OPINION EVIDENCE What is opinion evidence Essentially it

OPINION EVIDENCE

What is opinion evidence? Essentially it is evidence in the form of inferences drawn from facts by an expert or non-expert witness.

Exclusionary rule • The general rule is that opinion evidence is not admissible because it is for the tribunal of fact (i. e. the judge in a civil trial without a jury or the jury or magistrates in criminal proceedings), and not for the witnesses, to form its opinion on the evidence • The general exclusionary rule is subject to exceptions, the main two exceptions relating to –the evidence of non expert witnesses and –the evidence of expert witnesses

NON-EXPERT WITNESSES

Non-expert witnesses in civil proceedings (Civil Evidence Act 1972, s 3(2), (3)) (cont) • Non-expert opinion evidence is admissible under CEA 1972, s. 3(2) (i. e. in civil proceedings), in relation to relevant matters, for the purpose of conveying facts personally perceived by the non-expert witness to the court • Where non-expert opinion evidence is admissible in civil proceedings, the effect of CEA 1972 s. 3(3) is that the witness may state his opinion in relation to “ultimate issues” (i. e. the witness may state his opinion in relation to issues in the proceedings) • [Note: non-experts cannot give expert evidence. ]

Non-expert’s in criminal proceedings (common law) • Non–expert opinion evidence is admissible at common law (i. e. in criminal proceedings) in relation to relevant matters, for the purpose of conveying facts personally perceived by the witness to the court • Non-expert opinion evidence is not admissible at common law (i. e. in criminal proceedings) in relation to ultimate issues (i. e. , strictly, the non-expert witness should not be permitted to state his opinion in relation to issues in the proceedings; in practice if this is permitted the judge should make clear that the issue is determined by the jury) • [Note: non-experts cannot give expert evidence. ]

Dave is charged with being drunk on an aircraft. Sheila testifies that, in her opinion, Dave had been drinking before he boarded the aircraft. Sheila testifies that she formed this opinion because when Dave boarded the aircraft she could smell alcohol on his breath, he was slurring his speech and was aggressive. Which of (i) or (ii) is/are true? (i) Sheila should not have been permitted to give opinion evidence because she is not an expert (ii) Sheila should not have been permitted to state her opinion that Dave had been drinking because her opinion was based upon facts that she had perceived They are both false

EXPERT WITNESSES

Competence to give expert evidence (common law criminal proceedings and CEA 1972 s. 3(1) civil proceedings) • Only an expert is competent (i. e. , in the words of CEA 1972 s. 3(1), “qualified”) to give expert evidence in criminal or civil proceedings • An expert will normally have received formal training, possess formal qualifications and have had practical experience, but a person may be an expert without formal training or formal qualifications if he possesses the necessary expertise via his practical experience

Competence to give expert evidence (continued) • An expert is only competent to give expert evidence in his own field of expertise (one practical problem may be that a times an expert who is competent to give expert evidence in field A gives evidence which also drifts into field B) • Exceptionally a witness who is not in general terms an expert may have become an expert ad hoc in relation to the facts of the case before the court

Salim, a schoolboy, has recently been awarded a Boy’s Brigade first aid badge. Professor Smith is a consultant dermatologist with many years practical experience. Jack is a police officer who has attended hundreds of road traffic accidents. Which of (i) (ii) or (iii) is/are true? (i) Salim is not competent to give expert medical evidence (ii) Professor Smith is clearly competent to give expert evidence concerning cause of death by stabbing (iii) Jack cannot be competent to give expert evidence unless he is a university graduate. (i) is true

Compellability to give expert evidence • A competent expert is compellable but it will be exceptional for the courts to compel an expert to testify if he has no connection with the facts or history of the case

When is expert evidence admissible (common law criminal proceedings and CEA 1972 s. 3(1) civil proceedings) • Essentially, expert evidence is admissible, in civil or criminal proceedings, in relation to an issue if it provides the court with information which is likely to fall outside the ambit of its experience or knowledge (i. e it is admissible if the court requires the expert evidence in order to reach a properly informed decision, in which case it is “relevant” within the meaning of s. 3(1) of the CEA 1972) but it is not admissible in civil or criminal proceedings if the court can form its own conclusions in relation to the issue without expert assistance (i. e. if it is not so required).

