Opinion Evidence, Experts & Privilege

Question 2

Which are two exceptions to the general rule about witnesses not being able to give evidence of opinion?

Answer 2

(a) Non-experts.

(b) Experts.

Question 3

Tell me more about Non-experts evidence

Answer 3

A statement of opinion on any matter not calling for expertise, if made by a witness as a way of conveying relevant facts personally perceived by him or her, is admissible as evidence of what the witness perceived.

Question 4

The general prohibition on the use of opinion evidence in criminal cases and the exceptions to this rule.

What kind of evidence can a witness give?

Answer 5

Case of Moore [2017] EWCA Crim 1304
- COA considered the admissibility of graphic 3D reconstructions to reproduce the scene of the crime and to demonstrate a witness’s line of sight in support of an expert’s opinion that he could not have seen what he claimed.
- COA held such evidence can only be considered case-by-case basis
o But would be inadmissible in the absence of sufficiently reliable and precise factual foundations
- In the case before the Court, the evidence could only have been of assistance if a large number of variables, relating to such matters as the location of the witness, the accused and objects potentially obstructing the witness’s line of sight, had been pinpointed accurately to the exclusion of all other possibilities.
- This had not been done and the evidence was therefore of no probative value.

Question 6

In regards to experts: can evidence include animations to illustrate the opinion?

Answer 6

Evidence may include by animations to illustrate the opinion (Metcalfe [2016] EWCA Crim 681)

Question 7

Assumption that is possible to distinguish fact from inference

• • Distinction has given rise to case law

Answer 7

In Meads [1996] Crim LR 519, it was held:
- that evidence of tests showing the speed at which the handwritten notes of disputed interviews had been made, and whether they could have been written in the time claimed by officers, was no more opinion evidence than evidence of the timing of a given journey in order to test an alibi.
- The inferences to be drawn from such evidence were for the jury.

In Allad [2014] EWCA Crim 421, it was held that:
- a witness was entitled to explain how VAT carousel frauds operate but should not have expressed an opinion on the issue before the jury, namely whether D would have known that they had participated in a fraud.

Sepulvida-Gomez [2019] EWCA Crim 2174, [2020] 4 WLR 11
- provides an example of inadmissible non-expert opinion evidence.
- D was convicted of assault by penetration and sexual assault. It was held that the jury had heard inadmissible opinion evidence that V would not have consented to the sexual activity with D.

Question 8

If objection to expert opinion is made –

a) for which party it is to to prove the admissibility of the expert evidence?

Answer 8

it is for the party submitting the evidence

Question 9

Court has held that, unless the admissibility is challenged, the judge will admit the evidence as sufficient safeguards are provided by the rules on pre-trial disclosure

Question 10

An objection to the admissibility of expert opinion evidence will necessarily fail if the witness is not an expert and expresses no expert opinion

Answer 10

• (Foulger [2012])
• where the witness was not an expert communications data investigator but simply put otherwise relatively complicated telephone data into a more user-friendly format, using charts, maps and summaries).

Question 11

Can psychologist or other medical expert allowed to give opinion on the likely deterioration of memory of an ordinary witness?

Answer 11

NO!

But the unlikelihood of the coincidence that a number of complainants all suffered from false memory of sexual assault is a matter calling for expert evidence, being outside the experience of the jury (Nicholson [2012] )

Question 12

Recall events during ‘the period of childhood amnesia’:

Answer 12

• in rare cases in which a witness gives evidence of an event, said to have occurred at an early age, and the evidence is very detailed and contains a number of extraneous facts, an appropriately qualified expert may give evidence that it should be treated with caution and may well be unreliable, because recall of events during ‘the period of childhood amnesia’, which extends to the age of about seven, will be fragmented, disjointed and idiosyncratic rather than a detailed narrative account.

But it was held that this test should not be widened

Question 13

What can happen in the absence of expert evidence about a witness recalling events from of ‘the period of childhood amnesia’:

Answer 13

• In the absence of such expert evidence, which is likely to be outside the knowledge and experience of the jury, there is a danger that the jury may find the detailed account more convincing than they safely should, because detail normally enhances credibility to the ear of the listener.

