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Cite as: [1997] EWLC 245(9)

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PART IX

EXPERT EVIDENCE

9.1 In this Part, we examine the impact of the hearsay rule on expert evidence. (1) The Royal Commission on Criminal Justice set out its concerns in the following terms:

It has been brought to our attention that, because of the rules on hearsay evidence, an expert witness may not strictly speaking be permitted to give an opinion in court based on scientific tests run by assistants unless all those assistants are called upon to give supporting evidence in court. It seems to us that this rule is badly in need of change and we recommend that it be considered by the Law Commission as part of the review of the rules of evidence that we recommend in chapter eight. (2) Meanwhile, although the defence must have the right to examine the assistants of expert witnesses if it so chooses, we look to the courts and to the parties to make the maximum use of the facility to present the evidence of assistants in written form until such time as the law is changed. Any unreasonable exploitation of the system should be met by sanctions against the counsel concerned if he or she is found to be responsible. (3)

9.2 We believe the problem extends beyond scientific tests to include many other types of expert evidence such as accountancy evidence in which the expert has relied on work carried out by other people. In all these cases there is a risk that the defence will insist on the prosecution calling everybody who carried out any work that was relied on by the expert in his or her report.

THE PRESENT LAW

The exceptions to the hearsay rule that cover expert evidence

9.3 There are three exceptions peculiar to expert evidence; two are common law and one is contained in section 30(1) of the 1988 Act.

9.4 The first exception relates to knowledge which forms part of the experts professional expertise, although not acquired through personal experience. Thus an expert has been permitted to give evidence that in a standard pharmaceutical guide, kept in every pharmacy, a particular drug was described as a form of penicillin. (4) Similarly, an anthropologist has been permitted to give evidence about the indigenous peoples in a particular region, even though this evidence was founded partly upon statements made to the anthropologist by Australian aboriginals. (5)

9.5 The second exception enables an expert to draw on technical information widely used by members of the experts profession and regarded as reliable. (6) The expert is able from such information to draw conclusions from the background facts. (7)

9.6 Thirdly, section 30(1) of the 1988 Act (8) allows an expert report (9) to be adduced in criminal proceedings as evidence of any fact or opinion of which the person making it could have given oral evidence, (10) subject to the proviso that the courts leave is required if it is proposed to put in the report without calling its maker. (11) In deciding whether or not to give leave, the court is required by section 30(3) to have regard

(1) to the contents of the report;

(2) to the reasons why it is proposed that the person making the report shall not give oral evidence;

(3) to any risk, having regard in particular to whether it is likely to be possible to controvert statements in the report if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them; and

(4) to any other circumstances that appear to the court to be relevant.

9.7 We are not aware of any authorities on the manner in which the discretion conferred by section 30 should be exercised, (12) but we would regard it as extremely unlikely that the courts would allow an expert report to be adduced without calling the maker if the opposing party had a genuine wish to cross-examine on it.

Retention of the existing exceptions

9.8 We believe that the existing exceptions are readily justifiable, and it was not suggested on consultation that any of them should be abolished or reduced in scope. We recommend the preservation of the common law exceptions under which an expert witness may draw on the body of expertise relevant to his or her field. (13) (Recommendation 32) We make no recommendation for any change to section 30 of the 1988 Act.

9.9 The next question is whether these exceptions go far enough.

THE PROBLEMS WITH THE PRESENT LAW

9.10 In the consultation paper, we set out the present law and focused on the problem that arises where the information relied on by the expert is outside the personal experience of the expert and is not proved by other admissible evidence: in that case, the information is inadmissible as evidence unless it falls within an exception to the hearsay rule. (14) In other words "hearsay evidence does not become admissible to prove acts because the person who proposes to give it is a physician". (15) Morland J has observed that this situation is not uncommon as, where an expert is giving an opinion,

almost inevitably he would rely upon primary facts provided either by a machine or derived from the evidence of other witnesses who had made primary findings of fact or, as experts themselves, made earlier expert conclusions and opinions on findings of fact presented to them. (16)

