WSG Article: The COVID-19 Public Inquiry: what does its approach to expert evidence mean for Core Participants?

The COVID-19 Public Inquiry: what does its approach to expert evidence mean for Core Participants?

December, 2022 - Shoosmiths LLP

With preliminary hearings now underway for Modules 1 and 2 of the COVID-19 Public Inquiry (‘the Inquiry’), its approach to expert evidence is emerging as an important issue for Core Participants (‘CPs’). All those with a current, or potential future, interest in the Inquiry should understand at an early stage the importance of expert evidence, and the potential impact of the Inquiry’s proposed approach to tackling the significant challenges that have been identified in respect of it.

Expert Evidence

Expert evidence plays a crucial role in all Public Inquiries, but this is especially true of an Inquiry tasked with considering the breadth and technicality of issues as arise in this instance. The purpose of an expert witness is to give an opinion on matters which call for expert skill and knowledge. Their role is to provide technical analysis and expertise, which will assist the Inquiry in delivering its Terms of Reference. There are a number of general expectations of expert witnesses, including that they:

must provide independent opinions confined to matters within their field;
owe an Inquiry a duty to exercise reasonable care and skill;
should take into account all relevant facts (including any which detract from their opinions);
should indicate whether any opinion they express is provisional or qualified and whether any additional information is required; and
should inform an Inquiry if they change their opinion on any relevant matter.

Expert evidence can have a significant impact on the outcome of an Inquiry, and it is therefore hardly surprising that the Inquiry’s approach to expert evidence is proving to be the subject of considerable scrutiny by CPs.

Approach of other Inquiries

In order to contextualise the approach taken by the Inquiry, it may be helpful to understand the approach taken by other recent Inquiries.

In the Grenfell Tower Inquiry, 17 individual experts were instructed on its behalf. CPs were permitted to instruct their own experts, but required the Chairman’s permission to submit a report to the Inquiry; it was made clear that permission was to be granted only in exceptional circumstances.

In the Infected Blood Inquiry, experts to the Inquiry were grouped according to their expertise. It was stated in that Inquiry’s approach that where there were significant differences of view or emphasis among the members of a group these were to be tested during oral hearings, with the proponents of the different views responding to questions.

Due to the extent and breadth of technical expertise to be called upon by the Inquiry, it was made clear from the outset in the launch statement that the Chair intended to “appoint groups of scientific and other experts to help the Inquiry in its work, covering a range of different topics and views. The expert groups will be given the task of creating joint reports, which can be used in evidence, setting out where they agree and disagree about topics on which they are instructed to assist. It will be up to the Inquiry Chair to decide how much weight to give to them.”

The Inquiry’s Approach

As stated above, the Inquiry’s approach to expert evidence has been addressed in the written and oral submissions of a number of CPs for both Modules 1 and 2. For its part, the Inquiry has set out the following in respect of its approach:

the Inquiry will appoint qualified experts in particular fields of expertise as experts to the Inquiry. They will assist the Inquiry, either individually or as part of a group of such persons, by way of the provision of written reports and opinions (including the answering of specific questions asked of them by, or through, the Inquiry) and, where appropriate, the giving of oral evidence at the public hearings;
experts will have the necessary expertise and experience for the particular instruction. They will be independent and objective, and subject to an overriding duty to assist the Inquiry on matters within their expertise;
written reports will, as evidence, be shared with CPs and published on the Inquiry’s website. Where there are significant differences of view or emphasis among the members of a group, these will be made clear on the face of the reports and can be tested during oral hearings;
the appointment of experts to the Inquiry, and their assignment to a group, are matters exclusively for the Chair, although she will consider suggestions from CPs as to who should be appointed; and
the identity of the expert witnesses and the questions and issues that they will be asked to address will be made available to CPs in advance of the report being finalised and CPs will be provided with an opportunity to provide observations on them.

The Inquiry has provisionally identified a number of specialist topics on which the assistance of expert witnesses will be sought; five for Module 1 and four for Module 2. The Inquiry has also invited additional topic suggestions from CPs and stated that it will consider suggestions from CPs as to who should be appointed. Though some CPs have acknowledged that “the Inquiry has rightly recognised the need to receive a substantial proportion of the evidence that it receives through the provision of expert evidence: this [being] the only way in which the Inquiry can proceed at a reasonable pace and complete its important work within a reasonable time”, many have also voiced concerns about the difficulties surrounding the issue of expert evidence and the Inquiry’s approach to it (1).

Issues relating to Expert Evidence

A number of issues have been identified in respect of expert evidence in this Inquiry, and numerous CPs, in both Modules 1 and 2, have raised concerns regarding the Inquiry’s approach. Some common themes are starting to emerge, in particular:

Impartiality of Experts

It has been noted that “the identification of suitable experts is not at all straightforward, given the public ventilation by many of them of the areas of expertise in which they practice, the fact that many of them were themselves involved in the events under investigation, and the fact that there is a distinct lack of unanimity on many matters”(2). In addition, the approach taken in other countries may itself also be a focus of attention in the Inquiry (and so seeking expert opinion from other jurisdictions may not be the solution often employed in other contexts)(3). Accordingly, the need for a balancing of groups of experts has been recognised(4).

Number of Experts

It has been suggested that the Inquiry may need to need to consider instructing more than one expert in each of the disciplines it identifies, in order to obtain a range of views that fairly represents the breadth of opinion in that discipline.

Core Participant Involvement

Though it has been stated that the Inquiry will consider suggestions from CPs on experts, and that questions for experts will be made available to CPs prior to reports being finalised so that CPs can provide their observations, it has been suggested that the Inquiry should go further: CPs should be invited to make observations on areas of expert instruction, the identification of experts, and the terms of their instruction. It has been submitted that this is the appropriate course given the centrality of expert evidence to the Inquiry(5).

Timing of Disclosure

The Inquiry has committed to disclosing the letters of instruction to expert witnesses to CPs. The importance of early disclosure has been highlighted, in order to enable CPs to identify any gaps or any additional issues and revert to the Inquiry in good time before the finalisation of reports(6).

Implications for Core Participants

As highlighted by the issues raised above, the ability of CPs to have a meaningful impact on the expert evidence put before the Inquiry is limited, having no right to submit their own expert report. Nonetheless, a CP may wish to appoint its own expert to:

conduct their own assessment of the validity of the Inquiry experts’ views; and
enable the CP to formulate questions to put to the Inquiry experts.

Questions can test the Inquiry experts’ views, but have to be channelled through Counsel to the Inquiry, who may or may not decide to ask them. The most effective way for a CP to influence the expert evidence put before the Inquiry is therefore likely to be by making submissions to the Inquiry at the earliest opportunity.

Conclusions

It is clear that finding experts with a sufficient degree of expertise and impartiality is going to be a challenge for the Inquiry (and in all likelihood CPs too). Given the recognised importance of expert evidence, it is also clear that many CPs consider it crucial that they be given full opportunity to participate meaningfully in the selection of experts and the specialist topics requiring expert evidence. A failure by the Inquiry to allow CPs to contribute to the discussion that informs its decisions regarding expert evidence may well serve to undermine confidence in the Inquiry at an early stage.

Those that have achieved, or are considering applying for, CP status should be considering now whether to engage an independent expert, and/or seek to shape the Inquiry’s approach to experts by making representations as to the topics for expert evidence, the identity of experts, and the questions to be put to them. As identifying an impartial and independent expert to instruct may also not be straightforward for CPs, this might also be a task which should be addressed promptly.

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