The Criminal Procedure (Amendment No. 2) Rules 2006

Rule 19

SCHEDULE 1

“PART 33 Expert evidence

Contents of this Part
[Note. See rule 2.1(4) for the application of the rules in this Part. Part 24 contains rules about the disclosure of the substance of expert evidence. For the use of an expert report as evidence, see section 30 of the Criminal Justice Act 1988(1).]
Reference to expert	rule 33.1
Expert’s duty to the court	rule 33.2
Content of expert’s report	rule 33.3
Expert to be informed of service of report	rule 33.4
Pre-hearing discussion of expert evidence	rule 33.5
Failure to comply with directions	rule 33.6
Court’s power to direct that evidence is to be given by a single joint expert	rule 33.7
Instructions to a single joint expert	rule 33.8

Reference to expert

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, including evidence required to determine fitness to plead or for the purpose of sentencing.

• [Note. Expert medical evidence may be required to determine fitness to plead under section 4 of the Criminal Procedure (Insanity) Act 1964(2). It may be required also under section 11 of the Powers of Criminal Courts (Sentencing) Act 2000(3), under Part III of the Mental Health Act 1983(4) or under Part 12 of the Criminal Justice Act 2003(5). Those Acts contain requirements about the qualification of medical experts.]

Expert’s duty to the court

33.2— (1) An expert must help the court to achieve the overriding objective by giving objective, unbiased opinion on matters within his expertise.

(2) This duty overrides any obligation to the person from whom he receives instructions or by whom he is paid.

(3) This duty includes an obligation to inform all parties and the court if the expert’s opinion changes from that contained in a report served as evidence or given in a statement under Part 24 or Part 29.

Content of expert’s report

33.3— (1) An expert’s report must—

(a) give details of the expert’s qualifications, relevant experience and accreditation;

(b) give details of any literature or other information which the expert has relied on in making the report;

(c) contain a statement setting out the substance of all facts given to the expert which are material to the opinions expressed in the report or upon which those opinions are based;

(d) make clear which of the facts stated in the report are within the expert’s own knowledge;

(e) say who carried out any examination, measurement, test or experiment which the expert has used for the report and—

(i) give the qualifications, relevant experience and accreditation of that person,

(ii) say whether or not the examination, measurement, test or experiment was carried out under the expert’s supervision, and

(iii) summarise the findings on which the expert relies;

(f) where there is a range of opinion on the matters dealt with in the report—

(i) summarise the range of opinion, and

(ii) give reasons for his own opinion;

(g) if the expert is not able to give his opinion without qualification, state the qualification;

(h) contain a summary of the conclusions reached;

(i) contain a statement that the expert understands his duty to the court, and has complied and will continue to comply with that duty; and

(j) contain the same declaration of truth as a witness statement.

(2) Only sub-paragraphs (i) and (j) of rule 33.3(1) apply to a summary by an expert of his conclusions served in advance of that expert’s report.

• [Note. Part 24 contains rules about the disclosure of the substance of expert evidence. Part 27 contains rules about witness statements. Declarations of truth in witness statements are required by section 9 of the Criminal Justice Act 1967(6) and section 5B of the Magistrates' Courts Act 1980(7). A party who accepts another party’s expert’s conclusions may admit them as facts under section 10 of the Criminal Justice Act 1967(8). Evidence of examinations etc. on which an expert relies may be admissible under section 127 of the Criminal Justice Act 2003(9)].

Expert to be informed of service of report

33.4.   A party who serves on another party or on the court a report by an expert must, at once, inform that expert of that fact.

Pre-hearing discussion of expert evidence

33.5— (1) This rule applies where more than one party wants to introduce expert evidence.

(2) The court may direct the experts to—

(a) discuss the expert issues in the proceedings; and

(b) prepare a statement for the court of the matters on which they agree and disagree, giving their reasons.

(3) Except for that statement, the content of that discussion must not be referred to without the court’s permission.

Failure to comply with directions

33.6.   A party may not introduce expert evidence without the court’s permission if the expert has not complied with a direction under rule 33.5.

• [Note. At a pre-trial hearing a court may make binding rulings about the admissibility of evidence and about questions of law under section 7 of the Criminal Justice Act 1987(10); sections 31 and 40 of the Criminal Procedure and Investigations Act 1996(11); and section 45 of the Courts Act 2003(12).]

Court’s power to direct that evidence is to be given by a single joint expert

33.7.— (1) Where more than one defendant wants to introduce expert evidence on an issue at trial, the court may direct that the evidence on that issue is to be given by one expert only.