9.11 The potential for the waste of court time and public money was illustrated in the recent case of Jackson, (17) where the defendant did not in fact dispute the experts conclusion but had not formally admitted the facts on which it was based. No evidence of those facts was presented to the court in the course of the prosecution case, and it was only after the defendant had given evidence that the point was taken. The prosecution was allowed to close the evidential gap, which it seems had gone unnoticed until this late stage. The Court of Appeal recommended the use of formal admissions and of section 30 of the 1988 Act to overcome such problems, (18) and also that such issues be addressed at the Plea and Directions Hearing.

OPTIONS FOR REFORM CONSIDERED IN THE CONSULTATION PAPER(19)

No change

9.12 We considered the present law and were impressed by the criticisms made by the Royal Commission. (20) Above all, we realised that the present rules enable a determined defendant to require the attendance of people who helped the expert by carrying out routine tests and performing routine calculations, even though (as in Jackson) (21) there is no real likelihood that this would achieve anything other than the unnecessary expenditure of time and money on the strict proof of purely formal evidence. We received support for our provisional rejection of the option of preserving the present position.

Retain the present system and impose cost sanctions against the counsel concerned

9.13 We then considered the possibility suggested by the Royal Commission, which would be to impose cost sanctions against the counsel concerned. (22) Our provisional view was that there were two main obstacles to the making of such an order. First, a legal representative does not act improperly, unreasonably or negligently simply by acting for a party who pursues a claim or defence which is plainly doomed to failure. In Ridehalgh v Horsefield the court pointed out that

clients are free to reject advice and insist that cases be litigated. It is rarely if ever safe for a court to assume that a hopeless case is being litigated on the advice of the lawyers involved. They are there to present the case; it is (as Samuel Johnson unforgettably pointed out) for the judge and not the lawyers to judge it. (23)

Problems arise from the nature of the advocates job and, in particular, from the specific task of deciding whether and how to cross-examine a particular witness. (24)

9.14 The second obstacle follows from the first. A court cannot normally decide whether sanctions should be imposed on the lawyers involved without looking closely at their clients instructions which the doctrine of legal professional privilege will preclude it from doing unless the client waives the privilege.

9.15 On consultation, there was inadequate support for this option, and we reject it.

An exception to the hearsay rule for information relied on by an expert

9.16 Another option was simply to create an exception to the hearsay rule for information relied on by an expert. (25) Our provisional view was that the consequence of such a change would be to deprive the opposing party of the right to cross-examine the person providing the information in every such case. (26) We therefore came to the provisional view that this option should not be adopted. That view was supported on consultation, and we therefore reject this option.

An exception to the hearsay rule for information relied on by an expert and provided by someone who cannot be expected to have any recollection of the matters stated

9.17 Our preferred option was the creation of an exception to the hearsay rule for information relied on by an expert and provided by someone who cannot be expected to have any recollection of the matters stated. (27) This exception would be in addition to any other exceptions to the rule. It commended itself to us as we thought it would achieve two aims. First, it would save the type of wasteful and unnecessary cross-examination which caused so much concern to the Royal Commission. (28) Second, it would prevent the waste of court time and expense which would result if that person were required to attend, since he or she would be unable to add to the evidence before the court.

9.18 On consultation, this option received much support. However, respondents with particular experience of the problem (29) said that it would not assist them, either because the experts assistants would normally be expected to remember the work that they had done, or because the assistants work under such close supervision that there is nothing they can tell the court which the expert could not. This option would not help in either of these situations. We have therefore concluded that this option would do little to improve the present position.

