Disclosure Manual - Annex K
Disclosure: Experts' evidence and unused material - Guidance Booklet for Experts
- Introduction
- Disclosure obligations under the criminal law
- Aims of disclosure
- The meaning of unused material
- The Disclosure Manual/Attorney General's Guidelines
- Discharging your obligations
- Declaration of Understanding
- The Experts Self-Certificate
- The Experts Revelation Process Flowchart
- Queries
Foreword
[By DPP (CPS) & Maria Wallis (ACPO) on behalf of Prosecution Team.]
The scheme set out in the Criminal Procedure and Investigation Act 1996 (the Act) as amended by the Criminal Justice Act 2003 and the revised Code of Practice issued under it (the Code) is designed to ensure that there is a fair system for the disclosure of unused material, which assists the defence in the timely preparation and presentation of its case, does not overburden the parties and enables the court to focus on all the important issues in the trial.
The instructions contained in this booklet are designed 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.
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.
This booklet reflects the commitment of the Prosecution Team to work alongside expert witnesses and other agencies to ensure that disclosure is complied with fairly and properly.
 |
 |
Ken Macdonald QC
|
Maria Wallis
|
- Introduction
- A prosecution being halted or delayed;
- The appellate courts finding that a conviction is unsafe;
- The tribunal making an adverse judicial comment about you as an expert. Such an adverse judicial comment could seriously undermine your credibility as an expert and consequently your fitness to be instructed in future cases;
- Professional embarrassment, including possible action by a professional body, loss of accreditation and the potential for civil action by an accused.
- Disclosure obligations under the criminal law
- Aims of disclosure
- The meaning of unused material
- The Disclosure Manual/Attorney General's Guidelines
- Discharging your obligations
- Retain
- What to retain
- How long to retain
- Record
- When to record
- where as a pathologist the outcome of a 'routine' post-mortem suggests to you that death has been caused under suspicious circumstances;
- as a medical practitioner you find injuries that are not consistent with the alleged cause;
- as a fire scene examiner you believe a fire to have been started deliberately.
- What to record
- the collection and movement of items, including
- the date on which you take or receive material (physical items and information) and the date of subsequent movement of the material to another party
- from who or where and to whom or where material is moved
- the means by which you receive or pass material from/to another party
- the examination of materials
- your notes, and those of any assistant should be signed, dated, attributable to the individual and produced contemporaneously, whenever practicable
- the notes should be sufficiently detailed and expressed in such a manner that another expert, in your field, can follow the nature of the work undertaken, any assumptions made and the inferences you have drawn from the work
- verbal and other communications
- you should keep your own notes of all meetings you attend
- you should keep your own notes of telephone conversations and it is important that points of agreement, or disagreement and agreed actions are recorded
- you should ensure that a record of all e-mails and other electronic transmissions (e.g. images), sent or received, is kept
- you should keep clear notes of any witness accounts or explanations that you have been provided with, or any other information received
- How to record
- Reveal
- What to reveal
- How to reveal
- 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
- a summary of all your conclusions
- the declaration which confirms that you understand your duty to the court in respect of disclosure
- an acknowledgement that you will inform all parties and, where appropriate the court, in the event that your view changes on any material issue.
- Declaration of Understanding
- The Experts Self-Certificate
- The Experts Revelation Process Flowchart
- Queries
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 are set out in part 3 of this booklet, but can be summarised in the key actions of retain, record and reveal.
A failure to comply with the guidelines in this booklet may have a number of adverse consequences which could include:
Conversely, your credibility as an expert will be enhanced by the considered application of this guidance and your appropriate management of the materials within the investigation.
An expert employed by the police is not a third party and is already required to comply with the Criminal Procedure and Investigations Act and should comply with the detailed guidance in the Disclosure Manual (see below).
The regime for disclosure is set out in the Act and the Code, issued under it. This is designed to ensure that there is a fair system for the disclosure of unused material which assists the defence in the timely preparation of its case, does not overburden the parties and enables the court to focus on all the important issues in the trial.
During the course of any investigation material is generated. Some of it is used as evidence and other material is not used. The material that is not used as evidence is known as unused material, to which the disclosure regime applies.
Unused material is material that is relevant to the investigation but which does not actually form part of the case for the prosecution against the accused. Even though the material may not be used as evidence, it is important that for the purposes of disclosure this material is retained.
It is not for you to determine whether the material generated in the course of an investigation is relevant to the investigation.
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.
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 is available on this website.
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: http://www.lslo.gov.uk/guidelines.htm.
