A COURT CANNOT SIMPLY IGNORE AN UNCHALLENGED EXPERT REPORT: DOG SAVED BY THE ADMINISTRATIVE COURT

The significance of unchallenged expert evidence at court was considered by the Administrative Court in  Fitzgerald v CPS [2024] EWHC 869 (Admin). Although this is a criminal case it considers the authorities in civil actions and the central point that it is not open to a court to ignore the contents of an unchallenged expert report.

(This is not “Yosser” but a “happy Bulldog”.)

“This point brings into sharp focus the status of Ms Howell’s uncontested evidence in this case. As noted above, her report (which concluded with the unequivocal view that, on those stated conditions, Yosser would not pose a danger to public safety) was not disputed. Indeed the CPS had confirmed that no issue was taken with her report. How then could the court fairly reach a conclusion which was the polar opposite of Ms Howell’s unchallenged evidence? In my view, it could not.”

THE CASE

A dog, a male bull breed dog, known as “Yosser” had been involved in three incidents said to have involved injury to members of the public. Its owner was prosecuted under s.3 of the Dangerous Dogs Act. A dog destruction order was made.

THE FIRST APPEAL

An appeal was made to the Crown Court.  For the purpose of that appeal the appellant obtained an expert report following an examination of Yosser and his behaviour. It concluded that, with appropriate safeguards, the dog did not pose a danger to the public that he was “a nervous but gentle dog”.

The report was allowed in evidence and unchallenged.  Despite the existence of the report the Crown Court upheld the destruction order.

THE APPEAL TO THE ADMINISTRATIVE COURT

The Administrative Court allowed the appellant’s application and the destruction order was set aside. One key reason for this was the Crown Court’s failure to appreciate and act upon the unchallenged expert evidence before it.

THE EXPERT’S REPORT

In a detailed report the expert concluded that, with appropriate safeguards, the dog would not pose a danger.

8.07 In summary, with the following measures in place I am of the opinion that Yossser 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.”

THE PROSECUTION RESPONSE

21. When the CPS received the report from Ms Howell, they responded to say, amongst other things:

“No 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 appeal hearing”.

THE EXPERT REPORT AT THE HEARING

1. 1. Accordingly, at the hearing before the Crown Court, there was unchallenged expert evidence that, if ownership and care of Yosser was transferred to Terry Fitzgerald, and if Yosser was walked on a lead and muzzled when in public, he would not pose a danger to public safety. Save in one respect, the Crown Court made no attempt to grapple with the report or those conclusions, or to explain why it had reached an entirely different result.

1. 1. The exception lies in this passage of the judgment, where the learned Recorder said of the expert:

“We note what she says in her report. She has carried out an assessment, she describes the dog as nervous, but a gentle dog. She has visited the home of Terry Fitzgerald, she says what the amendments can be made to his home, of course what she has not done is seen Yosser out in the public areas, she saw him and observed him, obviously, when he was detained; but of course, we have given due weight to her expert report. We have also given due weight to the statement from Mr Terry Fitzgerald.”

1. 1. I am wholly unpersuaded by this attempt to minimise Ms Howell’s findings, on the sole basis that she had not observed Yosser in public areas. First, of course, she was unable to see Yosser in public areas because he was detained by the police. Secondly, Ms Howell herself would have been only too aware of the fact that she had not seen Yosser in a public place but, on the face of her report, that did not affect her conclusions. Thirdly, if this was a real point of doubt or difficulty, and one which at least potentially undermined Ms Howell’s conclusions, then fairness dictated that she should have been asked about it, rather than her report and recommendations simply being set to one side.

1. 1. This point brings into sharp focus the status of Ms Howell’s uncontested evidence in this case. As noted above, her report (which concluded with the unequivocal view that, on those stated conditions, Yosser would not pose a danger to public safety) was not disputed. Indeed the CPS had confirmed that no issue was taken with her report. How then could the court fairly reach a conclusion which was the polar opposite of Ms Howell’s unchallenged evidence? In my view, it could not.

