EXPG0000003
EXPG0000003
REPORT TO THE POST OFFICE HORIZON IT INQUIRY
PHASE 4
INVESTIGATION, DISCLOSURE AND CRIMINAL PROSECUTION
IN ENGLAND AND WALES AND
INVESTIGATIONS AND PROSECUTIONS BY THE POST OFFICE 2000-2013
DUNCAN ATKINSON KC
VOLUME 1A
EXPG0000003
EXPG0000003
1. This addendum report is prepared for phase 4 of the Post Office Horizon IT Inquiry,
a statutory inquiry under the Inquiries Act 2005, which focuses on “action against
Sub-Postmasters and others: policy making, audits and investigations, civil and
criminal proceedings, knowledge and responsibility for failures in investigations
and disclosure”. In volume 1 of my report, I have already addressed the legal
framework for prosecution, both by the Post Office’ and more broadly, and the
framework relating to responsibilities of prosecuting authorities, investigations,
charging decisions, prosecutions and disclosure. This involved consideration of
applicable statutory provisions, codes of practice issued under statute, guidelines
and guidance, caselaw and other material from a range of identified sources, and
then consideration of such policy documents and guidance issued by and to the Post
Office as engage those topics.
2. In this addendum, volume 1A, I am asked to address the following additional
question:
“Please provide an analysis of the duties of an investigator / prosecutor to provide
information to an expert instructed by the prosecution about their duty to the court. In
particular, was there a duty to inform such an expert i) of the fact that they owed a duty to
the court; and ii) what that duty consisted of, in relation to the writing of their report, the
researches undertaken and the evidence given to the court orally.”
3. In order properly to answer this question, it is helpful to understand the legal
principles that apply in general in relation to expert evidence, the duties of experts
and disclosure of expert material. This is set out below. I shall then seek to answer
the specific question as to what duties there are, or were in the Inquiry’s core period
from 2000-2013, as to the provision to experts instructed by
prosecutors/investigators. As with volume 1, I shall consider the policies produced
by other prosecution authorities, in this context the Crown Prosecution Service
(‘CPS’) and Health and Safety Executive (‘HSE’). I shall finally consider again the
various iterations of investigation and prosecution policies produced by the Post
Office which touch on these issues.
* As in volume 1 of my report, I will throughout this report refer to the Post Office, so as to
encapsulate a number of legal entities that have existed in the period with which I am concerned.
2
EXPG0000003
EXPG0000003
4. In summary, the duties identified in the question were recognised to apply to those
called as expert witnesses within the Inquiry’s period of focus, and certainly by 2005-
6. The existence of a duty on a party instructing an expert to draw the expert’s own
duty to their attention is less clearly identified. However, a party seeking to rely on
an expert would wish to ensure that the expert did satisfy their duties to the court so
as to ensure that the expert’s evidence was admissible. Such action would also be
consonant with their duty, as a participant in criminal cases, under Part 1 of the
Criminal Procedure Rules. The obligations of, and in relation to an expert were well
appreciated by agencies such as the CPS and HSE, certainly by the end of the
Inquiry period of concern. I have not identified any Post Office policy that addresses
the duties on an expert, or the obligations to which this gives rise for a party relying
on an expert. The duties on a party relying on an expert as to disclosure of any
report and material underlying a report from an expert are well established. I have
not seen any Post Office policy document that addressed this topic.
The admissibility of expert evidence
5. The general rule is that witnesses may only give evidence of fact rather than
opinion. In Turner’, Lawton LJ identified the circumstances in which opinion
evidence from an expert is admissible as follows: “An expert's opinion is admissible to
furnish the court with scientific information which is likely to be outside the experience and
knowledge of a judge or jury. If on the proven facts a judge or jury can form their own
conclusions without help, then the opinion of an expert is unnecessary.”
6. Applying the analysis in that case, it can be said that expert opinion evidence is
admissible in criminal proceedings at common law if:
(a) it is relevant to a matter in issue in the proceedings;
(b) it is needed to provide the court with information likely to be outside the
court’s own knowledge and experience;
(c) the witness is competent to give that opinion.
2 [1975] QB 834, at p.841
EXPG0000003
EXPG0000003
7. As to that third criterion, Thomas LJ said in Reed*: “Expert evidence of a scientific
nature is not admissible where the scientific basis on which it is advanced is insufficiently
reliable for it to be put before the jury. There is, however, no enhanced test of admissibility for
such evidence. If the reliability of the scientific basis for the evidence is challenged, the court
will consider whether there is a sufficiently reliable scientific basis for that evidence to be
admitted, but, if satisfied that there is a sufficiently reliable scientific basis for the evidence to
be admitted, then it will leave the opposing views to be tested in the trial.” Thomas L]
further observed: “As was set out by the Supreme Court of South Australia in Bonython*,
the subject matter of the evidence must be part of ‘a body of knowledge or experience which is
sufficiently organised or recognised to be accepted as a reliable body of knowledge or
experience’. However, there is no closed category where evidence cannot be placed before a
jury”.
8. Thomas L]° also made reference with approval to the observations of Hughes LJ in
Atkins and Atkins “This case therefore does not raise any question as to the judge's power at
common law to exclude evidence tendered as expert, if it be argued that the expert is
insufficiently qualified or that his evidence is insufficiently based upon expertise. We say no
more about that than that there can be no doubt that such a power exists. That is because he
who asserts admissibility must demonstrate it. Evidence of opinion is not ordinarily
admissible. Opinion based upon identifiable expertise outside the experience of the jury is one
exception. If objection be taken to admissibility (though not otherwise) it must be determined
by the judge. It is for him who tenders such evidence to establish the exception, viz the
expertise and that it is the foundation of the opinion. The power to rule on admissibility
applies equally to Crown and defence.”
9. The admissibility of expert evidence is also regulated by section 30, Criminal Justice
Act 1988, which, in so far as is relevant in the period from 2000-2013, stated:
(1)An expert report shall be admissible as evidence in criminal proceedings, whether or not
the person making it attends to give oral evidence in those proceedings.
(2)If it is proposed that the person making the report shall not give oral evidence, the report
shall only be admissible with the leave of the court.
5 [2009] EWCA Crim 2698, at para.111
4 (1984) 38 SAAR 45
5 Reed, para.113
* [2009] EWCA Crim 1876, at para.9
EXPG0000003
EXPG0000003
(3)For the purpose of determining whether to give leave the court shall have regard —
(a)to the contents of the report;
(b)to the reasons why it is proposed that the person making the report shall not give oral
evidence;
(c)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
(d)to any other circumstances that appear to the court to be relevant.
(4)An expert report, when admitted, shall be evidence of any fact or opinion of which the
person making it could have given oral evidence....
(5)In this section “expert report” means a written report by a person dealing wholly or
mainly with matters on which he is (or would if living be) qualified to give expert evidence.
