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Criminal Procedure Rules Part 33: Expert Evidence
The Register's proposed submission
The following is our initial, detailed, response to the Consultation. After reading this, you can:
Introduction
The first principle set out by Mr Justice Creswell in the celebrated Ikarian Reefer case is that ‘expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.’ This guiding principle, though set down in the context of a civil case, has just as much relevance to expert witnesses in the criminal justice system. It also reminds us that the opinion an expert voices on a given set of facts in a civil case should not change if those facts were transferred to a criminal case. So, why should the rules governing the use of expert evidence in criminal cases not be exactly the same as those in the civil justice system?
Is it possible that the difference in the standard of proof, the severity of the consequences for the defendant, the fact that a trial is inevitable in all defended criminal cases or the inequality of arms between the prosecution and defence are reasons enough to have different rules?
The following submission considers the proposed text of Part 33 of the Criminal Procedure Rules with the question firmly in mind: Why should this rule be any different from Part 35 in the CPR?
Drawing the rules together
The Civil Procedure Rules (CPR) Part 35, together with its practice directions and the new Experts’ Protocol, have become a valuable ‘one-stop shop’ for all the rules and official guidance for expert witnesses instructed in the civil justice system. This means that expert witnesses have come to regard CPR Part 35 as the ‘Bible’ in the civil justice system. It seems to us inevitable that if the Criminal Procedure Rules (CrimPR) scatter various elements of the rules governing expert witnesses across a number of Parts, any saving made by avoiding superfluous repetition of the rules will be far outweighed by the loss of clarity for expert witnesses. Not being lawyers, expert witnesses have no reason to refer to the vast bulk of the procedural rules. However, experts do benefit from knowing the small number of rules that affect them. Bringing all these rules together – as does CPR 35 – helps expert witnesses to assimilate the rules more quickly.
Naturally, therefore, we do not see any need, from the expert witness perspective, to bring the rules in Part 24 into Part 33. Issues of disclosure are of no direct relevance to expert witnesses, being only relevant to those who instruct them.
We would strongly urge the Rules Committee to draw all the rules that expert witnesses are expected to know, understand and apply into Part 33. This will allow Part 33 to take on quickly the same status as CPR 35.
Court control of the expert evidence
In the system of case management that existed pre-CPR, lawyers held sway and often used expert evidence as part of their case management strategy. All too often this strategy involved finding the most circuitous route to court, and misuse of expert evidence was just one tactic adopted. It was, perhaps, understandable that the ‘hired gun’ was seen from time to time. CPR has swept all this away. But it did so by:
- placing expert evidence under the complete control of the court
- promoting the adoption of a cards-on-the-table approach to litigation
- giving absolutely clear guidance for expert witnesses on their overriding duty to the court.
Part 33 adopts neither CPR 35.1 (a duty to restrict expert evidence to ‘that which is reasonably required to resolve the proceedings’), nor CPR 35.4 (the court’s power to restrict evidence). It is these two rules that combine to place expert evidence under the complete control of the court. Without this power, the civil courts would have been unable to achieve the great improvements in the use of expert evidence we have seen over the past few years. If the criminal courts are denied this power, how can they hope to achieve the same change in ethos that is needed?
We believe the Rules Committee should consider placing expert evidence 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, if not fatally, undermined.
33.1 Reference to ‘expert’
This rule is intended to define the circumstances in which Part 33 would apply to a witness. It is modelled on CPR 35.2 but in substituting the word ‘person’ for ‘expert’ it is rendered far less effective. How would 33.1, as drafted, prevent a witness of fact, ‘a person who is required to give or prepare evidence for the purpose of criminal
proceedings’, being covered by Part 33?
We would suggest the following wording for Part 33.1:
‘A reference to an ‘expert’ in this Part is a reference to a person who is required to give or prepare expert evidence for the purpose of criminal proceedings.’
