THE QUERY PROJECT - European Commission - Europa

United kingdom
Richard Lambourn
rlambourn@trl.co.uk
Adversarial legal Systems
The English legal system, properly called The Common Law, is
“adversarial” in nature. One party – the Prosecutor in a criminal trial
or the Claimant in a civil trial – presents his case to the Court, and
then the other party – the Defendant – responds by presenting his
case. The Court – either a judge alone or a jury of ordinary people
– then considers the evidence and gives its verdict in favour of one
party or the other. The Court does not, except in very very rare
circumstances, call its own witnesses to give evidence.
England, Wales and Northern Ireland all have Common Law
legal systems, as do nearly all British Commonwealth countries
and former colonies (including Eire, the USA but excluding South
Africa). Scotland has a different system, but it too is adversarial.
In an adversarial system, each party (or “side”) can have their
own expert, and because of this, it is quite usual for there to be
two experts with somewhat differing opinions giving evidence
to the Court.
The Status of Expert
An expert giving evidence to a British court is permitted to
give his opinion on the issues which the court has to consider, but
only on matters which are outside the knowledge or experience
of ordinary people.
There is no official system of certification of expert witnesses
in the UK. In theory it is for the judge to decide on each and every
occasion when a person comes forward as an expert whether
that person actually is an expert. He can decide that a person is
not an expert, and can refuse to allow him to give evidence. One
side in a case can also challenge whether the other side’s expert
is indeed an expert, and a judge might then be persuaded not
to grant them expert status. Such refusals are, however, unusual,
and most judges will listen to a person’s evidence and then decide
afterwards whether to believe it or not.
Because there is no official certification, anyone with suitable
diplomas, degrees, memberships of professional bodies and/or
experience of working in a particular area of knowledge can
put himself forward as an expert. To be accepted he first has to
convince the lawyer representing one side in a case that he is an
expert (usually not difficult to do); later he will have to convince
the Court. Once at court, he has to show that he is at least as good
as the other side’s expert, and this is where most non-experts get
into difficulties. However, if he is sufficiently self-possessed or is a
good actor, he may succeed.
But if the person works for an established organisation or company
which has a specialist expert witness function – for example
the Forensic Science Service, Forensic Alliance, one of the Scottish
police laboratories, or the Transport Research Laboratory – the
court will immediately accept them.
Accident Reconstruction Experts in the Uk
Most accident reconstruction (AR) experts in the UK fall into
one of three categories: persons with university engineering or
science degrees who have studied AR informally; police officers
working in specialist units who have been trained on courses
Co u n t R y R E P o R t S
set up by the police; and retired police specialists who carry out
independent investigations.
There is sometimes friction between the first and the second
and third groups: the first regard the others as having only a shallow
education and a poor understanding of the science behind
what they are doing; the others regard the first as having little
or no real experience or understanding of what happens in real
road accidents. The more sensible in all groups realise that the
others have insights which they themselves do not have, and are
prepared to cooperate and learn from them.
The situation is very similar in North America and Australasia,
although there is probabably more friction between the groups
in the USA.
Most AR experts are single self-employed individuals, and many
of them are retired police officers. There are only a few larger
consultancies a and companies b .
Expert Registration & Qualification
There is no pressure in the UK to introduce an official certification
of expert witnesses. However, there has been set up, with
initial funding from the Government, a body called the Council
for the Registration of Forensic Practitionersc (CRFP). It is intended
that registration with the CRFP will give judges confidence that
a person is an expert, but more than that, it is “to promote public
confidence in forensic practice in the UK” following a number of
cases in which poor and misleading expert evidence was given
in the criminal courts, leading to a number of miscarriages of
justice. The CRFP, therefore, is at the moment more concerned
with criminal rather than civil law.
To become registered, the applicant indicates the field of expertise
for which he wants to be considered, submits an account of his
education, the professional bodies of which he is a member, and
his experience. He gives the names of two referees, and provides
a list of all the cases on which he has worked for the previous six
months. A specialist Assessor examines all these, and in particular
between two and six cases from the list. He then either approves or
disapproves the application. If he approves, the process is ratified
by a non-specialist, and, all being well, the individual is registered.
If he disapproves, there is an appeal process.
Registration lasts for four years, after which the process must
be gone through again (although the Register is not yet four years
old, and the full re-registration process has not yet been made
clear). The fee for getting on and staying on the Register is £130
(approx. 185 €).
There are two parts of the Register which concern accident
investigators: “Science – Incident Reconstruction”, being for individuals
with university degrees or similar qualifications (for which
I am an Assessor); and “Road Transport Investigation – Collision
Investigation/Vehicle Examination”, which is intended mainly for
specialist police investigators.
The Register has yet to become widely accepted. Looking on
the CRFP website, I see that under “Science” there are only two
persons registered, one as a specialist in accident reconstruction,
the other as a tachograph analyst, while under “Road Transport
Investigation” there are ten.
More favoured by accident investigators is membership of a
professional association, and in particular the Institute of Traffic
accident Investigators (ITAI) d .