Unit 16 Opinion Evidence, Experts and Privilege

Question 1

What is the general rule for witness evidence?

Answer 1

The general rule is that witnesses may only give evidence of facts they personally perceived and not evidence of their opinion, i.e. evidence of inferences drawn from such facts.

Question 2

What are the two exceptions to the general rule?

Answer 2

(The general rule is that witnesses may only give evidence of facts they personally perceived and not evidence of their opinion, i.e. evidence of inferences drawn from such facts.)
There are two exceptions to the general rule:
a. Non-experts. 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.
b. Experts. Subject to compliance with CrimPR Part 19 (expert evidence), a statement of opinion on any relevant matter calling for expertise may be made by a witness qualified to give such an expert opinion.

Question 3

May expert evidence by accompanied by animations?

Answer 3

Yes, where appropriate to illustrate the opinion.

Question 4

If there is an objection as to the admissibility of expert opinion evidence, who must prove its admissibility?

Answer 4

If objection to the admissibility of expert opinion evidence is made, it is for the party proffering the evidence to prove its admissibility.

Question 5

Will judge’s allow expert opinion evidence?

Answer 5

Unless the admissibility is challenged, the judge will admit the evidence as sufficient safeguards are provided by the rules on pre-trial disclosure.

Question 6

Is Non-Expert Opinion Evidence allowed?

Answer 6

A statement of opinion may be given by a witness, on a matter not calling for expertise, as a compendious means of conveying facts perceived by the witness.
Thus an identification witness is not required to give a description of the offender or some other person, leaving it to the tribunal of fact to decide whether that description fits the accused or other person identified, but may express an opinion that the accused (or other person) is the person the witness saw on the occasion in question. Likewise, a non-expert may give evidence of opinion to identify an object (e.g. a picture), handwriting with which he or she is familiar, or a voice which he or she recognises or with which he or she is familiar.

Question 7

What can non-experts give opinion evidence on? (examples)

Answer 7

A non-expert may give evidence of opinion to identify a person, an object (e.g. a picture), handwriting with which he or she is familiar, or a voice which he or she recognises or with which he or she is familiar, evidence of a person’s age, of the general appearance of the person’s state of health, mind or emotion; the speed of a vehicle; the state of the weather; the passage of time.

Question 8

Is scientific evidence required to identify a prohibited drug?

Answer 8

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

Question 9

Give an example of statute prescribing the qualifications of an expert witness.

Answer 9

A jury shall not acquit on the ground of insanity, except on the evidence of two or more registered medical practitioners, at least one of whom is approved by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder.

Question 10

What is the duty of those instructing expert witnesses?

Answer 10

Those instructing expert witnesses should satisfy themselves as to their expertise and engage an expert of suitable calibre.

Question 11

What is the court’s duty when expert witnesses are instructed?

Answer 11

Whether a witness is properly qualified in the subject calling for expertise is ultimately a question for the court. Courts need to be scrupulous to ensure that evidence proffered as expert evidence is based upon specialised experience, knowledge or study: mere self-certification is insufficient.

Question 12

Is a police officer competent to give expert evidence of the practices and associations of gangs if admissible as bad character evidence?

Answer 12

Yes if the officer has made a sufficient study, whether by formal training or through practical experience, to acquire a balanced body of specialised knowledge not available to the jury; simple, and not necessarily balanced, anecdotal experience will not suffice.

Question 13

What matters call for expert evidence?

Answer 13

Expert opinion evidence may only be 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. If the tribunal of fact can form its own opinion without the assistance of an expert, the matter being within its own experience and knowledge, expert opinion evidence is inadmissible because it is unnecessary.

Question 14

Can counsellor’s give evidence about recent clients?

Answer 14

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. 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 15

What is the duty of an expert witness?

Answer 15

An expert must help the court to achieve the overriding objective by giving objective, unbiased opinion on matters within his or her area or areas of expertise and by actively assisting the court in fulfilling its duty of case management. This duty overrides any obligation to the person instructing the expert or by whom the expert is paid; and this duty includes an obligation:

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 16

Are the jury bound by the opinion of an expert?

Answer 16

it is a misdirection, therefore, to tell the jury that expert evidence should be accepted if uncontradicted.
When expert evidence is given on an ultimate issue, it should be made clear to the jury that they are not bound by the opinion, and that the issue is for them to, but there is no requirement that such a warning be conveyed in any particular way.
Where there is simply no rational or proper basis for departing from uncontradicted and unchallenged expert evidence then juries may not do so. A direction of the following kind can be made:
‘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.’

Question 17

What is the principle regarding expert evidence and diminished responsibility (murder)?

Answer 17

Two clear principles emerged from the cases, on the issue of diminished responsibility:

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 18

What are the two main types of privilege in criminal proceedings?

Answer 18

Privilege against self-incrimination or legal professional privilege

Question 19

What are the general principles of privilege?

Answer 19

a. 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.
b. 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.
c. 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.
d. No adverse inferences may be drawn against a party or witness claiming privilege.
e. A claim to privilege falls to be determined in accordance with domestic law and therefore cannot succeed simply on the basis that it would succeed in some other jurisdiction.

Question 20

Can a third party make a claim to exercise privilege? (read)

Answer 20

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. 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 21

What is the scope of the privilege against self-incrimination?

Answer 21

‘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’. Subject to s. 1(2), no witness is bound to answer questions in court (or to produce documents or things at trial) if to do so would, in the opinion of the judge, have a tendency to expose the witness to any criminal charge, penalty or forfeiture (of property) which the judge regards as reasonably likely to be preferred or sued for.