When is expert evidence admissible (common law criminal proceedings and CEA 1972 s. 3(1) civil proceedings) (continued) • Where expert evidence is admissible in civil proceedings under CEA 1972 s. 3(1), admissibility is still subject to discretion under the CPR 1998, see below • Where expert evidence is admissible in criminal proceedings, its admissibility for the prosecution is still subject to the PACE 1984 s. 78 exclusionary discretion

Horace, is charged with dangerous driving. Witnesses of fact will testify that Horace was driving at 100 miles per hour along a wet two way single track road with passing places on a foggy day. Is the following proposition true or false? In these circumstances the evidence of experts in road traffic accidents will clearly be admissible for both prosecution and defence False

Sam crashes his wagon into Dawn’s house, causing serious damage to the house. Due to amnesia following the accident, Sam cannot remember what happened. Dawn is bringing civil proceedings against Sam’s employers. The parties wish to adduce the evidence of experts witnesses who have calculated the speed of the wagon from the skid marks and the nature of the damage caused to the house. Is the following proposition true or false? In these circumstances expert evidence will clearly be inadmissible False

Whose opinion decides the issue? • The opinion of the tribunal of fact, not the opinion of the expert, decides the issue before the court (though there may be circumstances in which a court is effectively obliged to accept unequivocal expert evidence which has not been contradicted or challenged during crossexamination) • It is the tribunal of fact which determines the weight of the expert evidence (e. g. where an expert has performed badly during cross-examination and, e. g. , has been shown to be biased or to lack expertise, it may be that the weight of his expert evidence will be significantly reduced. Indeed, the court may even decline to accept the evidence of a single joint expert)

New techniques/techniques of doubtful reliability The English courts appear in general to be willing to admit expert evidence based on new techniques (reliability going to weight not admissibility; nature of directions to the jury being crucial) but there may be circumstances in which: a technique is not sufficiently recognised for the witness to be regarded as competent to give expert evidence; a technique is so unreliable as to possess no weight (i. e. irrelevant)/or so unreliable that the judge should exclude evidence based upon it in the exercise of his exclusionary discretion; the case is based upon expert evidence in a developing field, there is a serious disagreement between the experts and the judge should withdraw the case from the jury.

Special warnings Where expert evidence (e. g. lip reading evidence) is of a type which is subject to difficulties (such as a risk of error) which the jury may not be aware of or may not fully understand, it will be necessary for the judge to give the jury an appropriate “special warning” (e. g. with lip reading evidence the “special warning” will normally concern the risk of error in relation to such evidence, the reasons why there is a risk of error, the fact that the witness may be honest and convincing and yet may make have made mistakes and the strengths and weaknesses of the evidence before the court, including any factors affecting its quality).

Clint (the claimant) is injured at work. Clint and three other witnesses of fact assert in their witness statements that Clint was injured when a lever flew off a machine that Clint was using according to the proper safety instructions and struck him in the face. Following cross-examination of Clint and his witnesses the judge finds them honest, reliable and extremely credible. Roger, a single joint expert, states that in his opinion the accident could not have occurred if Clint was using the machine according to the proper safety instructions. True/false? The judge must accept Roger’s expert opinion False

Expert evidence and ultimate issues in civil proceedings (CEA 1972 s. 3(1), s. 3(3)) • Where expert evidence is admissible in civil proceedings, it is admissible in relation to ultimate issues (i. e. the expert may state his opinion in relation to issues in the proceedings), but expert evidence is only admissible in relation to ultimate issues if the court is likely to be incapable of forming its opinion in relation to the ultimate issue without the expert’s assistance and the expert possesses expertise in relation to that issue (in practice a civil court may admit such evidence but ascribe little weight to it evidence but note that the civil courts do now possess CPR 32. 1 discretion to exclude relevant evidence)

