A GENUINE DILEMMA -- BUT MEADOW STILL GOT LESS THAN HE DESERVED

That Meadow did NOT observe scientic caution led to huge injustices. He had no good reason to abandon such caution. Courts too recognize probability

When Professor Sir Roy Meadow was struck off by the General Medical Council last year, the reaction in medical and legal circles was one of shock. It was accepted that the paediatrician made a grievous error as an expert witness that led to the wrongful conviction of Sally Clark for the murder of her children. That his unsound statistical evidence, delivered with utter conviction, caused a miscarriage of justice was not in dispute. But the scale of the punishment for a mistake made in good faith seemed to set an alarming precedent.

Doctors were already reluctant to take on child protection cases, and particularly to appear as expert witnesses. The Meadow verdict seemed certain to make a bad situation worse. Specialists are not obliged to appear in court, and not many are willing to put their careers at risk if they make an honest error. Without their testimony, genuine child abuse would become almost impossible to prove: medical evidence is nearly always important.

There was thus widespread relief when the GMC’s decision was overturned on appeal in February. Mr Justice Collins, however, did not just restore Sir Roy to the medical register. He also ruled that professional bodies have no right to charge members with misconduct over expert testimony, unless advised to by the trial judge. He effectively created a new law of immunity, against which the GMC is appealing this week.

At first sight, this makes good sense. If experts are to volunteer their services to the courts, they ought not to have to fear for their professional futures. But as the Attorney- General pointed out on Monday, supporting the GMC appeal, this approach creates problems of its own. It turns judges into “unpaid gatekeepers” who usurp professional bodies’ statutory regulatory role. And it denies the legal system a benefit that their oversight can bring.

The chief problem with the way courts use scientific evidence is that science and law operate in different ways. British criminal justice is adversarial, with each side striving to prove its case and demolish the other’s. It is about implying certainty and convincing a jury beyond reasonable doubt.

Science is also about proving things, but it encompasses much greater uncertainty than does law. One of its strengths is its ability to cope with reasonable doubt and disagreement between reputable experts. Few scientists are willing to say, unequivocally, that their opinions are certain to be correct. They invite others to question them and provisionally accept the facts that amass the strongest evidence.

Such equivocation is a founding principle of responsible research but is not always welcome in the courtroom. Neither prosecution nor defence wants to call witnesses whose uncertainty might undermine a case. The temptation is to line up over-confident experts and let the jury decide who is to be believed. Yet this makes for poor science, and worse justice, as the Meadow experience shows. His elementary mistakes would have been plain to a statistician, but were not to a jury. They were instead won over by the self-assurance and conviction with which he presented his evidence.

This is where the standards that professional bodies such as the GMC require of their members can help. If doctors and scientists remember the basic rules of their field before testifying, and claim what can be justified by the evidence, they should have nothing to fear. Any vexatious complaints will get nowhere if expert witnesses have tempered their views with the caveats appropriate to most scientific opinion. This approach would also help juries, who can be apt to trust the apparent authority of a witness ahead of the strength of his argument. Professional watchdogs must be sensitive to genuine error and avoid over-reaction, but gentle scrutiny could improve the quality of specialist evidence presented in court.

Report here




(And don't forget your ration of Wicked Thoughts for today)