic circumstances wholly independent of those of a first such death. In doing so, he relied initially on statistical figures of uncertain source and scientific validity and then on those in the CESDI Report, which had nothing to do with the probabilities of recurrence in any individual case, and which, in any event, he misunderstood and, by implication and the use of an inappropriate analogy, misapplied. In addition, and importantly, he did not expressly draw the court's attention to the fact that he had no expertise in the field of statistics or calculations of probability in this or any other field."

These seem to me to be serious shortcomings. The essential features of his evidence which have persuaded me that Professor Meadow's shortcomings amount to serious professional misconduct and not simply to professional misconduct are that he did not simply state that the statistics were relevant only to SIDS deaths, which these were not, and that they were not relevant to and did not help to decide whether the deaths of the children were caused by natural causes. On the contrary, the way in which he gave the evidence quoted in paragraphs 79 and 80 above in my opinion suggested that his opinion was that the 73 million to 1 statistic, the one in a hundred years' chance and the Grand National analogy all applied to the chances of these deaths being caused by natural causes. The second court of appeal expressed that opinion in paragraphs 102 and 175 of their judgment (quoted in paragraph 82 above), albeit without hearing full argument on the point, and I agree. To put it at its lowest, there was to my mind a serious risk that the jury would so understand the evidence and accept it.

I entirely accept that Professor Meadow did not intend to mislead the court and that he honestly believed in the validity of his evidence when he gave it. I also accept that some of the FPP's reasoning was flawed. Thus (as stated above) I do not think that it was right in the circumstances of this case to judge Professor Meadow more harshly because of his undoubted eminence. Also I do not think that he can fairly be criticised in relation to the figure of 1 in 1000. It was his use of the squared figures which is open to criticism. Moreover I quite understand that in giving his oral evidence he was answering questions asked by counsel.

Nevertheless, none of the points which can be made in Professor Meadow's defence, either singly or when taken together, seem to me to negative the key points set out above. In particular, although (as already stated) Henry LJ said that, although he can be criticised for not helping to explain the limited significance of the figures, he did not misuse the figures, that seems to me to be a very narrow view. It is true that the figures related to SIDS deaths and these were not SIDS deaths and that at the trial it was not said that they were, it seems to me that Professor Meadow did misuse the figures in that he applied the 1 in 73 million figure to the deaths of these children without qualification in the context of his opinion that the deaths were not natural. Moreover, he did so by using colourful language including the reference to the one in a hundred year chance and the Grand National analogy.

It is true that Professor Meadow did not intend to mislead the jury and that no-one challenged what he did but, as Kay LJ put it in paragraphs 102 and 175 quoted above, that was the picture that would be uppermost in the jury's minds and was tantamount to saying that without consideration of the rest of the evidence one could be just about sure that this was a case of murder. In my opinion Professor Meadow should have appreciated that there was (to put it no higher) a serious risk that that would be the effect on the jury and should not have made the unqualified statements that he did. In short this is one of those rare cases in which the FPP was correct to hold that the expert was guilty of serious professional misconduct without acting in bad faith.

For these reasons I would have allowed the appeal. Since this is a minority view, the question of sanction does not arise. However, it is right to observe that the GMC did not seek to uphold the sanction of erasure from the register. It was in my opinion correct not to do so. In all the circumstances of the case, erasure was not appropriate. Indeed, given the professor's experiences since the trial, the mitigating factors referred to by Auld LJ, his long and distinguished service to the public and his age a finding of serious professional misconduct would be enough.

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