1. There are likely to be two main types of expert report in prosecution proceedings:
2. The first can best be described as a laboratory report and the second might be termed a consultant’s report, although some reports may include elements of both.
3. In certain circumstances, particularly where advice is sought but prosecution is not envisaged, specialist inspectors might prepare a short summary report. However, where an investigation is likely to lead to enforcement action, a more detailed report and, where necessary, a formal witness statement will be required. Experts may either produce a full report, exhibited in a brief covering statement on an LP70 form (see ‘Exhibiting the report’ below) or, if the information is shorter (such as a laboratory report), they may provide all the information in the statement itself, on form LP70. Whilst both approaches are valid, it is recommended that specialists draft reports in such a way as to allow them to be formally exhibited to a statement if required; this will also make it easier to update the report if further information is received.
4. Reports should ideally therefore be stand-alone documents.
5. All reports should begin with the expert’s name, official address, occupation, relevant academic and professional qualifications, accreditations including membership of professional institutions, career history, relevant experience, the range and extent of his/her expertise and any limitations upon the expertise. Detailed CVs are increasingly being asked for and it may be preferable to provide this in an appendix.
6. The report should also include:
7. The expert’s final opinion should be based on as much information as possible and if necessary s/he can then deal with any question which may arise subsequently, including matters which counsel may wish to be dealt with if the case goes to the Crown Court. The report should not be signed by the expert until it is ready to be disclosed. For guidance on draft reports, see below.
8. In order to introduce expert evidence, it must be served on the court and the defendant(s) as soon as practicable and in any event, when the prosecution is making an application which is supported by the expert evidence, for example at mode of trial or committal. 2
9. If service is not carried out in accordance with the Criminal Procedure Rules, the expert evidence cannot be introduced, unless all parties agree or the court gives permission. 3
10. When an expert report is served on another party or the court, those instructing the expert must inform him/her at once 4. If, on exchange of experts’ reports, matters arise that require a further or supplemental report, the above guidelines should once again be followed.
11. The opinion of an expert is admissible on matters that are outside the ordinary knowledge of the court 5 but within his/her expertise .The expert should therefore make it clear when any matter falls outside his/her expertise.
12. If more than one expert is to be called by the prosecution, it is important to avoid too much overlap in their reports. Each expert should indicate where his/her expertise ends and should not go ‘out on a limb’, as s/he will be cross-examined on the report if the case is defended.
13. The prosecution must establish its case beyond reasonable doubt, but it can still do so despite a doubt which an expert might have to accept. This has been expressed as follows 6:
14. The expert should explain the operation and any shortcomings in terms which a layman can understand, and it may be useful for him/her to use headings.
15. If the expert has dealt with similar subject matter elsewhere where better standards were achieved, s/he can make comparisons.
16. The expert should not, however, ignore any evidence or conclusions that are unfavourable to the prosecution. These should be discussed with the LAO lawyer or solicitor agent instructed and the expert should point out any potential problems. S/he should not omit factors from his/her report that do not support his/her opinion; s/he should deal with these and explain how s/he has taken them into account. The report should not mislead by omission.
17. The expert should be asked to deal with any expected defence and evaluate any defence documents. Although the prosecution expert will give evidence first, his/her report can be the basis for advance rebuttal of expected defences.
18. The relationship of doctor and patient is one to which a duty of confidentiality attaches in order to ensure that patients make full and frank disclosure when seeking diagnosis and treatment. A patient has a right to expect that his/her doctor will not pass on any personal information which s/he acquires in the course of his/her professional duties, unless the patient gives consent. However, this duty of confidentiality is not unlimited.
19. Irrespective of consent, disclosure may be necessary in the public interest when failure to disclose may expose the patient or others to risk of serious harm. In such circumstances, the doctor must disclose the information promptly to an appropriate person or authority 7. Disclosure is also justified for the detection and prevention of serious crime, to satisfy a statutory requirement, or following an order of the court.
