9.30 - 9.45: Welcome and Introduction – Kayliegh Richardson, Associate Professor, Northumbria Law School, Northumbria University
Session 1, 9.45 - 10.25 am: Privilege, disclosure and the forensic expert
Communications with expert witnesses may be subject to legal professional privilege in the context of criminal proceedings. The position is made more complex in that context both because of prosecution disclosure requirements which impact on experts instructed by the Crown and by provisions of the Criminal Procedure Rules concerning matters such as pre-trial discussions between experts, the use of single joint experts and the content of expert’s reports which apply to expert witnesses whether instructed by the prosecution or by the defence. This paper will consider the position from the viewpoint of the forensic expert and consider the relationship between the expert’s ethical standards, the requirements of the Criminal Procedure Rules, the existence of litigation privilege and applicable disclosure requirements. It will do so through the binary lenses of prosecution and defence instruction.
Speakers: Professor Gillian Tully CBE, Professor of Practice for Forensic Science Policy and Regulation, King’s College London and Professor Michael Stockdale, Head of Northumbria Law School, Northumbria University.
10.25 - 10.40 Coffee/tea
Session 2, 10.40 - 11.20 am: Disclosure of Psychiatric Assessments and the Fair Trial
Because psychiatric assessments carried out on behalf of the defence do not need to be disclosed, any disclosures that are damaging to the defence can be kept out of sight of the prosecution. Any prejudicial information disclosed in the course of an assessment carried out for the prosecution, however, will be known to the defence and typically a jury. The nature of the psychiatric evaluation means that it takes place without a solicitor’s oversight, nor is there any control on what or how questions are asked. This paper will consider how the disclosure of such information might impact on a fair trial.
Speakers: Robert Smith KC, New Park Court Chambers and Professor Don Grubin, Emeritus Professor of Forensic Psychiatry, Newcastle University.
Session 3, 11.25 - 12.05 pm: Expert Shopping and Litigation Privilege
In English civil proceedings, leave for a party to instruct an expert witness to replace one whom they have already instructed may be made conditional on their waiving privilege and disclosing the first expert’s pre-action report (Edwards-Tubb v JD Wetherspoon [2011] EWCA Civ 136). The reason for this is said to be the need to prevent ‘expert shopping,’ and courts have taken account of whether a change of expert is motivated by expert shopping in deciding whether to impose a condition of waiving privilege. In an adversarial system of litigation, however, a form of expert shopping has a legitimate place. If there is a reasonable body of expert opinion that supports a party’s case, the legal representatives of that party are entitled to seek out an expert who will put that point of view before the court. On the other hand, there is a real danger that expert shopping will distort expert opinion by creating a market for experts willing to go as far as possible in support of a claimant’s or defendant’s case. It is right that the court should be informed of the fact that an expert who might have been expected to support a party’s case has taken a different view. The requirement to waive privilege is often justified, not because expert shopping should be prevented, but because it should be transparent.
Speaker: Professor Tony Ward, Professor of Law, Northumbria Law School, Northumbria University.
Lunch 12.05 - 1.00
1.00 - 1.10: The Modern Law Review and seminar funding, Professor Paul Roberts
Session 4, 1.10 - 1.50pm: Privilege and the Parole Board
The procedure at parole hearings in England and Wales is usually defined as inquisitorial rather than adversarial. The panel of the Board hearing a case takes the lead in asking questions, for example. Yet the reality is less clear: the hearing can feel ‘adversarial’ to the ‘parties'. This paper will question the concept of an expert witness in a parole hearing. Do witnesses appear on behalf of one side rather than the other? Whilst most people would suggest that a probation officer making a risk assessment is an expert, recent changes are preventing them from making a recommendation. An independent psychologist may be commissioned by the prisoner to assess the risk of re-offending. This paper will explore the different role and status of different ‘players’ in the parole process in order to explore whether the concept of litigation privilege is an important safeguard to a fair hearing.
Speaker: Professor Nicola Padfield, Emeritus Professor, Cambridge University.
Session 5, 1.55 - 2.35 pm: Conceptualising Legal Professional Privilege.
Legal professional privilege (LPP) is a venerable common law doctrine that has lost none of its normative vigour in contemporary legal practice. Indeed, in R v Derby Magistrates’ Court ex p. B [1996] AC 487 (HL) Lord Taylor CJ famously described LPP as ‘a fundamental condition on which the administration of justice as a whole rests’ and declared that ‘no exception should be allowed to the absolute nature of legal professional privilege’. Yet LPP is traditionally viewed as being subject to numerous well-established exceptions. How can LPP simultaneously be ‘absolute’ and also limited by ‘exceptions’? Its asserted absolutism is just one of multiple enduring conceptual puzzles surrounding LPP.
English criminal jurisprudence is notoriously stingy in granting witness privileges, not only by continental European standards but even compared to many other common law jurisdictions. This selectivity reinforces the weight of expectation for LPP to claim a convincing normative rationale. Otherwise, LPP might look like special pleading for lawyers who grant to themselves a procedural exemption not afforded to other professional, societal or familial relationships. If the exemption can be justified in principle, moreover, why is it styled a ‘privilege’ rather than a right? This question becomes more pointed post-Human Rights Act 1998, given Strasbourg’s recognition of LPP as part of the right to a fair trial. How can LPP be (one component of) a right in European human rights jurisprudence and a privilege in English law? Is this merely a matter of nomenclature, possibly lost in translation? Or does this change in language track more significant shifts in juridical meaning and significance?
This paper explores these and other conceptual puzzles. By returning to first principles of conceptual design it aims to clarify the scope of LPP and assess its normative significance.
Speaker: Professor Paul Roberts, Professor of Criminal Jurisprudence, Nottingham University and Adjunct Professor of Law, CUPL, Beijing.
2.35 - 2.50 Coffee/tea
Session 6, 2.50 - 3.30pm: Litigation Privilege and the Work Product Immunity: a Comparative Viewpoint
When the American courts first recognized the work product immunity, its scope was unclear; and there seemed to be a huge deal of overlap between the immunity and the much older attorney -client privilege. However, over the years courts and rule makers have identified more and more differences between the two doctrines. Similarly, English and Welsh courts and rule makers are currently striving to refine the boundaries between their legal advice and litigation privileges. It would be useful for both the English and the American policymakers to consider the experience on the other side of the Atlantic. This paper will provide a forum for sharing and comparing that experience and will provide valuable comparative insights as regards the place of litigation privilege in English and Welsh legal proceedings.
Speakers: Professor Ed Imwinkelried, Edward L.Barrett Jr. Professor of Law Emeritus, University of California, Davis; Professor Michael Stockdale, Head of Northumbria Law School, Northumbria University; and Dr Rebecca Mitchell, Associate Professor, Northumbria Law School, Northumbria University.
Plenary 3.30 - 3.45
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