The Court of Appeal in R v Seddon [2019] EWCA Crim 1411
Case Facts
The applicant of the appeal Seddon was tried in the Crown Court at Manchester Crown Square under the supervision of Judge Hamblen J and a jury. The decision during the trial at Crown Court found the applicant with two counts of attempted murder and committing murder. He was sentenced to life imprisonment for the two offences with the court setting the minimum number of years in prison at 40 years. 20 years was the term set for each one of the two offences (CASEMINE, 2017). The applicant did not bring an appeal at the time of the conviction until more than five-year later when he applied for an extension to prepare an appeal application against his sentence. However, the applications were refused and later renewed to full court.
The two victims for both attempted murder and murder were the parents of the applicant; both mother aged 65 and father aged 68 by the time of their murder. The attempted murder offences were based on the incident that took place on 20 March 2012, where the car being driven by the applicant, carrying his parents and nephew swerved and swung into the water on the canal that was on the side of the road (The Guardian, 2013). The applicant managed to get out of the car using a lock-knife for cutting his seat belt. Despite the applicant getting out of the car, he stood on the car roof, which was causing it to sink. Fortunately, the fire service responded in time and was able to rescue the other passengers that were trapped in the car. In the account of the murder of the applicant’s parents that took place on 6 July 2012; the crime scene indicated that the two were shot by a shotgun, with bodies left in a position to indicate that it was suicide.
Key Evidence
The evidence of the applicant attempted murder was established based on the brief that he provided following the accident. According to the applicant’s account, he had experienced chest pains that must have caused him to blackout when driving. He accounted the he probably hit a brick or an obstacle on the road that resulted in the car to lose balance and swerve into the water. Despite his father indicating in his report that the applicant had earlier complained from chest pains, the examination report showed that the applicant did not have any chest problem (CASEMINE, 2017). After examining the hired car, it was identified that it did not have any mechanical defect, which with a lack of chest problem were used as evidence for the attempted murders.
The evidence against the applicant in the two murders presented by the prosecution was circumstantial. The father to the applicant had informed the general practitioner that his son had attempted to kill him during the incident, which the prosecution identified as motif especially when the financial circumstances of the applicant are put into consideration (The Guardian, 2013). The second evidence that was availed by the trial was the applicant movements and activities on the day his parents were shoot. According to the CCTV footage, the applicant was identified travelling towards his parents’ home at about 1.33 pm and away at about 1.59 pm. The call records evidence indicated that the applicant had repeatedly contacted an individual who lived in Darlington area, with a criminal record that incorporated possession of a firearm with intent (CASEMINE, 2017). The timing evidence was provided by Dr Conlong, a consultant gastroenterologist and Dr Miller, a forensic bio-archaeologist. The joint statement prepared by the two experts witnessed suggested that victims’ time of death was probably at least 2 to 3 hours following ingestion of the meal.
Court Decision
The Court of Appeal decided that the renewed application was refused and failed. The decision of the court was based on several factors regarding the trial and contended provided by Mr Hamilton. However, according to the court decision reasoning, the judge in the initial trial did not have jurisdiction over the way the jury considered the expert witness and could not have said anything more beyond the joint expert report. The court also ascertained that the expert witness evidence was based on necessary assumptions, which does not entail 100% certainty (CASEMINE, 2017). The court also indicated that the judge clearly reminded the jury in the summing-up about Dr Conlong opinion at trial and how it had changed in the joint expert report regarding the elapsed period between eating the fish and chips, and death. Therefore, it was the right for the duty to decide their conclusion either based on the evidence Dr Conlong had provided at trial or had concurred in the joint expert report. The jury was entitled to draw their judgment based on the joint statement if they found the explanation provided by Dr Conlong compelling, with enough proof from other circumstantial evidence directed towards the applicant as the offender or not. Therefore, the court denied the submission provided by the applicant that a particular legal direction needed to be accorded to the jury’s approach on the inconsistency suggested in witness joint and witness statements.
