Related Sector: Expert Witness
Did you know that important changes to the Criminal Procedure Rules came into force on April 1st 2019?
Amendments to CPR 19.2 & 19.3
Under amendments to Criminal Procedure Rules 19.2 and 19.3 experts will have a duty to disclose to those instructing them anything of which they are 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.
The party instructing them will have to serve notice on the other side, together with the expert’s report, of anything which falls under the categories above.
There is a subtle, but radical, change here.
The original 19.3(c) required disclosure, by the instructing party, of anything reasonably thought capable of “detracting substantially from the credibility of that expert”. There was, however, no explicit duty on the expert to disclose to their instructors.
The new wording focuses on matters affecting the reliability of the expert’s opinion and the credibility and impartiality of the expert and places a clear duty on the expert to make that disclosure.
Why the need for the change?
In 2018, the Forensic Science Regulator wrote to the Criminal Procedure Rules Committee with concerns that some expert witnesses had not given fair and accurate accounts of their qualifications and expertise.
The Committee agreed that the Rules left room for ambiguity about what should be disclosed and by whom.
At the same time as placing the onus on the expert, the Committee is trying to clarify what needs to be disclosed. They had been given examples of relevant disclosure which had not been made (experts failing to disclose that they had been seriously criticised by the Court of Appeal); equally, examples of irrelevant disclosure which had been made (fixed penalty notices for parking matters, bearing no relationship to the issues in the case).
The Lord Chief Justice has been asked to give further guidance on what needs to be disclosed and this will be set out in a Practice Direction in due course.
Expert witnesses need to give careful thought to this and ask themselves if they are aware of anything which could affect the reliability of their opinions, or their credibility or impartiality as expert witnesses.
A transparent, and balanced, approach is called for here.
New CPR 19.9
Coming into force at the same time is a procedure to allow for sensitive material to be redacted from an expert’s report before that report is disclosed to the other side.
A new rule 19.9 creates a procedure to follow where the instructing party does not want their expert to give evidence that might include sensitive material, for example information about investigation techniques.
For further information on these amendments to the Criminal Procedure Rules, please see here.
As an expert witness, you should still produce your full report, following your duty to be transparent about all the information to which you have been given access.
If your instructing party does not want part of that evidence to be made available to the other side, they can apply to the court for a decision on what falls under the sensitive material category and whether or not it should be disclosed.
Each of the aforementioned changes will be covered in our Bond Solon Criminal Law and Procedure training course.
Barrister and Head of Expert Witness Training, Bond Solon
This article was published on the 2nd of April 2019
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