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Expert witness guidance

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Introduction

Introduction

The Serious Fraud Office (SFO) is a specialist prosecuting authority tackling the top level of serious or complex fraud, bribery and corruption within the UK criminal justice system covering England, Wales and Northern Ireland. The SFO investigates and prosecutes its own cases.

The SFO may instruct an expert to advise, prepare a report or give evidence. The purpose of this guidance is to ensure that such experts understand their role and responsibilities thereby ensuring that both the SFO and the expert meet their legal obligations under the Criminal Procedure Rules and in relation to disclosure. It also addresses other duties and obligations relating to matters including conflicts of interest and data protection.

It is essential that experts limit their advice, comment and evidence to their area of expertise. You must not give opinion beyond your area of expertise.

Failure to comply with this guidance could result in:

  • a case being delayed or stopped
  • adverse judicial comment
  • professional embarrassment
  • a successful appeal against conviction
  • civil action by a suspect or accused.

Criminal Procedure Rules

Criminal Procedure Rules

All expert witnesses must abide by the Criminal Procedure Rules (CrimPR). As an expert instructed by the SFO you are required to read and understand CrimPR Parts 1, 2, 3 and 19.

Key aspects of CrimPR Parts 1, 3 and 19 are summarised below.

CrimPR Part 1 The Overriding Objective

The overriding objective is that criminal cases be dealt with justly and this includes:

  • acquitting the innocent and convicting the guilty
  • dealing with the case efficiently and expeditiously.

An expert witness is a participant in a criminal case and must prepare and conduct the case in accordance with the overriding objective. This duty includes the requirement to inform the court and all parties of any significant failure to take any procedural step.

CrimPR Part 3 Case Management

Part 3 requires the court to further the overriding objective by actively managing the case. The parties are obliged to assist the court in fulfilling this duty by complying with the case management process.

CrimPR Part 19 Expert Evidence

Part 19 sets out the role and responsibilities of an expert witness and requires close reading by any expert instructed by the SFO.

CrimPR 19.2 Expert’s duty to the court

Of fundamental importance is an expert’s the duty to the court, which overrides any obligation to the SFO, as articulated in CrimPR 19.2. By this rule you must help the court to achieve the overriding objective by giving opinion which is:

  • objective and unbiased, and
  • within your area of expertise.

It is essential that you inform the SFO if a matter falls outside your area of expertise.

Your duty to the court also requires actively assisting the court in fulfilling its duty of case management under CrimPR 3.2. This includes complying with directions (for example, as to when a report must be served) and informing the court of any significant failure to comply with a direction (for example, by notifying a substantial delay in the preparation of a report). In the event of a significant failure, you should notify the SFO so that the court can be informed. It is also necessary to give a realistic estimate of the time within which a report can be prepared.

This duty also includes obligations to:

  • define your area of expertise in any report or when giving evidence
  • draw the court’s attention to any question outside your area of expertise
  • inform the court and all parties (including the SFO) if your opinion changes from that contained in a report served as evidence
  • disclose to the SFO anything that might undermine the reliability of your opinion or detract from your credibility or impartiality.

CrimPR 19.4 Content of expert’s report

The content of an expert’s report which is to be served as evidence by the SFO must comply with CrimPR 19.4. Compliance with the requirements of this rule is necessary to enable the judge to decide on admissibility and the jury to assess reliability. You should re-read this rule prior to drafting a report and ensure that the report complies with its provisions.

You should also read and follow the Criminal Practice Directions (CrimPD) regarding experts and include in a report the declarations listed in CrimPD V 19B: Statements of understanding and declarations of truth in expert reports. The declarations concern matters including conflict of interest; sources of information; reasonable skill and care; matters that might adversely affect the validity of your opinion; and revelation to the SFO for disclosure purposes in accordance with this guidance booklet.

