Handling irrelevant evidence
An expert who concludes that a piece of evidence is irrelevant is, under the Rules and out of self-interest, duty bound to report that fact
Some time ago I had a call to our Helpline from Richard Emery, an expert listed in the Register. He was at court in a significant retail fraud case when he became aware that the prosecution expert knew of a serious deficiency in a database that was central to the case against the defendants.
After the trial, Mr Emery made a statement detailing the conversation he’d had with the prosecution expert. In this, Mr Emery had expressed surprise at finding that in certain crucial aspects the database was incorrect. The prosecution expert’s response was that he had already identified this failing in the database but hadn’t included it in his expert report. When subsequently questioned, the prosecution expert said that after completing his report he had been asked to review 16 entries in the database. It was at that point he found the errors. But, he said:
‘Although I informed the prosecution of this minor difference, I did not consider that it was significant or relevant enough to be disclosed in an amending report.’
Let’s not forget that this database was central to the case against the defendants. As the Court of Appeal put it:
‘? this important piece of evidence [i.e. that drawn from the database] was in fact valueless and should have played no part in the deliberations of the jury’.
The prosecution expert’s action seems to fly in the face of the requirements of the Disclosure Manual published by the Crown Prosecution Service (CPS) following the Sally Clark case. Indeed, the Court of Appeal ‘invited’ the CPS to forward the papers to the expert’s professional body for possible action against their member.
If you wish to avoid such a situation, the rule is simple. If you have considered some evidence and concluded that it’s irrelevant, that opinion must be included in your report. And if your report has already been written, write a supplementary report!