Expert evidence and ultimate issues in criminal proceedings (common law) • Strictly, expert evidence is not admissible in criminal proceedings in relation to ultimate issues • In practice, the criminal courts may often (though it seems not always) be prepared to admit expert evidence in relation to ultimate issues but it should be made clear to the jury that the decision is theirs, and they are not bound by the expert’s opinion

Oliver, a facial mapping expert, compares photographs of the accused with images taken from a CCTV recording of the commission of the offence (criminal damage), and forms the opinion that the CCTV evidence strongly supports the view that the accused is the offender Which one of [a] or [b] is true? [a] Oliver’s opinion evidence must not be admitted because it relates to an ultimate issue (the identity of the offender) [b] The judge may admit Oliver’s opinion evidence but should make clear to the jury that it is for them to assess the weight of the expert evidence [b] is true

Manoj was injured in a car crash and is bringing a negligence claim against Peter, the other driver. Anne, a single joint expert, concludes in her report that the accident was caused by Peter’s negligence. Which one of [a] or [b] is true? [a] Anne’s conclusion must be inadmissible because it relates to an ultimate issue [b] The fact that Anne’s conclusion relates to an ultimate issue does not mean that it is admissible, but it may carry little or no weight [b] is true

The factual basis of expert evidence in civil proceedings • The expert need not have personal knowledge of the primary facts on which his opinion is based so long as they are proved by admissible evidence such as –the evidence of other witnesses; or –hearsay evidence (remember that the hearsay rule does not prevent the admission of evidence in civil proceedings (CEA 1995, s. 1), though the weight of such evidence may be limited (CEA 1995, s. 4)); or –real evidence produced by a machine

The factual basis of expert evidence in criminal proceedings • The expert need not have personal knowledge of the primary facts as long as they are proved by admissible evidence such as –the evidence of other witnesses; or –hearsay evidence admissible under an exception to the hearsay rule (if no hearsay exception applies, the primary facts cannot be proved in criminal proceedings by the expert’s inadmissible hearsay evidence); or –admissible evidence produced by a machine (remember CJA 2003 s. 129 re machines).

CJA 2003 s. 127 (criminal proceedings) • An expert may base an opinion or an inference on a statement which was prepared for the purposes of criminal proceedings (or for those of a criminal investigation) by a person who had or may reasonably be supposed to have had personal knowledge of the matters stated if notice (as required by rules of court, i. e. by Crim. PR Part 24) is given that the expert will (either in oral evidence or in evidence given under CJA 1967 s. 9) base an opinion or an inference thereupon.

CJA 2003 s. 127 (continued) • Where an expert’s evidence is based upon such a statement, the statement is treated as evidence of what it states. • The court may (upon application by a party) order that it is not in the interests of justice for section 127 to apply.

CJA 2003 s. 127 (continued) • In deciding whether to order that it is not in the interests of justice for s. 127 to apply, the matters the court should consider include –the expense of calling the person who prepared the statement, and –whether he could give relevant evidence that the expert could not give; and – whether he can reasonably be expected to remember the matters stated well enough to give oral evidence thereof.

Professor Adams, an expert witness, states in his report that, in his opinion, a fragment of glass in the shoe of the accused (charged with arson) came from a broken window at the scene of the crime. The Professor did not carry out tests on the glass himself, the tests being carried out by Roger, his assistant, the Professor’s opinion being based on a statement that Rolf prepared for the proceedings. Which of (i) or (ii) is/are true? (i) Rolf’s statement must be inadmissible because it is a hearsay statement (ii) The professor’s opinion must be inadmissible because it is based on hearsay evidence They are both false

