Transcript Document

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 CrimPR Part 24) is given that
the expert will (either in oral evidence or in evidence
given under under CJA1967 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
(CrimPR Parts 24, 29 and 33)
Disclosure of expert evidence in
criminal proceedings
(CrimPR 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 CrimPR 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
(CrimPR 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
(CrimPR 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 CrimPR 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 CrimPR Part 33?
•CrimPR 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)
(CrimPR 33.1).
Expert’s duty to the court
(CrimPR 33.2)
•Must help the court to achieve the overriding
objective of the CrimPR (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 CrimPR Part
24 (see above) or Crim PR Part 29 (see above)
Duties of experts in criminal
proceedings
(Pre CrimPR 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
(CrimPR 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
(CrimPR 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
(CrimPR 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
•CrimPR 33.6 provides that a party who does not
comply with a direction under CrimPR 33.5 may not
adduce expert evidence without the court’s
permission
Single Joint Expert (CrimPR 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 (CrimPR 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