Expert apology

There has been a fascinating little story unfolding around a case called SD (expert evidence) Lebanon [2008] UKAIT 00078. The Guardian picked up the story and ran an article on it on Monday.

Dr Alan George is a respected academic and a specialist in the Middle East. He has been doing expert reports for asylum cases for years. Like many other academics writing expert reports, though, he has received somewhat rough treatment at the hands of the Asylum and Immigration Tribunal and its predecessors.

This treatment is in my opinion often unfair. Expert evidence is routinely rejected in the tribunal if it is considered to be biased or partial in some way. This is not the same as saying that the expert is acting as an advocate for the client, which would be a breach of the expert’s duty to the court. But who can say they are truly neutral or impartial, and do not have views or opinions about a subject about which they know a great deal? Expert evidence is intended to be opinion evidence, after all: that is its very function. And yet it is rejected for fulfilling that function.

One of the frustrations for expert witnesses is that they have no right of reply to the sometimes very unfair things that are said about them in the tribunal and which could be perceived as damaging their professional reputation. It is a very one-sided affair.

On this occasion, though, because the tribunal published what they said was a draft determination, the normal rules of court privilege did not apply and Dr George was able to take things further. He instructed Carter-Ruck Solicitors, in fact, and the AIT settled out of court and issued a public apology.

The Tribunal certainly overstepped the mark, but what was actually said (I had better not repeat it) did not, frankly, go far beyond what is often said about experts in other cases. The tribunal really needs to get over its dysfunctional approach to expert evidence. The expert evidence is only one part of the evidence the tribunal has to consider in any given case, and what most experts say is bound to be important and relevant. It may not end up being determinative of the case, for various reasons, but there is no need to ‘trash’ experts. It makes the tribunal look rather intellectually insecure, apart from anything else.

Free Movement

About Free Movement

The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.