33.2 Expert’s duty to the court
The overriding objective in both CPR and CrimPR is to enable the court to deal with cases justly. However, in giving explicit guidance on how experts should interpret their duty to the overriding objective, CPR 35.3(2) provides a clarity that is missing in the current form of Part 33.2.
In the civil justice system, expert witnesses have found great benefit in using CPR 35.3(2) to resist improper pressure from lawyers, clients and other experts. As we have already noted, any cost incurred by being explicit, if repetitive, in Part 33 will be massively outweighed by the clarity that will result.
We suggest the Rules Committee includes in Part 33.2 a clear statement that the duty the expert witness owes to the court overrides any duty to anyone else. It would also be appropriate to use Part 33.2 to remind experts of their duty to independence and objectivity.
33.3 Form and content of expert reports
By using substantially the same rules as CPR with respect to the form and content of an expert report, CrimPR risks replicating the upward cost pressure present in the current civil system. This is because the rules as drafted require two ‘Rolls Royce’ reports be obtained, covering all aspects of some element of the expert evidence. This is so even if at trial 75% of the evidence is not disputed.
The Rules Committee welcomes the practice being adopted by the CPS in using summary reports of expert opinion evidence as a means to speeding up disclosure of the prosecution case. Indeed, the Committee goes as far as explicitly relaxing Part 33.3 in such circumstances. We believe there is an argument that they should go even further.
Whilst the CPR have been a source of major improvement in the conduct of civil litigation, one consequence has been the move towards every expert report being written as if it will be put before the court. Great care must be taken over the writing of such reports. This inevitably increases costs, and is one reason why the cost of expert reports has risen in recent years. However, the vast majority of civil cases never get to court – instead they settle. In such cases the expert’s report is used as a negotiating tool between the parties; requiring it to be a ‘Rolls Royce’ report is wasteful.
In our submission to the LSC consultation paper (The Use of Experts, Nov 2004) we asked whether it is necessary for reports used in this way to be as detailed as those that will go before the court. If not, then an increase in efficiency and a reduction in costs could be achieved by ensuring experts are instructed to prepare an initial ‘reconnaissance’ report at an agreed cost, proportionate to the quantum of the case, that would allow the parties to seek a negotiated settlement. Only in the small number of cases that do not settle would the additional expense of a full report, for use in court, need to be incurred. We believe this model could be adapted for use in the criminal justice system.
‘Reconnaissance’ reports and staged instruction
In the criminal justice system, we believe there is scope to use ‘reconnaissance’ reports as a way of speeding up the initial consideration of a case. This would work equally well for the prosecuting authority, when it is assessing which charge to prefer, as for the defence, in their early stages of assessment.
An expert witness could be instructed by the prosecution to prepare an initial report. This would be designed to conduct a ‘reconnaissance’ of the expert matters raised by the case and to identify potential areas for more detailed analysis. If the seriousness of the criminal charge warrants investigation of particular avenues of expert enquiry, further report stages could then be sanctioned.
This approach, already adopted by experienced litigation lawyers in the civil arena, results in breaking potentially large expert witness assignments into smaller, more easily managed, stages. And each stage of reporting acts to inform the next. A staged reporting system would ensure that a ‘Rolls Royce’ report is prepared only when the nature of the evidence, and the ‘seriousness’ of the case, justified it.
However, in its current form, Part 33.3 would inhibit any of this from happening since many of the reports produced under such a system would not meet these high reporting standards.
We suggest the Rules Committee considers whether ‘reconnaissance’ reports and staged instructions are desirable, capable of being inculcated into CrimPR and, if so, whether further relaxation of Part 33.3 is warranted.
Written questions to experts
The consultation paper makes no reference to the powers under CPR 35.6 for parties to put written questions to experts instructed by another party. This is a useful feature of CPR and we can see no good reason to exclude such a power from Part 33.
The Rules Committee should consider including a power to put written questions to expert witnesses similar to that provided under CPR 35.6.
