Day 055 - 25 Nov 94 - Page 73
1 references; it was the gentleman who wrote, apparently, a
2 chapter in the book which she edited.
3
4 Nevertheless, it might be thought that if in the footnote
5 you are mentioning the book as well as the chapter in which
6 appears, that other parts of the book can be referred to.
7 But be that as it may, these are all, I call them
8 "scientific papers", I mean expert papers, and there was
9 no restriction at all in reading parts of those to any
10 witness in cross-examination; nor could there be because
11 the evidence is tested against the background of that
12 science.
13
14 Where the objection arose was where something which amounts
15 to a statement by a witness who is not going to be called
16 is read out. It was Mr. Rampton who suggested the reason
17 he was sensitive about it was that once it was on the
18 transcript, you would hand it to other people. I do not
19 know about that, and I am not making any inference against
20 you so far as that was concerned. That is what provoked
21 the discussion we had on that topic. You must feel free to
22 put any expert paper to any witness in challenging their
23 evidence. In fact, that has been done either by you
24 directly or for instance Dr. Barnard when he was seeking to
25 support opinions which he expressed as his own.
26
27 MS. STEEL: I am just concerned about the fact that Mr. Miles
28 did not produce any of the references that he referred to,
29 but it is kind of being used as a back-door way to get them
30 in.
31
32 MR. RAMPTON: No, my Lord, with respect, that is not right. As
33 I see it, there are three ways in which one can
34 cross-examine an expert witness on learned material,
35 research material, whatever it may be. The first is to use
36 it as a way of suggesting to the witness that they are
37 simply wrong about what they have said; they either agree
38 or do not agree. Second, that it is material which, if
39 they truly were an expert in the field, they ought to have
40 known about. Third, that if they have written a report and
41 made a reference to that material, they have overlooked,
42 ignored or suppressed or distorted something. Those, in my
43 submission, are perfectly legitimate ways of dealing with
44 the matter.
45
46 MS. STEEL: It is just the fact that large chunks were being
47 read out instead of asking the witness to read them to
48 himself, is the point I am really making.
49
50 MR. JUSTICE BELL: I do not think it is the same position as the
51 one we were discussing before. In that situation where it
52 is an expert report which is being put to the witness with
53 a view to challenging or testing something which the
54 witness has said -- I am only considering expert reports
55 now because I prefer to deal with specifics rather than
56 theoretical situations -- it is obviously clearer and more
57 helpful if it can be read through and I can follow exactly
58 what the witness is being asked to look at and comment on.
59
60 Some of them are quite wrong tracks; whereas I think the