10. An issue associated with the application of section 30 is the proof of the facts upon
which an expert’s opinion is based, In Turner’, Lawton L] addressed this issue:
“Before a court can assess the value of an opinion it must know the facts upon which it is
based. If the expert has been misinformed about the facts or has taken irrelevant facts into
consideration or has omitted to consider relevant ones, the opinion is likely to be valueless. In
our judgment, counsel calling an expert should in examination in chief ask his witness to
state the facts upon which his opinion is based. It is wrong to leave the other side to elicit the
facts by cross-examination.”
11. It will be necessary to call evidence to prove those facts. This requirement has been
circumscribed since April 2005 by section 127, Criminal Justice Act 2003, which, in so
far as is relevant, states:
(1) This section applies if—
(a)a statement has been prepared for the purposes of criminal proceedings,
(b)the person who prepared the statement had or may reasonably be supposed to have had
personal knowledge of the matters stated,
7 [1975] QB 834, at p.840
EXPG0000003
EXPG0000003
(c)notice is given under the appropriate rules that another person (the expert) will in
evidence given in the proceedings orally or under section 9 of the Criminal Justice Act 1967
(c. 80) base an opinion or inference on the statement, and
(d)the notice gives the name of the person who prepared the statement and the nature of the
matters stated.
(2) In evidence given in the proceedings the expert may base an opinion or inference on the
statement.
(3) If evidence based on the statement is given under subsection (2) the statement is to be
treated as evidence of what it states.
(4) This section does not apply if the court, on an application by a party to the proceedings,
orders that it is not in the interests of justice that it should apply.
(5) The matters to be considered by the court in deciding whether to make an order under
subsection (4) include —
(a)the expense of calling as a witness the person who prepared the statement;
(b)whether relevant evidence could be given by that person which could not be given by the
expert;
(c)whether that person can reasonably be expected to remember the matters stated well
enough to give oral evidence of them.
(6) Subsections (1) to (5) apply to a statement prepared for the purposes of a criminal
investigation as they apply to a statement prepared for the purposes of criminal proceedings,
and in such a case references to the proceedings are to criminal proceedings arising from the
investigation.
The duty of an expert
12. The duty of expert was described by Lord President Cooper in Davie v Magistrates of
Edinburgh as “to furnish the judge or jury with the necessary scientific criteria for testing
the accuracy of their conclusions, so as to enable the judge or jury to form their own
independent judgement by the application of those criteria to the facts proved in evidence “.
This involves the expert to be full and transparent, including material such as
formulae and statistics so that the basis on which any conclusion has been reached is
fully set out, and the reliability of that conclusion therefore open to assessment’.
8 T (Footwear mark evidence) [2010] EWCA Crim 2439
6
EXPG0000003
EXPG0000003
13. In Harris’ the Court of Appeal was invited to give general guidance in relation to the
duties of experts in the context of a set of fresh evidence appeals relating to
allegations of baby shaking. Gage LJ said: “It may be helpful for judges, practitioners
and experts to be reminded of the obligations of an expert witness summarised by Cresswell
J. in the National Justice Cia Naviera SA v Prudential Assurance Co Ltd (Ikarian Reefer)'°.
Cresswell J. pointed out amongst other factors the following, which we summarise as follows:
(1) Expert evidence presented to the court should be and seen to be the independent product
of the expert uninfluenced as to form or content by the exigencies of litigation.
(2) An expert witness should provide independent assistance to the court by way of objective
unbiased opinion in relation to matters within his expertise. An expert witness in the High
Court should never assume the role of advocate.
(3) An expert witness should state the facts or assumptions on which his opinion is based.
He should not omit to consider material facts which detract from his concluded opinions.
(4) An expert should make it clear when a particular question or issue falls outside his
expertise.
(5) If an expert's opinion is not properly researched because he considers that insufficient
data is available then this niust be stated with an indication that the opinion is no more than
a provisional one.
(6) Ifafter exchange of reports, an expert witness changes his view on material matters, such
change of view should be communicated to the other side without delay and when appropriate
to the court.”
14. It was emphasised in B(T)" that the duties thus identified were owed to the court,
and overrode any obligation to the person who had instructed the expert, or any
organisation for which the expert worked. As a part of ensuring the independence
of the expert, it was confirmed in Toth v Jarman’? that there was a duty on a party
who wishes to call an expert with a potential conflict of interest - financial, personal;
connection, obligation - to disclose details of that conflict at earliest opportunity so
that the court can decide if material or significant and whether evidence be allowed.
° [2005] EWCA Crim 1980, [2006] 1 Cr. App. R. 5(65), at 271.
2 [1993] 2 Lloyds Rep. 68 at 81.
1 [2006] EWCA Crim 417
» [2006] 4 All ER 1276
EXPG0000003
EXPG0000003
15. The Court in B(T)”, which included both Gage LJ, who had delivered the judgment
in Harris, and Creswell J, whose summary of the duties of experts in Ikarian Reefer
had there been quoted with approval, identified the following as “necessary
inclusions in an expert report”:
“1. Details of the expert's academic and professional qualifications, experience and
accreditation relevant to the opinions expressed in the report and the range and extent of the
expertise and any limitations upon the expertise.
2. A statement setting out the substance of all the instructions received (with written or
oral), questions upon which an opinion is sought, the materials provided and considered, and
the documents, statements, evidence, information or assumptions which are material to the
opinions expressed or upon which those opinions are based.
3. Information relating to who has carried out measurements, examinations, tests etc and
the methodology used, and whether or not such measurements etc were carried out under the
expert's supervision.
4. Where there is a range of opinion in the matters dealt with in the report a summary of the
range of opinion and the reasons for the opinion given. In this connection any material facts
or matters which detract from the expert's opinions and any points which should fairly be
made against any opinions expressed should be set out.
5. Relevant extracts of literature or any other material which might assist the court.
6. A statement to the effect that the expert has complied with his/her duty to the court to
provide independent assistance by way of objective unbiased opinion in relation to matters
within his or her expertise and an acknowledgment that the expert will inform all parties and
where appropriate the court in the event that his/her opinion changes on any material issues.
7. Where on an exchange of experts' reports matters arise which require a further or
supplemental report the above guidelines should, of course, be complied with.”
Disclosure in relation to expert evidence
16. As a precursor to the consideration of specific requirements for disclosure in relation
to experts, it is important to stress, as the CPS Disclosure Manual does" in this
context, that “the test for disclosure of unused material is the same in relation to material
*8 [2006] EWCA Crim 417, at para.177
™ CPS Disclosure Manual, as refreshed October 2021, chapter 36
8
17.
18.
19.
EXPG0000003
EXPG0000003
generated by an expert as for all other types. If unused material relating to an expert witness
is relevant, it must be disclosed to the defence, or a PII application made”.