Question 14

Can counsellors give expert evidence?

Answer 14

• there are limits to the evidence that may be given in respect of counselling a complainant in a sexual case (case of SJ)
• It will only be in the rarest of cases that expert evidence about counselling techniques will be admissible, e.g., where they may have affected the value of the factual evidence of the counsellor

Question 15

Can counsellors give non-expert evidence?

Answer 15

Counsellors may give non-expert evidence as to recent complaint, i.e. evidence of fact that a complaint was made at the time of the events or shortly thereafter, provided that the judge makes plain to the jury that it is not evidence of the truth of the complaint.

If there were obvious signs of distress when the complaint was made, evidence of such demeanour may also be given

Counsellor MAY NOT:

A counsellor may not express any views as to the truth or otherwise of the allegations or the reliability of the complainant. Nor should a counsellor use over-emotive language. A counsellor should use objective language and avoid saying anything that can be construed as subjective comment or a statement of personal opinion.

Question 16

Evidence relating to calls made or received by mobile phones and cell siting

Location of mobile phone

Answer 16

• i.e. the location of mobile phone masts through which calls have been routed, will often be drawn from computerised records of the mobile phone service providers as to the date, time and duration of calls and as to the cell sites in question.

Question 17

Evidence relating to calls made or received by mobile phones and cell siting

Location of mobile phone: when expert will be needed

Answer 17

• Expert evidence will usually be necessary as to whether, and if so to what extent, the fact that a call was routed through a particular cell site is consistent with the phone and its user having been at a particular location
• In some cases, it seems that jurors may receive assistance on a matter within their own experience and knowledge if it is provided by someone who has had more time and better facilities to consider that matter than it would be practicable to afford to them

(see Clare [1995] 2 Cr App R 333, where an officer who did not know D but had viewed a video recording about 40 times, examining it in slow motion and rewinding and replaying it as frequently as was necessary, was permitted to give evidence of identification based on a comparison between the video images and contemporary photographs of D).

Question 18

Expert evidence definition

Answer 18

received on a subject calling for expertise, which a lay person, such as a magistrate or a juror, could not be expected to possess to a degree sufficient to understand the evidence given in the case unaided

Question 19

Specific examples of experts

Answer 19

Can include
- medical,
- psychiatric,
- scientific and technological matters, and questions relating to standards of professional competence

accident investigation and driver behaviour
age, in the absence of documentary or other reliable evidence
ballistics
blood tests
breath tests and blood/alcohol levels (sometimes including back-calculations thereof, i.e. calculation of the amount of alcohol eliminated in the period between driving and providing a specimen, in order to show that the level was above the prescribed limit at the time of driving
firearms discharge residue
Forgeries
handwriting identification (including the analysis of indented impressions of handwriting, left on one document as a result of writing on another, and revealed by Electrostatic Detection Apparatus (ESDA)
fingerprint identification
ear-print identification
voice identification (see F19.25); identification by facial mapping
expert evidence of which may form the basis of a conviction
facial identification by video superimposition
‘reverse projection’, the technique of superimposing one CCTV recording upon another as a means of comparing, e.g., the height of the individuals shown
gangs, their way of operating, language and culture
genetic fingerprinting (the technique whereby a human cell taken from a sample of blood, saliva
semen or hair is analysed to reveal a person’s DNA or genetic ‘fingerprint’
the physical signs of child sexual abuse
‘shaken baby syndrome’
Sudden Infant Death Syndrome
insanity
automatism
diminished responsibility
the competence of a medical practitioner

expert opinion evidence as to the state of knowledge and skill of a physician as shown by his treatment of the case in question)

Question 20

Is it true that there is a old common-law rule that a witness should not express an opinion on an ultimate issue?

Answer 20

YES

However, this rule has become ‘a matter of form rather than substance’

Question 21

Can an expert express an opinion on ultimate issues?

Answer 21

YES!