20. General Medical Council (GMC) guidance entitled ‘Confidentiality“(2009) confirms that disclosure must be made to satisfy a specific statutory requirement, for example, notification of a known or suspected case of certain infectious diseases (paragraph 17 of the GMC guidance) or on the direction of a court. The guidance also states that only so much of the patient’s (or deceased person’s) notes and records as is relevant should be disclosed (paragraph 21).
21. To exhibit the report to a witness statement (form LP70), the initials of the author and a consecutive number should be used (see [Preparing evidence for court SI178] for guidance on exhibits). To formally exhibit the report, the usual form of words in the witness statement is as follows:
22. When a witness (including an expert) signs a statement on form LP70, s/he signs a declaration that states that the content of the statement is true to the best of his/her knowledge. The witness also accepts that s/he might be prosecuted if s/he knowingly states something which s/he knows to be untrue. The responsibility for the final content of the report remains with the author.
23. The expert should exhibit any presentational material that s/he has produced, and s/he may refer to exhibits produced by others, such as photographs, sketches, models, plans, tables and graphs. Even in the simplest of cases, illustrative material may be very helpful in explaining the case to the court.
24. The expert should bring to the attention of the prosecutor and the court any material that will help decide the case. This may include articles, published papers, codes of practice, guidance, published and unpublished research reports etc. References to material to which the defendant would or should have had access may be particularly useful.
25. Courts have taken account of official publications in a number of reported cases 8 and an employer is under a duty to keep abreast of developing knowledge 9. Some material may be illustrative and some may set standards either for analysis or safety.
26. The expert should exhibit to the report any material to which s/he refers, or the relevant extract from it, and s/he should have the whole document or publication available in court.
27. Some documents may be produced without being exhibited to the report (for example, approved codes of practice 10) but in some cases it may be necessary for the expert to explain its significance . Regulations may also require explanation.
28. The expert may need to do a literature search or obtain a statistical analysis, and if s/he can verify that analysis, it will not be necessary to call the statistician 11. S/he may use material stored in a computer; for guidance on the admissibility of such evidence, see the sections [Preparing evidence for court] and [Computer evidence].
29. The defence may object to reference to other documents (of which the expert is not the author) on the grounds of hearsay. Examples of such documents include British/EN standards, HSE guidance notes, industry publications, calculation tables 12, textbooks, articles and summaries of research 13. The prosecutor must establish that the expert is competent to express an opinion on such material; where it does form part of the expert’s body of expertise, the expert may refer to the material in order to support his/her opinion without infringing the rules against hearsay 14.
30. As indicated in ‘Contents of the report’ above, after an expert report has been produced, matters may arise that require the report to be amended. Consideration should be given as to whether a new, revised report is necessary or whether, if the changes are only minor, additional information could be produced in the form of a supplementary report. Details of the changes, referring to the sources of any new or additional information and setting out any revised conclusions, must be recorded.
31. The report, or statement, of an expert should not be signed at an early stage; it should initially be considered a draft and marked as such. This is because:
Draft reports and statements should be retained, as they may be disclosable to the defence (see below). Whether draft reports will in fact be disclosed at a later stage will be a matter for the disclosure officer and prosecutor, who consider the disclosure test.
32. Experts must be aware of, and where required follow, the guidance on disclosure of material set out in the section ‘Approach to common categories of material’ in [Disclosure of Unused Material for Investigations Commenced before 4 April 2005] or [Disclosure of Unused Material for Investigations Commenced on or after 4 April 2005] as appropriate.
33. All relevant material held by an expert in relation to an investigation should be listed by the expert, and a copy of the list provided to the inspector. The inspector should ask the expert for this list which should then be passed to the disclosure officer to decide whether the items on the list need to be entered on to the disclosure schedules
34. As with any other expert report, these should be either in the form of a statement or in a report exhibited by a statement, both of which can be used in evidence without the need for the expert to attend court. The statement should be given on form LP70 and typed (double-spaced). If the report/statement deals only with matters which are strictly measurable, and there is no likelihood of it being challenged or requiring further elucidation, the expert should sign it. Laboratory reports can often be agreed.
