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What is an expert witness?

Nigel Morris-Co...

Today's news that a prosecution has collapsed and a jury discharged without even considering the evidence because of the lack of credibility of a witness put up as an expert might not be big news - if it wasn't for the fact that the witness is Andrew Ager, a sticky character, a self-described Subject Matter Expert, that the Crown Prosecution Service used as their go-to-guy for anything to do with carbon credits and, sometimes, frauds in other areas, too. Even more startling is the witness' attempts to pervert the course of justice. The CPS is, once more, the subject of much head-shaking for being rubbish. But culpable as they are, the CPS is not the only one against which accusations of ineptitude should be levelled.

It is mind-blowing to learn that Andrew Ager, put up by the CPS as an expert in matters relating to carbon trading, was not subjected to proper vetting as to his abilities, was not tested by the dozens of defence lawyers in cases where the CPS used him and was not properly reviewed by judges in each of those cases. They, just as much as the CPS, are to blame for Ager's astonishing run as an expert witness.

It is important to understand one basic thing about "expert witnesses." It is the Court, not the parties, who decide who is an expert. Unless the Court accepts him, or her, that person is just a witness with no special standing.

Expert witnesses do have special standing. First, the rules of evidence are relaxed, to a degree, as are the rules of giving evidence. They are in a preferential position in Court and while in many cases there is a "battle of the experts" there is a presumption that, once the Court accepts them, what they say is said with authority. The function of an expert is, at least in principle, to assist the Court. He is not, in theory, partisan although, inevitably, parties choose experts that support their case. Experts, unlike witnesses, present opinions in addition to facts. Witnesses give evidence as to facts but are not (at least are not supposed to) interpret those facts.

How one gains the necessary level of expertise is a matter of discretion for the judge. He can accept or reject an someone qua expert, sometimes reducing him to a mere witness.

That expertise can come from a wide range of methods of acquiring it.

There are detailed articles about the conduct of Andrew Ager who found himself in a sticky situation when, at last, someone did question his credentials. To be fair to him, in relation to his credentials, he does not appear to have been overtly dishonest. He has not, it appears, claimed to have specialised qualifications or experience. When questioned by the judge, in the case dismissed yesterday, he admitted to having no specific qualifications, to never having attended any relevant training course, to have never read what is said to be the only substantive book on the subject of carbon credits trading. It seems, from the information so far available, that there was little more than "Gissa job, I can do that," to borrow the words of Yosser in "Boys from the Black Stuff."

There are, some reports say, as many as 20 convictions tainted by the revelation that the expert wasn't.

It gets worse: not only did Ager attempt to dissuade the author of the aforementioned book from appearing as expert for the defence, it came to light that in other cases he had not undertaken any, or any substantial, review of the case and the facts: he had simply copied his report from other cases and done little more than to change the names.

Although the case was prosecuted by the CPS, it was prepared by a specialist fraud unit at the City of London Police. It was them that had, originally, put Ager up as an expert and the Court said that the investigating officer had been "rather too proactive" in his preparation of Ager's witness statement. "I have seen one email in which he appeared not to be asking an expert for his view on particular matters but telling him exactly what he wanted in the statement and even suggesting the wording,” said HH Nicholas Lorraine-Smith, the judge in the case.

The irony of the situation is that the facts which led to the investigation are exactly the circumstances for which the City's police set up the specialist unit: cold calling vulnerable persons and selling them complex investment products.

The CPS said it will review all cases involving that witness and that "Mr Ager will not be used as an expert witness in any future cases." TFR, obviously.

But while the defence team said that it should not be the job of the defence to point out problems with the prosecution's case, that argument seems thin. The question is not whether to get the witness discredited but when to do it.

Each party should, as a matter of course, check the bona fides and credibility of the other side's experts as a matter of course and it should do so as soon as the identity of the witness is put forward. That is at an early stage of proceedings. But for the defence, there may be a tactical advantage of waiting until trial: if they get the witness tossed off the case at an early stage, the prosecution will have time to replace him. By waiting until trial, there is both maximum impact because the Judge is bound to be tetchy and it is unlikely that an adjournment will be granted while the prosecution find an alternative. However, there is another point: by waiting until trial, considerable fees are run up, including the full cost of preparation and the Barrister's brief fee which covers all preparation and the first day at court after which there are much reduced daily "refreshers." As the CPS will be liable in costs as a result of their failure, they will have a good argument for saying that the objection should have been raised much sooner (when the defence knew or should have known) and that, in the absence of any complaint, the costs after that date should not fall on the CPS which, ultimately, means the taxpayer. Having said that the "should have known" argument, while valid, will make the CPS look even more stupid.

Further reading,
https://www.telegraph.co.uk/ne... and

Nigel Morris-Cotterill is a former solicitor, a highly regarded financial crime risk management and compliance strategist with special emphasis on money laundering and terrorist financing and the author of a number of books on those subjects as well as "Sun Tzu and the Art of Litigation."

Sun Tzu and the Art of Litigation

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