Expert evidence and material underlying expert evidence in the hands of the
prosecutor is therefore susceptible to the provisions of the Criminal Procedure and
Investigations Act 1996" (“CPIA”) as any other material in its possession. This is
illustrated, for example, by the fact that the CPIA Code, as originally issued in 1997,
included in a list of material embraced by the duty to retain"® “communication between
the police and experts such as forensic scientists, reports of work carried out by experts and
schedules of scientific material prepared by the expert for the investigator, for the purposes of
criminal proceedings”.
Similarly, the requirements imposed on investigators and prosecutors as to third
party material” to take steps to investigate whether third parties have material that
would meet the disclosure test and to take steps to secure that material, also apply
in the expert context. That is illustrated, for example, by the fact that the 2000
version of the Attorney General’s Guidelines on Disclosure’s list of examples of
third parties’’ who an investigator might need to approach included “providers of
forensic services”. Duties of disclosure in relation to expert evidence has been
addressed by the CPS, as will be seen below, since at least 2006, and by the HSE
since at least 2011.
Section 81 of the Police and Criminal Evidence Act 1984 (‘PACE 1984’) requires
advanced notice to be given of expert evidence in the Crown Court. As originally
enacted, it stated:
(1) Crown Court Rules may make provision for—(a)requiring any party to proceedings
before the court to disclose to the other party or parties any expert evidence which he proposes
to adduce in the proceedings; and (b)prohibiting a party who fails to comply in respect of any
evidence with any requirement imposed by virtue of paragraph (a) above from adducing that
evidence without the leave of the court.
‘5 The CPIA disclosure provisions are addressed in Volume 1 from para.219
*° The duty to retain is addressed in Volume 1 at paras.102 and 230. The list appears at para.5.4,
CPIA Code.
Y Third party dis
losure is addressed in Volume 1 from para.294
'® AG’s Guidelines on disclosure (2000), para.30 - it also appears in the 2005 version at para.51 and
the 2013 version at para.36
EXPG0000003
EXPG0000003
(2) Crown Court Rules made by virtue of this section may specify the kinds of expert
evidence to which they apply and may exempt facts or matters of any description specified in
the rules.
20. The Rules at the start of the Inquiry’s core period in place under this enactment
were The Crown Court (Advance Notice of Expert Evidence) Rules 1987". In
particular, these rules required a written statement of findings or opinion which it
was proposed to adduce from an expert to be disclosed as soon after committal as
possible, along with provision of a copy of any tests and other experiments. These
essential rules for advanced disclosure in relation to experts were set out in rules 3-4,
which in so far as is relevant stated:
Rule 3:
1) Following the committal for trial of any person, or the making of an order for his retrial, if
any party to the proceedings proposes to adduce expert evidence (whether of fact or
opinion) in the proceedings (otherwise than in relation to sentence) he shall as soon as
practicable, unless in relation to the evidence in question he has already done so-
(a)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; and
(b)where a request in writing is made to him in that behalf by any other party, provide
that party also 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 had been carried out.
(2) A party may by notice in writing waive his right to be furnished with any of the matters
mentioned in paragraph (1) above and, in particular, may agree that the statement
mentioned in sub-paragraph (a) thereof may be furnished to him orally and not in
writing.
Rule 4:
(1) If a party has reasonable grounds for believing that the disclosure of any evidence in
compliance with the requirements imposed by rule 3 above might lead to the
°° (61 1987 No.716). Rules to the same effect for the Magistrates’ Court were also introduced as then
Magistrates’ Courts (Advance Notice of Expert Evidence) Rules 1997
10
EXPG0000003
EXPG0000003
intimidation, or attempted intimidation, of any person on whose evidence he intends to
rely in the proceedings, or otherwise to the course of justice being interfered with, he
shall not be obliged to comply with those requirements in relation to that evidence.
(2) Where, in accordance with paragraph (1) above, a party considers that he is not obliged to
comply with the requirements imposed by rule 3 above with regard to any evidence in
relation to any other party, he shall give notice in writing to that party to the effect that
the evidence is being withheld and the grounds therefor.
21. Section 81, PACE was amended by the Courts Act 2003 so that the rules to which it
referred were the Criminal Procedure Rules. The rules quoted above were
translated in almost the same terms into Part 24 of the Rules issued in 2005, with
rule 3 becoming rule 24.1 and rule 4 becoming rule 24.2. Rule 24.3 made clear that
“A party who seeks to adduce expert evidence in any proceedings and who fails to comply
with rule 24.1 shall not adduce that evidence in those proceedings without the leave of the
court.”
22. A practical illustration of this rule as to the consequences of breach of rules by late
service was provided in Ensor”’, where the Court of Appeal upheld the trial judge’s
exclusion of a defence expert report served during the trial. Aitkens LJ summarised
the combined effect of the rules” as follows:
“.,.it is incumbent upon both prosecution and defence parties to criminal trials to alert the
court and the other side at the earliest practicable moment if they are intending or may be
intending to adduce expert evidence. That should be done if possible at a Plea and Case
Management Hearing (PCMH). If it cannot be done then it must be done as soon as the
possibility becomes live. The nearer the start of the trial, the greater the urgency in informing
the court and other side of the possibility of adducing expert evidence so that appropriate
steps can be taken by the court and the other side to manage the expert evidence in an
efficient way.”
23. The other aspect of the Criminal Procedure Rules that ought to be considered in this
context is the overriding objective, and the duties imposed on participants in
® [2010] 1 Cr.App.R 255
% [2010] 1 Cr.App.R 255, para.30
EXPG0000003
EXPG0000003
criminal proceedings pursuant to this objective. Rule 1.1, when introduced in 2005
(and has effectively remained since), was in the following terms:
“(1) The overriding objective of this new code is that criminal cases be dealt with justly.
(2) Dealing with a criminal case justly includes —
(a) acquitting the innocent and convicting the guilty;
(b) dealing with the prosecution and the defence fairly;
( recognising the rights of a defendant, particularly those under Article 6 of the
European Convention on Human Rights;
(d) respecting the interests of witnesses, victims and jurors and keeping them
informed of the progress of the case;
(e) dealing with the case efficiently and expeditiously;
7) ensuring that appropriate information is available to the court when bail and
sentence are considered; and
(g) dealing with the case in ways that take into account — (i)the gravity of the offence
alleged, (ii)the complexity of what is in issue, (iii)the severity of the consequences
for the defendant and others affected, and (iv)the needs of other cases.”
24. This was supplemented by the duty imposed on participants in criminal cases
(CrimPR 1.2) which, both in 2005 and since, reads as follows:
“(1) Each participant, in the conduct of each case, must —
(a) prepare and conduct the case in accordance with the overriding objective;
(b) comply with these Rules, practice directions and directions made by the court;
and
(c) at once inform the court and all parties of any significant failure (whether or not
that participant is responsible for that failure) to take any procedural step required
by these Rules, any practice direction or any direction of the court. A failure is
significant if it might hinder the court in furthering the overriding objective.