Provided expert doesn’t use same words as the court

-

Question 22

Examples of expert expressed opinions on ultimate issues

Answer 22

• whether wounds were self-inflicted
• insanity
• diminished responsibility in cases where the expert has properly expressed a view on all four of the matters set out in the Homicide Act 1957, s. 2, as amended
• the unreliability of a confession
• establishing identity by expert evidence of facial mapping
• establishing identity by expert evidence of facial mapping
• As to evidence of identity by facial mapping experts
• Court concluded that the opinion expressed in effect amounted to an assertion that D was guilty as charged

Question 23

Experts need to ensure they do not take the role of the fact-finder as the ultimate decision-maker on matters that are central to the outcome of the case (!)

Answer 23

• Eg a psychologist may give evidence of opinion as to why the accused might be disposed to make an unreliable confession but is not entitled to assert that the confession made is in fact unreliable (Pora v The Queen [2015] UKPC 9, [2016] 1 Cr App R 3 (48)).
• This was applied in the case of Sellu [2016]

gross negligence and experts had given evidence that D had been ‘grossly negligent’ and had also used other descriptions such as ‘very bad practice’ and ‘recklessness’.

It was held that although the jury had been told that they were not bound by the views of the experts on the ultimate issue, the experts had failed to give explanations for the terminology of many of their opinions and therefore there was a danger that the jury may have merely accepted their conclusions.

Question 24

Duty of Experts

Answer 24

• an expert must help the court to achieve the overriding objective by giving objective
• and by actively assisting the court in fulfilling its duty of case management under r. 3.2
• in particular by complying with court directions and at once informing the court of any significant failure to take any step required by such a direction

Question 25

does the duty overrides obligation to person instructing expert?

Answer 25

YES!

Question 26

Can expert evidence be biased?

Answer 26

NO!

must be unbiased opinion on matters within his or her area or areas of expertise

Question 27

Expert evidence - obligation

Answer 27

(a) to define his or her area or areas of expertise in the report and when giving evidence,

(b) when giving evidence, to draw the court’s attention to any question to which the answer would be outside the expert’s area or areas of expertise, and

(c) to inform all parties and the court if his or her opinion changes from that contained in a report served as evidence or given in a statement.

Question 28

Duty of expert witness – CASE LAW

Davie v Magistrates of Edinburgh 1953

Answer 28

is ‘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 an independent judgement by the application of those criteria to the facts proved in evidence’

Question 29

How should the magistrates approach expert witness evidence?

Answer 29

• approach critically and to be willing to reject the evidence if it leaves questions unanswered

Question 30

Is Jury bound by expert evidence?

Answer 30

NO!

Not bound by expert evidence
Issue is for jury to decide

Question 31

‘Where there is simply no rational or proper basis for departing from uncontradicted and unchallenged expert evidence then juries may not do so.’ (Brennan)’

Question 32

The Court of Appeal approved the standard direction in the Crown Court Bench Book, which suggested (after the usual directions and appropriate stress on the need for a jury to consider all the evidence) a direction of the following kind:

Answer 32

‘Where, as here, there is no dispute about findings made by an expert you would no doubt wish to give effect to them, although you are not bound to do so if you see good reason to reject them.’ The Court held that such an approach acknowledges that, if unchallenged expert evidence on a particular point calling for such expertise is to be rejected by a jury, it must be rejected for a reason.

Question 33

Wrong to direct a jury that they may disregard scientific evidence when the only such evidence adduced on a particular question dictates one answer and only a scientist is qualified to answer that question

Question 34

Conviction of Murder & dismissed responsibility

Answer 34

Where the medical evidence of diminished responsibility is uncontradicted and the jury return a verdict of guilty of murder, if there are facts entitling the jury to reject or differ from the expert opinion, the Court of Appeal will not interfere with the verdict; but if there are no facts or circumstances to displace or throw a doubt on the unchallenged medical evidence, such a verdict would not be a true verdict in accordance with the evidence. (Matheson)

A conviction for murder was upheld despite uncontradicted medical evidence of diminished responsibility (Walton v The Queen [1978] AC 788)

Matheson and Bailey were distinguished on the basis of the greater weight and quality of the medical evidence in those cases. Walton was followed in Kiszko (1978)

Question 35

The Court of Appeal held that two clear principles emerged from the cases, on the issue of diminished responsibility:

Answer 35

(a) if there were no other circumstances to consider, unequivocal, uncontradicted medical evidence favourable to an accused should be accepted by a jury and they should be so directed; and

(b) where there were other circumstances to consider, the medical evidence, though it be unequivocal and uncontradicted, must be assessed in the light of the other circumstances.

