Immunity for honest expert

Meadow v General Medical Council QBD (Admin) TLR 22 February; SJ 10 March

In allowing Sally Clark’s appeal against her convictions of the murder of two of her children, the Court of Appeal rejected the erroneous evidence of Professor Sir Roy Meadow on which the conviction was based that the chances of two occurrences of sudden infant death syndrome in one family were 1 in 73 million. As a result, a complaint was made to the General Medical Council against Professor Meadow when the Fitness to Practise Panel found serious professional misconduct proved and ordered that his name be erased from the register. In allowing his appeal against the finding, Collins J held that the public policy based on the need to protect the administration of justice of not exposing a witness to the risk of having his or her evidence challenged in another process showed that not only was there no reason in principle why it should not apply to disciplinary proceedings, there was every reason why it should so apply. There could be no doubt that the administration of justice had been seriously damaged by the decision of the panel in this case and the damage would continue unless it was made clear that such proceedings need not be feared by an expert witness. The possibility of disciplinary proceedings based on a complaint by someone affected by the evidence given had a serious deterrent effect. The immunity had to cover proceedings based on a complaint, whether or not it alleged bad faith or dishonesty, made by a party or any other person who might have been upset by the evidence given. Public policy required at least that. There is no reason why the judge before whom the expert gave evidence should not refer his conduct to the relevant disciplinary body if the judge was satisfied that the expert’s conduct had fallen so far below what was expected of him as to merit some disciplinary action. Such a referral would not be justified unless the witness’s shortcomings were sufficiently serious for the judge to believe that he might need to be removed from practice or at least to be subjected to conditions regulating his practice, such as a prohibition on acting as an expert witness. Normally, evidence given honestly and in good faith would not merit a referral. There was no doubt that the complaint against Professor Meadow should not have been pursued: because it was based upon his evidence in court, he had immunity.