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. The flowchart attached at appendix D to this guidance illustrates this process.
You should retain everything, including physical, written and electronically captured material, until otherwise instructed and the investigator has indicated the appropriate action to take.
The period of time for which materials are required to be retained will vary from case to case and will depend on a number of factors. Examples include the nature of the offence; the stage and status of any legal proceedings; whether the case is of special interest. It must also be remembered that the retention requirement may alter as a result of a change of circumstances during the course of the investigation.
You should, therefore, obtain advice from the investigator for the retention period hat applies to this particular investigation and always before contemplating destruction of any material.
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.
Circumstances may exist, however, where practitioners should commence making records, in accordance with this guidance, prior to any instructions from the police. Examples of this would be:
In all these examples the criminal investigation will start after the practitioner's original involvement but the results of the previous examinations will almost certainly be material to any investigation and subsequent prosecution. The list is not intended to be exhaustive.
This practitioner could be you. If you have any doubts start recording.
You should keep records of all the work you have carried out and any findings you make in relation to the investigation. The guidance provided below reflects best practice and your records, as a minimum, should contain information relating to:
The media you use for making your records should be capable of meeting all the requirements given above, be durable and provide a means of retrieval.
Your notes, in whatever form, should also be structured in a manner that facilitates review. Any updates, alterations or comments should be clear. It is important that your notes are clear and comprehensive. This will allow another person who may subsequently review them to have a full understanding of the position at any given time.
You are required to reveal everything you have recorded.
It is a necessary and important part of your disclosure obligations to make the Prosecution Team aware of all the material you have in your possession in relation to the investigation. This will then enable them to make informed decisions, as to what material is relevant, and then what material satisfies the disclosure test.
There are three ways in which you will reveal material to the Prosecution Team.
The Report
Your report(s) should contain information relating to the following:
Statements
In addition to all of the above you may be required to make a formal statement. The statement should contain all of the above and the following:
When compiling your report/statement you should ensure that due regard is given to any information that points away from, as well as towards, the defendant(s).
You must not give expert opinion beyond your area of expertise.
The Index of Unused Material
In order to reveal material to the Prosecution Team, it is necessary that you to complete an index of unused material, (the Index) describing all the unused material in your possession. All the material not identified in your report/statement should be placed on the Index.
The Index is designed to enable you to provide to the Prosecution Team a description of all the unused material in your possession in a structured, comprehensive and informative manner.
An example of a specimen Index is given in Appendix A. You will need to tailor the descriptions of the materials to meet your specific case requirements. Your descriptions, however, must be full enough for others to clearly understand the nature of the material. Please note that this example is neither exhaustive nor exclusive.
You should not attempt to make judgements on the significance of material when producing the Index. Where you believe material may be confidential or sensitive, for example for commercial reasons, then this should be placed on a separate schedule and discussed with the Prosecution Team.
Revelation to the Prosecution Team does not necessarily mean disclosure to the defence.
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. This Declaration will be incorporated into your statement and the required form of words is given in Appendix B.
An expert employed by the police is obliged to comply with the disclosure regime as set out in the Act. All non-police experts will be expected to sign the Declaration that they have done so.
Upon receipt of instructions you are required to complete a self-certificate (the Certificate) in every case that you are instructed as an expert witness for the Prosecution. The completed Certificate should be sent to the disclosure officer or investigating officer. The Certificate can be found at Appendix C.
A flowchart summarising your obligations can be found at Appendix D.
If you have any queries relating to the contents of this guidance, please contact the investigating officer, the disclosure officer or the prosecutor.
Declaration
Download a PDF version of the Declaration
I am an expert in [field of expertise] and I have been requested to provide a statement. I confirm that I have read guidance contained in a booklet known as Disclosure: Expert's evidence and unused material which details my role and documents my responsibilities, in relation to revelation as an expert witness. I have followed the guidance and recognise the continuing nature of my responsibilities of revelation. In accordance with my duties of revelation, as documented in the guidance booklet, I
- confirm that I have complied with my duties to record, retain and reveal material in accordance with the Criminal Procedure and Investigations Act 1996, as amended;
- have compiled an Index of all material. I will ensure that the Index is updated in the event I am provided with or generate additional material;
- that in the event my opinion changes on any material issue, I will inform the investigating officer, as soon as reasonably practicable and give reasons.
