APPENDIX 19
Joint Memorandum submitted by The Criminal
Bar Association, JUSTICE and the Law Society (CJSB 30)
UNUSED DEFENCE
EXPERT REPORTS
1. This memorandum is further to the questioning
by the Home Affairs Committee of witnesses from the Law Society,
Criminal Bar Association and JUSTICE on the subject of unused
defence expert reports. It expands the submission on this topic
submitted to the committee by the Criminal Bar Association and
is agreed by the three parties giving evidence together.
2. We regard it as essential that the committee
appreciates the fundamental importance to achieving a fair trial
of the principle of confidentiality. This legal professional privilege
is attached to all communications between the defendant and his
or her lawyer. Without this principle, the presumption of innocence
central to our system of justice begins to fall apart. It is right
that the State should face a greater burden to disclose because
its liberty cannot, unlike the defendant's, be at stake. Talk
of a "level-playing field" in disclosure in such a context
is, therefore, both dangerous and nonsensical.
3. The Government's proposal is outlined
in paragraph 3.57 of the White Paper:
The defence already has to disclose, in advance
of trial, details of alibi and expert witnesses. We also wish
to make it a requirement for the defence to provide, in advance,
details of any unused expert witness reports. We are currently
considering legislation to make it a requirement that they must
disclose details of any witness that the defence may call. This
would allow the court and prosecutor to comment adversely on surprise
witnesses. We will consult with the legal profession on both these
issues.
On Thursday 21 November 2002, the Government
effectively confirmed its intention to legislate to this effect,
despite the strongly voiced concerns of groups concerned with
the functioning of the justice system.
However, we are pleased to note that clause 30
of the Bill as published recognises the impact of privilege. The
suggested duty imposed on the defence would appear to go no further
than notifying the name and address of experts instructed for
possible use as evidence at trial. Notwithstanding, we still believe
that such a change would be objectionable, creating as it would
problems regarding privilege and a significant risk of forcing
the defence into the arms of "tame" experts.
4. Though this memorandum considers only
the position of unused expert reports, we are equally aware of
the proposal to compel the defence to disclose the list of lay
witnesses it proposes to call. This is a separate issue, but we
did feel the committee appreciated the problem of defence witnesses
already withdrawing from cases as a result of police threats of
retributive prosecutions, or otherwise having their memories "refreshed".
We will not dwell on this further here, other than to remark that
clause 29 confirms this proposal, which we would be concerned
to see enacted.
5. So far as unused expert reports are concerned,
we oppose disclosure of such reports on the following grounds:
(a) It does not address a problem which is
particularly prevalent. Public funding through the Criminal Defence
Service is usually available for only one expert and funding for
subsequent expert opinion would be granted only in exceptional
circumstances thoroughly vetted by the Legal Services Commission.
(b) There would be a very real temptation
for defendants to instruct those experts who could be guaranteed
to express an opinion favourable to the defence. Such a breed
of "tame" defence experts would be an inevitable, unattractive
and unwelcome feature of the criminal justice system.
(c) It would involve a breach of legal professional
privilege, the importance of which has been underlined in numerous
decisions, most notably by the House of Lords in Derby Magistrates'
Court ex parte B[16].
It is absolutely essential that clients have faith in their ability
to speak candidly with their lawyer (and experts—see
below) in the certain knowledge that the information imparted
will be kept in confidence.
(d) It would have the effect of dissuading
the defence from seeking expert reports. Often expert evidence
can turn a case—for example, a handwriting test that establishes
conclusively that a defendant could not be the author of a forged
document. It would be unfair for the defence to be dissuaded from
seeking evidence that may exonerate, for fear that it must be
disclosed with potentially negative consequences. It could have
a profound chilling effect on the way a defence is conducted.
(e) It offends the common law principle of
the privilege against self-incrimination and runs counter to the
reasoning of the Court of Appeal's judgment in R. v Davies
(Keith)[17]
where the Court examined the relationship between a defendant
and an expert instructed on his behalf, holding that evidence
obtained by the expert in such circumstances should be treated
in the same way as communications between the defendant and his
legal representatives. In that case, the defendant was convicted
of murder. His defence was, among others, diminished responsibility.
The trial judge ordered the defence, on application by the Crown,
to disclose the opinion (but not the report) of a consultant psychiatrist
instructed by the defence to examine and report on the defendant,
but upon whom the defence were not relying. The doctor gave evidence
at trial for the Crown. The conviction was quashed. The Court
of Appeal found that the judge was wrong to order disclosure of
the psychiatrist's opinion, being an "item subject to legal
privilege"[18].
Of particular relevance to this response is the following passage
in the Court's judgment:[19]
the appellant was .
. . entitled to be protected from inadvertent self-incrimination.
If a defendant agrees to be interviewed by a doctor instructed
by the prosecution, he has the opportunity of being advised and
knowing that what he says to the doctor may be used in evidence
at the trial. If he is interviewed by a doctor at the instigation
of his own lawyers for the purpose of his defence, he is entitled
to assume that what he says has the same status as his communications
with his own lawyers.
6. Thus the enforced disclosure by the defence
of unused expert reports would violate common law, statute and
current case law. We are opposed to such a course.
November 2002
16 [1996] AC 487. Back
17
[2002] EWCA Crim 85. Back
18
Police and Criminal Evidence Act 1984, s. 10(1)(b). Back
19
Paragraph 33. Back
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