Research of others (civil and criminal proceedings) • In civil and criminal proceedings, expert witnesses may rely upon the research of others (i. e. textbooks, articles etc) in forming their opinions (rule preserved in criminal proceedings by s. 118 CJA 2003) • Experts should indicate which articles etc they have relied upon in order that the weight of their evidence may properly be evaluated

Professor Adams, an expert witness, states in his report that, in his opinion, a fragment of glass in the shoe of the accused (charged with arson) came from a broken window at the scene of the crime. In forming his opinion the professor relied upon information in textbooks and articles Which one of [a] or [b] is true? [a] The professor should refer to the relevant textbook’s and articles in his report [b] The professor’s opinion must be inadmissible because it is based on hearsay evidence [a] is true

Failure to adduce expert evidence Where expert evidence is required by the court in order to resolve an issue in relation to which a party bears the legal burden of proof and the relevant party does not adduce expert evidence in relation to the issue, this may result in the party failing to discharge the relevant burden.

Jonny books a “learner rock climbing holiday” and is injured when he falls from a climbing wall. He is bringing a negligence claim against LRCH (the holiday company) and claims that the climbing wall was too difficult for a learner. Other than medical evidence, neither party adduces any expert evidence. Is the following proposition true or false? The judge may properly rule in favour of LRCH upon the basis that, in the absence of expert evidence, Jonny has failed to establish that the climbing wall was too difficult for a learner and has, thus, failed to establish that LRCH was negligent. True

CIVIL PROCEDURE RULES 1998 AND EXPERT EVIDENCE (CPR Part 35)

When does CPR Part 35 apply? • CPR Part 35 applies to experts who are instructed to give or prepare evidence for the purposes of court proceedings (CPR 35. 2) • It does not apply to an expert who is merely instructed to advise (i. e. to comment on another experts report, it not being intended to call him or adduce his evidence) • It does not apply to an expert who is merely called as a witness of fact (e. g. a consultant who was present at an operation that resulted in a clinical negligence claim against a colleague)

Admissibility of expert evidence under the CPR 1998 • The court’s permission is required to adduce expert evidence (CPR 35. 4) [Note: the expert evidence must, as was seen above, be admissible under s. 3(1) CEA 1972. ] • Expert evidence should be restricted to that which is reasonably required (CPR 35. 1) • Permission should only be granted in relation to a specified field and, if practicable, a specified expert (CPR 35. 4) • Nature of the expert evidence required will depend on the facts of the case (e. g. value/complexity)

Admissibility of expert evidence under the CPR 1998 (cont) • If court order giving permission to call expert does not identify a named expert then permission is not required to change expert. • Where permission to change expert is required and is given, it appears that it should be conditional upon original report being disclosed.

Single joint expert (CPR 35. 7) • The court may direct that expert evidence in relation to an issue be given by a single joint expert (this will depend upon matters such as the value and complexity of the case) • If the parties cannot agree on a single joint expert the court may select one from a list provided by the parties or may direct another method of selection • Where evidence concerning several expert fields is to be given by a single joint expert, he should be the expert in the dominant field and should annex or incorporate the reports of other experts into his report

Single joint expert (CPR (continued)) • Where a single joint expert is appointed the parties may still instruct experts to advise (though the costs may not be recoverable) • The single joint expert is instructed by all of the parties who wish to submit expert evidence, the parties sending copies of their instructions to each other (if possible, they should agree joint instructions) • A single joint expert should only attend a meeting or conference that is not a joint meeting or conference if the parties agree or the court so directs

Single joint expert (CPR) continued • A single joint expert must produce a single report even where the instructions contained conflicting facts or allegations (if this results in the expert forming different opinions, the report may need to contain these as it is for the court, and not for the expert, to determine the facts). • A single joint expert must serve his report on the instructing parties simultaneously • Where a single joint expert has been appointed the court may still, in appropriate circumstances, subsequently permit a party to adduce his own expert evidence

Single joint expert (CPR) continued • The court may permit a single joint expert to be called to amplify his report/ for cross-examination by the parties (though it should not normally be necessary for a single joint expert to be called and, in general, written questions should be put to a single joint expert before a request is made for permission for him to attend for cross-examination). • It is the opinion of the judge, not that of the single joint expert, which determines the issue before the court (though the uncontradicted opinion of a high quality and unbiased single joint expert may well, in practice, be decisive).

