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Notes to accompany the consultation
The essential distinction between expert and other evidence in criminal proceedings is whether the witness deals with matters that go beyond common knowledge and experience. The draft rules do not purport to define the circumstances in which evidence should be treated as expert evidence, or the significance that should be attached to such evidence. The Criminal Procedure Rules govern the practice and procedure of the criminal courts: see section 69, Courts Act 2003. What constitutes expert evidence remains a matter of common law.
Expert evidence may be relevant to sentence as well as to issues that arise at trial. The Committee intends the proposed draft rules to apply to both.
The expert’s duty to the court
Rule 35.3 of the Civil Procedure Rules declares that it is the expert’s duty to assist the court above any obligation that he has to those instructing him. Although expert witnesses, in common with all other participants in a criminal case, are required to act in accordance with the overriding objective of the Criminal Procedure Rules – see CrimPR 1.2 – the Rules at present are silent on the application of that duty to experts.
On one view, rule 1.2 plainly applies to expert witnesses as it applies to all other participants and the explicit application of that rule to experts would be superfluous. On another view, the position of expert witnesses is sufficiently different, or at least is so perceived, as to justify an explicit articulation of that duty as it applies to them.
Form and content of an expert’s report
Rules 35.5(1) and 35.10 of the Civil Procedure Rules, and the associated provisions of the relevant practice direction, deal with the form and content of experts’ reports. These proposed draft rules are substantially the same as those. The Criminal Procedure Rule Committee saw a particular advantage for expert witnesses who give evidence (sometimes substantially the same evidence) in civil and in criminal proceedings in the alignment of these requirements. Moreover, these requirements for the content of an expert’s report substantially correspond with what has been recommended for criminal proceedings in the past.
The draft rules provide for an exception where a summary of an expert’s conclusions is served. Where expert evidence is relied upon but no full report is available, to speed the disclosure of the prosecution case the Crown Prosecution Service may be able to provide a summary of the expert’s conclusions. The Committee welcomes that practice and does not wish to inhibit it by this rule. Where there is no dispute about those conclusions then they may be admitted and there will be no need for a full report. In other circumstances, however, the requirements of the draft rule would apply. The rule and the exception would apply equally to expert evidence introduced by a defendant.
Pre-hearing consideration of expert evidence and discussion between experts
On one view, the powers of case management in Part 3 of the Criminal Procedure Rules, supplemented by the directions contained in the prescribed case progression forms, give courts all they need to achieve an effective pre-hearing identification of expert evidence issues, as they do all other issues that may arise. That was assumed by the Court of Appeal in the concluding paragraphs of the judgment on 22nd July, 2005, in R v Harris and others [2005] EWCA Crim 1980. On another view, the position of expert witnesses is sufficiently different, or at least is so perceived, as to justify the making of rules explicitly governing some aspects of pre-hearing preparation in an expert witness case.
The Committee recognises that there are divergent views on the usefulness, cost-effectiveness and even legality of requiring the parties to co-operate in the definition of what is in dispute between experts, and in particular on the proposal that experts be required to discuss the issues amongst themselves. However, it is not immediately obvious why a discussion between expert witnesses of their respective conclusions, as recorded in their reports, necessarily would breach any confidentiality those witnesses may owe to their respective clients, or would be in any respect unfair. By that time the expert’s opinions will have been disclosed. It reasonably may be assumed that no reputable expert witness will advance a different opinion in private to that contained in the report. Naturally expert witnesses must be paid for the time taken up by a discussion. However, unless experts are opposed on every issue that may be relevant to the trial, then it is not immediately obvious why a pre-trial discussion of some sort that defines what is in dispute should not often save time – including the time of the expert witnesses themselves – at trial. The report earlier this year of the House of Commons Science and Technology Select Committee concluded that pre-hearing discussion between experts clearly is in the interests of justice.
Draft rule 33.4 is intended to make it clear that, whether or not there should also be a discussion between experts, the court may require the parties to define what remains in dispute after each has seen the other’s expert report. It may be that this draft rule, in particular, is unnecessary in view of the general powers of case management in Part 3.
Draft rule 33.5 provides for the court to direct a discussion, not necessarily a meeting. The Committee recognises that to require experts to meet may well be impractical. The rule accommodates the possibility of a discussion taking place by telephone or other electronic means.
Sanction for failing to comply with directions
Draft rule 33.6 reproduces the sanction in rule 24.3 for failure to disclose expert evidence. It does not specify criteria for the grant or withholding of permission because its application is subject to the overriding objective (as is the interpretation and application of all the rules).
Single joint expert
These provisions follow closely the equivalent rules in Part 35 of the Civil Procedure Rules. The Committee recognises that they are likely to be the most controversial of these proposals. The intention is that the discretion to direct the appointment of a single joint expert should be exercised sparingly, and only where that expert’s conclusions are not expected to be in dispute: in effect, to avoid a proliferation of reports that reach substantially the same conclusion. If in the event those conclusions were disputed then the court could be expected to rescind the direction. The Committee recognises also that the need to use this power to appoint a joint expert may arise infrequently. Certainly it seems unlikely (though it would not be impossible) that an expert whose evidence already was part of a party’s case would be instructed as a joint expert on any further issue.
Comments on this proposal will be especially welcome. As presently drafted the proposed rule would apply (and it is intended to apply) to parties with opposing interests, notably the prosecution and the defence. Perhaps it should be confined to parties whose interests are not in conflict, so extending only to two or more defendants. Or perhaps the rule should apply to the prosecution as well, but only if the constraints anticipated in the preceding paragraph are written into it explicitly.
Relationship with the rules in Part 24
The proposal is that these rules should appear in Part 33 of the Criminal Procedure Rules, among other rules that deal with the procedure for introducing other categories of evidence. The corresponding rules in Part 35 of the Civil Procedure Rules deal, to a certain extent, with the disclosure of expert evidence: although there are other, separate, rules that also govern disclosure.
The rules that appear in Part 24 of the Criminal Procedure Rules deal exclusively with the disclosure of expert evidence and for that reason they were placed among other rules about advance information and disclosure. But perhaps the proposed new rules should be placed in Part 24 as well, because although they do not deal with disclosure they also deal with expert evidence. Or perhaps the rules now in Part 24 should be removed to Part 33, because although they do not deal with the procedure on the introduction of expert evidence still they do deal with expert evidence.
Where now?
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