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Context of the consultation
The Criminal Procedure Rule Committee is considering a proposal for rules to govern the procedure for introducing expert witness evidence in criminal proceedings. The Committee is the body appointed under section 70 of the Courts Act 2003 to make rules governing the practice and procedure to be followed in the criminal courts. The first rules to be made by the Committee, the Criminal Procedure Rules 2005, came into force on 4th April. Information about the Committee and about the Criminal Procedure Rules, including the full text of the Rules, may be found on the website of the Department for Constitutional Affairs.
Please note that the Department for Constitutional Affairs provides the Committee with its secretariat but the proposal that is the subject of this consultation is not a government proposal, it is a Committee initiative (and one on which the Department itself will be invited to comment).
The Criminal Procedure Rules already contain, in , rules about the disclosure of expert evidence and, in , general rules about witness statements. of the Rules sets out their overriding objective and requires all ‘participants’ (not only the parties) to act in accordance with that objective. of the Rules gives the court wide general powers of case management, and the case progression forms prescribed by the Consolidated Criminal Practice Direction for use in connection with those rules refer to the giving of directions about the introduction and management of expert evidence.
However, unlike the Civil Procedure Rules the Criminal Procedure Rules as yet contain nothing explicit about how the overriding objective applies to an expert witness, or about the form in which expert evidence should be introduced, or about the use of the court’s case management powers to define what is in dispute between experts. When the first Criminal Procedure Rules were made it was expected that explicit provisions would be introduced at some stage and the Rules were arranged accordingly, setting aside Part 33 for those provisions.
The draft rules proposed are consciously modelled on Part 35 of the Civil Procedure Rules. The Criminal Procedure Rule Committee sees an advantage in aligning the two sets of rules as closely with each other as possible while allowing for the substantial differences between civil and criminal proceedings. In particular, it helps to remove unnecessary procedural confusion for those who give expert evidence in both jurisdictions.
Committee members believe the proposed draft rules to be consistent with recommendations made in a series of past reviews of aspects of expert witness evidence, notably those of the Royal Commission on Criminal Justice in 1993, those of Lord Justice Auld’s Review of the Criminal Courts of England and Wales published in October, 2001, those of the report entitled ‘Sudden unexpected death in infancy’ published in September, 2004 by a Royal Colleges’ working group chaired by Baroness Helena Kennedy, and those of the House of Commons Science and Technology Select Committee’s report entitled ‘Forensic Science on Trial’ published in March, 2005. Notwithstanding that, the Committee recognises that the proposals are controversial in some respects. As drafted, they require a degree of co-operation that some may think inappropriate in adversarial proceedings. The power to direct the appointment of a single joint expert may be thought especially contentious, even if that power were likely to be used infrequently. In the Committee’s judgement what is proposed is within its powers and compatible with the overriding objective of the Rules, including the right to a fair trial. But members are keen to have others’ views.
Where now?
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