VN 22. Giving evidence for court

Introduction

22.1  Witnesses are an essential part of the legal process, providing factual or opinion evidence. The aim of this guidance is to explain to veterinary surgeons and veterinary nurses the differences between factual and opinion evidence and the responsibilities associated with acting as either a factual, professional or expert witness. Veterinary surgeons and veterinary nurses may feel awkward about giving evidence ‘against’ a colleague or client, but this is to misunderstand the essential role of a witness: to assist a court’s determination of the facts and issues.

22.2  The GDPR permits the processing of personal data where it is necessary for compliance with a legal obligation or for the purpose of a legitimate interest (except where the interests or fundamental rights and freedoms of the relevant individual override this). The processing of special category data (previously known as sensitive personal data) is also permitted if it is necessary for the establishment, exercise or defence of legal claims or whenever a court is acting in its judicial capacity. The GDPR is therefore not a barrier to giving evidence in the course of court proceedings.

What is the standard of proof?

22.4  The overall legal process of proof in court requires a combination of facts and arguments to prove cases. The rules of evidence and of court procedure draw a distinction between facts, which are proven by the evidence, and arguments, which are advanced later by the advocates in the case. Every allegation in a case must be established to a particular ‘standard of proof’, which is set by the law, and is generally imposed on the party bringing the case (i.e. the claimant in civil cases, the prosecution in criminal cases). This is called the ‘burden of proof’. The standard of proof for civil cases is ‘on the balance of probabilities’; the standard of proof for criminal cases is ‘beyond reasonable doubt’; the standard of proof for RCVS disciplinary matters is ‘so as to be sure’ (the highest civil standard of proof which is tantamount to the criminal standard).

What is the role of a witness?

22.5  The Court will receive evidence of fact from a witness for consideration in a case. The evidence of a factual witness is usually presented by the witness attending court, swearing an oath (or affirming), and then going into a witness box to give their evidence orally in court. In England and Wales, the Courts’ rules of procedure also allow for reliance on written, sworn witness statements in place of calling a witness to give evidence orally. In Scotland, such statements require to be given on oath before a commissioner appointed by the court, and are only permitted in circumstances where the witness is unable to attend court due to circumstances such as ill health, old age or a requirement to be abroad when the case is heard in court. By contrast, in Northern Ireland, it is very rare for statements to be accepted in place of oral evidence. Each statement of fact by the witness is evidence of that fact, and once the evidence has been ‘given’ on oath, it becomes ‘sworn evidence’ or ‘testimony’.

22.6  A veterinary surgeon or veterinary nurse may be called as a witness of evidence of fact. This means the veterinary surgeon is being asked to tell the court what they personally saw, said or did. This is different from evidence of what another person told them they had seen, done or said which is called ‘hearsay evidence’.

What is opinion evidence?

22.7  By contrast, the opinions of lay witnesses are not generally admissible as evidence in Court: this is called ‘the rule against opinion evidence’. (Although no such ‘rule’ applies in Scotland, the Scottish courts apply the same principles). This rule or these principles are adopted because opinions and conclusions are for the Court to reach, based upon its assessment of the information placed before it: its factual conclusions will be (or should be) based upon the evidence of fact put before it; its legal conclusions will be based on its application of the law to the facts it has found, having regard to the legal arguments put before it by the advocates. Thus a witness of fact should not in ordinary circumstances be asked questions, or offer answers, which require the witness to venture an opinion on a fact in issue. This applies to statements made in preparation for giving evidence in Court as well as when giving evidence in Court, although there are exceptions to this which will be explained below.

When is opinion evidence received in Court?

22.8  Opinion evidence is received when the Court requires additional assistance to form an opinion on, and thereby decide justly, a particular issue which concerns matters of specialised knowledge and expertise.

22.9  The principal exception to the general rule excluding evidence of a witness’s opinion is in respect of ‘expert evidence’ given by an Expert Witness. This opinion evidence may be admitted provided the court is satisfied that the witness is qualified to give that opinion by relevant learning and experience. These witnesses often play an important role in cases involving veterinary science. See paragraphs 22.12 to 22.17 below.

