PART 19EXPERT EVIDENCE
Contents of this Part | |
|---|---|
When this Part applies | rule 19.1 |
Expert’s duty to the court | rule 19.2 |
Introduction of expert evidence | rule 19.3 |
Content of expert’s report | rule 19.4 |
Expert to be informed of service of report | rule 19.5 |
Pre-hearing discussion of expert evidence | rule 19.6 |
Court’s power to direct that evidence is to be given by | |
a single joint expert | rule 19.7 |
Instructions to a single joint expert | rule 19.8 |
Application to withhold information from another party | rule 19.9 |
Court’s power to vary requirements under this Part | rule 19.10 |
When this Part appliesI419.1
1
This Part applies where a party wants to introduce expert opinion evidence.
2
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.
F13
Where evidence that is introduced as evidence of fact within a witness’ direct knowledge includes expert opinion the court may direct that the requirements of rules 19.2 (Expert’s duty to the court) and 19.3 (Introduction of expert evidence) apply, to the extent and with such adaptations as the court directs.
[Note. Expert medical evidence may be required to determine fitness to plead under section 4 of the Criminal Procedure (Insanity) Act 1964425. It may be required also under section 11 of the Powers of Criminal Courts (Sentencing) Act 2000426, under Part III of the Mental Health Act 1983427 or under Part 12 of the Criminal Justice Act 2003428. Those Acts contain requirements about the qualification of medical experts.]
Expert’s duty to the courtI219.2
1
An expert must help the court to achieve the overriding objective—
a
by giving opinion which is—
i
objective and unbiased, and
ii
within the expert’s area or areas of expertise; and
b
by actively assisting the court in fulfilling its duty of case management under rule 3.2, in particular by—
i
complying with directions made by the court, and
ii
at once informing the court of any significant failure (by the expert or another) to take any step required by such a direction.
2
This duty overrides any obligation to the person from whom the expert receives instructions or by whom the expert is paid.
3
This duty includes obligations—
a
to define the expert’s area or areas of expertise—
i
in the expert’s report, and
ii
when giving evidence in person;
b
when giving evidence in person, to draw the court’s attention to any question to which the answer would be outside the expert’s area or areas of expertise;
c
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; and
d
to disclose to the party for whom the expert’s evidence is commissioned anything—
i
of which the expert is aware, and
ii
of which that party, if aware of it, would be required to give notice under rule 19.3(3)(c).
[Note. The Practice Direction lists examples of matters that should be disclosed under this rule and rule 19.3(3)(c).]
Introduction of expert evidenceI319.3
1
A party who wants another party to admit as fact a summary of an expert’s conclusions must serve that summary—
a
on the court officer and on each party from whom that admission is sought; and
b
as soon as practicable after the defendant whom it affects pleads not guilty.
2
A party on whom such a summary is served must—
a
serve a response stating—
i
which, if any, of the expert’s conclusions are admitted as fact, and
ii
where a conclusion is not admitted, what are the disputed issues concerning that conclusion; and
b
serve the response—
i
on the court officer and on the party who served the summary, and
ii
as soon as practicable, and in any event not more than 10 business days after service of the summary.
3
A party who wants to introduce expert evidence otherwise than as admitted fact must—
a
serve a report by the expert which complies with rule 19.4 (Content of expert’s report) on—
i
the court officer, and
ii
each other party;
b
serve the report as soon as practicable, and in any event with any application in support of which that party relies on that evidence;
F5c
serve with the report—
i
notice of anything of which the party serving it is aware which might reasonably be thought capable of undermining the reliability of the expert’s opinion, or detracting from the credibility or impartiality of the expert, and
ii
an explanation of how facts stated in the report are admissible as evidence if that is not explained by the report;
d
if another party so requires, give that party a copy of, or a reasonable opportunity to inspect—
i
a record of any examination, measurement, test or experiment on which the expert’s findings and opinion are based, or that were carried out in the course of reaching those findings and opinion, and
ii
anything on which any such examination, measurement, test or experiment was carried out.
4
Unless the parties otherwise agree or the court directs, a party may not—
a
introduce expert evidence if that party has not complied with paragraph (3); or
b
introduce in evidence an expert report if the expert does not give evidence in person.
A party who accepts another party’s expert’s conclusions may admit them as fact under section 10 of the Criminal Justice Act 1967.