The court also denied the submission by the applicant that the convictions are unsafe since the circumstantial evidence provided according to the court was compelling, and inadequacy summing-up on one aspect of expert testimony could have impacted the decision of the jury. The court also based its decision on the fact that there was lack of sufficient explanation provided in regard to the very long delay that was associated with the appealing being brought (CASEMINE, 2017). However, the court did not see the need of requesting the explanation of the years of procrastination since the appeal lacked prospect of success as there was no merit in the ground for an appeal; therefore the extension of time was inappropriate. Based on the reasoning of the court, it found that the applicant did not provide enough details to convince the court for the need of an appeal, which then resulted to the refusal of the applicants’ request for an extensive period of time to make appeals against the convictions.
Expert Witnesses
An expert witness in a case is an individual with professional expertise engaged in providing an opinion based on experience, expertise, and knowledge. The expert witness is expected to act within his duties and ethical aspects to offer independent, unbiased, and impartial evidence to the court or tribunal. The evidence provided by an expert witnessed is only used in explaining matters or issues in dispute that involves technical or subjects’ knowledge that can only be explained by real experts in the concerned field, and the issues are outside the understanding of laypersons and individuals trying the case.
The Ethical Consideration of Expert Witness
The principle of expert witness ethics establishes minimum standards for acceptable conduct that is expected for experts to come up with substantial facts regarding an issue in context. Several ethical obligations of an expert witness should be considered when evaluating the role played by an expert witness in the case (Fitzpatrick, n.d., 7). The first expert witness ethical obligation is justification. Justification is the quality of reason of truth provided by the expert witness. For the explanation provided by the expert witness to be accounted as knowledge, it must be believed as true and proved to be true through justification. The absence of belief in the expert witness account is the absence of truth, which then indicates that there is no justification and the explanation provided is a mere opinion (Sanders, 2007, 1542). Therefore the expert beliefs must be backed with knowledge justification. Under the ethical obligation of justification, the expert witness is expected to apply the rules of evidence in a way that is consistent with the contextualist’s essential observation that the justification required for the court and other individuals to be epistemically responsible in holding a belief based on the context in which the expert witness holds and expresses the idea.
Based on this case, DR Conlong, a consultant gastroenterologist, and Dr Miller, a forensic bio-archaeologist achieves the ethical obligation of justification. Both witnessed experts examined the stomach content in the victims in their respective expertise to come up with a conclusive explanation that was able to build a belief of truth regarding the time of death of the applicants’ parents. Despite have differing time in the trial opinion to that in the joint expert statement, Dr Conlong was able to provide the justification to the court that his change in time is due to a 95% certainty that is reached based on the fact that he was uncertain if the fish and chips consumed by the victims prior to their murder contained batter. However, after the analysis contact by Dr Miller that established the presence fat, Dr Conlong believed that it was a reason for adjustment of the time from less than one hour and a quarter to at least 2-3 hours following the intake of the meal. With the justification provided by the two expert witnesses, the jury was able to establish if the applicant had the opportunity to kill his parents by placing the probable time of consumption to that of the CCTV footages that indicated the applicant going away from the direction of his parents’ home.
Another ethical obligation for an expert witness is the role. The ethics also consider the expert witness role, which involves presenting the knowledge presented in their field by providing specialized knowledge capable of Helping the trier of fact in understanding the evidence. The ethical obligation of role requires the expert witness to approach each theory and question regarding the issue with independence and objectivity in the essence that the expert witness should view the facts and data dispassionately, without considering the consequences that it might have to case. The obligation of the ethical role is for the expert witness to testify the facts in a neutral perspective of facts developed without acting as a servant of the court or for the people who hired them, but simply present the facts or answer the questions without considering where the answer will fall (Sanders, 2007, 1558). The expert witness joint statement provided the applicant’s parents were shot at least at least 2-3 hours following the ingestion of the meal with the unlikeness of it being much more than five to six post-consumption. The joint statement was did not provide any suggestion that the two expert witness were concluding their analysis to sway the jury opinion towards the victim or the applicant. It was upon both the prosecution and the applicant defence to convince the court using the view provided by the expert to suite their arguments perspective regarding the events before the murder of the applicant’s parents. Therefore, the expert witnesses fulfilled their ethical obligation of the role.