(2) Anyone involved in any way with a criminal case is a participant in its conduct for the
purposes of this rule.”
EXPG0000003
EXPG0000003
25. Rule 1.2 makes it clear, in the present context, that the overriding objective, and the
Criminal Procedure Rules, apply both to the prosecutor and to any expert relied on
by the prosecution. The combination of rules 1.1 and 1.2 imposes an obligation on
both to ensure compliance with the Rules, and to deal with cases fairly and
efficiently. This carries with it, in my view, an obligation to meet the obligations
imposed by law on expert witnesses, given that the requirements identified in cases
such as Harris and B(T) are designed to ensure fairness and efficiency, and an
obligation of the party instructing an expert to ensure that they do so. I say at once
that this is my analysis, rather than something defined in those terms by the Rules
themselves.
Part 33, Criminal Procedure Rules 2010
26. The rules in Part 24 of the 2005 Criminal Procedure Rules were replaced by Part 33
of the 2010 Criminal Procedure Rules, which sought to bring together the principles
identified in the caselaw above as to the duties of an expert and the requirements for
reliance on an expert’s report. These rules were later supplemented by the
Consolidated Criminal Practice Direction, but that did not occur during the Inquiry’s
period of focus, and that Practice Direction is thus not addressed here.
27. The expert’s duty to the court is addressed at rule 33.2, which seeks to replicate
Harris”. It reads as follows:
(1) An expert must help the court to achieve the overriding objective by giving objective,
unbiased opinion on matters within his expertise.
(2) This duty overrides any obligation to the person from whom he receives instructions or by
whom he is paid.
(3) This duty includes an obligation 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.
28. The rules then address, at rule 33.3, the content of an expert's report. This rule seeks
to replicate B(T)”. It should be read in conjunction with Part 27 of the Rules, which
» [2005] EWCA Crim 1980, and the Ikarian Reefer case before that, see para.13 above
% [2006] EWCA Crim 417, see para.15 above
13
EXPG0000003
EXPG0000003
contains rules about witness statements. Declarations of truth in witness statements
are required by section 9 of the Criminal Justice Act 1967. Rule 33.3 itself states:
(1) 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)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,
(ii)say whether or not the examination, measurement, test or experiment was carried
out under the expert’s supervision, and
(iii)summarise the findings on which the expert relies;
(where there is a range of opinion on the matters dealt with in the report —
(summarise the range of opinion, and
(ii)give reasons for his own opinion;
(g)if the expert is not able to give his opinion without qualification, state the qualification;
(h)contain a summary of the conclusions reached;
(i)contain a statement that the expert understands his duty to the court, and has complied
and will continue to comply with that duty; and
(contain the same declaration of truth as a witness statement.
(2) Only sub-paragraphs (i) and (j) of rule 33.3(1) apply to a summary by an expert of his
conclusions served in advance of that expert's report.
29. In Reed** Thomas LJ described rule 33.3(1) as “... providing a very important safeguard.
This requires at sub-paras (f) and (g) each expert to identify where there is a range of opinion
on the matters dealt with in his report. In such a case, the expert must summarise the scope
* [2009] EWCA Crim 2698, at para.129
EXPG0000003
EXPG0000003
of opinion and give reasons for his own opinion. If the expert cannot give his opinion without
qualification, he must state the qualification. Compliance with this obligation will identify
for the other party an area where there is a range of opinion; it is particularly important that
this rule is followed in the expert report obtained by the Crown.”
30. The 2010 rules then seek to address the service of an expert’s report in much the
same way that the 2005 rules had done. Rule 33.4 states:
1) A party who wants to introduce expert evidence must —
(a)serve it on — (i)the court officer, and (ii)each other party;
(b)serve it—(i)as soon as practicable, and in any event (ii)with any application in support of
which that party relies on that evidence; and
(cif another party so requires, give that party a copy of, or a reasonable opportunity to
inspect —
(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
(iiJanything on which any such examination, measurement, test or experiment was
carried out.
(2) A party may not introduce expert evidence if that party has not complied with this rule,
unless- (a)every other party agrees; or (b)the court gives permission.
31. Rule 33.5 requires the party relying on the expert to notify them that their report has
been served. If the service of the report is late, the party relying on it is required to
apply to the court for permission, and to explain the delay (rule 33.9).
32. The Rules then go on to address the case management of expert material, by seeking
to focus areas of dispute between experts, and to identify areas of agreement, and,
where possible, to seek to reduce the amount of expert evidence where possible to
one report. The importance of this was emphasised by Philips L] in Doheny”
“4. it
is important that any issue of expert evidence should be identified and, if possible, resolved
before trial and this area should be explored by the court in the pre-trial review.” This is
done through rules 33.6 -33.8, as follows:
% [1997] 1 Cr. App. R. 369, at 374
EXPG0000003
EXPG0000003
33.6. — (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.
33.7. — (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.
33.8. — (1) Where the court gives a direction under rule 33.7 for a single joint expert to be
used, each of the co-defendants may give instructions to the expert.
(2) When a co-defendant gives instructions to the expert he must, at the same time, send a
copy of the instructions to the other co-defendant(s).
(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.
33. In Reed*’, Thomas LJ said of rule 33.6: “Under r.33.6(2) the court has power to direct
experts to discuss expert issues in the proceedings and prepare a statement for the court of
the matters on which they agree and disagree giving their reasons. If an expert does not
comply with this, that party may not call the expert to give evidence without the permission
of the court (r.33.6(4)).” That appeal concerned in particular the admissibility of low
template DNA evidence, but Thomas L)’s observations in relation to the use of rule
33.6 in that context inform its wider use. He said: “We would anticipate, even in such a
6 [2009] EWCA Crim 2698, at para.130-132
EXPG0000003
EXPG0000003
case, that, as was eventually the position in the present appeal, much of the science relating
to DNA will be common ground. The experts should be able to set out in the statement
under 1.33.6 in clear terms for use at the trial the basic science that is agreed, in so far as it is
not contained in one of the reports. The experts must then identify with precision what is in
dispute — for example, the match probability, the interpretation of the electrophoretograms or
the evaluative opinion that is to be given. If the order as to the provision of the statement
under 1.33.6 is not observed and in the absence of a good reason, then the trial judge should
consider carefully whether to exercise the power to refuse permission to the party whose
expert is in default to call that expert to give evidence. In many cases, the judge may well
exercise that power. A failure to find time for a meeting because of commitments to other
matters, a common problem with many experts as was evident in this appeal, is not to be
treated as a good reason. This procedure will also identify whether the issue in dispute raises
a question of admissibility to be determined by the judge or whether the issue is one where
the dispute is simply one for determination by the jury.”