Two other practice directions relating to experts are within Criminal Practice Directions V (CrimPD V):

  • 19A: Expert evidence
  • 19C: Pre-hearing discussion of expert evidence

Disclosure

Disclosure

Material generated by an expert in connection with their instruction must be revealed to the SFO to determine whether it is relevant and disclosable in accordance with the disclosure regime contained in the Criminal Investigations and Procedure Act 1996 (CPIA) and CPIA Code of Practice. This determination is for the SFO and not the expert.

To enable the SFO to meet its disclosure obligations, it is a term of your contract that you RETAIN, RECORD and REVEAL all material generated in connection with your instruction¹. These duties are of the utmost importance and each one is explored in more detail below.

1. An expert who is not employed by the SFO is a third party and not bound by the disclosure obligations in the CPIA. The SFO imposes these obligations as part of the contractual relationship with the expert.

Retain

You are required to retain all material generated in connection with your instruction such as documents and correspondence, whether on paper or electronic. Correspondence includes written communication with any person, company or other entity about your instructions, report, advice or evidence such as letters, emails, text messages and messages through any other medium such as WhatsApp or Facebook.

The duty to retain material is continuous and lasts until otherwise advised by the SFO. You must obtain authority from the case team before destroying anything subject to this duty.

Record

Record and preserve information including your notes,  reasoning and findings.

Ensure the movement of material, its examination and all your communications are recorded.

You are required to record information in connection with your instruction from the outset. This is a continuing duty and includes making detailed notes of your work, reasoning and findings.

The media used to make records should be durable and provide a reliable means of retrieval to enable subsequent revelation to the SFO. Notes should be clear, comprehensive and structured in a manner that facilitates review by the SFO. Any updates, alterations or comments should be clear and version control should be used for drafts of documents. It is also best practice to save electronic notes in PDF format to preserve them and prevent alteration of the contents.

As a minimum records should include information relating to the movement of material, examination of material and communications.

Movement of material (both physical items and information)

You should record information on the movement of material including:

  • the date on which you take or receive material and the date of subsequent movement to another party
  • from who or where and to whom or where material is moved
  • the means by which material is moved.

Examination of material

You must make notes of the examination of material. Notes should be signed, dated and produced contemporaneously wherever practicable. They should also be sufficiently detailed and expressed in such a manner that another expert in your field can follow the nature of the work undertaken, assumptions made and inferences drawn. The same applies to the notes of an assistant.

Communications

It is necessary to record verbal and other communications. Communications include those with any person, company or other entity about your instructions, report, advice or evidence. Records should include your own notes of verbal communications such as meetings and telephone conversations. It is important that points of agreement, disagreement and agreed actions are included.

You should also keep a record of all written and electronic communications such as letters, emails, text messages and messages through any other medium such as WhatsApp or Facebook. This includes images. In addition, electronic communications must be preserved and capable of being viewed where revelation to the SFO is necessary.

Communications include written electronic and digital communication generated in any medium or application.

Reveal

You are required to inform the SFO of all material and records generated in connection with your instruction. This duty of revelation is an essential feature of your contractual arrangement with the SFO and forms part of our disclosure obligations and enables the SFO to assess what is relevant and disclosable. To meet the duty you are required to:

  • compile an index of material for the SFO
  • provide the underlying material to the SFO where directed.

Revelation to the SFO does not necessarily mean disclosure to the defence.

Your index must list all the material and records generated in connection with your instruction including:

  • Draft reports, final reports and all versions of any other documents whether on paper or electronic
  • Your records and notes relating to the movement of material, examination of material, meetings, telephone conversations and the like
  • Your record of all written and electronic communications such as letters, emails, text messages and messages through any other medium such as WhatsApp or Facebook.

The index should be presented in a structured, comprehensive and informative manner to facilitate review by the SFO. It is particularly important that the description of each item is full enough to enable the SFO to clearly understand the nature of the material or record.

It is for the SFO to assess what meets the CPIA tests for relevance and disclosure, and you should not attempt to make judgements on the significance of material when compiling the index.