Pre-hearing assessment of expert evidence - Parts 33.4 and 33.5
Following the introduction of CPR, the adversarial tendency towards evidential ambushes in the civil justice system has been reduced greatly. The openness enshrined in the CPR means that expert evidence is disclosed early, and the experts in a case are able to identify the real areas of disagreement well in advance of any trial. This model should be applied in the criminal jurisdiction.
If expert witnesses instructed by the prosecution and defence had the opportunity to exchange opinions in pre-trial meetings of experts, it is likely that:
- much of the expert evidence could be agreed, saving time at trial
- the real areas of disagreement would be identified – with possible further reports then being commissioned
- the true nature of the expert evidence would become clear, leading to an early guilty plea or the halting of a weak prosecution case.
In working on the UK Register of Expert Witnesses submission to Lord Carter’s Review of Legal Aid Procurement, our expert witness respondents told us that some judges are pre-empting Part 33 by ordering expert discussions and the preparation of joint statements. Our respondents have found this exercise an effective means of identifying the core issues in the technical evidence, provided all the experts understand their primary duty of independence and objectivity.
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Agree |
Neutral |
Disagree |
Do you agree that pre-trial meetings of experts should be introduced in criminal cases? |
84.2% |
11.3% |
4.5% |
Do you agree that pre-trial meetings of experts would lead to a better, and earlier, assessment of the expert evidence? |
92.3% |
4.3% |
3.4% |
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Survey conducted on www.jspubs.com during October and November ‘05
Survey response (n = 231)
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There is strong support amongst expert witnesses for the use of pre-hearing meetings of experts. We suggest that in the interests of clarity, the Rules Committee retains Rules 33.4 and 33.5 as drafted.
Possible problems with meetings of experts
More than one expert reported that unless the current ‘gladiatorial’ culture in the criminal justice system can be changed, there is little chance of meetings of experts working in practice.
“The criminal system is so much more gladiatorial I am not sure that opposing parties will welcome experts talking to each other. In a recent case in which experts were asked to report on photocopies of photographs I was reporting for the first defendant. The second defendant’s expert submitted a report which put the first defendant ‘in the frame’ as it were. However when he arrived at court and saw the original photographs he agreed with my opinion and was rapidly sent home by the second defendant’s counsel without giving evidence. The case then collapsed on the grounds that, quote, ‘The expert evidence is contradictory and there is no other way of determining who was responsible for injuring this child’.”
There is also a concern that some experts regularly used by the prosecution seem not to understand that their primary duty as an expert witness is to be independent and objective. For example:
“I have a reservation about the use of pre-trial meetings of experts. Put simply, it is that some experts regularly used by the prosecution do not seem to see their task as objective but, perhaps inspired by history (Spilsbury et alia) or perhaps inspired by television drama, as one of obtaining a conviction.”
Now it is clear that expert witnesses working for the prosecution will have a different mindset to that of a defence expert. The difference is neatly summarised by one of our respondents in this way:
“Typically a prosecution expert (horrible phrase) comes from an investigatory background and looks to see whether there is evidence that points to a crime and a perpetrator. A defence expert looks for anomalies, alternative explanations and the like.”
Crucially, however, this difference in mindset should not result in an expert forming a different opinion on a given set of evidence – but merely change the presentation of that opinion.
Unless the rules of court impose a clear duty on each and every expert witness in a criminal case to independence and objectivity, introducing pre-trial meetings of experts in criminal cases will not result in cost savings. As previously noted, the proposed text of Part 33.2 will need to strengthen further the requirement of independence and objectivity of all expert witnesses.
Take the expert out of the courtroom
It would be possible to extend the idea of meetings of experts into a system in which expert evidence is assessed, or even ‘agreed’, in a pre-trial hearing (although perhaps that is too radical for now). These ideas have developed out of our analysis of recent problems within the criminal courts – cases such as Cannings, Clark and Anthony – in which prosecutions depended almost entirely on disputed scientific evidence.
Science in the courtroom
There is a fundamental incompatibility between what science can offer and what the English legal system seeks. And that is ‘certainty’. The courts want it; science cannot provide it. For any hypothesis to be scientific it must be capable of being proved wrong – if only the falsifying evidence could be found. ‘Falsification’, as it is known, means science can never provide absolute certainty.