34. The overriding objective remained an effective touchstone for the application of the
2010 Criminal Procedure Rules as it had the 2005 Rules. It follows that from the
introduction of the enhanced requirements set out in Part 33, the duty under rule 1.2
meant that an expert had to comply with Part 33 of the Rules. It did also involve a
prosecutor in ensuring compliance by an expert they instructed with those rules,
and a duty to alert other participants where this did not occur.
The instruction of an expert witness: CPS Guidance
35. The Crown Prosecution Service has issued legal guidance on expert evidence, which
was last updated on 5" August 2022. This guidance includes details as to the
approach to be taken in instructing an expert and the information that needs to be
provided to the expert. I have been able to identify earlier guidance in relation to
experts, and instructions to experts instructed by the police and/or CPS since 2006.
It is of assistance, as a means of considering how duties relating to expert evidence
were understood and what measures could be taken to ensure that participants in
the criminal process, including the experts themselves, understood their obligations,
to consider this material.
36. The earliest CPS guidance that I have been able to identify during the Inquiry’s
period of focus dates from 2006. I have considered the “Guidance Booklet” issued
17
EXPG0000003
EXPG0000003
jointly by the CPS and the Association of Chief Police Officers ACPO’), “Disclosure:
Expert’ Evidence and Unused Material”. This Guidance is referred to in the Disclosure
Manual. The Guidance Booklet was issued in March 2006, it appears that version
remained in place in 2009”. The foreword” states that the purpose of the Guidance
Booklet is, “to provide a practical guide to disclosure obligations for expert witnesses
instructed by the Prosecution Team. When properly applied, these instructions will assist
expert witnesses, investigators and prosecutors to perform their disclosure duties effectively
fairly and justly, which is vitally important to the integrity of the criminal justice system.”
37. The introduction to the Booklet makes clear that it is addressed to those instructed
to provide expert evidence. It states:
“You are instructed by the Prosecution Team, which comprises the Police and Crown
Prosecution Service, as an expert in this investigation. It is important that you understand
the obligations placed upon you by this status. As an expert witness you have an overriding
duty to assist the court and, in this respect, your duty is to the court and not to the
Prosecuting Team instructing you. This will include obligations relating to disclosure. The
obligations which apply to you as an expert are to assist in ensuring that the Prosecution
Team can comply fully with their statutory disclosure obligations. These obligations take
precedence over any internal codes of practice or other standards set by any professional
organisations to which you may belong. Your obligations... can be summarised in the key
actions of retain, record and reveal.”
38. The Guidance Booklet referred experts to the Disclosure Manual and the Attorney
General’s Guidelines:
“The Disclosure Manual (The Manual) contains the operational instructions on disclosure
which have been agreed by the CPS and the Association of Chief Police Officers. It explains
how the Prosecution Team have agreed to fulfil their duties to disclose unused material to the
defence. These duties arise under statute and at common law.
*7https:/ / webarchive.nationalarchives.gov.uk/ukgwa/20090116182838/http:// www.cps.gov.uk/le
gal/d_to_g/
% Signed by the Director of Public Prosecutions and the head of ACPO.
18
EXPG0000003
EXPG0000003
The Manual contains practical guidance to the police and CPS practitioners which
supplements the framework of the Act, the Code and the Attorney General’s Guidelines. The
Manual can be found at: http:/Avww.cps.gov.uk
The Attorney General's Guidelines build on existing law to help ensure that the legislation is
operated consistently and fairly by the Prosecution Team. They can be found at:
hitp:/fvww.Islo.gov.uk/guidelines.htm”
39. In respect of the expert’s duties the Guidance Booklet states the following:
“There are three key obligations arising for you, as an expert, as the investigation progresses.
Your understanding of these obligations and delivering them is the key to you adequately
fulfilling your disclosure obligations. The relevant steps are to retain, to record, and to
reveal.”
40. In keeping with these three “key obligations”, the Guidance Booklet details how the
expert would adhere to the obligation to “retain”, “record” and “reveal” material to
the prosecution team. For example, in relation to the duty to retain”, it states: “You
should retain everything, including physical, written and electronically captured material,
until otherwise instructed and the investigator has indicated the appropriate action to take.”
It then provides more detailed guidance as to how long material should be retained.
In relation to the duty to record® it states: “The requirement for you to commence
making records begins at the time you receive instructions and continues for the whole of the
time you are involved”. It goes on to list the types of information that need to be
recorded, and how such records should be made.
41. In relation to the “reveal’”*! material to the prosecution team requirement, this is
addressed by reference to the provision of a report, a formal statement (if required)
and an index of unused material. Regarding the contents of an expert's report, the
guidance states the following:
“The Report: Your report(s) should contain information relating to the following:
* CPS Guidance Booklet para.3.1
°° CPS Guidance Booklet para.3.2
1 CPS Guidance Booklet para.
EXPG0000003
EXPG0000003
© — details of your qualifications, experience or accreditation relevant to the work performed
¢ the range and extent of your expertise
¢ details of any information upon which you have relied in arriving at your opinion
¢ details of any statements of fact upon which you have relied in reaching your opinion
¢ clarification of which of the facts are within your own knowledge
¢ information relating to who has carried out measurements, examinations, tests etc and if
under your supervision
¢ your opinion(s) and a justification for these
¢ where you have provided qualified opinions details of the qualifications
© asummary of all your conclusions
42. In addition, it is made clear*: “You are required to confirm your understanding of your
disclosure obligations to the court, as set out in the guidance given in this booklet, by signing
a declaration (the Declaration) of understanding.”
43. I have reviewed the CPS website as archived in January 2009*. The Disclosure
Manual as there retained contained a section entitled “Expert witnesses - Prosecution
disclosure obligations” which included the following information:
1. The obligations which apply to an expert are to ensure that the Prosecution Team can
comply fully with the requirements of disclosure. These obligations take precedence over
any internal codes of practice or other standards set by any professional organisations to
which the expert may belong. These obligations can be summarised in the key actions of
record, retain and reveal.
2. An expert not employed by the police is a third party and is not bound by the obligations
set out in the Criminal Procedure and Investigations Act 1996 as amended. The CPS
seeks to impose these obligations as part of the contractual relationship with the expert.
3. The obligations are set out in a booklet known as Disclosure: Experts' evidence and
unused material (the Guidance Booklet). It can be found at Annex K in this Manual.
4, When a member of the Prosecution Team instructs an expert in an investigation, it must
be ensured that the expert understands the obligations placed upon them by this status.
The expert witness has an overriding duty to assist the court and, in this respect, the
expert's duty is to the court and not to the Prosecution Team. This will include
obligations relating to disclosure.
