Additional guidance on specific expert witnesses – defence post mortems, drug experts, psychologists, psychiatrists, forensic accountants

Defence Post Mortem

A Code of Practice and performance standards for pathologists dealing with suspicious deaths has been published by the Crown Office and Procurator Fiscal Service and the Royal College of Pathologists.  The Code provides that:

• pathologists instructed by the Crown should be available to consult with the pathologist instructed by the defence to ensure that the latter is satisfied that all appropriate examination has been undertaken by the Crown
• the Crown pathology report should be made available to the pathologist instructed by the defence to inform this consultation
• the Crown examination photographs should be made available to the pathologist instructed by the defence to similarly inform the consultation
• the pathologist instructed by the defence should consider whether or not a further physical post mortem is required.

Information required for sanction application

When applying for sanction to employ a defence pathologist please provide details of:

• how the expert report is to be produced
• any proposed consultation between the Crown and defence pathologists
• whether a face to face consultation is required
• what material requires to be considered at any consultation.

We will give priority to those applications and can grant sanction over the telephone where required. When a telephone grant of sanction this should be followed up by an online application (please provide the name of our employee who confirmed the grant).

If after the consultation you require a physical post mortem, the request for sanction should be made in the usual way.

Where there are multiple accused in a case and there is a conflict of interest we will consider sanctioning more than one report and / or consultation, please highlight any issues at the outset of the case.

Drug Experts

Most applications for the employment of a drugs expert relate to the issue as to whether drugs recovered are consistent with personal use as opposed to supply. Where the argument is that there is a lack of knowledge and control [section 28 of the 1971 Act] please provide additional information as to why a drugs report is required. The same applies to situations where there is a special defence of incrimination.

Psychologists

We require detailed information as to the need for any report from a psychologist with reference to:

• the relevance of the report to the charges faced by the assisted person
• how such a report will assist the defence.

Please provide details of:

• any previous diagnoses made and any hospital admissions
• any treatment the assisted person is currently receiving.

Where an application is made for a psychologist to examine a joint investigative interview of a child please provide detailed information about any perceived flaws in the conduct of the interview. We will generally not pay for an expert to travel to a procurator fiscal’s office for the purpose of viewing the interview.

Psychiatrists

When making an application for a psychiatrist to examine the assisted person please provide:

• detailed information regarding any previous diagnoses made and previous hospital admissions
• details of any treatment the assisted person is receiving currently from any mental health professional
• notes on how a report will assist the case.

In general, we will not sanction a psychiatric examination for the purpose of making a diagnosis of mental illness.

Forensic Accountants

Where a report is required in relation to proceeds of crime proceedings we require a copy of the Crown Statement of Information in order to properly assess any sanction request. Any request for additional sanction should be supported with a copy of any report prepared by the instructed expert. We often see requests for the employment of forensic accountants in DWP fraud cases. In such cases, we find it is more appropriate to instruct an expert in the field of benefit entitlement.

Inquiry agents are reporting on facts as they find them as a result of their investigations, and should not be treated as expert witnesses. You may, however, need our prior approval if the work is of an unusual nature or is likely to involve unusually large expenditure costing over £2,000.

We treat the use of an interpreter or translator as an ordinary outlay, for which you do not need our prior authority. When you send us your account, you will have to satisfy us that the outlay was actually, necessarily and reasonably incurred.

Family doctors are not classed as experts, even though they have specialised medical knowledge. Such a witness would be giving evidence on complaints made to them about a client’s symptoms and the treatment they gave. You do not need special authority to employ a general practitioner.

Hospital doctors below the status of consultant may have to speak to injuries they have observed and treatment given, but they would be classed as witnesses as to fact and you do not need special authorisation.

Medical consultants may or may not count as an expert witnesses, depending on whether they are speaking to treatment they have given to someone or whether they have been consulted specially for an opinion in connection with a prosecution.

Photographers employed to take photographs of a locus are not classed as expert witnesses.