In clinical negligence proceedings against Newtown Healthcare Trust (NHT), NHT intend to call W, a consultant anaesthetist who attended operation, as a witness of fact. The parties intend to call their own medical experts in relation to causation and their own experts in relation to quantum (concerning the cost of adaptations to the claimant’s home and the cost of long term medical care) Which of (i) or (ii) is/are true? (i) The permission of the court under CPR Part 35 will be required to call W because he is an expert (ii) The parties are entitled to call their own experts in relation to both causation and quantum They are both false

In civil proceedings in negligence that have been allocated to the fast track, Dr Jones, an experienced general practitioner, is appointed as a single joint expert. The defendant wishes to instruct Dr Smith, another general practitioner, to comment on Dr Jones’, report but does not intend to call Dr Smith or to adduce his expert evidence in the proceedings. Which of (i) or (ii) is/are true? (i) The defendant will require the court’s permission in order to instruct Dr Smith (ii) The defendant will require the court’s permission if he subsequently wishes to adduce a report from Dr Smith as evidence in the proceedings (ii) is true

Expert’s duty to the court (CPR 35. 3 and Protocol for the Instruction of Experts to Give Evidence in Civil Claims ) • The expert’s duty is to help the court, this duty overriding his duty to the person instructing/paying him • Expert evidence should be independent and should not be influenced by the pressures of litigation • The expert should provide objective and unbiased opinion and should not take the role of an advocate • The expert should consider all material facts including those which may detract from his opinion

Expert’s duty to the court (continued) • The expert should make clear when an issue falls outside the ambit of his expertise • The expert should make clear when he is unable to form a definite opinion • If the expert changes his view on a material matter after producing his report he should communicate this to all the parties and, where appropriate, to the court. • An expert should inform the instructing party if his instructions are unacceptable (e. g. outside his expertise, deadlines too tight, instructions unclear) • An expert should not be instructed on a contingency fee basis

Expert’s duty to the court (continued) • The expert may make a written request to the court for directions to assist him in performing his functions without notifying the parties (CPR 35. 14) (he should normally discuss the matter with the instructing parties before making such a request and should not inform the court about privileged or without prejudice communications) • A single joint expert’s overriding duty is to the court; he owes an equal duty to all instructing parties

Paul is bringing a clinical negligence claim against Newtown Healthcare Trust. Paul cannot afford to instruct a medical expert, bur Dr Parker is willing to be instructed on a contingency fee basis. Which one of [a] or [b] is true? [a] Dr Parker should not be instructed on a contingency fee basis if he is to be a single joint expert but may be instructed on a contingency fee basis if the parties are instructing their own medical experts. [b] Dr Parker should not be instructed on a contingency fee basis even if the parties are instructing their own medical experts [b] is true

Employed experts and friends (civil) • It seems that an expert employed by a party may be permitted to give expert evidence (though not as a single joint expert) if he understands his duty to the court, but the weight of his evidence may be affected • The Court of Appeal has suggested that experts should state in their reports that they have no conflict of interest other than any they have disclosed in their reports, that they do not consider that any disclosed interests affect their suitability and that they will advice the instructing party of any change in circumstances

Directing a party to provide information (CPR 35. 9) • The court may direct a party to give another party information (e. g. details of tests, experiments etc) which is accessible to the former but which is not reasonably accessible to the latter

Content of experts’ reports (CPR 35. 10) • The report must –specify his qualifications –specify the literature etc he relied upon –specify the identity and qualifications of those who carried out experiments etc, whether he supervised them and the methodology used –summarise the range of opinion, where such a range exists, and indicate why the expert formed his opinion –summarise his conclusions and (if his opinion is qualified) any qualifications