Question 22

Can the court order additional measures be put in place so that the privilege against self-incrimination can be waived?

Answer 22

The courts may substitute a different protection in place of the privilege when requiring a person to comply with a disclosure order, provided adequate protection is available, as when the prosecuting authorities unequivocally agree not to make use of the information.

Question 23

Is exposure to CIVIL liability included in the privilege against the self-incrimination?

Answer 23

No. A witness may not claim privilege on the basis that his or her answer to the question put would expose him or her to civil liability. Nor does the privilege extend to answers which would expose the witness to criminal liability under foreign law.

Question 24

Can a party claim privilege to prevent them incriminating a spouse?

Answer 24

No, the incrimination must be of the person claiming the privilege. A wife called to give evidence against their husband, cannot then claim privilege instead of giving answers.

Question 25

What effect does privilege have on companies?

Answer 25

There is no privilege against incriminating strangers. A company may claim privilege in the same way as an individual. However, the privilege is that of the company and therefore does not extend to incrimination of its office holders.

Question 26

What is the scope of legal professional privilege?

Answer 26

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:

(a)      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, the privilege for such communications being known as legal advice privilege; and
(b)      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 client, the privilege for such communications being known as litigation privilege.

Question 27

What is legal advice privilege?

Answer 27

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, the privilege for such communications

Question 28

What is litigation privilege?

Answer 28

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 client

Question 29

What additional items does legal professional privilege cover?

Answer 29

The privilege also covers items enclosed with or referred to in such communications and brought into existence (i) in connection with the giving of legal advice or (ii) in connection with or in contemplation of legal proceedings and for the purposes of such proceedings Section 10 PACE 1984, purports to reflect the position at common law.

Question 30

Where does the burden of proof lie with privilege?

Answer 30

The evidential burden of establishing that a document or communication is privileged lies on the party claiming privilege. But, the question of privilege is for the court; the mere assertion of privilege or statement of the purpose for which a document was created is not in itself determinative. The court must consider carefully the evidence supporting the claim, which should be specific enough to show something of the deponent’s analysis of the documents and the purposes for which they were created, preferably by reference to such contemporaneous material as can be referred to without disclosing the privileged matters.

Question 31

What needs to be established to claim Legal Advice Privilege?

Answer 31

In order to establish legal advice privilege, it needs to be shown that the purpose of obtaining or giving legal advice was the dominant purpose. 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. The privilege extends to instructions given by the client to the solicitor or by the solicitor to the barrister and to counsel’s opinion taken by a solicitor. However, documents emanating from, or prepared by, independent third parties and passed to the lawyer for the purposes of advice are not privileged.

Question 32

In the case of corporate clients, what does legal advice privilege cover?

Answer 32

Legal advice privilege protects only direct communications between the client and the lawyer and evidence of the content of such communications, and that in the case of a corporate client the privilege covers only
a. communications with those officers or employees expressly designated to act as ‘the client’ and not
b. 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.
As to (a), the communications will remain privileged if sent or given to the Board of Directors directly, instead of via the ‘designated officers or employees’, because the Board is the manifestation of the corporate client.
If a solicitor is retained by a company to carry out investigations to provide the company with legal advice and that requires the solicitor to speak to employees (or others) who are not ‘designated officers or employees’, the communications will not be covered by legal advice privilege, even if the employees have been authorised by the company to speak to the solicitor.

Question 33

What is the scope of litigation privilege?

Answer 33

The main principles relating to the scope of litigation privilege are:
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.
There is an additional restriction: the privilege only applies in the case of litigation that is adversarial, not investigative or inquisitorial.

Question 34

What types of documents are covered by privilege?

Read

Answer 34

The privilege covers documents created by a party for the purpose of instructing the lawyer and obtaining advice in the conduct of the litigation, but not documents obtained by a party or the party’s adviser for the purpose of litigation that were not created for that purpose.
A copy or translation of an unprivileged document in the control of a party does not become privileged merely because the copy or translation was made for the purpose of the litigation. However, 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 also 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 35

How are communications in furtherance of crime or fraud affected by privilege?

Answer 35

Communications in furtherance of crime or fraud are a well-recognised exception to the principle of legal professional privilege. 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 36

If the accused is advised on a no comment interview but intends to rely on their solicitor’s advice, must they waive their legal professional privilege? (read)

Answer 36

Communications between accused and solicitor prior to interviews by the police are subject to the privilege. If an accused gives as a reason for not answering that he or she has been advised by the solicitor not to do so, that advice does not amount to a waiver of privilege. But if the accused wishes to invite the court not to draw an adverse inference under the CJPO 1994, s. 34, it is necessary to go further and state the basis or reason for the advice. This may well amount to a waiver of privilege so that the accused or, if the accused’s solicitor is also called, the solicitor, can be asked whether there were any other reasons for the advice, and the nature of the advice given, so as to explore whether the advice may also have been given for tactical reasons. However, it should be borne in mind that the information which the prosecution seek to draw from failure to mention facts in interview is that they have been subsequently fabricated. It is open to an accused to attempt to rebut this inference 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 37

Who counts as a legal advisor for the purpose of privilege?

Answer 37

Unless a statutory exception is relied upon, legal professional privilege only applies to solicitors, barristers and appropriately qualified foreign lawyers. It does not apply to other professionals with specialist knowledge of the law who advise upon it such as accountants and surveyors.