Katy Thorne QC
Lay clients and their solicitors often feel the medical profession is against them when it comes to defending sexual allegations at trial, and that there is little tactical advantage to be had from challenging the evidence of doctors. As result, many will not instruct a doctor to give evidence on behalf of the defence (or even consider making an application for funding, if that is necessary). However, for the right case, it’s very much a worthwhile exercise, and defence teams I have been part of have often challenged forensic medical evidence with success. In my experience some useful steps to take, and issues to consider include the following.
The first step is – unsurprisingly - a close examination of the Crown’s case. A regular scenario encountered is evidence of some form of ano-genital injury. It’s important to maintain a healthy suspicion of any opinion evidence which suggests a single form of causation, and it would be helpful to examine carefully any source material quoted by the witness (the doctor), as the evidence base for such “single cause” assertions is often flimsy. Acquiring a working knowledge of medical terms and examination techniques need not be daunting: I co-wrote and edited the latest edition of a practical and inexpensive practitioner’s guide – Mason’s Forensic Medicine For Lawyers (6th Edn) – which many have said they’ve found to be a helpful primer in this area. The chapter of that book dealing with sexual assaults is written by two specialist Sexual Offences Examiner doctors. It sets out the process of an examination, how injuries present, and how evidence is gathered, as well as guiding the reader to research papers and suggestions on further reading.
If a treating clinician does NOT provide an opinion on causation, but merely lists injuries, there may be merit in agreeing this evidence, at least initially. A defence team may not wish to fully bind or challenge such a witness, as what was initially a simple list of injuries may subsequently be expanded to become an unhelpful opinion on causation from that clinician. This is not to say that this potential outcome should dissuade you from instructing your own expert, but there is merit in thinking carefully before fully binding a treating clinician.
Secondly, if you are minded to instruct an expert, then who should that be? Certainly one who will – even if on your instigation – initially check key facts carefully and quickly, which can often be hugely valuable in saving time and cost. And for a defendant in custody, this could mean being released and avoiding trial. As an illustration, a rape case was dropped after late disclosure of medical records. The complainant claimed to be a virgin, but once the expert had received the medical records, an informal indication over the phone was enough to confirm that that the complainant had an unusual Sexually Transmitted Infection, which was enough to render the prosecution untenable in this particular case.
You should also carefully consider the professional experience of your potential expert. There are now several Sexual Assault Referral Centres (SARCs) which have been set up, and which do fantastic work and provide a much-needed service for those making allegations of sexual assault. They also provide excellent medical care to - often traumatised – complainants. However, when considering who may make a helpful defence expert, it is doubtful that the medical professionals working in those facilities will find it easy to remain as impartial as we might wish them to be. It is an understandably human response that a treating doctor, particularly one working in this field, would find it difficult to step away from the experience of treating alleged victims of sexual crime, and to assume the independent and impartial mind-set of an expert witness. There are a number of doctors whose practice sees them interacting with both suspects and complainants in cases involving allegations of sexual violence, and who undertake expert witness work. The expert witness directories and, as ever, third-party recommendations from colleagues in your own or other firms, or from those barristers you instruct, can point you in the right direction. The Faculty of Forensic and Legal Medicine is also a helpful resource, and you may also wish to consider instructing a forensic pathologist, who are expert at dealing with causation of injuries, and are less likely to be subject to potential bias against a defendant.
Thirdly, a defence expert is a really helpful resource to have with you at trial. Clinicians appearing as Prosecution witnesses do, on occasion, overstep their expertise and may theorise, based not upon medical expertise or published research, but on their own personal theory of the case (which can often arise as a result of their interactions with investigating officers). Doctors who do not regularly appear as expert witnesses, with all the duties that role entails, are often used to their patients expecting them to have all the answers, and so their (again, very human) response is to offer solutions or theories which may not be strictly supported by evidence. The mere fact of another expert being present in court to witness their evidence can often encourage those Prosecution experts not to overstep the limitations of their role, as can a meeting of experts under r19.6 of the Criminal Procedure Rules. Such a meeting held in advance of trial can help focus minds on what can, and what cannot, be said with any degree of scientific certainty.
Fourthly, it’s worth having resources available at trial to deal with points which might come up; some key forensic medicine texts are a worthwhile investment, and can certainly give you some ammunition to deploy in cross-examination against those Prosecution experts who suffer from a tendency to get carried away. For cases involving sexual allegations against children, the “Purple Book” is essential (Physical Signs of Child Sexual Abuse, 2015, from the RCPCH – the Royal College of Paediatrics and Child Health).
Finally, don’t forget about your client as a source of evidence which may challenge what an expert witness is saying. Naturally we focus on reacting to the positive evidence set out in the Prosecution’s case, but consider whether expert opinion on a lack of evidence involving your client might assist – for example, an absence of any injury on him, or no presence of semen or DNA.
Results always come from Active Defending!