R v Thomas Bowman

[2006] EWCA 417

Content of Experts’ Reports in Criminal Proceeding

The Facts

The appellant had been convicted of murdering his wife. The autopsy after the wife’s death had given the cause of death as alcohol and valium poisoning. 22 years later the daughter of the family accused the appellant (her father) of murdering her mother. A second autopsy concluded that the deceased had died as a result of manual strangulation. The Crown called evidence showing a history of violent behaviour, eye witness evidence of what had happened on the night of the wife’s death, evidence of a confession to a fellow prisoner, and evidence of the pathologist who undertook the second autopsy.

The Issues

The appellant tried to rely on appeal on the evidence of experts who had been available but had not been called at trial which disputed the certainty that had been expressed by the second pathologist and concluded that she had failed to set out possible alternative causes of death.

The Decision

The decision of the appellant’s counsel not to call the expert evidence at trial was the best test of whether it would have assisted the appellant. The criticisms of the second pathologist’s evidence were in any event unjustified save for one criticism which did not render the verdict unsafe. 

The Court gave important guidance (reinforcing the earlier decision in R v Harris (Lorraine) [2005] EWCA Crim 1980) as to what was to be included in an expert’s report and the full relevant part of the judgment is set out verbatim below:

“173 Experts

174. In R v Harris and Others [2006] 1 Cr App. R.5 this court gave guidance in respect of expert evidence given in criminal trials (see page 55). The way that the expert reports have been prepared and presented for this appeal leads us to believe that it would be helpful to give some further guidance in order to underline the necessity for expert reports to be prepared with the greatest care. 

175. On 14 February 2006 the Attorney General, announcing the outcome of his review of Shaken Baby Syndrome cases published three papers including a booklet entitled “Disclosure: Expert’s Evidence and Unused Material- Guidance Booklet for Experts”. The instructions contained in this booklet were “designed to provide a practical guide to disclosure for expert witnesses instructed by the Prosecution Team”. The booklet sets out three key obligations arising for an expert as an investigation progresses. The relevant steps are described as to retain, to record and to reveal. No doubt any expert instructed by the prosecution will, of course, comply with these guidelines. What follows applies equally to experts instructed by the prosecution and defence. 

176. We desire to emphasise the duties of an expert witness in a criminal trial, whether instructed by the prosecution or defence, are those set out in Harris. We emphasise that these duties are owed to the court and override any obligation to the person from whom the expert has received instructions or by whom the expert is paid. It is hardly necessary to say that experts should maintain professional objectivity and impartiality at all times. 

177. In addition to the specific factors referred to by Cresswell J in the Ikarian Reefer [1993] 2 Lloyds Rep 68 set out in Harris we add the following as necessary inclusions in an expert report: 

1. Details of the expert’s academic and professional qualifications, experience and accreditation relevant to the opinions expressed in the report and the range and extent of the expertise and any limitations upon the expertise.

2. A statement setting out the substance of all the instructions received (with written or oral), questions upon which an opinion is sought, the materials provided and considered, and the documents, statements, evidence, information or assumptions which are material to the opinions expressed or upon which those opinions are based.

3. Information relating to who has carried out measurements, examinations, tests etc and the methodology used, and whether or not such measurements etc were carried out under the expert’s supervision.

4. Where there is a range of opinion in the matters dealt with in the report a summary of the range of opinion and the reasons for the opinion given. In this connection any material facts or matters which detract from the expert’s opinions and any points which should fairly be made against any opinions expressed should be set out. 

5. Relevant extracts of literature or any other material which might assist the court.

6. A statement to the effect that the expert has complied with his/her duty to the court to provide independent assistance by way of objective unbiased opinion in relation to matters within his or her expertise and an acknowledgment that the expert will inform all parties and where appropriate the court in the event that his/her opinion changes on any material issues.

7. Where on an exchange of experts’ reports matters arise which require a further or supplemental report the above guidelines should, of course, be complied with.

178. In this case, at times, some of the experts expressed to the court for the first time opinions which had not featured in their reports. A number of additional reports were also supplied at a late stage. Mr Martin-Sperry explained forcefully the funding constraints and difficulties faced by those representing the appellant in approaching and obtaining experts’ reports. We are mindful of these difficulties and aware of the constraints placed on the appellant’s advisers in this appeal but they do not wholly explain why some of the material placed before the court was not included in the relevant expert’s initial report. They also do not explain or excuse the failure to refer to the instructions given and material provided before the reports were written. Failure to adhere to the guidelines can cause considerable difficulties and some delay in the conduct of the proceedings. These remarks are designed to help build up a culture of good practice rather than to be seen as critical of the experts in this case. We should add that it may be that some of the difficulties experienced by the experts were caused by late supply to them of information, from whatever source.”

