Part 33 of the Criminal Procedure Rules 2005, Expert Evidence, applies in all cases where the Defendant was charged on or after 6 November 2006.
However, not only can the rules be applied in other cases if the Court so orders, but they would also appear to be used by experts and those instructing them in many cases as a matter of best practice.
In this article, Gavin Pearson, Director, Vantis Forensic Accounting & Dispute Resolution revisits the key areas covered within Part 33, and provides some examples of how Part 33 is affecting the instruction of experts in practice from his experience acting as an expert accountant.
33.1 Reference to Expert
Part 33.1 sets out details of the reference to an expert in criminal proceedings, being “a person who is required to give or prepare expert evidence for the purpose of criminal proceedings, including evidence required to determine fitness to plead or for the purpose of sentencing.”
33.2 Expert’s Duty to the Court
Part 33.2 is central to the role of an expert and states that:
“An expert must help the court to achieve the overriding objective by giving objective, unbiased opinion on matters within his expertise.
This duty overrides any obligation to the person from whom he receives instructions or by whom he is paid.”
Any reputable expert should have long been preparing reports in criminal matters on this basis, although it is useful to have these obligations enshrined within the Criminal Procedure Rules.
However, where Part 33.2 appears to be having the greatest impact is in the use of experts by prosecuting bodies.
Traditionally, in respect of accountancy, bodies such as the Serious Fraud Office (SFO), Crown Prosecution Service (CPS) and the Serious Organised Crime Agency (SOCA) have often undertaken investigation and analysis internally, in many instances using staff members not from a traditional accounting background. The work undertaken was then often presented attached to a witness statement, with a minimum level of narrative, and it could be unclear whether it was being presented as factual or expert evidence.
There would appear to be potential conflicts if an internal member of a prosecuting body formally acted as an expert, given the emphasis on an expert’s duty set out at Part 33.2.
As detailed below, Part 33.5 relates to pre-hearing discussion of expert evidence, and it may be difficult for a de-facto internal “expert”, who may not be qualified in their field, to attend such a meeting together with the expert instructed for the Defendant.
As a result of this, we have noticed increasing instances of the Crown instructing its own expert accountants in cases where a defence expert has already been instructed. Due to budgets often being less constrained for the Crown, the accountancy experts instructed by the prosecution are often well known individuals from major practices.
The scope of work covered by these experts is often wider than that previously undertaken in house by prosecuting bodies, including commenting on the work undertaken by the defence expert.
When instructing an expert, it is therefore increasingly important to ensure that the individual has sufficient relevant experience and skills that their work will stand up to the scrutiny of the Crown’s experts.
33.3 Content of Expert’s Report
Part 33.3 sets out ten areas of content that must be included within an expert’s report.
Whilst most experienced experts are likely to have included these prior to the introduction of Part 33, instructing solicitors may find it helpful to use this part of the rules as a checklist to ensure that a report complies, particularly when working with a new or less experienced expert.
Parts (i) and (j) are of particular importance, stating that an expert’s report must “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”.
As a result of this, at Vantis we have started attaching an Expert’s Declaration, similar to that used in civil matters, to the end of each criminal expert’s report in order to assist in demonstrating that an expert is aware of their duties to the Court.
33.4 Expert to be Informed of Service of Report
Whilst very brief, Part 33.4 formalises that an expert must be informed at once when their report is served on another party or on the Court. This is one of the main elements of Part 33 where the obligation is on instructing solicitors rather than experts.
Whilst this appears obvious, in many instances it did not occur prior to the introduction of Part 33, leading to potential embarrassment for experts.
Part 33.5 Pre-Hearing Discussion of Expert Evidence
Part 33.5 states that 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.”
The formal opportunity for meetings of experts, which have long occurred in civil proceedings, is likely to be the most significant and long impacting result of Part 33.
Part 33.5 allows for experts to potentially agree a significant proportion of issues prior to the commencement of Trial, thereby reducing the areas left for the Court to determine to a minimum number of core areas of disagreement. This can be particularly important when the defence expert may have been provided with certain information or explanations not available to the Crown’s expert at the time they prepared their report.
There is also the potential for the rules to be used to provide clarification of the Crown’s claims or calculations and facilitate the preparation of an expert’s report. Meetings between experts can allow one side to explain their methodology or conclusions to the other, as well as facilitating discussions concerning technically complex issues.
I have held meetings and discussions with experts acting for the Crown in a number of recent cases where I have been instructed by the defence.
In confiscation order proceedings, the Crown’s expert was able to agree to the majority of conclusions that I had reached in my report as to potential examples of double counting that should be excluded from the calculation of benefit. This meant that there were only a small number of key issues remaining where the Judge was required to make a determination.
In another case, meeting with the Crown’s expert allowed me to understand the work that he had undertaken far more quickly than would otherwise have been the case, therefore leading to increased focus and efficiency in the work I undertook.
It is therefore likely to be useful to encourage experts to meet and discuss issues wherever possible. However, as detailed above, this makes it increasingly important that any experts instructed are familiar with their duties and responsibilities as an expert as well as having credibility in their area of expertise.
Part 33.6 Failure to Comply with Directions
Part 33.6 states that if an expert has not complied with a direction under Part 33.5, then the party may not introduce expert evidence without the Court’s permission.
This emphasises the importance that Part 33 places upon meetings of experts, as well as the necessity of ensuring that any directions are adhered to by experts.
Parts 33.7 and 33.8 Single Joint Experts
Part 33.7 allows the Court to direct that evidence on an issue may be given by one expert only, including setting out the methodology for selecting such an expert. Part 33.8 deals with the procedure for providing instructions to a single joint expert.
Whilst the use of single joint experts has been encouraged in civil matters since the Woolf reforms, in reality those instructing tend to prefer the use of party experts unless the value of the claim is small or the issues are not complex.
It would seem likely that the instructing parties in criminal matters are similarly likely to seek to be able to continue to instruct party experts, regardless of Part 33. In particular, where there are multiple defendants, each is likely to have different interests and may require a different scope of work from an expert.
It therefore remains to be seen whether the Courts will insist on the use of single joint experts. However, it seems clear that if a single joint expert is appointed, the various Defence teams will want to ensure that the expert is sufficiently qualified and experienced to be able to undertake the task, as well as knowing that they understand their duties to the Court as an independent expert.
Conclusion
On the face of it, Part 33 appears to do little more than restate a level of behaviour that most experts should already be adhering to.
However, the increasing instruction of external experts by the Crown, as well as the scope for expert meetings and the use of single joint experts, mean that those representing Defendants should be especially vigilant as to the experience and expertise of those experts that they instruct.
Gavin Pearson is a Director in the Forensic Accounting & Dispute Resolution department at Vantis. For further information please contact Gavin or complete the form below.