Safe in the knowledge
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Unambiguous impropriety, without prejudice and dispute identification: EAT decision upholds sanctity of negotiation confidentiality
5 March 2014
The certainty of witness immunity is a central plank in the application of court proceedings. By David Casement QC and Julian Diaz-Rainey
Following the Court of Appeal decisions in GMC v Sir Roy Meadow (2007) and Paul Stretford v The Football Association Limited (2007) there remains undesirable uncertainty concerning the extent of immunity for non-expert witnesses.
A witness enjoys immunity from a civil suit in respect of evidence they give in judicial and quasi-judicial proceedings. On the other hand, a witness has no immunity from criminal proceedings, such as for perjury. What has not been determined authoritatively is whether a non-expert witness has immunity from disciplinary proceedings arising from their evidence, although the case for such is compelling.
In Meadow a complaint was raised about the expert’s evidence in R v Sally Clark (2007), namely that the witeness had stepped outside their area of expertise and given potentially misleading evidence. The General Medical Council (GMC) found him guilty of serious professional misconduct and removed him from the register. The High Court found that the expert had immunity but the Court of Appeal allowed the GMC’s appeal, finding that an expert had no immunity from disciplinary proceedings.
Subsequently, in Stretford, the Football Association (FA) argued that the Meadow decision had effectively sealed the fate of non-expert witnesses as well. Stretford faced disciplinary charges to the effect that he knowingly gave false evidence in a criminal trial wherein he was the complainant. The Crown had already investigated his conduct and decided there was no basis for criminal charges against him. The FA insisted it was entitled to investigate one of its own licensed agents and bring charges alleging he had knowingly given false evidence in court. Stretford argued that he had immunity from disciplinary proceedings and also contested the charges on their merits.
The FA relied in part upon paragraph 112 of Lord Justice Auld’s Meadow judgment: “The fact that a witness - expert or otherwise - may be deterred from making himself available to give evidence in civil, criminal or other judicial proceedings for fear of disciplinary proceedings by his professional body arising out of serious professional misconduct by him in the witness box is no basis for extending the immunity to such proceedings.”
The Meadow case, however, was concerned solely with the immunity of an expert witness acting as such. The reasoning was almost exclusively concerned with the balance between ensuring an expert was free to give evidence and on the other hand ensuring that an expert discharged their duties to the court, as well as protecting the public from future harm. It is difficult to see how the Meadow decision has become the authority in respect of a non-expert witness and the sentence in Auld LJ’s judgment anything but obiter dictum.
There are, of course, important differences between an expert and non-expert witness, such as the following:
- The non-expert witness is usually involved in only one case by force of circumstances. As a witness they undertake one obligation only: to tell the truth to the best of their ability. There are well-established ways of dealing with a witness who knowingly gives false evidence;
- The expert witness has agreed to provide their professional services, usually in more than one case. Their services consist primarily of giving opinion evidence. Disciplinary proceedings might be the only way of protecting the public from an expert who, although guilty of gross negligence, does not commit perjury.
Whatever the arguments for and against immunity applying to disciplinary proceedings, there should be no uncertainty as to its existence and extent. Unfortunately the court in Stretford, while finding it ’tempting’ to rule on the issue, did not determine the issue but rather stayed the case for arbitration. The arbitrator then stayed the arbitration pending completion of the FA’s disciplinary commission and appeal board hearings. The expensive process of exhausting the disciplinary process before returning back to the arbitration and then court could not be completed.
This is particularly unfortunate when one takes into account why witness immunity exists: “The policy of the immunity is to enable people to speak freely without fear of being sued, whether successfully or not. If this object is to be achieved, the person must know at the time he speaks whether or not the immunity will attach.” (Lord Hoffmann, Taylor v Director of the SFO (1999)).
The administration of justice depends upon a witness being willing to “speak freely without fear of being sued”, and this requires that they know at the time they speak whether or not they have immunity. A non-expert witness may be concerned about speaking freely if, at the time they speak, they are uncertain about whether they could be the subject of disciplinary proceedings as a result of their evidence and may proceed in one of the following ways:
- The witness may decide not to give evidence because they do not wish to run the risk of disciplinary proceedings, however ill-conceived those would be. Even if confident that any charges would be defeated, they may not wish to risk adverse publicity or the expense that may flow from defending spurious charges. They may also be concerned that disciplinary charges need only be proved on the balance of probabilities and without certain safeguards available in criminal proceedings, eg the power to summon witnesses and disclosure of documents.
- The witness may, at the very least, wish to take independent advice about whether they should be involved in the court proceedings at all, as well as about what the issues are, the relevance of documents to those issues and court procedure. Such advice is infrequent in civil proceedings and very rare in criminal cases.
- The witness should know that, unless they are a party in civil proceedings, they are not represented by an advocate inside court. During criminal proceedings the prosecutor does not undertake to represent or advise the complainant or any other witness - a point that is often overlooked.
If a witness’s knowledge of their immunity is necessary for confidence, which in turn is important for the administration of justice, uncertainty as to its extent undermines both confidence and the administration of justice.
David Casement QC is a barrister at Exchange Chambers in Manchester and Serle Court in London. Julian Diaz-Rainey is a partner at Halliwells