Reliability by Procedural Rule Reform: Expert Evidence and the Criminal-Civil-Family Procedure Rules Trichotomy

This chapter undertakes detailed critical analysis of the procedural ‘trichotomy’ governing legal proceedings in England and Wales. This trichotomy comprises institutionally separate, but substantively overlapping, procedural codes applicable to civil proceedings, criminal proceedings and family law proceedings. Procedure rules and practice directions addressing the competence or impartiality of expert witnesses, or the reliability of the methodologies or techniques they employ, can enhance the reliability of expert evidence. At the same time, the operation of some procedural rules may diminish traditional safeguards or discourage experts from participating in legal proceedings. The respective drafting choices and approaches adopted by the Criminal Procedure Rules Committee, the Civil Procedure Rules Committee and the Family Procedure Rules Committee exhibit significant divergence, sometimes in relation to the same or similar issues. It is argued that substantive differences between the criminal, civil and family justice systems do not justify the degree of variation that currently exists in procedural provisions relating to expert witnesses. All three procedural codes could be enhanced by adopting the best drafting language and following aspects of good practice demonstrated by their jurisdictional counterparts.