22.10  There are also instances where the opinion evidence of a professional witness to fact will be accepted. See paragraphs 22.10 and 22.11 below.

What is a professional witness?

22.11  A ‘professional witness’ is one who by reason of some direct professional  involvement in the facts of a case is able to give an account of those facts to the court. Thus a professional witness is a witness of fact, who is also professionally qualified. This factual evidence is admitted when the facts in question are relevant to an issue which the court is to decide.

22.12  However, there will also be occasions when a professional witness of fact will be asked by an advocate or by the court to explain the reasoning which underlay their findings made or actions taken in respect of a given animal. This will most commonly arise where the witness was a treating clinician, and the professional witness in these circumstances (and subject to the court’s permission) will be able to give an answer which involves evidence of opinion. As to this situation see further below.

What is an expert witness?

22.13  An expert is anyone with knowledge or experience of a particular field or discipline beyond what is expected of a layman. An expert witness is a person who is qualified by their knowledge, experience or formal qualifications, to give an opinion to a Court on a particular issue to assist the Court in deciding the matter or case before it.

22.14  The evidence that expert witnesses can give is called ‘expert opinion evidence’, and this evidence is used and admitted where the Court lacks competence due to a lack of necessary expertise. The expert witness’s primary responsibility or overriding duty is to the Court, even if they are called and paid for by one of the parties to the case. This leads to an expert witness sometimes being referred to as ‘independent’. The expert witness is usually asked to provide a report and may also be called to give evidence, on behalf of the instructing party, in Court. Nevertheless they must remain independent of their party’s vested interest.

22.15  Often, academic eminence in the relevant field is useful, as is an impressive set of qualifications and past relevant experience. However, in modern court cases an expert witness is also expected to have a sound and practical knowledge of the subject matter, based on actual clinical or practical experience, which is preferably ongoing at the time of the court case, or the time of the incident. The expert witness may be subjected to cross examination in the witness box of their self-professed standing as ‘expert’ on the subject matter in dispute. The easiest way for an advocate to seek to discredit a ‘retired’ clinician undertaking expert witness work is to ask and elucidate the date on which they last carried out the procedure in question, or treated the condition in question, to find that the answer is “some years ago”. The expert witness should be prepared to deal with such questions and should not undertake expert witness work unless they have the relevant expertise and ongoing or recent experience.

22.16  Other qualities of a good expert witness include self-confidence and the ability to inspire and command confidence in others, particularly in the witness box; the ability to give a concise opinion which can be understood by lay people and, the ability quickly and promptly to adapt to changing information.

22.17  Generally, expert witnesses are sent all relevant reports and witness statements for the purpose of compiling their expert report and (save in Scotland) will hear all the evidence before giving their expert evidence. (In Scotland, expert witnesses are not permitted to hear the evidence of other expert witnesses before they themselves appear to give evidence. They are permitted to hear witnesses of fact but in reality parties can rarely fund their expert to be in attendance throughout the court hearing).

22.18  For further guidance as to the role of an expert witness is published by the British Medical Association and the General Medical Council.

Guidance for writing an expert report

22.19  It is important to remember, as an expert witness, that although you will be retained by your client (or clients), your primary duty is to the Court and that you are expected to remain objective, impartial, independent, and to act with integrity. You must not compromise on these matters, or act where there is an actual or potential conflict of interest unless this conflict is disclosed. An expert witness is also under a duty to maintain confidentiality. If you are going to undertake expert witness work regularly, you would be well advised to join an appropriate organisation such as the Academy of Experts, the Institute of Expert Witnesses, the Veterinary Association for Arbitration and Jurisprudence or the Council for the Registration of Forensic Practitioners: see List of Experts below.

22.20  The content of the expert’s report will depend on the purpose for which it is prepared, but it should aim to be a clear, precise and convenient resource of information. Experts’ reports are used to provide advice as to the merits of a case as well as for the purpose of disclosure in proceedings. In both instances the report is intended to assist non-experts (including the judge and advocate (counsel/barrister/solicitor-advocate)) in understanding the matter in issue from a technical, clinical or scientific point of view. The report may provide the stimulus for pursuing a claim; it may form the basis for drafting the statements of case/statements of claim on which claims are based, or it may provide material for cross examination at trial. An expert’s report may be disclosed to the opposing side, either before proceedings are issued or afterwards, at which point the report’s author may be called upon to answer and address the opposing side’s challenges to the opinions expressed in the report.