An exception to the hearsay rule for information relied on by an expert, subject to a judicial discretion to direct that the supplier of the information be tendered for cross-examination

9.19 The remaining option put forward in the consultation paper was to require the leave of the court before a party relying on information supplied by an experts assistant could be forced to tender the assistant for cross-examination. The experts report would be accompanied by a list of the persons involved in its preparation, together with a description of the tasks carried out by each of them; the onus would then pass to the other side to indicate which of them it proposes to cross-examine, and why. The court would then determine whether a triable issue had been shown. It would be necessary to require the leave of the court because otherwise there would be no effective sanction where no, or no adequate, reasons were given. (30)

9.20 In the consultation paper we were attracted by this option, but did not feel able to propose its adoption because it would mean that the defence would have to disclose the nature of its case before it could cross-examine on the issues properly raised: at that time, such a change would have been a major innovation. We added that if the law were changed so as to require disclosure by the defence, this would become an attractive option. (31)

9.21 Since the publication of the consultation paper, the Criminal Procedure and Investigations Act 1996 has been passed. Section 5 requires disclosure by the defence, in trials on indictment, of the nature of the defence and the issues which will be in dispute. (32) The introduction of this requirement seems to weaken the argument that the defence should not be asked to justify requiring a particular witness to attend for cross-examination. If the nature of the defence has to be revealed anyway, it is hard to see what unfairness can flow from the need to reveal the nature of the questions that it is proposed to ask of an experts assistant.

9.22 The defence would not be required to disclose in detail the questions that it proposes to put, only the general line of enquiry. Since the prosecution will already know what contribution the assistant made to the experts conclusions, it is unlikely to be greatly advantaged by having advance notice of the general issues that the defence wishes to raise. Moreover, if the defence seriously wishes to challenge the prosecutions expert evidence it will usually do so by calling an expert witness of its own; and under the existing rules it would have to give advance notice of this evidence. (33) It therefore has little to lose by having to give notice of the issues that it wishes to explore with the assistant in cross-examination. The main effect of such a requirement, we believe, would be to prevent defendants who do not seriously wish to challenge the prosecutions evidence from attempting to disrupt or prolong the trial by insisting that witnesses attend court for no good reason. (34)

OUR RECOMMENDATION

Extending the disclosure requirements

9.23 At present, under the Crown Court (Advance Notice of Expert Evidence) Rules 1987 (35) and the Magistrates Courts (Advance Notice of Expert Evidence) Rules 1997 (36) a party proposing to adduce expert evidence (otherwise than in relation to sentence) is required to furnish the other party or parties with "a statement in writing of any finding or opinion which he proposes to adduce by way of such evidence". (37) Any other party may then require, in writing, to be provided with

a copy of (or if it appears to the party proposing to adduce the evidence to be more practicable, a reasonable opportunity to examine) the record of any observation, test, calculation or other procedure on which such finding or opinion is based and any document or other thing or substance in respect of which any such procedure has been carried out. (38)

A party who fails to comply with these requirements may not adduce the evidence in question without the leave of the court. (39)

9.24 Under our proposed regime, these requirements would be extended so that the advance notice would include a list of any persons who had supplied information on which the expert relied, and a brief description of the information that each such person had supplied. Any other party to the proceedings could apply for a direction that any such person must give evidence in person; but such a direction could be made only if the party applying for it showed that it was in the interests of justice, by satisfying the court that there was a real issue which could be better pursued with the assistant than with the expert. The application would normally be made at a Plea and Directions Hearing in a trial on indictment, at a preparatory hearing in fraud or other long and complicated cases, or at a pre-trial review in a summary trial. Rules of court would lay down the precise procedure to be followed.

A new hearsay exception

9.25 If no such application were made in respect of any assistant listed, or it were made but refused, a new hearsay exception would come into play. The expert witness would be able to base his or her evidence on any information supplied by that assistant on matters of which that assistant had (or may reasonably be supposed to have had) personal knowledge, (40) and any information so relied upon would be admissible as evidence of its truth.