Content of experts’ reports (CPR) (continued) • the report must (cont) –be addressed to the court –state that he understands his duty to the court, has complied with it and will continue to do so –state substance of material written and oral instructions –state which facts are within the expert’s own knowledge –be verified by a statement of truth

Privilege in instructions (CPR 35. 10) • Instructions set out in an expert’s report are not privileged but the court will not order disclosure of documents or permit questions in relation to the instructions other than by the instructing party unless there are reasonable grounds to consider the statement of instructions in the report to be inaccurate or incomplete • The instructions encompass both what the instructing party told the expert to do and the information and material placed before him for the purpose of obtaining advice (e. g. witness statements and reports of other experts)

Written questions to experts (CPR 35. 6) • Following service of an experts report on a party the party may on one occasion within 28 days put written questions about the report to the other party’s expert • The questions may only extend beyond clarification of the report with the permission of the court or the other party • If the questions are sent directly to the expert, a copy must be sent to the other party • The expert’s answers from part of the report and must be verified by a statement of truth

Written questions to experts (CPR) (continued) • If no answers to the questions are provided the court may rely that the other party cannot rely on the expert’s evidence • The court may permit questions to be put on more than one occasion or the parties may make an agreement to this effect

Discussions between experts (CPR 35. 12) • The court may direct discussions between experts to identify and, if possible, agree issues • The court may direct that such discussions take place during the trial itself, but they will normally take place pre-trial • Where a claim is allocated to the small claims track or the fast track a telephone conversation or correspondence, rather than a meeting, should suffice (even on the multi track proportionality may require a telephone conversation or a video conference)

Discussions between experts (continued) • The instructing party must not instruct the expert not to reach an agreement in relation to a matter within his competence The legal advisers may not attend unless the parties agree or the court so orders and should only intervene to answer questions or give legal advice • The court may direct that the experts produce a statement for the court indicating the issues in relation to which agreement was or was not reached (and, in relation to issues where agreement was not reached, the statement should summarise the reasons why this was so)

Discussions between experts (continued) • The content of the discussions cannot be referred to at the trial unless the parties agree (but if the experts are directed to produce a statement for the court this statement is not privileged) • Agreement between experts does not bind the parties unless they agree to be bound (but there may be costs implications where a party does not so agree and even where the parties do not so agree the court is likely to be influenced by, and indeed to make findings which are consistent with, an agreement between experts)

Discussions between experts (continued) • If an expert changes his opinion after a discussion it would be exceptional for the instructing party to be permitted to change experts

Disclosure of expert’s reports (CPR) • The court will give directions as to the disclosure of expert’s reports, which will usually be simultaneous • Failure to disclose an expert’s report renders the expert’s evidence inadmissible without the permission of the court (CPR 35. 13) • Where a party fails to disclose an expert’s report within the time limits laid down by the court the exclusion of the expert’s evidence appears, prima facie, to be the proportionate sanction, but the court will balance the importance of requiring compliance with court orders with the need to do justice on the facts of the case

C is bringing a clinical negligence claim against Newtown Healthcare Trust (NHT). C has instructed E as a medical expert. C failed to disclose E’s report in accordance with directions, when disclosed the report did not state the substance of E’s instructions and E is not prepared to answer NHT’s written questions about his report. Which of (i), (ii) or (iii) is/are true? (i) E’s evidence is inadmissible (failure to disclose) (ii) The court can order disclosure of documents containing E’s instructions (iii) E’s evidence is inadmissible (refusal to answer questions) (ii) is true

Use of expert’s reports (CPR) • Expert evidence must be given by report unless the court directs otherwise (i. e the expert will not normally be called to give oral evidence) (CPR 35. 5) • If a party has disclosed a report any party may put it in evidence (CPR 35. 11)

