Request for sight of procedures relating to scrutiny of court-appointed expert witnesses

Waiting for an internal review by Judicial Office for England and Wales of their handling of this request.

Dear Judicial Office for England and Wales,

Following confirmation from the General Medical Council that it has received complaints from medical professionals of identity theft and fraud related to court-appointed medical expert witnesses:

1. Please provide sight of all records that include reference to fraud or other criminal conduct related to court-appointed expert witnesses, to include recorded entries of complaints, concerns and whistle blowing.

2. Please provide sight of all records for 2019 onwards relating to due diligence / governance procedures for court-appointed expert witnesses, to include communications from or to third parties including the General Medical Council (personal details may be redacted if individuals are not acting in their professional capacities).

3. Please provide sight of all proposals to amend judicial practice directions to deliver scrutiny and governance over expert witnesses, as well as any proposed authentication mechanisms to verify the identity of expert witnesses.

Yours faithfully,

David Gale

Disclosure Team, Judicial Office for England and Wales

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HMCTS Customer Service (Correspondence), Judicial Office for England and Wales

2 Attachments

Dear David Gale,

 

Please find attached the response to your recent FOIA request.

 

Kind Regards

Customer Investigations Team

 

[1]HMCTS_BLK_DIGI
Customer Investigations Team | Customer Directorate  

[2]Coronavirus (COVID-19): courts and tribunals planning and preparation

[3]Here is how HMCTS uses personal data about you

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Dear HMCTS Customer Service (Correspondence),

Thank you for your response.

You have requested a clarification, as follows:

1. Does your request relate to a particular jurisdiction or court?
2. Is there a specific type of hearing/proceedings that you have in mind?

1. My request relates to England & Wales, to include all courts over which the Lord Chief Justice presides. However, my request is specific to records held (and actions related to those records)

2. My request relates to any type of hearing/proceedings that involve an expert medical witness(s) against whom there is a related report of fraud.

To further focus your response, I will accept details restricted to the last six cases for which records exist, selected in the reverse chronological order in which they first came to light. Totals of recorded cases should be included for the past three years.

Please note that any response should include reports from legal and medical professionals. If time permits, further records should be supplied beyond the first six. If time is limited, responses should begin with the most recent case and work backwards chronologically until allocated time has been expended. There is an anticipation that your office will have legally compliant records management systems that facilitate electronic indexing and searches and that a log of such reports / complaints will have been kept.

For context, I am aware of the previous recommendations made by the Law Commission on due diligence related to expert witnesses that were largely ignored by the Ministry of Justice (MoJ). For its part, the MoJ has already confirmed that there are no existing practice directions or ISO 9001 compliant procedures on due diligence related to the appointment of expert witnesses, and that agencies representing expert witnesses are entirely unregulated.

My objective in submitting this FOI request is to facilitate radical reform of the courts' due diligence provision for expert witnesses. As someone who has previously briefed senior members of the judiciary, including the Supreme Court, I would be happy to engage directly with senior members of the judiciary, should this be advantageous.

Yours sincerely

David Gale
Consultant Chief Information Officer / Enterprise Architect
Abracus

HMCTS Customer Service (Correspondence), Judicial Office for England and Wales

2 Attachments

Dear David Gale,

 

Please find attached a further clarification request in response to your
email of 8 January. Please ensure any response is sent to
[1][Judicial Office request email].

 

Kind Regards

Customer Investigations Team

 

[2]HMCTS_BLK_DIGI

Customer Investigations Team | Customer Directorate  
5th Floor (5.12), 102 Petty France, London SW1H 9AJ | DX 152380
Westminster 8

[3]Coronavirus (COVID-19): courts and tribunals planning and preparation

[4]Here is how HMCTS uses personal data about you

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Dear HMCTS Customer Service (Correspondence),

The Law Commission report (No 325 - downloadable here: https://www.lawcom.gov.uk/project/expert... ) emphasised the inadequacies of due diligence arrangements related to expert witnesses appearing within the criminal courts. Whilst the Ministry of Justice rejected the Law Commission's recommendations, the report put the courts on notice of the likelihood of abuse and fraud related to expert witnesses.

To quote from the report:

Bruce Houlder QC, Director of Service Prosecutions:
"My own practitioner’s experience … is that some charlatans or certainly biased and even incompetent experts still exist in the field of science and also in forensic accountancy. The decisions of the Court of Appeal that have underlined the independent role of the expert, and where their prime duty lies, have not always been heeded, and a “market” still exists for opinions that assist the cause of the paymaster, and insufficiently scrutinise the value of the evidence that points away from the conclusions contended for at trial."

It would be inconceivable that the Lord Chief Justice's Office did not thereafter review and log any reports related to expert witness fraud for all courts that use expert witnesses. Indeed, the Ministry of Justice and the General Medical Council made it clear that the responsibility fell primarily to the courts to oversee the appointment of expert medical witnesses proffered by the parties. Expert witnesses cannot opine without the express approval of the court. It is notable that CPR were not specifically modified to directly address the concerns of the Law Commission.

If, in fact, the Lord Chief Justice's Office is saying that it has no centralised capability to either record or search for reports of expert witness fraud, that would be a very grave matter which suggests that there are no scrutiny and governance procedures in place to collate and review, at its most extreme, expert witness related trial-rigging.

For the moment, I will accept a response that includes the last six records related to reports of expert witness fraud in the county court.

Yours sincerely,

David Gale

Weston, Bob (Gloucester), Judicial Office for England and Wales

1 Attachment

Please find attached an acknowledgement of the above request

 

Bob Weston

 

Knowledge Information Liaison Officer

 

HMCTS - Analysis and Performance Division, Finance, Governance and
Performance Directorate.