Special regard should now be paid to the new Criminal Procedure Rules which largely (though not entirely) reflect the above requirements.

Comment

The decision of the appellant’s counsel not to call the expert evidence at trial was the best test of whether it would have assisted the appellant. The criticisms of the second pathologist’s evidence were in any event unjustified save for one criticism which did not render the verdict unsafe. 

The Court gave important guidance (reinforcing the earlier decision in R v Harris (Lorraine) [2005] EWCA Crim 1980) as to what was to be included in an expert’s report and the full relevant part of the judgment is set out verbatim below:

“173 Experts

174. In R v Harris and Others [2006] 1 Cr App. R.5 this court gave guidance in respect of expert evidence given in criminal trials (see page 55). The way that the expert reports have been prepared and presented for this appeal leads us to believe that it would be helpful to give some further guidance in order to underline the necessity for expert reports to be prepared with the greatest care. 

175. On 14 February 2006 the Attorney General, announcing the outcome of his review of Shaken Baby Syndrome cases published three papers including a booklet entitled “Disclosure: Expert’s Evidence and Unused Material- Guidance Booklet for Experts”. The instructions contained in this booklet were “designed to provide a practical guide to disclosure for expert witnesses instructed by the Prosecution Team”. The booklet sets out three key obligations arising for an expert as an investigation progresses. The relevant steps are described as to retain, to record and to reveal. No doubt any expert instructed by the prosecution will, of course, comply with these guidelines. What follows applies equally to experts instructed by the prosecution and defence. 

176. We desire to emphasise the duties of an expert witness in a criminal trial, whether instructed by the prosecution or defence, are those set out in Harris. We emphasise that these duties are owed to the court and override any obligation to the person from whom the expert has received instructions or by whom the expert is paid. It is hardly necessary to say that experts should maintain professional objectivity and impartiality at all times. 

177. In addition to the specific factors referred to by Cresswell J in the Ikarian Reefer [1993] 2 Lloyds Rep 68 set out in Harris we add the following as necessary inclusions in an expert report: 

1. Details of the expert’s academic and professional qualifications, experience and accreditation relevant to the opinions expressed in the report and the range and extent of the expertise and any limitations upon the expertise.

2. A statement setting out the substance of all the instructions received (with written or oral), questions upon which an opinion is sought, the materials provided and considered, and the documents, statements, evidence, information or assumptions which are material to the opinions expressed or upon which those opinions are based.

3. Information relating to who has carried out measurements, examinations, tests etc and the methodology used, and whether or not such measurements etc were carried out under the expert’s supervision.

4. Where there is a range of opinion in the matters dealt with in the report a summary of the range of opinion and the reasons for the opinion given. In this connection any material facts or matters which detract from the expert’s opinions and any points which should fairly be made against any opinions expressed should be set out. 

5. Relevant extracts of literature or any other material which might assist the court.

6. A statement to the effect that the expert has complied with his/her duty to the court to provide independent assistance by way of objective unbiased opinion in relation to matters within his or her expertise and an acknowledgment that the expert will inform all parties and where appropriate the court in the event that his/her opinion changes on any material issues.

7. Where on an exchange of experts’ reports matters arise which require a further or supplemental report the above guidelines should, of course, be complied with.

178. In this case, at times, some of the experts expressed to the court for the first time opinions which had not featured in their reports. A number of additional reports were also supplied at a late stage. Mr Martin-Sperry explained forcefully the funding constraints and difficulties faced by those representing the appellant in approaching and obtaining experts’ reports. We are mindful of these difficulties and aware of the constraints placed on the appellant’s advisers in this appeal but they do not wholly explain why some of the material placed before the court was not included in the relevant expert’s initial report. They also do not explain or excuse the failure to refer to the instructions given and material provided before the reports were written. Failure to adhere to the guidelines can cause considerable difficulties and some delay in the conduct of the proceedings. These remarks are designed to help build up a culture of good practice rather than to be seen as critical of the experts in this case. We should add that it may be that some of the difficulties experienced by the experts were caused by late supply to them of information, from whatever source.”

Special regard should now be paid to the new Criminal Procedure Rules which largely (though not entirely) reflect the above requirements.