In criminal cases, the court has to be sure beyond reasonable doubt before returning a guilty verdict – say something in excess of 90% certainty. By contrast, in the civil arena the standard of proof is on the balance of probabilities – so 51% is fine. Clearly, it is only in the criminal arena that the underlying nature of science has the potential to cause problems.
The Court of Appeal decision in the Angela Cannings Appeal (R -v- Cannings [2004] EWCA Crim 1) concluded:
“If the outcome of the trial depends exclusively, or almost exclusively, on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed.”
The central tenet of the Court of Appeal decision is that where a court is presented with evidence that is solely, or mostly, opinion evidence, and where there is a strong divergence of opinion amongst the experts, the court should not feel confident to arrive at a verdict of guilt.
Because there was no means by which the expert evidence could have been tested in a pre-trial setting, it was not until the end of the trial that the court could have been aware that the case against Angela Cannings fell into this category. If a pre-trial meeting of experts had resulted in a clear conclusion that there were virtually no areas of agreement on the expert evidence, perhaps the trial judge would have been better able to determine that the case was not one that ought to be put to the jury.
Pre-trial assessment of expert evidence
So, what sort of pre-trial assessments might be tried? It is perhaps helpful to first consider the dangers inherent in expert evidence before looking at a way of dealing with them.
Legitimate areas of enquiry concerning expert evidence are:
- the suitability and qualification of an individual expert and the reliability of that expert’s evidence
- the problem of frontier science or pseudo-science, and what happens when there are new developments
- risk evaluation in relation to expert evidence that is not guaranteed to be free from error.
In the United States Supreme Court, Daubert -v- Merrell Dow Pharmaceuticals Inc (1992) 509 US 579 laid down a four-part test to be applied to all expert evidence that was scientific in nature. These four parts are:
- whether the theory or technique ‘can be (and has been) tested’
- whether the ‘theory or technique has been subjected to peer review and publication’
- in the case of a particular technique, what ‘the known or potential rate of error’ is or has been
- whether the evidence has gained widespread acceptance within the scientific community.
As a result of Daubert, expert evidence in the US is more likely to come under closer scrutiny, and at an earlier stage, than in UK proceedings. The parties are aware of the requirements from the outset, and it is common for the court to hear interlocutory applications in relation to the admissibility or relevance of such evidence.
Whilst Daubert is not without its own problems, US lawyers have at least made some attempt to address the difficulties surrounding the nature of scientific evidence and its relationship to the judicial process. If our courts were to formulate similar rules, they would, in our assessment, be doing much to tackle the problem of how courts handle expert evidence. The House of Commons Science and Technology Select Committee in their report Forensic Science on Trial has endorsed this approach.
We suggest that the Rules Committee considers whether it is desirable to formulate additional rules to bring Daubert-style assessment of scientific evidence into the criminal justice system.
Pre-trial agreement of expert evidence
Whilst perhaps too radical for the present, it would be possible to move towards a system in which complex technical evidence was heard in a pre-trial setting, with the lawyers present but no jury. At trial, the jury would be given the ‘agreed’ expert evidence. This approach would deal with the ‘cult of personality’ that can develop at trial, exemplified by Professor Sir Roy Meadow.
Professor Meadow was a world-acclaimed authority, and by all accounts his mere presence in court had a way of winning over juries. What was more, the Court of Appeal noted that he had a certain arrogance. What is arrogance if not a species of self-belief? What do lawyers and the courts crave? Certainty. Is it any wonder that Professor Meadow was called back time after time?
However, if the expert evidence in the Cannings or Clark cases had been heard in a pre-trial arena, not only would the effect on the jury of any expert’s ‘star quality’ be nullified, but the chance of the actual evidence being properly scrutinised by the system would have increased. Something for which Cannings, Clark and Meadow would all have been grateful.