9.26 If, however, a direction were made that the assistant must give evidence in person, no exception would apply, and the expert could rely only on

(1) facts within his or her personal knowledge,

(2) technical information or matters within his or her professional expertise (by virtue of the common law exceptions), or admissible under any other exception, and

(3) matters given in evidence by other witnesses, including the assistant.

9.27 The exception we propose would be confined to matters of which the assistant could have given direct oral evidence. It follows that it would not extend to matters of opinion, or to facts which only a person with the necessary expertise could establish (such as the scientific analysis of samples), if the assistant in question did not have the necessary expertise to give admissible evidence of those matters. In the somewhat unlikely event of there being a real issue as to whether the assistant was qualified to supply the information in question, it would clearly be a case for a direction that the assistant must give evidence. The admissibility of the assistants evidence would then be determined in the ordinary way, on a voir dire, (41) and the expert could rely on the assistants information only to the extent that the assistant was permitted to, and did, give evidence of it.

9.28 The advance notice rules have recently been extended to the magistrates court, and our recommended new exception could also extend to the magistrates court. The only difference would be that it would be the fact-finders, the magistrates, who would determine whether the experts assistant should be required to attend court. We see no objection to this, since, if the defence wishes to attack the assistants conclusions, it will do so in any event, whether or not it succeeds in requiring the assistant to attend. We therefore recommend that the new rules should apply in all criminal trials.

9.29We recommend

(1) that the Crown Court (Advance Notice of Expert Evidence) Rules 1987 (42) and the Magistrates Courts (Advance Notice of Expert Evidence) Rules 1997 (43) should be amended so as to require advance notice of the name of any person who has prepared a statement on which it is proposed that an expert witness should base any opinion or inference, and the nature of the matters stated; and

(2) that, where such notice has been given, and the person who prepared the statement had (or may reasonably be supposed to have had) personal knowledge of the matters stated, the expert witness should be able to base any opinion or inference on the statement, and the statement should then be admissible as evidence of what it states, unless the court directs otherwise on application by any other party to the proceedings. (44) (Recommendation 33)

FOOTNOTES TO PART IX

(1)We have been assisted by an article by R Pattenden, "Expert Opinion Evidence Based on Hearsay" [1982] Crim LR 85.

(2) See para 1.2 above. (Footnote added)

(3) Report of the Royal Commission, ch 9, para 78.

(4)Borowski v Quayle[1966] VR 382. The United States Federal Rules of Evidence include a specific exception for learned treatises: Rule 803(18).

(5) Milirrpum v Nobalco Property Ltd (1971) 17 FLR 141, 161.

(6) In Rowley v London and North West Railway (1873) LR 8 Ex 221 an accountant who had personal knowledge of the insurance business was allowed to give evidence of the average duration of life of two people by reference to the Carlisle Actuarial Tables.

(7) Thus in Abadom (1983) 76 Cr App R 48, the Court of Appeal held admissible the evidence of an expert who had measured the refractive index of certain fragments of glass found on the defendants shoes and compared it with that of broken glass found at the scene of the crime. The expert was able to refer to statistics collated by the Home Office Central Research Establishment in order to demonstrate that the refractive index found in both samples was uncommon, thus suggesting that the defendant was there when the window was broken.

(8) See Appendix B.

(9) Ie a written report by a person dealing wholly or mainly with matters on which he or she is (or would if living be) qualified to give expert evidence: s 30(5).

(10) Section 30(4).

(11) Section 30(2). Advance notice must be given of the intention to adduce expert evidence: Crown Court (Advance Notice of Expert Evidence) Rules, SI 1987 No 716 (L2), as amended by the Crown Court (Advance Notice of Expert Evidence) (Amendment) Rules, SI 1997 No 700 (L6), made pursuant to PACE, s 81; Magistrates Court (Advance Notice of Expert Evidence) Rules, SI 1997 No 705 (L11), made pursuant to the Magistrates Courts Act 1980, s 144, and the 1996 Act, s 20(3) and (4). If advance notice is not given, the leave of the court must be obtained before the evidence is adduced.

