On the 2nd April 2018 an amendment to the Criminal Procedure Rules comes into force which changes the requirements of what expert witnesses must now include in their reports. This amendment is in relation to CrPR Part 19 (Expert evidence), in rule 19.4 (Content of expert’s report).
Pre 2nd April requirement:
(e)say who carried out any examination, measurement, test or experiment which the expert has used for the report and -
- give the qualifications, relevant experience and accreditation of that person,
- say whether or not the examination, measurement, test or experiment was carried out under the expert’s supervision, and
- summarise the findings on which the expert relies;
New requirement from the 2nd April 2018:
19.4 (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) -
- identify the person who made that representation to the expert,
- give the qualifications, relevant experience and any accreditation of that person, and
- certify that that person had personal knowledge of the matters stated in that representation.
The full wording of the amendment can be found here
Key points and reasons for the latest amendments:
- The changes to the rules stipulate that expert witnesses are now only required to identify in their reports those ‘persons’ (for example, lab technicians) who produce information which the expert witness wishes to rely upon to base an opinion or inference. The expert need no longer identify in their reports the names of those who perform subsidiary functions (for example, preparing laboratory equipment, or materials for testing). This change has come about as a result of concerns raised by the Forensic Science Regulator that, amongst forensic science providers, the former rule was understood to mean that the expert witness had to identify every assistant who had contributed in any way.
- The expert no longer is required to say whether the examination was carried out under the expert’s supervision.
- Experts now need to certify that the “person” had personal knowledge of the matters stated in that representation. This amendment reflects the requirements of s127 of the Criminal Justice Act 2003 relating to the provision of hearsay evidence of preparatory work included in an expert report. Within s127 there is an exception to the ‘hearsay rule’ for information relied on by an expert, subject to the court’s unfettered discretion to require attendance of the relevant witness. A statement prepared for the purposes of criminal proceedings made by a person having personal knowledge of any matter stated can be relied upon by an expert to base an opinion on it. It is a requirement of Section 127 that notice be given to the other party that the expert will be basing an opinion or inference on the statement. The notice must provide the name of the person making the statement and the nature of the matters contained in it. The previous CrimPR 19.4 (e) was too vague and did not adequately reflect the requirements of s127. In order to avoid those involved in preparatory work being required to attend court, the expert can effectively provide hearsay evidence on their behalf as long as they confirm that the person would have had personal (effectively first-hand knowledge) of the matters they dealt with. This is very similar to the existing and commonly-used hearsay provisions for business documents under s.117 of Criminal Justice Act 2003.
- While Experts no longer are required to summarise the findings on which they rely this is still likely to be done by the expert as it is best practice to provide an executive summary in any expert report.