(2) Where the co-defendants cannot agree who should be the expert, the court may—

(a) select the expert from a list prepared or identified by them; or

(b) direct that the expert be selected in such other manner as the court may direct.

Instructions to a single joint expert

33.8.— (1) Where the court gives a direction under rule 33.7 for a single joint expert to be used, each of the co-defendants may give instructions to the expert.

(2) When a co-defendant gives instructions to the expert he must, at the same time, send a copy of the instructions to the other co-defendant(s).

(3) The court may give directions about—

(a) the payment of the expert’s fees and expenses; and

(b) any examination, measurement, test or experiment which the expert wishes to carry out.

(4) The court may, before an expert is instructed, limit the amount that can be paid by way of fees and expenses to the expert.

(5) Unless the court otherwise directs, the instructing co-defendants are jointly and severally liable for the payment of the expert’s fees and expenses.”

Rule 20

SCHEDULE 2

“PART 36 Evidence about a complainant’s sexual behaviour

Contents of this Part
When this Part applies	rule 36.1
Application for permission to introduce evidence or cross-examine	rule 36.2
Content of application	rule 36.3
Service of application	rule 36.4
Reply to application	rule 36.5
Application for special measures	rule 36.6
Court’s power to vary requirements under this Part	rule 36.7

[Note. The rules in this Part derive in part from rule 23D of the Crown Court Rules 1982(13).

Section 41 of the Youth Justice and Criminal Evidence Act 1999(14) prohibits evidence or cross-examination about the sexual behaviour of a complainant of a sexual offence, subject to exceptions.

See also:

• section 42 of the 1999 Act(15), which among other things defines ‘sexual behaviour’ and ‘sexual offence’;

• section 43(16), which among other things, requires—

  • an application under section 41 to be heard in private and in the absence of the complainant,

  • the reasons for the court’s decision on an application to be given in open court,

  • the court to state in open court the extent to which evidence may be introduced or questions asked;

• section 34, which prohibits cross-examination by a defendant in person of the complainant of a sexual offence.]

When this Part applies

36.1.   This Part applies in magistrates' courts and in the Crown Court where a defendant wants to—

(a) introduce evidence; or

(b) cross-examine a witness

about a complainant’s sexual behaviour despite the prohibition in section 41 of the Youth Justice and Criminal Evidence Act 1999.

Application for permission to introduce evidence or cross-examine

36.2.   The defendant must apply for permission to do so—

(a) in writing; and

(b) not more than 28 days after the prosecutor has complied or purported to comply with section 3 of the Criminal Procedure and Investigations Act 1996(17) (disclosure by prosecutor).

[Note. See Part 3 for the court’s general powers to consider an application with or without a hearing and to give directions.

• At a pre-trial hearing a court may make binding rulings about the admissibility of evidence and about questions of law under section 7 of the Criminal Justice Act 1987(18); sections 31 and 40 of the Criminal Procedure and Investigations Act 1996(19); and section 45 of the Courts Act 2003(20).]

Content of application

36.3.   The application must—

(a) identify the issue to which the defendant says the complainant’s sexual behaviour is relevant;

(b) give particulars of—

(i) any evidence that the defendant wants to introduce, and

(ii) any questions that the defendant wants to ask;

(c) identify the exception to the prohibition in section 41 of the Youth Justice and Criminal Evidence Act 1999 on which the defendant relies; and

(d) give the name and date of birth of any witness whose evidence about the complainant’s sexual behaviour the defendant wants to introduce.

Service of application

36.4.   The defendant must serve the application on the court officer and all other parties.

Reply to application

36.5.   A party who wants to make representations about an application under rule 36.2 must—

(a) do so in writing not more than 14 days after receiving it; and

(b) serve those representations on the court officer and all other parties.

Application for special measures

36.6.   If the court allows an application under rule 36.2 then—

(a) a party may apply not more than 14 days later for a special measures direction or for the variation of an existing special measures direction; and

(b) the court may shorten the time for opposing that application.

[Note. Special measures to improve the quality of evidence given by certain witnesses may be directed by the court under section 19 of the Youth Justice and Criminal Evidence Act 1999 and varied under section 20(21). An application for a special measures direction may be made by a party under Part 29 or the court may make a direction on its own initiative. Rule 29.1(6) sets the usual time limit (14 days) for opposing a special measures application.]

Court’s power to vary requirements under this Part

36.7.   The court may shorten or extend (even after it has expired) a time limit under this Part.”

(1)

1988 c. 33; section 30(4A) was inserted by section 47 of, and paragraph 32 of Schedule 1 to, the Criminal Procedure and Investigations Act 1996 (c. 25) and is repealed by section 41 to, and paragraph 60(1) and (6) of Schedule 3 and Schedule 37 to, the Criminal Justice Act 2003, with effect from a date to be appointed.

