EXPERTS ON OATH
By R. H. CECIL
SIR BERNARD SPILSBURY'S 'modest and thoughtful confi- dence in the witness-box inspired such universal respect that it was a shock to hear Mr. Justice Swift advise a jury to ignore one of his statements in a " motor-manslaughter " case at the Old bailey. He had been asked by defending counsel if he could esti- mate the probable speed of the vehicle that caused the death, and he hesitantly said that it might have been about thirty to forty miles an hour. "Members of the jury," interrupted his lordship, "Sir Bernard Spilsbury is here as a medical man. His opinion about the speed of a car is of no more importance to you than the opinion of a crossing-sweeper. You will please ignore it."
This was downright, harsh and rather rude ; but it was profoundly true. In this remarkable book* Sir Norwood East, drawing on his experience as a prison medical officer, as a Prison Commissioner, as head of the Prison Medical Service, as a practising psychiatrist and as one who has examined, on behalf of the Home Secretary, the minds of many condemned murderers awaiting execution or reprieve, has a host of interesting things to say about the status of the "expert witness." In a book crowded with incident and written with the modest wisdom of true professional integrity, the chapter that interested me most was the one on The Expert's Oath : A Medico- Legal Anomaly. It seems the natural centre-piece of this collection of articles, lectures and readings which Sir Norwood East has contributed to criminological thought and experience since 1943. It is in the witness-box that medical witnesses, and particularly psychiatrists, find so often that forensic medicine must fall into step with the slowest-witted of twelve sceptical jurors, the " healthy " reaction of pocket Johnsons who would be understood to declare, "I refute it thus."
I have often thought that the oath administered to witnesses in our criminal courts makes an impossible demand in requiring that the evidence they give "shall be the truth, the whole truth, and nothing but the truth." Its own tautology suggests that the people who devised it had metaphysical qualms about the nature of truth. "Consider for a moment," writes Sir Norwood, "the two common words 'then' and 'now,' audaciously used by everyone in daily conversation as' if they represented concrete facts instead of being merely abstract concepts. Who shall decide when the past is no longer present ? " And he quotes Maeterlinck :
"What would happen if time stopped? Nothing. We should have no suspicion that it had stopped. There is no time ; there are only imaginary measurements of a thing existing in our imagination."
In short, says Sir Norwood, our clocks do not tell the time ; like our sundials they only register a shadow. For some, perhaps, the most important distinction between " then " and " now " is emotional. We do not fear the past we know ; we often fear the unknown future. Thus even the ordinary, non-expert witness is continually called upon to make concrete statements relating to abstract ideas, and in doing so to transcend the philosophy of the ages. The juror's oath in a coroner's court binds him to give a true verdict according to the evidence "and to the best of my skill and knowledge," a formula also used_ in many oaths administered to public servants entering upon their duties. When it was customary in university medical schools to require the taking of the Oath of Hippocrates, the conscientious medical graduate might well have muttered uneasily the words :
"I will look upon him who shall have taught me this Art even as one of my own parents. I will share my substance with him, and I will supply his necessities if he be in need. I will regard his offspring even as my own brethren, and I will teach . them this Art if they would learn it, without fee or covenant."
It may have been popular with the dons. But it set young medicals off on their careers with a sworn undertaking they could not hope to fulfil, granted even the intention ; and there can be few doctors who do not find themselves sooner or later undertaking, in a court of law, to tell "the truth, the whole truth, and nothing
* Society and the Criminal. By Sir Norwood East, M.D., F.R.C.P. (Stationery Office. 10s.) but the truth" about some esoteric question put tcrthem as a simple exercise in the distinguishing of black from white. Sir Norwood illustrates the point with one of his many reminiscences. "Those who for many years give evidence at the Central Criminal Court," he says, "can testify to the fact that if the expert Witness always adhered to the striCt terms of the oath he would sometimes find himself in a difficult and invidious position." In one case of murder he was called by the prosecution to rebut evidence which alleged that the crime was due to epileptic automatism. The feature relied upon to support this view was, in effect, that the accused had said he had no recollection of the events connected with the crime. "I disbelieved this, and counsel for the defence insisted on being fully informed of the reasons which caused me to oppose the evidence of the doctor called by him. I was obliged to reply that after I had cautioned the prisoner he said that whilst he was choking the girl with his hands as she lay on the bed, she struggled with wide- open eyes to release herself. The whole truth assisted the jury to assess the medical evidence put forward on both sides at its correct value. But if I had voluntarily disclosed the whole truth known to me, without being forced to do so, the jury might have regarded me more as an executioner than as a doctor, and been prejudiced accordingly."
Apart from the inaptness (and indeed the futility) of the oath as an aid to the unveiling of truth, Sir Norwood has few quarrels with the criminal law as it stands today ; the Criminal Justice Act had not reached the Statute Book when these pieces were written, but its proposals had his unqualified blessing. He does not propose the abolition of capital punishment. He is even satisfied, which most lawyers are not, with the " MacNaghten Rules ". for testing the sanity of accused persons. He quotes Henry Maudsley as having said in 1906: "Abolish capital punishment and the dispute between lawyers and doctors Ceases to be of practical importance "—and says that however true that may have been in 1906, it does not represent the position today. "I have too much respect for the manner in which the legal test 'of criminal responsibility is applied to quarrel with its century-old criteria, but I believe that our estimate of culpability, that is to say the degree of blameworthiness of an accused person who is affected by a minor mental abnormality, may some- times assist the court to modify the award in his favour, although he is not insane or irresponsible according to the law."
This is a modest estimate of the function of psychiatry in the administration of the law. It is the opinion of a man with a vast experience of criminals. But one is justified, I think, in emphasising that if is also the opinion of a prison doctor, whose court appearances were almost invariably for the prosecution. It involves no greater slur on the integrity of doctors than on that of lawyers to say that they must find it difficult not to be "prosecution-minded" when that is their side of the fence. Throughout the articles in this book, on responsibility, senility, personality, alcoholism, sexual offenders, psychopathics and the rest, you are aware that the author's stand- point is subtly different from that of a doctor who has usually been retained for the defence—for example Sir William Wilcox. There is no bias, no impatience, only measured statement proceed- ing from the wisdom of experience ; but there is a determined disparagement of those whom the author calls "journeymen psychia- trists" and of "the facile assumption of the uninformed .who would have us believe that crime is a disease."
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