Question 36

When may a statement of opinion on any matter not calling for expertise be made?

Answer 36

• may be made as a means of conveying facts perceived by the witness
• ID witness not required to give a description of the offender – it would be for the tribunal to decide if this description fits the accuser/other person

Question 37

• Non-expert may give opinion to identify object

Answer 37

• a picture
• handwriting with which he or she is familiar
• a voice:
• which he or she recognises
• which he or she is familiar

Question 38

Non-experts may also give evidence in regards to:

Answer 38

• a person’s age
• the general appearance of the person’s state of health mind or emotion
• the speed of a vehicle (Road Traffic Regulation Act 1984, s. 89(2))
• the state of the weather
• the passage of time
• his or her impression as to whether the accused had taken drink [ BUT the fitness of the accused to drive is a matter calling for expertise (on charge of driving when unfit through drink)

Question 39

• In Beckett (1913) 8 Cr App R 204,
  o the value of a plate glass window was established by the evidence of a non-expert.
  o It is submitted, however, that non-expert opinion evidence should not be received on the value of less commonplace objects or objects such as antiques and works of art, the valuation of which calls for expertise.

Question 40

Can police give description of a drug that would be sufficient to justify the inference that it was the drug alleged?

Answer 40

Although scientific evidence is not always required to identify a prohibited drug, police officers’ descriptions of a drug must be sufficient to justify the inference that it was the drug alleged (Hill (1993) 96 Cr App R 456).

Question 41

Privileged relationships

Relevant/admissible evidence may be excluded on the grounds of either:

Answer 41

i) Privilege against self-incrimination
ii) Legal professional privilege

Question 42

A person entitled to claim privilege may refuse to answer the question put or disclose the document sought. The judge should not balance the claim to privilege against the importance of the evidence in relation to the trial.

Question 43

If a person entitled to claim privilege fails to do so or waives the privilege, no other person may object. The privilege is that of the witness, and neither party can take advantage from it.

Thus, if a judge improperly rejects a claim to privilege made by a witness who is not a party to the proceedings, no appeal will lie, for there has been no infringement of the rights of the parties.

Answer 43

In Kinglake (1870) 11 Cox CC 499, where a claim to privilege made by a prosecution witness on the basis that his evidence would tend to incriminate himself was overruled by the judge, it was not open to D to object that the witness’s evidence had been improperly admitted.

Question 44

• A party seeking to prove a particular matter in relation to which his or her opponent or a witness claims privilege, is entitled to prove the matter by other evidence (see F10.44)

Question 45

Can adverse inferences be drawn against a party or witness claiming privilege?

Answer 45

No!

Question 46

Is a claim to privilege falls to be determined in accordance with domestic law?

Answer 46

YES!

Claim cannot succeed simply on the basis that it would succeed in some other jurisdiction

Question 47

What is privilege against self-incrimination?

Answer 47

Exempt person from being compelled to produce documents or provide information which might incriminate them in any potential or current criminal proceedings

Question 48

Scope of privilege during cross-examination
Under the Criminal Evidence Act 1898, s. 1(2)

Answer 48

‘a person charged in criminal proceedings who is called as a witness in the proceedings may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to any offence with which he is charged in the proceedings’.

Question 49

Scope of privilege

Is the witness is bound to answer questions that have a tenancy to expose the witness to any criminal charge, penalty or forfeiture?

Answer 49

NO!

Question 50

If a person entitled to claim privilege fails to do so or waives the privilege, no other person may object. The privilege is that of the witness, and neither party can take advantage from it.

Answer 50

An affidavit sworn by a person in compliance with such an order may then be inadmissible against the person in any subsequent criminal trial, but the Crown will not necessarily be prevented from using it to demonstrate inconsistency and thus to impugn the person’s credit

Question 51

• There will be no tendency to expose to a criminal charge if this is, in effect, denied by the witness.

Answer 51

In Ferati [2020] EWCA Crim 1313, a case of fraudulent evasion of tax, D refused to hand over records of his takings, asserting that they contained accurate records.
- It was held that evidence of the refusal, admitted for its relevance to his credibility, had not deprived him of his right against self-incrimination.