C, who suffered adverse consequences when given a new drug, brings civil proceedings against Newtown Healthcare Trust (NHT). C does not want his medical expert to discuss the expert issues with D’s medical expert pre trial, but C wants to call his expert to give oral evidence and he wants to obtain details of tests and experiments from NHC. Which of (i), (ii) or (iii) is/are true? (i) The court cannot direct a discussion between experts unless both parties agree (ii) D is entitled to call his expert to give oral evidence (iii) The court can direct D to give C information accessible to D that is not reasonably accessible to C (iii) is true

Pre-action protocols make provision re expert evidence E. g. Personal injury claims Clinical disputes Construction and engineering disputes Professional negligence Disease and illness claims Housing disrepair cases

Pre-Action Protocol for Personal Injury Claims • Primarily applies to fast track PI claims (and to claims such as road traffic claims which involve a PI element) • Its spirit is applicable to multi-track PI claims • First part sends list of experts to second party and second party has 14 days to object to any or all of them • If second party objects to all, each party may instruct their own expert

Expert evidence under the PI Pre-Action Protocol (cont) • If second party does not object to all, first party instructs one and second party cannot appoint own expert in the relevant field unless the first party agrees, the court so directs or the report has been amended and the first party won’t disclose it • Both parties can send questions to the expert via the first party’s solicitors

Pre-Action Protocol for the Resolution of Clinical Disputes • It is for the parties to decide whether to appoint joint experts

CRIMINAL PROCEDURE RULES 2005 AND EXPERT EVIDENCE (Crim. PR Parts 24, 29 and 33)

Disclosure of expert evidence in criminal proceedings (Crim. PR Part 24 as amended) • Essentially, requires pre-trial disclosure to the other parties and the court by prosecution and defence of written statements of expert findings or opinions which they propose to adduce in evidence (unless only to be relied on in relation to sentencing) and the expert must be notified of the disclosure (see Crim. PR 33. 4) • Other party may then require copy of records of observations, tests, calculations, procedures on which findings/opinions based and of documents/ things upon which such procedures were carried out (may give opportunity to examine if more practicable)

Disclosure of expert evidence in criminal proceedings (Crim. PR Part 24 continued) • If party fails to comply with these requirements, expert evidence only admissible with leave of court • Party need not comply if believes on reasonable grounds that disclosure may result in witness intimidation etc and gives other party written notice

Jack is charged with robbery. The prosecution wish to adduce the evidence of a facial mapping expert but forget to disclose his expert evidence pre-trial Which one of [a], [b] or [c] is true? [a] The expert evidence is inadmissible [b] The expert evidence may be admissible with the leave of the court. [c] the failure to provide pre-trial disclosure of the expert evidence does not affect its admissibility [b] is true.

Special Measures (Crim. PR 29. 8 as amended) • Requires a party who proposes to adduce expert evidence of fact or opinion in the context of a special measures directions application (including applications re renewal, variation and discharge) to furnish the other parties and the court with a written statement of the findings or opinions and to notify the expert of the disclosure (see Crim. PR 33. 4) and • Other party may then require copy of records of observations, tests, calculations, procedures on which findings/opinions based and of documents/ things upon which such procedures were carried out (may give opportunity to examine if more practicable)

Who is an “expert” for the purposes of Crim. PR Part 33? • Crim. PR Part 33 applies to a person required to give or prepare expert evidence for the purposes of criminal proceedings (including determining fitness to plead or sentencing) (Crim. PR 33. 1).

Expert’s duty to the court (Crim. PR 33. 2) • Must help the court to achieve the overriding objective of the Crim. PR (i. e. dealing with cases justly) by giving objective, unbiased opinion on matters within his expertise, this duty overriding his duty to the person instructing or paying him and including an obligation to inform the parties and the court if his opinion changes from that in a report served as evidence or given in a statement under Crim. PR Part 24 (see above) or Crim PR Part 29 (see above)

Duties of experts in criminal proceedings (Pre Crim. PR Part 33 caselaw) • They must give independent, unbiased evidence within the ambit of their expertise, making clear the facts upon which their opinions are based, taking into account facts that detract from their opinions, making clear when a matter falls outside their expertise, making clear when their opinion is only provisional, and indicating when they change their mind after exchange of reports