® CPS Guidance Booklet, para.4
Shttps://webarchive.nationalarchives.gov.uk/ukgwa/20090116205603/http://www.cps.gov.uk/le
gal/d_to_g/disclosure_manual/#a251
20
EXPG0000003
EXPG0000003
5. In addition to an explanation of the disclosure regime, the Guidance Booklet contains a
flowchart which illustrates the process of revelation.
6. The Guidance Booklet also contains a sample of the index (the Index) of unused material
that an expert will be asked to complete, describing all the unused material in their
possession. The expert will not be expected to distinguish between sensitive and non-
sensitive material. It is the responsibility of the disclosure officer in conjunction with the
expert to identify any sensitive material.
44, The CPS issued further guidance for experts instructed by the prosecution, “CPS
Guidance_for Experts in Disclosure, Unused Material _and Case Management”, last
updated on 30 September 2019. The purpose of the guidance was set out in the
Foreword:
“The instructions contained in this guidance are designed to provide a practical guide to
preparing expert evidence and to provide guidance on the disclosure obligations of expert
witnesses instructed by the investigator and/or the Crown Prosecution Service (the
Prosecution Team). These instructions will assist expert witnesses, investigators and
prosecutors to perform their duties effectively fairly and justly, which is vitally important to
the integrity of the criminal justice system.
The considered application of this guidance and appropriate management of the materials
within the investigation by experts will enhance their credibility and promote confidence in
the role of the expert witness within the prosecution process.
This guidance reflects the commitment of the Prosecution Team to working alongside expert
witnesses and other agencies to ensure that case management and disclosure requirements
are complied with fairly and properly.”
45. The guidance includes the following topics:
Criminal Procedure Rules and the Overriding Objective,
the disclosure obligations of all expert witnesses,
the expert's obligations pursuant to Part 19 of the Criminal Procedure Rules
and the Criminal Practice Direction Division V Evidence 19A-C™,
* Part 19 replaced Part 33 of the Criminal Procedure Rules as those relating to expert evidence. The
Practice Direction has itself since been replaced.
21
46.
47.
EXPG0000003
EXPG0000003
iv. the disclosure obligations of prosecution experts: with reference to the CPS
Disclosure Manual, the CPIA and Code of Practice (including retain, record
and reveal), the Attorney General’s Guidelines on Disclosure,
v. the Expert's self-certificate,
vi. Streamlined Forensic reporting and Disclosure of Unused Material.
The CPS legal guidance on expert evidence, as most recently updated, is dated 5"
August 2022. The section which addresses “instructing an expert” begins:
Whether the expert is instructed before or after charge it is desirable for the decision to
instruct an expert to be agreed between the investigator(s) and the prosecution. The
advantage of this approach is that:
© The most appropriate expert can be identified from the outset, i.e. as close to the start
of the investigation as practicable in any given case; and
¢ The prosecutor can ensure that there is clarity as to what the expert is being asked to
provide an opinion on. This is particularly important in cases which involve complex
legal issues, for example causation.
This approach should reduce the potential for misunderstanding and delay caused by
unnecessary work being undertaken by experts who have been provided with inaccurate or
inadequate instructions.
The guidance makes clear that the instruction to the expert should address:
(a) The duties of the expert and in particular their duties as to disclosure. In this
regard, it states: “The investigator or prosecutor should ask the expert to complete
this in all cases to provide assurance that the expert understands his obligations to
the court and his obligations as to disclosure”;
(b) How the expert’s report should be prepared. In this regard the guidance
says: “If the expert is instructed by the prosecutor, then the prosecutor should
clearly identify the work to be undertaken in the terms of reference. This will involve
explaining the background to the work and specifying the issues, including a clear
exposition of all relevant legal elements, on which an opinion is sought. In some
cases, it may be necessary to limit the information given to the expert to avoid the
risk of their conclusions being affected by confirmation bias, whereby the expert tests
22
EXPG0000003
EXPG0000003
their hypothesis and conclusions by reference to confirming evidence, such as the
prosecution's belief at to the identity of the suspect, as opposed to considering
potentially conflicting evidence.”
48. The guidance then has a section on the drafting of the terms of reference for the
expert, and what these should include®. This section appears to be informed by
such earlier guidance as the Protocol for the Instruction of Experts to give Evidence
in Civil Claims, which was issued by the Civil Justice Council in 2005. It is worth
setting these out in their entirety.
The Ternis of Reference should include the following:
¢ — The extent of the expert's remit i.e. precisely the issues, and/or the suspects, we want
the expert to focus upon;
¢ — The standard to which the expert is being asked to apply. For example, if being asked
to address causation, the expert needs to be given clear guidance on the level of
certainty the criminal court requires, and the need to avoid ‘percentage! conclusions;
e Where the existing evidence of fact contains disagreement or ambiguity, the Terms of
Reference should include an overarching narrative which sets out how the
prosecution would propose to put the case in that regard, and ask the expert to
provide his assessment based on that narrative. Alternatively, depending on the
circumstances, the expert could be asked to advise based on a number of different
scenarios. The key point is to ensure that the expert sets out clearly the factual basis
upon which the opinion is based;
e — If the material being sent to the expert contains reports from another professional
then, insofar as the expert might wish to clarify any issue in the other professional's
report, any discussion should be arranged through the investigator. Any discussion
should be documented to ensure an auditable trail for disclosure purposes;
© — The expert should be instructed to indicate immediately:
(a) If he requires anything further - whether by way of legal guidance, evidence
of fact, or expert evidence from other specialists - before reporting back. This
should limit the number of experts' reports which are couched in contingent
terms;
(b) Ifany part of the Terms of Reference is unclear;
* I was unable to locate similar CPS guidance on the Terms of Reference and Letter of Instruction
within the guidance in 2009.
*° Preliminary Draft (9 (justice.gov.uk)
23
EXPG0000003
EXPG0000003
¢ An early, informal indication of the report's likely conclusions. This will enable the
investigator to liaise with the prosecutor to consider which other areas of evidence-
gathering should be undertaken and inform of the overall timetable;
e All the relevant statements and exhibits. An expert's report based on a limited
reading of the evidence is likely to be challenged by the Defence in cross examination;
¢ — Finally, in terms of the content of the report itself, the expert should be reminded to
preface his detailed observations by setting out (1) his experience and qualifications,
and (2) an itemised list of the evidence and any other material (including the CPS
Guidance for Experts with which s/he will have been supplied); and
¢ — Timescales for completion of the report. This is vital given the Criminal Procedure
Rules.
49. The guidance observes that “The Terms of Reference should be scheduled by the disclosure
officer and disclosed to the Defence.” The guidance goes on to address disclosure of
material generated by the expert, or that has relevance to their competence or
credibility. This is also addressed in the CPS Disclosure Manual (chapter 37).