(12) In Hurst [1995] 1 Cr App R 82 it was held that the trial judge had rightly refused to admit a psychiatric report under s 30, but on the ground that it went no further than a speculative opinion and was therefore inadmissible anyway. The psychiatrist had in fact been available to give evidence.

(13) See cl 6(9) of the draft Bill.

(14) Paras 15.3 15.11 of the consultation paper.

(15) Ramsey v Watson (1961) 108 CLR 642, 649, per Dixon CJ and McTiernan, Kitto, Taylor and Windeyer JJ. Similarly in a criminal case, Turner [1975] QB 834, 840BC, Lawton LJ, speaking for the Court of Appeal, observed: "It is not for this court to instruct psychiatrists how to draft their reports, but those who call psychiatrists as witnesses should remember that the facts upon which they base their opinions must be proved by admissible evidence. This elementary principle is frequently overlooked".

(16) Golizadeh [1995] Crim LR 232.

(17) [1996] Crim LR 732.

(18) But s 30 is of limited value for this purpose, since it permits the admission of an experts report only as evidence of facts or opinions of which the author could have given oral evidence. If the expert cannot give oral evidence of the facts stated by his or her assistants because that would be hearsay, a report by the expert stating those facts is not admissible either.

(19) Paras 15.12 15.26 of the consultation paper.

(20) See para 9.1 above.

(21) See para 9.11 above.

(22) Paras 15.13 15.20 of the consultation paper. It could be argued that where the defence is taking advantage of errors by the prosecution (as in Jackson), both parties should be subject to sanctions.

(23) [1994] Ch 205, 234CD, per Sir Thomas Bingham MR.

(24)Ibid, at p 236FH:

Any judge who is invited to make or contemplates making an order arising out of an advocates conduct of court proceedings must make full allowance for the fact that an advocate in court, like a commander in battle, often has to make decisions quickly and under pressure, in the fog of war and ignorant of developments on the other side of the hill. Mistakes will inevitably be made, things done which the outcome shows to have been unwise. But advocacy is more an art than a science. It cannot be conducted according to formulae. Individuals differ in their style and approach. It is only when, with all allowances made, an advocates conduct of court proceedings is quite plainly unjustifiable that it can be appropriate to make a wasted costs order against him.

See also Orchard v South Eastern Electricity Board [1987] QB 565, 579580, per Dillon LJ, and 572, per Lord Donaldson MR; and R v Horsham DC, ex p Wenman [1995] 1 WLR 680, 702G, per Brooke J.

(25) Para 15.23 of the consultation paper.

(26) Para 15.24 of the consultation paper.

(27) Paras 15.25 15.26 of the consultation paper.

(28) See para 9.1 above.

(29) Eg the Home Office Forensic Science Service, and at least one major accountancy firm.

(30) Para 15.21 of the consultation paper.

(31) Para 15.22 of the consultation paper.

(32) Section 31(6) also allows the judge, in unusually complex or long cases, to order the defence to give a number of details about the defence.

(33) See n 11 above.

(34) It is of course possible that the prosecution might unreasonably insist on the attendance of assistants who have supplied information to the defences expert witness; but it has not been suggested to us that this is a serious problem. Our recommendation would nevertheless apply to both prosecution and defence.

(35) See n 11 above.

(36) See n 11 above.

(37) Rules 3(1) and 3(1)(a) respectively.

(38) Rules 3(1) and 3(1)(b) respectively.

(39) Rule 5 in each case.

(40) In accordance with our belief that multiple hearsay should not normally be admissible.

(41) See Silverlock [1894] 2 QB 766; Bonython (1984) 38 SASR 45.

(42) SI 1987 No 716 (L2) as amended by the Crown Court (Advance Notice of Expert Evidence) (Amendment) Rules 1997 SI 1997 No 700 (L6).

(43) SI 1997 No 795 (L11).

(44) See cl 16 of the draft Bill.