Employed experts (criminal) The fact that an expert is employed by a party does not render the expert’s evidence inadmissible but may affect the weight of the expert’s evidence

Prosecution experts in criminal proceedings (CPS Guidance) • Prosecution experts must retain material until instructed otherwise, must record all the work they have carried out and must reveal everything that they have recorded to the prosecution (the prosecution have a duty to disclose unused material to the defence if it might reasonably be considered capable of undermining the prosecution case against the accused or of assisting the accused’s case)

Contents of the expert’s report (Crim. PR 33. 2) • Details of qualifications, experience and accreditation • Details of literature/information relied upon • Substance of all facts given to the expert which are material to his opinions/ upon which they are based • Indicate which facts are within expert’s knowledge • Indicate who carried out tests or experiments (giving their qualifications, experience and accreditation, indicating whether expert supervised and summarising the findings upon which expert relies)

Contents of the expert’s report (Crim. PR 33. 2 continued) • Where the is a range of opinions, summarise the range and give reason’s for the expert’s opinion • If the opinion is qualified, state the qualification • Summarise the expert’s conclusions • Contain a statement that expert understands his duty to the court, has complied with it and will continue to do so • Contain the same declaration of truth as a witness statement

Colin is instructed to act as a prosecution facial mapping expert. He forms the opinion that the offender who appears in the CCTV footage is the accused, but also forms the opinion that the CCTV footage has been “doctored” before being sent to him by insertion of the accused’s image from another source. Is the following proposition true or false? Colin should not refer to the “doctoring” of the image in his report and should not report it to the prosecutor because he is instructed by the prosecution and this information could damage the prosecution case False

Pre-hearing discussions (Crim. PR 33. 5, 33. 6) • Where more than one party wishes to introduce expert evidence the court may direct the parties to discuss the expert issues and prepare a statement for the court of the matters on which they agree and disagree, giving their reasons • Other than the statement, the content of the discussions must not be referred to without the court’s permission • Crim. PR 33. 6 provides that a party who does not comply with a direction under Crim. PR 33. 5 may not adduce expert evidence without the court’s permission

Single Joint Expert (Crim. PR 33. 7) • Where more than one defendant wants to adduce expert evidence on an issue at the trial the court may direct that it is given by a single joint expert • If the co-defendants cannot agree an expert, the court may select the expert from a list that the co-defendant’s have agreed or identified or may direct some other manner of selection

Single Joint Expert (Crim. PR 33. 8) • Each co-defendant may instruct a single joint expert, sending a copy of the instructions to the other co-defendants • The court may give directions re payment of fees and expenses, examinations, tests of experiments the expert wants to carry out. • Before an expert is instructed the court may limit the amount of fees and expenses • Unless the court directs otherwise the instructing co -defendants are jointly and severally liable for paying the fees and expenses

Expert Reports in criminal proceedings Criminal Justice Act 1988, s 30 • Expert reports are admissible in criminal proceedings (but only with the leave of court if the expert does not testify) • In deciding whether to grant leave the court should consider –the contents of the report, and –the reasons why it is proposed that the expert will not give evidence, and

Criminal Justice Act 1988, s 30 (continued) –any risk of unfairness to the accused (particularly relating to the difficulty of controverting statements in the report of the expert does not attend); and –and any other relevant circumstances [Note: expert reports may also be admissible under CJA 1967, s. 9. ]

Jane is charged with burglary. The prosecution serve the statement of a fingerprint expert on the defence, the statement complying with the requirements of CJA 1967, s. 9. The defence do not deny that Jane’s fingerprints were in the burgled house (but rather assert that she has visited it as a guest). Thus, the defence do not object to the statement being tendered in evidence. Which one of [a] or [b] is true? [a] The statement will not be admissible unless the expert is called. [b] The statement is not admissible because it is a hearsay statement They are both false