 

Tel: 01452 334448 or 0203 3345511

 

E [1][email address]

 

1st Floor | Twyver House | Bruton Way | Gloucester | GL1 1PE

 

" I am not authorised to bind the Ministry of Justice contractually, nor
to make representation or other statements which may bind the Ministry of
Justice in any way via electronic means".

 

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Weston, Bob (Gloucester), Judicial Office for England and Wales

1 Attachment

Please find attached a response to the above request.

 

Bob Weston

 

Knowledge Information Liaison Officer

 

HMCTS - Analysis and Performance Division, Finance, Governance and
Performance Directorate.

 

Tel: 01452 334448 or 0203 3345511

 

E [1][email address]

 

1st Floor | Twyver House | Bruton Way | Gloucester | GL1 1PE

 

" I am not authorised to bind the Ministry of Justice contractually, nor
to make representation or other statements which may bind the Ministry of
Justice in any way via electronic means".

 

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Dear Weston, Bob (Gloucester),

Can you clarify the response of 02.03.21?

There appears to be contradiction:

"I can confirm that the MoJ holds the information that you have requested since November
2014.

"We do not hold data relating to these matters before November 2014. The FOIA does not
oblige a public authority to create information to answer a request if the requested
information is not held. The duty is to only provide the recorded information held.

"We have carried out all reasonable searches of data held since November 2014 I can
confirm that we do not hold any records related to these matters between November 2014
and February 2021."

As quoted above, the LCJ's Office both "holds the information" and "does not hold any records"

If it is the case that the LCJ's Office holds no records related to my original FOI request, please state as much plainly. If that is the case, I will assume that there are no procedures within the LCJ's Office to properly record such reports.

For transparency, we are already in possession of examples of notifications of expert witness fraud made to the LCJ's Office, to include a written report dated 16.10.20.

Yours sincerely,

David Gale

MacKinnon, Jennifer, Judicial Office for England and Wales

1 Attachment

Please find attached an acknowledgement of the above request.

 

Jennifer Mackinnon

Knowledge Information Liaison Officer

Analysis & Performance | Finance, Governance and Performance Directorate |
HMCTS | Birmingham ASC | B16 8PE

 

" I am not authorised to bind the Ministry of Justice contractually, nor
to make representation or other statements which may bind the Ministry of
Justice in any way via electronic means".

 

 

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MacKinnon, Jennifer, Judicial Office for England and Wales

1 Attachment

Please find attached a response to the above request.

 

Jennifer Mackinnon

Knowledge Information Liaison Officer

Analysis & Performance | Finance, Governance and Performance Directorate |
HMCTS | Birmingham ASC | B16 8PE

 

" I am not authorised to bind the Ministry of Justice contractually, nor
to make representation or other statements which may bind the Ministry of
Justice in any way via electronic means".

 

 

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Dear MacKinnon, Jennifer,

Thank you for your response.

Please clarify, to include a response to this statement contained within my communications: "For transparency, we are already in possession of examples of notifications of expert witness fraud made to the LCJ's Office, to include a written report dated 16.10.20."

Is your office stating that it has lost or destroyed this written report?

Yours sincerely,

David Gale

Weston, Bob (Gloucester), Judicial Office for England and Wales

Hello Mr Gale
Following your email of 6 April, below, I can tell you that, outside of FOIA and on a discretionary basis as Business As Usual, we have made further enquiries and are not able to offer you any further information regarding the report to which you have referred.
I would remind you that you have the right to take the matter further if you wish ie:

Appeal Rights

If you are not satisfied with this response you have the right to apply to the Information Commissioner’s Office (ICO). The Commissioner is an independent regulator who has the power to direct us to respond to your request differently, if she considers that we have handled it incorrectly.

You can contact the ICO at the following address:

Information Commissioner’s Office

https://ico.org.uk/Global/contact-us

Yours sincerely

Bob Weston

Knowledge Information Liaison Officer

HMCTS - Analysis and Performance Division, Finance, Governance and Performance Directorate.

Tel: 01452 334448 or 0203 3345511

E [email address]

1st Floor | Twyver House | Bruton Way | Gloucester | GL1 1PE

" I am not authorised to bind the Ministry of Justice contractually, nor to make representation or other statements which may bind the Ministry of Justice in any way via electronic means".

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Dear Weston, Bob (Gloucester),

Thank you for your response the content of which is deeply concerning. The apparent loss or destruction of the example referenced record of 16.10.20 confirms not only a failure by MoJ executive management to put in place procedures capable of preventing expert witness fraud but also a failure to put in place records management capable of recording reports of such.

Please confirm that: [email address] is a valid email address for the office related to this FOI request.

We already know of instances of expert witnesses being involved in serious miscarriages of justice, warned about in the Law Commission's report No 325. The response from the Justice Office suggests that, other than judges being required to vouch for the reliability of an expert witness, there are no current procedures to prevent related miscarriages of justice. This calls into question the assurances made by the MoJ to the Law Commission on its report.

I request that this matter be escalated outside of the FOI process as a matter of urgent consideration related to corporate scrutiny and governance. Please feel free to contact me if I can be of further assistance.

Yours sincerely,

David Gale

Dear Weston, Bob (Gloucester),

I can see that the public email address that was the subject of my last response has been removed by the website.

To clarify the email address in question (in longhand) was: LCJ dot office at judiciary dot uk

Yours sincerely

David Gale

Dear Weston, Bob (Gloucester),

I believe that my clarification request 0f 29.04.21 was relatively simple.

Unless I hear to the contrary by return, I will assume for the purposes of media distribution that the LCJ's office has lost or destroyed the previously referenced record of 16.10.20, and that the LCJ Office email address to which the report on expert witness fraud was sent was correct.

Yours sincerely,

David Gale