Under section 81 of the Police and Criminal Evidence Act 1984430, and under section 20(3) of the Criminal Procedure and Investigations Act 1996431, Criminal Procedure Rules may require the disclosure of expert evidence before it is introduced as part of a party’s case and prohibit its introduction without the court’s permission, if it was not disclosed as required.
Under section 30 of the Criminal Justice Act 1988432, an expert report is admissible in evidence whether or not the person who made it gives oral evidence, but if that person does not give oral evidence then the report is admissible only with the court’s permission.]
F4Evidence of facts which are material to the opinions expressed in an expert report, or upon which those opinions are based, may be admissible if (i) they are within the expert witness’ own direct knowledge, or (ii) as hearsay evidence within the meaning of section 114 of the Criminal Justice Act 2003: see also rule 19.4(b), (c), (d) and (e). Evidence of examinations etc. on which an expert relies may be admissible under section 127 of the 2003 Act. Part 20 contains rules about the introduction of hearsay evidence under other provisions of that Act.
Content of expert’s reportI819.4
Where rule 19.3(3) applies, 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
where the expert has based an opinion or inference on a representation of fact or opinion made by another person for the purposes of criminal proceedings (for example, as to the outcome of an examination, measurement, test or experiment)—
i
identify the person who made that representation to the expert,
ii
give the qualifications, relevant experience and any accreditation of that person, and
iii
certify that that person had personal knowledge of the matters stated in that representation;
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 the expert’s own opinion;
g
if the expert is not able to give an opinion without qualification, state the qualification;
h
include such information as the court may need to decide whether the expert’s opinion is sufficiently reliable to be admissible as evidence;
i
contain a summary of the conclusions reached;
j
contain a statement that the expert understands an expert’s duty to the court, and has complied and will continue to comply with that duty; and
k
contain the same declaration of truth as a witness statement.
Expert to be informed of service of reportI719.5
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 evidenceI1019.6
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.
4
A party may not introduce expert evidence without the court’s permission if the expert has not complied with a direction under this rule.
[Note. At a pre-trial hearing, a court may make binding rulings about the admissibility of evidence and about questions of law under section 9 of the Criminal Justice Act 1987435; sections 31 and 40 of the Criminal Procedure and Investigations Act 1996436; and section 8A of the Magistrates’ Courts Act 1980437.]
Court’s power to direct that evidence is to be given by a single joint expertI919.7
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 another way.
Instructions to a single joint expertI119.8
1
Where the court gives a direction under rule 19.7 for a single joint expert to be used, each of the co-defendants may give instructions to the expert.
2
A co-defendant who gives instructions to the expert must, at the same time, send a copy of the instructions to each other co-defendant.
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.
Application to withhold information from another partyI519.9
1
This rule applies where—
a
a party introduces expert evidence under rule 19.3(3);
b
the evidence omits information which it otherwise might include because the party introducing it thinks that that information ought not be revealed to another party; and
c
the party introducing the evidence wants the court to decide whether it would be in the public interest to withhold that information.
2
The party who wants to introduce the evidence must—
a
apply for such a decision; and
b
serve the application on—
i
the court officer, and
ii
the other party, but only to the extent that serving it would not reveal what the applicant thinks ought to be withheld.
3
The application must—
a
identify the information;
b
explain why the applicant thinks that it would be in the public interest to withhold it; and
c
omit from the part of the application that is served on the other party anything that would reveal what the applicant thinks ought to be withheld.
4
Where the applicant serves only part of the application on the other party, the applicant must—
a
mark the other part, to show that it is only for the court; and
b
in that other part, explain why the applicant has withheld it from the other party.
5
The court may—
a
direct the applicant to serve on the other party any part of the application which has been withheld; and
b
determine the application at a hearing or without a hearing.
6
Any hearing of an application to which this rule applies—
a
must be in private, unless the court otherwise directs; and
b
if the court so directs, may be, wholly or in part, in the absence of the party from whom information has been withheld.
7
At any hearing of an application to which this rule applies—
a
the general rule is that the court must consider, in the following sequence—
i
representations first by the applicant and then by the other party, in both parties’ presence, and then
ii
further representations by the applicant, in the absence of the party from whom information has been withheld; but
b
the court may direct other arrangements for the hearing.
Court’s power to vary requirements under this PartI619.10
1
The court may extend (even after it has expired) a time limit under this Part.
2
A party who wants an extension of time must—
a
apply when serving the report, summary or notice for which it is required; and
b
explain the delay.