Expert Witnesses Professional Duties and Responsibilities
Several duties and responsibilities have been availed to expert witnesses to consider during their functioning of helping the court or tribunal in matter falling within their expertise and cannot be explained by both parties in the case proceeding. The expert witness independence is highly considered when conducting his or her duties and responsibilities. Some of the duties and responsibilities of expert witnesses was provided by Cresswell Justice in the National Justice Comania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) 1993 2 LILR 68, 81-82 (Hanretty, 2015). The duties and responsibilities listed include the evidence presented by the expert witness to the court should act and be seen as being an independent expert product that is immune to pressure and coercion to conformity by the litigation.
Expert Witness Duties
The principle provides that expert witness must provide information that helps the court on matters within their expertise without considering the person paying them or persons from whom they have received instruction. Therefore the expert report should be based on reasonable explanations required in helping the court to resolve the proceedings (Sankey, 2019). Based on the case, both Dr Conlong and DR Miller were witness after receiving instruction from the prosecution. However, the two expert witnesses conducted their analysis independently. They provided their expert opinion based on their review with reasonable explanations without considering the obligation to the prosecution from whom they received instructions to conduct the analysis. The consideration of the court interest in resolving the proceedings justifies that the expert witnesses fulfilled their duty as expertise.
Another duty of the expert witness under the principal in Ikarian Reefer is that the expert witnesses during their presentation should provide facts or assumptions that support their opinion. The experts’ witnesses should also consider or should eliminate the facts or assumptions that could detract their concluded opinion (O’Neil, 2017). In the case, both witnesses provided assumptions to the case regarding the time of death of the applicant’s parents. The facts considered to conclude the estimated time of murder was based on the analysis of the stomach content of both victims following the consumption time. Dr Conlong went along to consider facts that could detract his conclusion by explaining the uncertainty of the presence of batter in the fish and chips consumed by the victims. The uncertainty of the existence of batter is then considered to be the reason why Dr Conlong conclusion in the trial statement differs from what he stated in the expert joint report, which included the presence of fat according to Dr Miller’s analysis of the stomach content. Dr Conlong explanation to the court regarding his report being with 95% certainty due to the doubt of the presence of batter in the meal, which is then confirmed by Dr Miller’s evidence, indicates that the expert witness made it clear to the court that issue fell outside his expertise. It is the expert witness duty to make it clear when a question or issue falls outside their knowledge, and Dr Conlong, in the case was able to fulfil that duty as an expert witness.
Expert Witness Responsibilities
The responsibility of the expert witness was according to the Toulmin HHJ in Anglo Group plc v Winther Brown & Co. Ltd.2000 (Out-Law Guide, 2007), provided that the expert witnesses should be ready to consider their opinions, after an exchange of reports with other experts, and if appropriate consider the change of their view, they should communicate the change of opinion to the court and all parties involved without causing any delays and at the convenience of the court. The principle allows expert witnesses to go beyond their capabilities to establish the best possible reasoning that can be provided to the court to adequately explain their findings, which gives the court a better angle of conducting proceedings (FHC, 2019). As an expert witness, Dr Conlong reviews Dr Miller’s evidence report where he identifies that Dr Miller analysis was able to discover fat in the mean consumed by the victims. He goes on to explain to the court without delay and when appropriate regarding the new information and that it had resulted in a change of opinion indicated in the joint expert report. The timely provision of change in expert opinion by Dr Conlong allowed the cross-examination process to be conducted by both the prosecution and the defence. The jury also had the opportunity to consider the new expert opinion to enable them to conclude either opinion provided by the expert witness.