22.21  There are certain minimum requirements for an expert’s report to be acceptable to a court in civil proceedings. It must be prepared according to the provisions and requirements of the latest version of the Civil Procedure Rules (CPR) and their Practice Directions (PD), especially CPR Part 35 and PD 35 (England and Wales), the County Court Rules and Rules of the Supreme Court for the High Court and Practice Direction Number 1, 2003 (Northern Ireland) and similar requirements for Scotland. For example;

1. the report should be addressed to the Court not the client;
2. it should contain an expert’s statement of truth/declaration and qualifications;
3. if a range of opinion on a particular issue exists and it is relevant to the matter in hand, this should be referred to and addressed;
4. relevant sources of evidence or literature cited or relied upon should be included in a bibliography;
5. any technical terms used should be explained; matters of fact should be clearly distinguished from matters of opinion. See Civil Procedure Rules Part 35 and PD 35.

22.22  The exact layout of the report is left to the practice of the individual expert, but the report must state the expert’s name, the name of the party instructing them, the date of the report, include an expert’s declaration and statement of truth and be signed by the expert. A good basic format is to have:

1. a cover sheet (with identification information)
2. a table of contents
3. a summary of conclusions (this may come at the start or the end of the report)
4. a summary of instructions
5. a list of documents or evidential sources
6. a chronology (if appropriate for the case) or a factual summary
7. a technical section (to permit a lay person reader to understand the opinion and summary of conclusions sections)
8. an opinion section
9. a brief curriculum vitae of the expert’s qualifications and experience
10. a bibliography of literature (if any literature or works of reference are cited or relied upon)
11. a paginated sequence of numbered and headed sections composed of short, suitably headed paragraphs.

22.23  Model reports may assist as a starting point: see the Expert Witness Institute model report.

22.24  For further information as to experts’ Codes of Practice, Protocols, Procedural Rules (both criminal and civil), model form of reports, model terms of engagement, Expert’s Declarations, see: The Expert Witness Institute website and The Academy of Experts website.

What is the difference between an expert witness and a professional witness?

22.25  An expert witness is asked to provide an expert opinion in respect of a particular set of facts or on a particular issue, a professional witness is asked to testify solely on the observed facts of the matter or particular issue. However, (as indicated above) there is a ‘grey area’ which arises because the professional witness, in the course of carrying out their professional role, will have formed a professional opinion based on the observed facts, e.g. a view as to the patient’s condition or a possible diagnosis following a clinical examination is such an opinion. A ‘professional witness’ should be aware that when providing testimony of fact they should only testify as to the observed facts, but that they could be led by others, either a prosecutor or advocate, into giving an opinion, and straying into expert territory. If this happens then (save for cases in Scotland) the ‘professional witness’ should seek clarification, perhaps from the judge, as to whether or not they may answer these questions. A witness gives either evidence of fact or opinion evidence and there is no category of professional evidence. In Scotland, an expert who is a professional and also a witness to fact may give evidence as to both fact and opinion.

22.26  A veterinary surgeon who is asked to prepare a report should establish whether the report is required from them as a professional witness (of fact) or as an expert witness. Generally, ‘professional witnesses’ should avoid giving opinions on the central issue in the case, or accept that they are acting as an expert witness.

22.27  If a ‘professional witness’ gives an opinion on the central issue in a case (for example, that the animal is suffering unnecessarily, or is likely to suffer unnecessarily, or the animal’s needs have not been met) they should:

1. Consider all the relevant facts available in the case, for example, the animal owner’s explanation, whether food or treatment has been given, the results of any post mortem, other laboratory evidence or test results etc; as well as what evidence may be necessary before an opinion can properly be given; and update the opinion as additional information becomes available.
2. Include in the witness statement the facts on which the opinion is based; the experience or qualifications in addition to the veterinary degree and registration with the RCVS; any other literature or material relied upon in giving the opinion; any alternative veterinary views which may reasonably be held; acknowledgement that the primary responsibility of a person giving opinion evidence (an expert) is to the court.
3. Disclose to the party instructing you, any relationship with any other party in the case, including the prosecuting organisation or relevant enforcement authority which could give rise to a conflict of interest.

