11 Forensic psychiatry11.2 Psychiatry and the criminal justice system
11.2.5 Evidence to the court
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Written by Resident Doctor Committee · Published
Criminal court reports
Instructions come first
Instructions, which set out the legal questions the report must answer, come first; consent, records, interview and collateral history all follow from them.
Clarify who is instructing you, the legal question, the jurisdiction, the hearing date and the material available.
Ask for the charge, statements, custody records, clinical records and earlier reports.
Accept only questions within your expertise.
The overriding duty
Part 19 of the Criminal Procedure Rules (England and Wales) requires independent, objective evidence within the expert's competence.
The duty to assist the court overrides what you owe the party instructing or paying you.
Consent at interview
Explain the report's purpose, who commissioned it, who will see it, and that the opinion may be unfavourable.
Forensic assessment does not abolish confidentiality, so explain its limits before collecting sensitive information.
Content
Attribute every source, separating allegations, agreed facts, self-report, your own observations and collateral information.
Include history only so far as it bears on the instructed question.
Mental state at assessment is examined directly, whereas a retrospective opinion about the material time is reconstructed from records, witnesses and self-report.
Co-occurrence of disorder and offence does not establish a causal link.
Answering the legal question
Map clinical findings onto the specific legal criteria, avoiding unsupported labels such as "insane".
The court, not the expert, decides the legal outcome.
Do not leave out material because it weakens the instructing party's case.
Oral evidence in court
Competence to give evidence
A witness is competent to give evidence in criminal proceedings if they can understand questions put to them and give answers that can be understood.
This test is different from the Pritchard criteria and from the tests of criminal responsibility.
Types of witness
Witness | Who | What they may say |
|---|---|---|
Witness of fact | Someone with relevant observations | What they saw or did |
Professional witness | A clinician giving evidence from their care | Clinical observations, decisions and professional explanation |
Expert witness | An appropriately qualified person | Opinion within their expertise that assists the court |
Under section 41(2) of the Mental Health Act 1983, the Crown Court must hear oral evidence from at least one doctor supporting the hospital order before adding restrictions.
*R v Turner* concerns expert evidence on matters beyond the ordinary knowledge of judge or jury.
A treating clinician may give expert evidence if qualified and properly instructed, but must declare any conflict of role.
The overriding duty
Criminal Procedure Rule 19.2 requires objective, unbiased evidence within your expertise, and this duty overrides any duty to whoever instructs or pays you.
*Jones v Kaney* removed the former immunity of expert witnesses from negligence claims.
Fees must never depend on a favourable opinion or outcome.
Giving evidence
In examination in chief, separate what the defendant told you, what the records showed and what you inferred.
Under cross-examination, correct a false premise before answering, state the assumptions behind a hypothetical, and decline to give opinion outside your expertise.
Oath and affirmation have equal standing.
Correct an error immediately, or tell the instructing solicitor promptly afterwards so the court and parties can be informed.