The instruction of an expert witness: HSE
50. For comparative purposes, I have reviewed the Health and Safety Executive's (
“HSE”) archived website from 2011. At that time, the website set out relevant HSE
policies and guidance in respect of the instruction of expert witnesses in the “expert
evidence” section within “enforcement”.
51. In respect of the instruction of an expert, the guidance stated, “it is the responsibility
of the person managing the investigation to manage the use of specialists, deciding how they
should be used and ensuring that experts remain independent.” The expert evidence
section stated, “when an outside expert is instructed to advise, s/he should have the
guidance in this section expressly drawn to his/her attention...*” The guidance referred
to included obligations in respect of the disclosure of unused material for
investigations that commenced before® and on or after’ 4 April 2005 with reference
*https:/ /webarchive.nationalarchives.gov.uk/ukgwa/20110318145359/http:/ www.hse.gov.uk/enf
orce/enforcementguide/investigation/expert-intro.htm
*“https:/ /webarchive.nationalarchives.gov.uk/ukgwa/20110318145359/http://www.hse.gov.uk/en
force/enforcementguide/investigation/expert-intro.htm
*https:/ /webarchive.nationalarchives.gov.uk/ukgwa/20110318225512/http:/ /www.hse.gov.uk/en
force/enforcementguide/ pretrial /before-approach.htm#p9
*https:/ / webarchive.nationalarchives.gov.uk/ukgwa/20110318225518/http:// www.hse.gov.uk/en.
force/enforcementguide/ pretrial /after-approach.htm#p9
24
EXPG0000003
EXPG0000003
to relevant sections of the Attorney General’s Guidelines on Disclosure, the CPIA,
the Data Protection Act 1998 and the Criminal Procedure Rules. Within the
guidance, experts were reminded of the requirement to pursue all reasonable lines
of inquiry pursuant to the CPIA" and the Court of Appeal’s Protocol for the Control
and Management of Unused Material to be applied in all Crown Court cases”.
52. The guidance stated, “When an expert witness is instructed, it is important that s/he
understand what is required of him/her. The expert should be referred to this chapter of the
Enforcement Guide and also the section on disclosure mentioned above. The expert must
fully understand that s/he has an overriding duty to assist the court and should not feel
prevented from providing information that might prove detrimental to the prosecution case.
In order to meet that overriding duty, s/he is under an obligation to assist the prosecution
with the statutory requirements relating to disclosure. The expert should be reminded of this
obligation, which takes precedence over any internal codes of practice or other standards set
by professional organisations.”
53. In respect of the investigator / prosecutor's role in ensuring that the expert witness
was aware of their duties, the guidance continued, “experts should be reminded that a
failure to comply with their duties or a direction of the court could have a number of adverse
consequences, including the delay or halting of the prosecution case, exclusion of the expert
evidence, the overturning of any conviction and criticism of the expert by the judge, which
might result in referral of the expert to any relevant professional body. Such consequences
might prevent him/her from acting as an expert in future®”.
54. Regarding the contents of an expert report, the guidance stated:
“5. All reports should begin with the expert's name, official address, occupation, relevant
academic and professional qualifications, accreditations including membership of
* “Experts should not be asked to conduct tests that will only favour the prosecution. The Criminal Procedure
and Investigations Act 1996 requires investigators to pursue all reasonable lines of enquiry, and this means
that tests that might undermine the prosecution case should also be commissioned.”
* In respect of joint investigations with the police, the website referred to additional guidance: “In
joint investigations with the police, you may find the expert is referred to the ACPO/CPS Guidance Booklet
for Experts May 2010. Although the general principles of this booklet are already captured within internal
guidance and followed in HSE investigations, the entirety of the document has not been adopted therefore you
do not need to refer experts to it outside of a joint police/HSE investigation.”
Shttps:/ / webarchive.nationalarchives.gov.uk/ukgwa/20110318225447 /http:// www.hse.gov.uk/en
force/enforcementguide/investigation/expert-role.htm
25
EXPG0000003
EXPG0000003
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:
¢ A statement setting out the substance of all the instructions received (written or
oral), questions upon which an opinion is sought, the materials provided and
considered, and the substance of all facts, documents, statements, evidence,
information or assumptions which are material to the opinions expressed or upon
which those opinions are based. The expert should make clear which of the facts
stated in the report are within the expert's own knowledge;
¢ Where necessary, the report should give the current state of the inquiry and the areas
where further information would be needed to reach a final view . If the expert is not
able to give an opinion without qualification, s/he should state the qualification;
¢ Information on who has carried out any examination, measurement, test or
experiment which the expert has used for the report, including that person’s
qualifications, relevant experience and accreditation. The report should give details of
the methodology used, summarise the findings on which the expert relies and say
whether or not such measurements etc were carried out under the expert's
supervision;
¢ Where there is a range of opinion in the matters dealt with in the report, a summary
of the range of opinion and the reasons for his/her opinion. Any material facts or
matters that detract from the expert's opinions, and any points which should fairly
be made against any opinions expressed in the report, should also be set out;
¢ Details of any literature or any other information or material which the expert has
relied on in making the report or which might assist the court (see also ‘Extrinsic
material’ below);
¢ Asummary of the conclusions reached;
« A statement that the expert understands his/her duty to the court to provide
independent assistance by way of objective and unbiased opinion and that s/he has
complied, and will continue to comply, with that duty. The expert should
acknowledge that the expert will inform all parties and, where appropriate, the court
in the event that his/her opinion changes on any material issue;
¢ The same declaration of truth as that contained in a voluntary witness statement
form (LP70).”
55. A footnote to the “Contents of the Report” section expressly referenced the relevant
section of the Criminal Procedure Rules 2010" regarding the contents of expert
reports required under the Rules and relevant Court of Appeal guidance, “Rule 33.3
Criminal Procedure Rules (‘CPR’) 2010. Also, the Court of Appeal gave guidance on the
* Rule 33.3 as quoted at para.28 above
26
EXPG0000003
EXPG0000003
matters to be included in an expert report in criminal proceedings in R v B [2006] EWCA
Crim 417.”
56. Currently, the HSE provides guidance on its website® in respect of the instruction of
expert witnesses that expands upon the previous guidance. The current guidance
states that an external expert must be directed to two documents*; “Enforcement
Guide (EG&W): ‘The Report: Contents of the Report” and “The Code of Practice for
Experts
Expert witnesses instructed on behalf of the HSE are required to sign a
declaration that they have read the guidance booklet “Disclosure: Experts' Evidence,
Case Management and Unused Material”, complied with their duties in accordance
with the CPIA and provided a list of all relevant material (that they have gathered or
generated).
Post Office policies
57. I have re-reviewed the Post Office policies relating to investigation and prosecution
of criminal offences to assess how they address the legal requirements in relation to
experts.