Signed
Dated
Expert Witnesses Self-Certificate
Download a PDF version of the Expert Witnesses Self-Certificate
Expert Witnesses
Self-Certificate
Revelation of information
(Criminal Procedure and Investigations Act 1996)
Name of Expert Witness:
Date of birth:
Business Address:
Defendant (if known):
I have been instructed to provide expert evidence in relation to the prosecution of the above-named, or an investigation into the following criminal offence:
I confirm that I have read the booklet known as Disclosure: Experts evidence and unused material, that has been given to me with this form, and that I am aware of my responsibilities as an expert witness to reveal to the Prosecution Team any information that might undermine my evidence.
| 1 | Have you ever been convicted of, cautioned for, or received a penalty notice for, any criminal offence (other than minor traffic offences)? | YES | NO |
| 2 | Are there any proceedings pending against you in any criminal or civil court? | YES | NO |
| 3 | Are you aware of any adverse finding by a judge, magistrate or coroner about your professional competence or credibility as a witness? | YES | NO |
| 4 | Have you ever been the subject of any adverse findings by a professional or regulatory body? | YES | NO |
| 5 | Are there any proceedings, referrals or investigations pending against you that have been brought by a professional or regulatory body? | YES | NO |
| 6 | Are you aware of any other information that you think may adversely affect your professional competence and credibility as an expert witness? | YES | NO |
Should you have any queries in relation to your answers to any of the above, please contact the investigator.
Please note that the questions above apply to any proceedings, findings or other relevant information in this or any other jurisdiction.
If you have answered YES to any of the questions numbered 1-6, please give details below:
|
DECLARATION
All the information I have given in this certificate is true to the best of my knowledge and belief.
I will notify those instructing me of any change in this information.
I am aware that any false or misleading information I have given in this document, or any deliberate omission of relevant information may lead to disciplinary or criminal proceedings.
Signed: ........................................................................
Name (in block capitals): .............................................
Date: ...........................................................................
Expert's Index of unused material
Download a PDF version of the Expert's Index of unused material
EXPERT'S Reference:
CJS URN
A listing of all the unused material held in relation to this case by:
This list is an example and is not designed to be exhaustive or exclusive
| The following is a suggested list of all the unused material in the possession of the above named expert in this case (Note, the material should be considered to be NON-SENSITIVE, unless a specific flag exists to suggest it might be SENSITIVE). The list is provided in accordance with the guidance given in 'Disclosure: Experts' evidence and unused material: Guidance Booklet for Experts. |
| EXPERT'S USE | CPS USE | |||
| No. | Description of material | Location | Insert
C, I or CND |
Comment |
|---|---|---|---|---|
| 1 | FORMS detailing : Receipt and Dispatch of items to laboratory; movement of items within and between sites; Submission forms detailing nature of offence, work required and details of suspects, victims etc | Case file | ||
| 2 | CASE NOTES made at the time of the examination of the items: provide details of dates of examinations; details of packaging and integrity of items; records of work performed on the items, who was involved and dates; analytical and test results; details of quality checks | Case file | ||
| 3 | DRAFT REPORTS electronic and/or hard copy drafts of reports or statements sent out to police and CPS | Case file/IT | ||
| 4 | ADMINISTRATIVE DOCUMENTS time recording sheets; case costings; delivery notes; invoices; records of enquiries with customer relating to costs etc | Case file | ||
| 5 | MINUTES of conversations with and instructions to other staff; [records of conversations with the OIC and other police personnel]; [records of conversations with Prosecutor and other CPS personnel] | Case file | ||
| 6 | RECORDS of material submitted but not examined; of material examined but relating to suspects not included in reports or statements; of work carried out by others, including the results; of procedures and techniques used during the examinations | Case file | ||
| 7 | RETAINED MATERIALS material from Items ..... | Stores | ||
| 8 | SCENE OF CRIME related material: written notes, [voice recorded notes], diagrams, photographs/images taken at the time of the scene attendance | Case file/
|
||
| 9 | POST MORTEM related material: written notes, [voice recorded notes], diagrams, photographs/images taken during the post mortem examination of [name] | Case file/
|
||
| 10 | WITNESS STATEMENTS from the following people: [name, .] | Case file | ||
| 11 | ADDITIONAL INFORMATION in the form of : maps, plans, photographs, videos relating to the scene of the offence; details of modus operandi; details of related offences | Case file/
|
||
| 12 | DATABASES material from the following databases have been used: [name of database] | [source] | ||
| 13 | OTHER | |||
Completed by:
|
Reviewing Lawyer Signature:
|
|||
Experts revelation process
All references are to the Guidance Booklet for experts