35. The expert should refer to the section ‘Contents of the report’ above and ensure that his/her involvement in the tests is clearly stated. For example, s/he should either say: “The tests were carried out by me” or “The tests were carried out in my presence and under my direct personal supervision”.
36. The specialist will need to:
37. Consultation with colleagues, including the line manager, can provide the specialist/expert with an opportunity to:
38. Professional oversight of a specialist’s work by his/her line manager is useful in establishing a benchmark for quality and accuracy and can be done without compromising personal authorship of the report.
39. Discussion of the content of a report between the specialist and the inspector or lawyer(s) is entirely proper, provided care is taken to ensure that the report is, and is seen to be, the expert’s own product 15. When an inspector, or anyone else, communicates with an expert, whether in-house or from outside, they should be careful to ensure that there is no risk that the communication could be misinterpreted so as to suggest that it might influence the expert’s opinion.
40. Both the specialist / expert and the inspector (or other person) instructing him/her should remember that all communications (including draft reports), other than those between an expert and lawyers, may be liable to be disclosed. Communications between the expert and the lawyers in the case are privileged 16. A note of any such discussion should be made and retained.
41. The expert should set out in his/her report only those facts that have been, or are to be, proved in evidence and other expert opinion upon which s/he bases his/her opinion. S/he can refer to written admissions made by the defendant. Experts should be aware that, just as a party must challenge in cross-examination contested evidence given by a witness of fact, so the opinions of an expert must be challenged if they are disputed.
42. Before any decision to prosecute is taken, it is permissible for an expert to advise as to whether, in his/her opinion, there is any breach of the law; the balance of legal opinion permits an expert to give opinion on what has been called “the ultimate issue”. However, experts should be careful; where an expert deals with such an issue in his/her report, the judge in a Crown Court trial must direct the jury that they are not bound by the expert’s opinion, and that the issue is for them to decide 17.
43. The defence must serve its expert evidence on the prosecution as soon as practicable and in any event if the defence is making an application which is supported by the expert evidence 18. The prosecution expert should see this evidence and provide comments for counsel, who may ask him/her to prepare a further report dealing with the defence evidence.
44. There is no restriction on an expert meeting counsel; before going into court, an expert is entitled to discuss with counsel (or legal representative) the relevant points that will bring out the essence of the case. Counsel must not, however, rehearse, practise or coach any witness, including experts 19.
45. An expert should consider the lines of argument that the defence may put forward. In a covering minute (rather than the report) 20, the expert should deal with:
46. An expert may also prepare notes for the prosecutor to use when cross-examining.
47. The courts have determined that witnesses should not be deterred from giving evidence by the fear of litigation; it is not in the public interest for expert witnesses to be sued for the evidence they give in court. That immunity applies as much to an expert as to any other witness 21. However, an expert is not immune from action if s/he produces a report, or provides information with a view to it being used in court, that is so flawed that it might amount to serious professional misconduct 22.
48. The courts have also concluded that the same public policy should protect experts from the risk of a complaint to the relevant professional body arising from anything said by that expert whilst giving evidence 23. However, experts owe an overriding duty to the court 24; the judge hearing the expert evidence can still refer the expert’s conduct to the relevant professional body if satisfied that the conduct has fallen far below what is expected so as to merit disciplinary action. The judge must be of the opinion that the expert needs to be removed from practice, or at least subjected to disciplinary action that might prevent that person from acting as an expert witness.
49. The above exemptions relate to evidence given in court. In the preparation of their evidence, and in their conduct before and during the proceedings whilst outside the witness box, witnesses instructed by or on behalf of HSE are expected to act professionally and in line with their contract of employment or instructions. Experts must be aware of, and adhere to, the guidance on disclosure set out here and in the paragraphs on expert evidence in the section ‘Approach to common categories of material’ in [Disclosure of Unused Material for Investigations Commenced before 4 April 2005] or [Disclosure of Unused Material for Investigations Commenced on or after 4 April 2005] as appropriate. Expert witnesses may be the subject of management control and/or auditing to ensure quality and accuracy. Experts can legitimately be asked to account for any delay caused in providing their written opinions and may be required to do so in open court.