In modern practice, expert witnesses have other responsibilities that are not directly related to the presentation of the testimony. The expert witnesses are expected to attain their responsibility as investigators by conducting a thorough assessment and analysis of the issue brought to them and identified other aspects beyond the parties in the case and the Court. The expert responsibility as an investigator does require the expert witness to present issues in the case that other parties could have missed by supporting the opinion with factual matrix necessary for just determination of the case. Both expert witnesses in the case were able to achieve their responsibility as investigators by conducting analysis at their best knowledge in the respective fields and providing their opinion to the Court with justification (Hanretty, 2015).
Another responsibility that is expected is the mediator, which involves the expert witness operating within the provided laws and presenting the opinion that can be agreed by both parties in the case. The responsibility of the expert witness as a mediator is to create an understanding for the parties in the case through steps that demonstrate the truth behind the evidence (Zukowski, 2018). In the case, Dr Conlong does not achieve his responsibility as a mediator expert witness when his trial statement differed from that provided in the expert witness report. The shift of statement resulted in the defence to question Dr Conlong opinion. On the other side, both parties in the case tend to agree with Dr Miller’s opinion since she had achieved the mediator responsibility by providing enough justification for both parties to come into agreement with her opinion.
Comparisons with Other Decided Cases
When considering the expert witness ethical and professional duties, it is also important to compare with other decided cases. In Watt V Tucker [2005] EWCA CIV 1420 (23 November 2005), the Court did bound to a particular conclusion by expert evidence provided to the Court regarding the assessment of damages. The defendant who had hit the stationary car of the claimant causing injury had appealed against the damages that the claimant claimed were to include the days he would miss working as the injury had caused her to change her practice from conventional optometry to that using a laser.
However, the expert joint report that was provided by an orthopaedic surgeon, Mr Mackay, was not opened to the judge by the defendant. The Court in that circumstance deemed it unfair to only consider the statements presented by the expert as a base of concluding that the claimant was simply exercising a choice of not going to work and the accident did not have an impact that could have made the claimant unfit for four workdays and fit for three days (CaseCheck, 2017). For the expert witness to conduct their ethical and professional duties, they must adhere to the rule 19.6 of the Criminal Procedural Rules, which includes appearing before the Court to justify their opinion. However, the Court is not bound to make its decision based on particular witness expert opinion or statement rather on the merits and justifications provided by the expert witness and circumstantial evidence in the case.
References
CaseCheck, 2017. Watt V Tucker [2005] EWCA CIV 1420 (23 November 2005). Available at: https://www.casecheck.co.uk/watt-v-tucker-2005-ewca-civ-1420-23-november-2005.html. [Accessed on 24 Mar. 2020].
CASEMINE, 2017. Seddon, RV. Available at: https://www.casemine.com/judgement/uk/5da43eff2c94e03615774b59. [Accessed on 24 Mar. 2020].
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The Guardian, 2013. Stephen Seddon jailed for 40 years for parents’ murder. Available at: https://www.theguardian.com/uk/2013/mar/28/stephen-seddon-jailed-40-years. [Accessed on 24 Mar. 2020].
O’Neil, C., 2017. The Duties and Responsibilities of Expert Witnesses. Law Business Research. Available at: https://www.lexology.com/library/detail.aspx?g=c5175dd7-5730-44b8-8a53-e934d8d4a111. [Accessed on 24 Mar. 2020].
Out-Law Guide, 2007. Anglo v Winther. Available at: https://www.pinsentmasons.com/out-law/guides/anglo-v-winther. [Accessed on 24 Mar. 2020].
Watt V Tucker [2005] EWCA CIV 1420 (23 November 2005). Available at: https://www.bailii.org/ew/cases/EWCA/Civ/2005/1420.html. [Accessed on 24 Mar. 2020].
Zukowski, M., 2018. The Expert Witness May Improve Your Mediation Success. Arizona Attorney. Available at: https://www.myazbar.org/AZAttorney/PDF_Articles/0318EWG6Mediation.pdf. [Accessed on 24 Mar. 2020].
