Chapter 5 – Expert Evidence
116. The need to obtain expert evidence is often highlighted as a factor that can impact on the length of time taken to investigate and commence an FAI.
117. Expert reports were commissioned by COPFS for the purpose of an FAI in 19 of the 56 cases. In six of the 19 cases, expert reports were also commissioned by interested parties. Experts were instructed by COPFS in 15 mandatory FAIs and in all four discretionary FAIs. The main types of experts were those with expertise of prison systems and procedures, medical and forensic psychiatrists.
118. Cases with expert evidence are by their nature more complex and often more contentious, with evidence and conclusions being disputed, which in turn can lead to further experts being instructed.
119. FAIs involving experts took, on average, two years and four months (631 days) from the date of death to the first notice, and two years and nine months (759 days) to the FAI.
120. Of the 19 cases where COPFS instructed an expert, we found nine cases where this contributed to the timeline of the investigation. In six cases, COPFS instructed experts and in three cases, COPFS and interested parties instructed experts.
121. In the nine cases where instructing an expert contributed to delays, we found:
- In two cases it took six months from allocation to identify and instruct an expert and then a further five months in one and 11 months in another to receive the reports;
- In one case nine months elapsed from the date of allocation to an expert being instructed and a further five months for COPFS to receive the report;
- In one case, a year elapsed from allocation before an expert was instructed and a further four months before the report was received;
- In two cases at a late stage in the investigation, following judicial comments, a different expert with more in-depth experience of working within a prison environment was instructed. In one the second expert was instructed three years and one month after the date of death and in the other it was four years and two months;
- In three cases two experts were instructed one year and three months after the date of death and the reports took five months and six months to be received.
122. Whilst the need to obtain expert reports has the potential to add delay to an investigation, in the majority of cases involving experts, it was not a significant factor.
Death Certification Review Service
123. Having access to a source of expertise to obtain early professional advice can greatly reduce the need to commission expert reports and provide answers for the nearest relatives at an early stage. In many cases, the pathologist instructed by COPFS is able to provide more information on the circumstances and often meets with nearest relatives to assist their understanding of the cause of the death.
124. In the thematic report, we referred to the establishment of the Death Certification Review Service (DCRS) run by Healthcare Improvement Scotland (HIS), to provide independent checks on the quality and accuracy of Medical Certificates of Cause of Death (MCCD). The DCRS team has a number of reviewers who are all experienced medical practitioners.
125. We advocated that:
SFIU National should explore with the Death Certification Review Service (DCRS), the possibility of the review service providing a consultative forum for SFIU to discuss medical cases.
126. COPFS has explored the possibility of the DCRS providing a consultative forum to discuss medical cases. While the DCRS has not entered into a formal agreement with COPFS, there is ongoing informal discussion, where appropriate, and they have taken referrals from GPs signposted by SFIU.
Agreement of Expert Evidence
127. Complex cases involving a number of specialities can result in a plethora of experts being instructed with differing and opposing views. This often results in the proceedings becoming more adversarial.
128. To mitigate this trend, we commended practices designed to encourage experts to identify and agree all non-contentious facts and clarify at the outset the issues where there is a divergence of opinion that require to be aired in court. This approach is consistent with the fact finding "inquisitorial" purpose of an FAI. We recommended:
COPFS should explore with the Scottish Civil Justice Council, the possibility of introducing rules to facilitate the attendance of "expert" witnesses at preliminary hearings to reach consensus on areas of agreement and identify areas of contention.
129. The 2017 FAI rules introduced provisions designed to encourage agreement of experts and focus the inquiry on areas of contention. These include:
- The sheriff may order information to be presented on a particular matter by a single expert witness. In such circumstances, participants must make reasonable effort to agree joint instructions for the expert witness.
- In proceedings with more than one expert, the sheriff can order the expert to provide a witness statement or a video recording of their evidence. Within 14 days of the video or statement being lodged, the other participants may lodge a set of questions that can be put to the expert witness. The sheriff may approve the set of questions, with appropriate modifications, and order answers to be lodged by a particular date.
- The sheriff can order expert witnesses to present information concurrently. If so, the participants must jointly prepare and lodge a note for the sheriff, setting out the areas of agreement and disagreement at least seven days before the start of the inquiry. At the hearing all expert witnesses will present information at the same time; the sheriff may direct how the information is to be presented by the expert witnesses, including the sheriff questioning the witnesses directly; inviting the witnesses to discuss a particular matter between them; or allowing questioning by participants where necessary.
Status: Superseded by the FAI rules