A modification on this scheme is proposed by Professor Geoffrey Beresford Hartwell of the University of Glamorgan Law School in his response to our proposed submission to Lord Carter’s Review of Legal Aid Procurement:
“One radical possibility is that the Court itself should consider appointing an expert with an understanding of the subject to chair meetings, presque sub-hearings, from which a record of agreement and disagreement would be prepared for use in Court. It would be that rapporteur’s findings (he or she would be a Special Assessor, perhaps – with powers to direct further enquiry where appropriate) that would be the evidence in Court, unless circumstances were exceptional. The additional cost of the Special Assessor would be offset by the saving in court time. An additional benefit would be that a jury would hear a distilled version of the expert evidence without the distracting effect of cross-examination.”
We suggest that the Rules Committee considers whether the radical power to allow for pre-trial agreement of expert evidence should and could be included within Part 33.
Single Joint Experts - court-appointed rather than party-appointed
The Rules Committee gives as one of its reasons for introducing the Single Joint Expert (SJE) into the criminal justice system the desire to reduce the proliferation of reports that reach substantially the same conclusion. We have argued here that staged instruction is more likely to achieve this without raising the fear that a single mind has determined the expert issue: staged instruction fits well with the adverserial system whilst still offering the potential of increased efficiency in the use of expert evidence.
The purpose of the expert witness is to extend the knowledge base of the court. The expert’s overriding duty to the court, to independence and to objectivity means that the expert’s position is far more closely aligned with that of the judge than with the other lawyers in the proceedings. In passing, we note that this is why it is false to argue that because barristers and solicitors have seen their immunity to suit removed, so should expert witnesses. That line of reasoning could only be applied if judges lost their immunity.
Furthermore, if the telephone helpline of the UK Register of Expert Witnesses provides any measure, the experience of many expert witnesses when working as an SJE in the civil justice system is often highly unsatisfactory. Some of the common gripes include:
- the struggle to get clear and consistent instructions from the parties
- the suspicion that they are not being given all the facts by one or all the parties
- the requirement to split a fee note into two or more pieces and chase each party for payment.
All these practical problems could be resolved if, instead of permitting SJEs to be appointed and instructed by the parties, Part 33 only permitted the use of court-appointed expert assessors. Instead of trying to shoehorn the SJE into the adversarial system, accept that the concept has far more in common with inquisitorial systems of justice. Let the court-appointed expert assessor become the judge’s expert. Let the expert’s instructions come from the judge, not the parties (though they will undoubtedly need to have an input). Where evidence was required that fell within the expertise of the court-appointed expert assessor then it would be that expert who provided the evidence. If the assessor felt some further investigation was necessary, he or she could undertake that additional work.
We would see the use of court-appointed expert assessors to be every bit as sparing as the Rules Committee forsees for the use of SJEs under Rules 33.7 and 33.8. But our approach would crystallise the distinction between party-appointed experts and the court-appointed expert assessor. It would also greatly improve the effectiveness of the expert. Furthermore, it fits more naturally for the independent and objective expert to be seen to sit alongside the judge, rather than in the no-man’s-land occupied by the SJE in the civil justice system.
We believe court-appointed expert assessors would be a more natural role to introduce to the criminal justice system than would the single joint expert.
Guidance for experts
The consultation is mute on the contents of any associated practice direction or experts’ protocol. Both these elements of CPR contain essential advice and guidance. Of particular note are:
- the instruction concerning disclosure to experts of court orders contained in CPR 35 PD 6A
- the requirements contained in section 7 of the Experts’ Protocol concerning the practical aspects of appointing experts
- Section 8 of the Experts’ Protocol on the required qualities for instructions to experts.
If these elements of guidance, in particular, and ideally much of the other guidance contained in these two documents, can be included along with Part 33, the hard-won improvements in the use of expert evidence in the civil arena will, we think, be transferred quickly to the criminal justice system.
We urge the Rules Committee to consider including the majority of the guidance in CPR 35 PD and the Experts’ Protocol within the ambit of Part 33.
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