(2)

1964 c. 84; section 4 was amended by section 2 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (c. 25) and section 22(1),(2) and (3) of the Domestic Violence, Crime and Victims Act 2004 (c. 28).

(3)

2000 c. 6.

(4)

1983 c. 20.

(5)

2003 c. 44.

(6)

1967 c. 80; section 9 is amended by section 72(3) of, and paragraph 55 of Schedule 5 to, the Children and Young Persons Act 1969 (c. 54) and sections 41 and 332 of, and paragraph 43(1) and (2) of Schedule 3 and Schedule 37 to, the Criminal Justice Act 2003 (c. 44), with effect from dates to be appointed.

(7)

1980 c. 43; section 5B was inserted by section 47 of, and paragraph 3 of Schedule 1 to, the Criminal Procedure and Investigations Act 1996 (c. 25) and is amended by section 72(3) of, and paragraph 55 of Schedule 5 to, the Children and Young Persons Act 1969 (c. 54), with effect from a date to be appointed. It is repealed by sections 41 and 332 of, and paragraph 51(1) and (3) of Schedule 3 and Schedule 37 to, the Criminal Justice Act 2003 (c. 44), with effect from a date to be appointed.

(8)

1967 c. 80.

(9)

2003 c. 44; section 127 was amended by article 3 of, and paragraphs 45 and 50 of the Schedule to, S.I. 2004/2035.

(10)

1987 c. 38; section 7 was amended by section 168(1) of, and paragraph 30 of Schedule 9 to, the Criminal Justice and Public Order Act 1994 (c. 33) and section 310(1) of the Criminal Justice Act 2003 (c. 44) and is further amended by sections 45 and 331 of, and paragraphs 52 and 53 of Schedule 36 to, the Criminal Justice Act 2003 (c. 44), with effect from dates to be appointed. Section 7(3),(4) and (5) was repealed by sections 72 and 80 of, and paragraph 2 of Schedule 3 and Schedule 5 to, the Criminal Procedure and Investigations Act 1996 (c. 25).

(11)

1996 c. 25; section 31 is amended by sections 310(5), 331 and 332 of, and paragraphs 20, 36, 65 and 67 of Schedule 36 and Schedule 37 to, the Criminal Justice Act 2003 (c. 44), with effect from dates to be appointed.

(12)

2003 c. 39.

(13)

S.I. 1982/1109; amended by S.I. 2000/2987; there are other amending instruments, but none is relevant.

(14)

1999 c. 23.

(15)

Section 42(3)(c) was amended by section 41 of, and paragraph 73(1) and (3)(b) of Schedule 3 to, the Criminal Justice Act 2003 (c. 44). Section 42(3)(a) and (b) is repealed by section 41 of, and paragraph 73(1) and (3)(a) of Schedule 3 and Schedule 37 to, the Criminal Justice Act 2003 (c. 44), with effect from a date to be appointed.

(16)

Section 43(3) was amended by section 109(1) of, and paragraph 384(g) of Schedule 8 to, the Courts Act 2003 (c. 39).

(17)

1996 c. 25; section 3 was amended by section 82(1) of, and paragraph 7(1) of Schedule 4 to, the Regulation of Investigatory Powers Act 2000 (c. 23) and sections 32 and 331 of, and paragraphs 20 and 21 of Schedule 36 to, the Criminal Justice Act 2003 (c. 44).

(18)

1987 c. 38; section 7 was amended by section 168(1) of, and paragraph 30 of Schedule 9 to, the Criminal Justice and Public Order Act 1994 (c. 33) and section 310(1) of the Criminal Justice Act 2003 (c. 44) and is further amended by sections 45 and 331 of, and paragraphs 52 and 53 of Schedule 36 to, the Criminal Justice Act 2003 (c. 44), with effect from dates to be appointed. Section 7(3),(4) and (5) was repealed by sections 72 and 80 of, and paragraph 2 of Schedule 3 and Schedule 5 to, the Criminal Procedure and Investigations Act 1996 (c. 25).

(19)

1996 c. 25; section 31 is amended by sections 310(5), 331 and 332 of, and paragraphs 20, 36, 65 and 67 of Schedule 36 and Schedule 37 to, the Criminal Justice Act 2003 (c. 44), with effect from dates to be appointed.

(20)

2003 c. 39.

(21)

Section 20(6) is amended by paragraph 384(a) of Schedule 8 to the Courts Act 2003 (c. 39).