Question 52

Witness not allowed to claim privilege on the basis that:
- that his or her answer to the question put would expose him or her to civil liability

Question 53

Privilege does not extend to answers which would expose the witness to criminal liability under foreign law

Answer 53

this issue may need to be revisited in the light of the ECHR, Article 6, and in the context of extradition proceedings

Question 54

• Penalties arise mainly under statutes relating to the revenue, and under EC regulations
• ‘Additional damages’, which may be awarded under statutes for breach of copyright, are not penalties

Question 55

Subject to any statutory exceptions (see F10.7), an agent, trustee or other fiduciary of a party may claim the privilege in an action brought against him or her by that party for breach of that duty

Question 56

Privilege against self-incrimination = only to the person claiming it

Question 57

Privilege against self-incrimination - can it include a spouse?

Answer 57

NO!

Question 58

Are companies eligible to claim privilege in the same way as an individual?

Answer 58

YES!

applies to companies, not office holders!

Question 59

LEGAL PROFESSIONAL PRIVILEGE

SCOPE

Answer 59

A client may, and his or her legal adviser must (subject to the client’s waiver), refuse to give oral evidence or to produce documents relating to two types of confidential communication:

Question 60

legal advice privilege

Answer 60

communications between client and legal adviser made for the dominant purpose of enabling the client to obtain or the adviser to give legal advice about any matter, whether or not litigation was contemplated at the time

Question 61

litigation privilege

Answer 61

communications between client or legal adviser and third parties, the sole or dominant purpose of which was to enable the legal adviser to advise or act in relation to litigation that was pending or in the contemplation of the clie

Question 62

Who does the evidential burden of legal professional privilege fall on?

Answer 62

establishing that a document or communication is privileged lies on the party claiming privilege

Question 63

What can the court do if not content that doc consists professional privilege?

Answer 63

Court can inspect docs

Question 63

What can the court do if not content that doc consists professional privilege?
- Court can inspect docs
- This should not be done unless:

Answer 63

a) Individuals claiming privilege misunderstood their duty or are not to be trusted with the decision-making,
b) or there is no reasonably practical alternative (West London Pipeline v Total UK Ltd [2008] EWHC 1729 (Comm)).

Question 64

What should the court consider when considering if that doc consists professional privilege?

Answer 64

o Evidence supporting the claim
o Evidence should show something of the deponent’s analysis of the documents and the purposes for which they were created
o Most cases, evidence should come from client/person providing info to legal
Evidence from lawyers = second

Question 65

Legal advice privilege

• In order to establish legal advice privilege, needs to show:

Answer 65

o the purpose of obtaining or giving legal advice was the dominant purpose.

Question 66

When must have the communication of Legal advice privilege occured?

Answer 66

The communications must have been made either in the course of the relationship between client and legal adviser or with a view to its establishment

Question 67

Legal advice privilege: which legal professional does it cover?

Answer 67

• Includes communication:
  o By client to solicitor
  o Solicitor to barrister
  o Counsel’s opinion taken by solicitor

Question 68

Corporate clients

For the case of a corporate client the privilege covers only:

Answer 68

a) communications with those officers or employees expressly designated to act as ‘the client’
- will remain privileged if sent or given to the Board of Directors directly

b) NOT documents prepared by other employees or ex-employees, even if they were prepared with the dominant purpose of obtaining legal advice, prepared at the lawyer’s request, or sent to the lawyer

Question 69

If solicitor speaks to employees (or others) who are not ‘designated officers or employees’ - are these convos privileged?

Answer 69

NO!

Question 70

Litigation privilege – main principles in regards to scope

Answer 70

a) The privilege is engaged when litigation is in reasonable contemplation.

b) Once engaged, it covers communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with the conduct of the litigation, provided it is for the sole or dominant purpose of the conduct of the litigation.

c) Conducting the litigation includes deciding whether to litigate and also whether to settle the dispute giving rise to the litigation.

d) Documents in which such information or advice cannot be disentangled or which would otherwise reveal such information or advice are covered by the privilege.

e) There is no separate head of privilege covering internal communications falling outside the ambit of the privilege as described above.