58. I have identified a number of documents which reference opinion evidence, as a
type of evidence, to at least an extent, and/or address the content of witness
statements for evidential purposes. In this category are:
(a) An ‘E’ Learning document relating to ‘evidence and witness statements’ as
part of the ‘Introduction to investigations’ course, which was issued in 2006.
This addresses opinion evidence in high level terms but does not address
either expert or non-expert evidence as to the operation of computer systems,
the duties of an expert or disclosure by/to an expert.
* https://www.hse.gov.uk/enforce/enforcementguide/ investigation/expert-role.htm
* https://www.hse.gov.uk/enforce/enforcementguide/investigation/expert-role.htm
* As set out on The Academy of Experts’ website: https://academyofexperts.org/practising-as-
expert/expert-witness/codes-of-practice/
POLO0104805
* POLO0104827
27
EXPG0000003
EXPG0000003
(b) Royal Mail Procedures and Standards ‘Witness statements’,
dated January
2010. This addresses the core components of a witness statement but does not
refer to experts at all.
(c) Royal Mail Procedures and Standards ‘Rules and Continuity of Evidence’,
dated January 2010. This addresses hearsay evidence and the provisions of
the Criminal Justice Act 2003, and in that context the preserved common law
exceptions listed in section 118. It thus refers to the fact that an expert is
permitted “to give evidence of any relevant matter that forms part of their
professional expertise (although not acquired through personal experience) and to
draw upon technical information widely used by members of the expert's profession” .
The document also addresses opinion evidence briefly in similar high level
terms to the E-Learning referred to above.
59. The Royal Mail Group ‘Forensic and Technical Procedures’*"
, published in January
2008, addresses the process by which investigators should determine whether to
submit items to the Forensic Science Service (‘FSS’), and, if so, how to do so. As it
explains, the FSS “consists of privatised former police forensic laboratories”. In terms of
the information provided to the FSS, this should relate to the “nature of the work to be
undertaken”, and there is a form to be completed. This form is not included with the
paper, and I cannot therefore comment on whether it addressed any of the areas
identified in the terms of reference for experts addressed by the CPS. Certainly,
there is no reference to any of those requirements in this paper.
60. The policies I have considered in relation to the conduct of investigations” and
prosecutorial decisions® do not address any aspect of expert evidence or the legal
requirements relating to it. They also do not address Criminal Procedure Rules 1.2
or its implications.
61. In relation to disclosure, I have considered the two policy documents that address
the topic of the disclosure of unused material specifically*. Whilst that issued in
* POL00104827
°° POL00104891
51 POL00104813. There is also a version 3 of this document, POL00104815
= For example, POL00104912
55 For example, POL00104852
5 POL00104762, May 2001, and POL00104848, July 2010
28
EXPG0000003
EXPG0000003
May 2001 alludes to the Attorney General’s Guidelines on disclosure, and the July
2010 document annexes the Code to the CPIA, neither addresses disclosure in
relation to expert evidence. The only exception is that the July 2010 document
alludes to the Code’s list of non-sensitive material that should be shared with the
prosecutor and thus includes reference to “communication between investigators and
experts such as forensic scientists including reports of work carried out by experts and any
schedules prepared by then as part of the case”.
Analysis
62. There is no question but that the law does impose duties on expert witnesses, and
that the expert owes their duty to the court to ensure their compliance with these
duties.
63. That was well established in the civil context through, for example, the Ikarian Reefer
case®, and in the criminal context by decisions such as Harris’ and B(T)”. It follows
that at least by 2005-2006, any investigative and/prosecutorial authority should
have been aware that any expert instructed owed their primary duty to the court,
and that they were required to meet a series of requirements as to the content of
their report, their underlying material and their conclusions. This was
supplemented, following the introduction of the 2010 Criminal Procedure Rules, by
the duties of experts there clearly enunciated. I have not identified in any Post Office
policy documents with which I have been provided any analysis of these
obligations, or their implications for Post Office investigations.
64. Those cases did not directly impose a duty on such investigative and/ prosecutorial
authorities to ensure that their experts were aware of this. However, it was clear
from the approach in those cases that expert evidence that did not meet these
criteria was at least likely to be excluded. There was, therefore, in common sense a
pragmatic impetus for an authority instructing an expert to ensure that the expert
met these obligations. That was further enforced when the 2010 Criminal Procedure
5 [1993] 2 Lloyds Rep.68
% [2005] EWCA Crim 1980
%7 [2006] EWCA Crim 417
29
65.
66.
67.
EXPG0000003
EXPG0000003
Rules at rule 33.4(2) made clear that expert evidence not meeting the requirements
of Part 33 would not be admitted.
More than this, a natural reading of Criminal Procedure Rules, rule 1.2 imposed a
duty on participants in criminal proceedings, and therefore including both the
prosecution and any expert they instructed, to comply with the Rules, and to act
justly, fairly and efficiently. That, in common sense, included an obligation to abide
by the requirements imposed by law on experts, and a duty to ensure that an expert
instructed did so. Once Part 33 of the Criminal Procedure Rules 2010 incorporated
the guidance from cases such as Harris and B(T) into the Rules, rule 1.2 required
both compliance by participants, including prosecutors and experts, with those rules
and duty to alert other participants to any failure of compliance with those Rules.
That, in effect, represented a duty on the prosecutor to ensure that any expert they
instructed understood and complied with their duties as an expert as defined in the
Rules.
That analysis appears to be consistent with the approach adopted from at least 2006
by the CPS and from at least 2011 by the HSE. Each recognised the important duties
imposed on experts, as to disclosure and as to the content of their reports, and each
prosecuting authority saw it as part of their duty to ensure experts they instructed
met those obligations. The approach adopted by the CPS and HSE does underline
the importance of the obligations of experts, both to experts themselves and to a
prosecuting authority that instructed them.
I have not seen any letter of instruction or terms of reference for an expert by the
Post Office, so as to compare it with the CPS terms of reference, and cannot therefore
speak to the extent to which the Post Office did address these obligations with any
expert they instructed. In contrast to the CPS position, both through the Guidance
Booklet it issued in 2006, and the guidance now in place, there was no Post Office
document that I have seen that gave guidance as to what an expert being instructed
needed to address. There was no policy that identified the implications of Rule 1.2
and/or Part 33 of the Rules for the Post Office as an investigative or prosecutorial
body.
30
68.
69.
EXPG0000003
EXPG0000003
My concerns as to the potential deficiencies in this regard of the Post Office in policy
terms are raised by the disclosure position. There were duties on those relying on
experts from at least section 81, PACE 1984 and the rules made under it. Such rules
were in place throughout the Inquiry’s core period. However, such limited policy
materials as I have seen that address disclosure do not address disclosure in relation
to expert evidence to any real or meaningful extent. Certainly, they bear no real
comparison with the approach of the CPS or HSE in this important area.
I will consider the extent to which this reflected a position in practice when I
consider the case files provided for volume 2 of this report.
31