1. 1. The leading criminal case on unchallenged expert evidence is R v Brennan [2014] EWCA Crim 2387, where the defendant was convicted of murder. Nigel Davis LJ 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: see [44]. In that case, there was unchallenged psychiatric evidence in support of a defence of diminished responsibility. Davis LJ went on to say at [45] that, if such unchallenged expert evidence was to be rejected, “then it must be rejected for reason“. There, in the absence of any such reason, the verdict of manslaughter was substituted for the original verdict of murder.

1. 1. Here, there was a decision by a Recorder sitting with two lay magistrates, who were obliged to provide reasons for their decision. There was no jury. That makes this type of case closer to a civil dispute than Brennan. Indeed, I note that in Doyle, it was held that the making of DDOs and CDOs were part of the civil jurisdiction of the Magistrates’ Court.

1. 1. The leading civil case on uncontested expert evidence is now TUI UK Ltd v Griffiths [2023] UK SC48, where 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. An expert’s report had been provided in support of the claimant’s claim, and although the defendant had chosen not to cross-examine the expert, its counsel had then made submissions as to why the report should not be accepted. The trial judge had acceded to those submissions; the High Court judge had ruled that he should not have done so; and the Court of Appeal (by a majority) had reinstated the trial judge’s conclusion.

1. 1. The Supreme Court agreed with the High Court judge, and the dissenting judgment of Bean LJ in the Court of Appeal, that the trial judge should not, in the circumstances, have departed from the expert’s unchallenged conclusions. The applicable principles were summarised by Lord Lloyd-Jones at [70] of his judgment in the following terms:

“70… (i) The general rule in civil cases, as stated in Phipson, 20th ed, para 12-12, is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses.

(ii) In an adversarial system of justice, the purpose of the rule is to make sure that the trial is fair.

(iii) The rationale of the rule, ie preserving the fairness of the trial, includes fairness to the party who has adduced the evidence of the impugned witness.

(iv) Maintaining the fairness of the trial includes fairness to the witness whose evidence is being impugned, whether on the basis of dishonesty, inaccuracy or other inadequacy. An expert witness, in particular, may have a strong professional interest in maintaining his or her reputation from a challenge of inaccuracy or inadequacy as well as from a challenge to the expert’s honesty.

(v) Maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause. The rule is directed to the integrity of the court process itself.

(vi) Cross-examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty.

(vii) The rule should not be applied rigidly. It is not an inflexible rule and there is bound to be some relaxation of the rule, as the current edition of Phipson recognises in para 12.12 in sub-paragraphs which follow those which I have quoted in para 42 above. Its application depends upon the circumstances of the case as the criterion is the overall fairness of the trial. Thus, where it would be disproportionate to cross-examine at length or where, as in Chen v Ng, the trial judge has set a limit on the time for cross-examination, those circumstances would be relevant considerations in the court’s decision on the application of the rule.

(viii) There are also circumstances in which the rule may not apply: see paras 61-68 above for examples of such circumstances.”

1. 1. The exceptions noted in paragraphs 61-68 of the judgment of Lord Lloyd-Jones include where any challenge to the expert was peripheral or insignificant; where the expert’s opinion was incredible; where the opinion was simply stated without any supporting reasoning at all; where the expert had made an obvious mistake; where the evidence of fact was contrary to the facts which formed the basis of the expert’s opinion; where the expert had been asked to clarify or explain further and had not done so; and where there was a procedural objection. None of those exceptions applied here, and the contrary has never been so much as hinted at.

1. 1. Accordingly, following the principles in TUI v Griffiths, if the CPS had wished to challenge Ms Howell’s conclusion about Yosser, they were obliged to require her to attend for cross-examination. Otherwise, there was a significant risk that the hearing and its outcome would be unfair. They did not do so, saying that they took no issue with her report. In those circumstances, it seems to me that the Crown Court was bound by her conclusion, unless there was a reason why that conclusion could be fairly ignored or discounted. For the reasons that I have already given, the only ground that was advanced, namely the point about Yosser not having been examined in a public place, was not a valid point of distinction.

1. 1. Accordingly, I conder that, in view of Ms Howell’s expert report, and the CPS decision not to challenge her evidence, the Crown Court was bound to accept her conclusion. They certainly identified no valid reason for departing from it. That therefore led to an unfair order.