25 Med. Sci. & L. 1 (1985)

handle is hein.journals/mdsclw25 and id is 1 raw text is: 



Med. Sci. Law (1985) Vol. 25, No.1 Printedin Great Britain


Editorial

The guest editorial in this issue is by Sir David Napley


It has long been settled law that there is no
property in a witness. Indeed, the Council of the
Law  Society have always held the view that 'so
long as there is no question of tampering with
the evidence of a witness or suborning him to
change his story, it is open to the solicitor for
either party in civil or criminal proceedings to
interview and take a statement from any witness
or prospective witness at any stage in the pro-
ceedings, whether or not that witness has been
interviewed or called as a witness by the other
party.' In 1963 the then Lord Chief Justice and
all of Her  Majesty's Judges agreed that the
principle was correct and applied equally to
witnesses for the prosecution.
  From  time to time expert witnesses have to
consider the extent for which it is proper for
them to respond to an invitation from a party to
proceedings, where they have been retained to
give an opinion or give evidence on behalf of the
other party. The problem was illustrated in the
case of R. v. King [1983] 1 All E.R.929, where
certain documents were  sent to a handwriting
expert by the defence seeking an opinion as to
their authenticity. The better to facilitate this,
the defence requested the prosecution to send to
the expert certain documents in the possession
of the Crown  and upon which  they relied. The
prosecutor conceived the idea of ascertaining
from the expert what other documents had been
sent by the defence to him as control documents
to compare  with the documents  produced  by
the Crown. To  this end, subpoenas were issued
and  served on the expert. In the words of the
Court  of Appeal 'the Crown  struck gold', for
the expert had been sent a document which had
been  falsely prepared by the defendant for the
purpose  of the trial. Objection was taken by
the defence that the Crown had no right to see the
documents,  which had been sent by them to the


expert, on the ground that any communications
between  a solicitor and an expert made   for
the purposes of conducting  the litigation was
privileged. The Court of Appeal  held, on the
basis of earlier authorities, that whilst legal pro-
fessional privilege does attach to confidential
communications  between  the solicitor and the
expert it does not attach to the chattels or docu-
ments upon  which the expert bases his opinion,
or to the independent  opinion  of the expert
himself.
  Neither the expert nor any  other person is
obliged to provide information of a confidential
nature, or  the documents   upon   which  his
opinion is based, save when directed so to pro-
vide it by a competent Court  or Tribunal. In
practical terms, therefore, it amounts to this,
that if an expert is invited by an opposing party,
in the course of proceedings or otherwise, to
provide copies of documents  or articles upon
which  he  has  been retained  to express an
opinion, or to disclose communications which
had occurred between  himself and the instruct-
ing solicitor, his proper course is to decline to
do so, unless he has the consent of those who
instructed him. It is then open for the party
seeking the information, documents or articles
to subpoena  him to appear as a witness at the
proceedings, whereupon  the Court can compel
the expert witness to produce the material or
articles which are in his possession, and further
require him to convey to the Court the opinion
which  he has formed  in respect of them. The
Court, however,  is precluded by reason of the
law of professional privilege from requiring him
to disclose any communications   between  the
instructing solicitor or the client and the expert,
unless the client, and the client alone, agrees to
waive such privilege.


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