Criminal Procedure Rules for Expert Evidence: Final Submission

Executive Summary

This is the submission of the UK Register of Expert Witnesses to the Criminal Procedure Rules Committee's consultation paper on Part 33 (Expert Evidence) of the Criminal Procedure Rules. It draws together 488 contributions from expert witnesses listed in the Register.

Many of the problems with expert evidence in those criminal trials that have been the focus of recent high-profile media coverage reveal a systemic failure of the criminal justice system to handle properly conflicting expert opinions. The drafting of Part 33 of the Criminal Procedure Rules provides the opportunity to address these systemic failings.

Doing so will improve the administration of justice because it will help to overcome the current reluctance of many expert witnesses to contribute to a justice system that can leave them unfairly exposed to public, press and peer pillory.

Based on an analysis of the proposed text of Part 33, the rules governing expert evidence in the Civil Procedure Rules, and 18 years of experience working with expert witnesses from all disciplines, this submission makes the following recommendations that:

• All the rules of procedure that expert witnesses are expected to know, understand and apply should be brought together into Part 33.
• Expert evidence should be brought under the complete control of the court - without such power, any attempt to improve the use of expert evidence in the criminal courts will be severely undermined.
• There should be a clear statement that the duty the expert witness owes to the court overrides any duty to anyone else, and that experts have a duty to independence and objectivity.
• Consideration should be given to whether 'reconnaissance' reports and staged instructions are desirable and capable of being inculcated into the Rules.
• The power to put written questions to expert witnesses, similar to that provided under CPR 35.6, should be considered.
• The strong support amongst expert witnesses for the use of pre-hearing meetings of experts suggests that, in the interests of clarity, the Rules Committee should retain rules 33.4 and 33.5 as drafted.
• Consideration should be given as to whether it is desirable to formulate additional rules to bring Daubert-style assessment of scientific evidence into the criminal justice system.
• Although recognising the radical nature of such a move, allowing for pre-trial agreement of expert evidence could help to remove experts from the trial stage, thereby avoiding any tendency towards a 'cult of personality' and improving the handling of complex expert evidence.
• Court-appointed expert assessors would be a more natural role to introduce to the criminal justice system than would be the single joint expert.
• The majority of the guidance in CPR 35 PD and the Experts' Protocol should be included within the ambit of Part 33.

We strongly urge the Criminal Procedure Rules Committee to take this unique opportunity to show, through Part 33, that the real reasons for past problems have been recognised and addressed.