Reveal all your materials and records generated in connection with your instruction.

Duty to inform on other matters

Duty to inform and other matters

Prospective experts are required to make various declarations to enable the SFO to assess suitability for instruction.

Once instructed, there is an ongoing duty to inform the SFO immediately of anything that might undermine the reliability of your opinion or detract from your credibility or impartiality. Examples of such matters are set out at paragraph 19A.7 of the Criminal Practice Directions and include:

  • Actual or potential conflicts of interest regarding your instructions, advice, report or evidence
  • Criminal convictions
  • Adverse judicial comment
  • Criticism by a professional, regulatory or registration body

You should also inform the SFO of any other such comment or criticism which might have an impact your standing as an expert – for example, in relation to the quality of work of a business, association or other entity which you own, run, manage or work with (whether as an employee or in another capacity). The same goes for an individual with whom you work sufficiently closely.

It is for the SFO to assess whether such information affects your instruction as expert or falls to be disclosed to another party.

The SFO may make checks with professional, regulatory or registration bodies; and against the police national database.

Data protection

Where you receive or otherwise process personal data in your capacity as an expert for the SFO you will be acting as a ‘data controller’ as defined by article 4(7) of the General Data Protection Regulation (GDPR).

Data controllers are required to be registered with the ICO, and proof of registration is required by the SFO.

It is your responsibility to take all steps, technical or otherwise, to ensure that data in your possession is processed in line with the six data protection principles, and that you can demonstrate compliance with them. The principles are set out in article 5 of the GDPR and in summary they require that:

  1. Processing be lawful, fair and transparent
  2. The purposes of processing be specified, explicit and legitimate
  3. Personal data be adequate, relevant and not excessive
  4. Personal data be accurate and kept up to date
  5. Personal data be kept for no longer than is necessary
  6. Personal data be processed in a secure manner.

Personal data provided to you is classified as Official-Sensitive under the Government Security Classification Scheme.

To meet your obligations under the sixth data protection principle you are required to take reasonable steps to ensure that personal data is processed in a secure manner. For example:

  • Any hardcopy material should be kept in secure storage and not left unattended, particularly in public places
  • Computers used to store or access electronic data must be password protected, as well as having up to date virus and anti-spyware software and firewalls
  • Hardcopy material and computer screens should be protected from being overlooked, especially when working in public places
  • Data stored on removable devices or storage media (such as memory sticks, CD-ROMs and removable hard disk drives) must be encrypted
  • Data must be sent using encrypted email or by other secure means
  • Data must not be made available to anyone who is not authorised to see it
  • The SFO must be notified of any data transfer outside the EU before it takes place.

You must report any potential data breach to the SFO without delay, regardless of how minor it may seem. A data breach could include the loss, alteration, unauthorised disclosure of or access to personal data. Where a data breach falls to be reported to the Information Commissioner’s Office there is a strict statutory deadline and fines may be imposed in default. In the first instance, contact the SFO.

The GDPR provides data subjects with a series of rights with respect to their personal data. These include rights of access, erasure, rectification and restriction of processing. If you receive a request relating to any of these rights direct from a data subject in connection with your instruction as an expert, you are required to contact the SFO without delay.

At the conclusion of the case, the SFO will confirm the retention period for personal and other data to ensure that it is not retained any longer than necessary. You must obtain authority from the case team before destroying anything in connection with your instructions.

Further guidance is available on the Information Commissioner’s Office website.

Essential reading

CrimPR Parts 1, 2, 3 and 19 are required reading, as are CrimPD V 19A, 19B and 19C. The rules and practice directions are available at the procedure rules section of www.justice.gov.uk

Other documents which may be of interest include the following:

  • Criminal Procedure and Investigations Act Code of Practice available at www.gov.uk
  • Attorney General’s Guidelines on Disclosure available at www.gov.uk
  • Forensic Science Regulator Legal Guidance (Guidance on legal obligations of expert witnesses) available at www.gov.uk.

Essential reading