Half of expert witnesses would reject “highly contentious” cases

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Transgender issues: Many experts wary of cases

Half of expert witnesses would refuse to act in “highly contentious” matters, such as those involving transgender issues, a survey has found.

The poll of 635 expert witnesses also found that, with the current high inflation, a majority would be increasing their rates – by an average of 11% of those who specified a figure.

Experts were asked whether they would be “sufficiently concerned” for their safety or reputation in giving evidence on “highly contentious matters, for example those involving transgender issues” that they would refuse to act.

Half said they would. Responding to the Bond Solon expert witness survey, many left detailed comments explaining their decision.

One said: “I do accept instruction on cases with a transgender element − most of my colleagues will not. When I do, I am concerned about potential backlash and so it is a high-risk decision.”

Another said: “I already act in the Court of Protection in reported matters. I think it’s important that experts are available for these high-profile cases. I would avoid transgender cases.”

Another expert witness, who had refused “some criminal work”, said: “I have had my home extensively vandalised many times and dogs killed. I grew up in [Northern Ireland] with terrorism. I continue to tell the truth and do the right thing.

“However, I also try really hard to keep my life private to protect myself, my home and family and in particular am very selective now about the work I accept.”

Another expert said they turned down an opportunity to give evidence relating to someone who was “accused of involvement in 9/11” on the grounds that they lacked objectivity and were “fearful about the sort of scrutiny that might ensue.”

Opinions in favour of acting in highly contentious matters, including those relating to transgender issues, were equally strong.

One expert said: “I feel it is important to provide access to representation to marginalised groups, whether or not my opinion ends up in their favour.”

Another commented: “I have been involved in many high profile and contentious matters. If you’ve set yourself up to do a job, do it.”

An expert “used to dealing with high-profile criminal cases”, said he had “procedures in place to support and protect my mental health and wellbeing”.

Researchers commented: “In the current climate of social media, ‘cancel culture’ and armchair activism, it is no wonder that about half the respondents would refuse to act if a matter were highly contentious.

“This is concerning as expert witnesses provide a vital role in court cases, and one that is intended to be inherently independent of the facts of the case and the parties concerned.”

A further question asked whether the “emotional publicity around cases”, for example where there is a dispute over the continuation of life support for a child, would cause experts to refuse instructions. Most (59%) said it would.

A majority of experts (54%) said, bearing in mind inflation, they would be increasing their rates, the average increase for the 243 experts who gave details being 11%.

Almost nine out of ten experts (88%) said the court system was underfunded and legal aid rates should be increased (89%).

On the issue of “more detailed regulation” for expert witnesses, almost half (48%) were in favour, a similar proportion those who supported mandatory independent accreditation.

Experts were also split down the middle on whether there should be a specified time limit after retirement for acting as an expert witness.