Question 71

c) Conducting the litigation includes deciding whether to litigate and also whether to settle the dispute giving rise to the litigation.

Answer 71

o Director of the SFO v Eurasian Natural Resources Corporation Ltd [2018] EWCA Civ 2006,
o COA doubted the correctness of the principle stated by the trial judge that no privilege attaches to a document created with the purpose of showing it to the prospective adversary
o It was held that in both the civil and the criminal contexts, legal advice given to head off, avoid or settle reasonably contemplated proceedings is as much protected by litigation privilege as advice given for the purpose of resisting or defending such proceedings

Question 72

Also to note about litigation privilege

Answer 72

f) - Only applies in case that is adversarial, not investigative or inquisitorial

g) The privilege extends to the identity and other details of witnesses intended to be called in adversarial litigation, whether or not their identity is the fruit of legal advice.

h) Basic or fundamental right
may only be intruded upon by force of subordinate legislation if the statute providing the subordinate instrument’s vires makes it plain that such an authority was intended to be conveyed (R (Kelly) v Warley Magistrates’ Court)

Question 73

Types of Documents Covered: litigation privilege

• created by a party for the purpose of instructing the lawyer and obtaining advice in the conduct of the litigation
• NOT documents obtained by a party or the party’s adviser for the purpose of litigation that were not created for that purpose

Answer 73

• privilege will attach to a copy of an unprivileged document if the copy was made for the purpose of litigation and the original is not, and has not at any time been, in the control of the party claiming privilege
• privilege will attach where a solicitor has copied or assembled a selection of third-party documents for the purposes of litigation, if its production will betray the trend of the advice given to the client

(but this principle does not extend to a selection of own client documents, or copies or translations representing the fruits of such a selection, made for the purposes of litigation )

Question 74

Fraud & crime

• • Well-recognised exception to principle

Answer 74

In Cox (1884)
- solicitor was compelled to disclose communications with D,
- in which D had sought his advice in drawing up a bill of sale alleged to be fraudulent.
- Stephen J, delivering the judgment of the Court for Crown Cases Reserved, held that if a client applies to a legal adviser for advice intended to facilitate or to guide the client in the commission of a crime or fraud, the legal adviser being ignorant of the purpose for which the advice is sought, the communication between the two is not privileged.

Question 75

No comment/police interview: is it privilege?

Communications between A and Sols

Answer 75

privilege

Question 76

No comment/police interview: is it privilege?

If A says no comment due to Sols’ advise =

Answer 76

that advice does not amount to a waiver of privilege = this is not privilege

Question 77

No comment/police interview: adverse inferences due to this

Answer 77

if A is wishes for no adverse inferences due to this = it is necessary to go further and state the basis or reason for the advice
o Sols need to then explain:
 Reasons for advice
 Nature of advice given
 Explore whether the advice may also have been given for tactical reasons

• P tends to suggest reason for no comment is to make up facts later
  o A can challenge this by showing that the relevant facts were communicated to a third party, usually the solicitor, at about the time of the interview.
• This does not involve waiver of privilege if it is the solicitor to whom the fact is communicated.

Question 78

No comment/police interview: case law

Answer 78

Bowden was followed in Loizou [2006] EWCA Crim 1719, where Hooper LJ said (at [84]):
- There is a distinction between having to reveal what was said to a solicitor to rebut an allegation of recent fabrication and volunteering information about the legal advice …. In the former scenario the reason privilege has not been waived is that there is no way of dealing with the allegation other than by revealing what was said. In the latter scenario, while the effect may be to enable an allegation of recent fabrication to be made, this is the consequence of the voluntary provision by or on behalf of the defendant of information which because of its partial nature is misleading.

If the defence reveal the basis or reason for the solicitor’s advice to the accused not to answer police questions, this will amount to a waiver of privilege whether the revelation is made by the accused or by the solicitor acting within the scope of his or her authority as agent on behalf of the accused, and whether the revelation is made in the course of pre-trial questioning, in evidence before the jury, or in evidence on the voir dire which is not repeated before the jury (Bowden [1999] 4 All ER 582).