Remaining within one’s expertise

22.28  It is good clinical practice to remain within the scope of one’s expertise. The same applies when undertaking both professional witness and expert witness work. Both types of witness should be aware of being drawn or pressurised into giving evidence or expressing opinions which are beyond their level of experience or expertise. Professional and expert witnesses can expect to be challenged in the witness box if they stray outside their own expertise, and should be firm and clear (both with those instructing them and the Court) as to the boundaries of their expertise and experience. A failure to remain within one’s expertise when acting as a professional or expert witness could also potentially lead to disciplinary proceedings. (See the Court of Appeal decision in the case of Meadow v General Medical Council [2006] EWCA Civ, 1390, [2007] QB 462)

22.29  When faced with such a situation, just as in clinical practice, the veterinary surgeon should defer to a more senior or more experienced colleague, or to another source or form of expertise. The circumstances in which such a situation can arise may be less than clear cut. For example, whereas most veterinary surgeons may consider themselves competent to state whether or not a dog was emaciated, the same may not be said for an emaciated horse; it may not always be clear to a non-specialist veterinary surgeon that a particular species of animal is suffering distress in a particular set of circumstances.

When should evidence be collected?

22.30  It may not always be clear from the outset of a clinical case that evidence (in the form of samples) should be collected and retained. Veterinary surgeons should be alive to the possibility of a clinical case developing into a legal case, whether criminal (e.g. poisoning) or civil (e.g. negligent misdiagnosis), and, if suspicious or unsure, veterinary surgeons should consider collecting and retaining samples, with the consent of the owner of the animal or the person in control or possession of the animal. Apart from assistance from more senior colleagues, veterinary surgeons are advised to consider contacting the police, RSPCA or local authority officers if they are unsure about whether to collect evidence.

How to take evidential samples

22.31  To be of any evidential use in a legal case, the source or provenance and the whereabouts of the samples must be recorded to ensure there is ‘continuity of evidence’. This applies to the collection, handling and despatch of samples. Practically speaking this means knowing and being able to state where the sample has been and how it has been stored from the moment it was taken. Taking these precautions will minimise the risk that the evidence could be subsequently challenged (as having been contaminated or tampered with) and rejected. (In Scottish cases, it is recommended that two witnesses should be called to verify the above details in order that the information is corroborated.)

22.32  The samples must also be appropriately collected, labelled and stored. The appropriate method of collection and storage depends upon the nature of the sample. Diagnostic laboratories will be able to give some assistance as to how samples should be collected, sealed and stored.

22.33  As a minimum, the sample should be labelled with the case name or other unique identification and the date of collection. In some situations two, or even three, identical samples should be collected, labelled separately and stored.

The analysis of the samples

22.34  Consideration should always be given to sending the samples for analysis to quality-controlled external laboratories, rather than attempting to conduct analysis using in-house equipment or inexpert staff. Again, this precaution will minimise the risk that the evidence could be subsequently challenged as inconclusive or incorrect.

Format of a court case

22.35  In the case of a criminal trial, the Prosecutor (in England and Wales a Crown Prosecution Service advocate acting on behalf of the CPS, in Northern Ireland a Public Prosecution Service lawyer acting on behalf of the PPS, in Scotland the Procurator Fiscal or Advocate Depute, or other non-police prosecuting agency) will open the case, usually in the form of a summary of the Prosecution’s case, the evidence and the law. The Prosecution will then ‘call’ its witnesses, one at a time. Each witness will swear or affirm (by reading the oath or affirmation from a card provided by the court’s usher or clerk) and will then give their evidence (called ‘evidence in chief’) from the witness box. The witness will then be cross-examined by the Defence lawyer, and may be re-examined by the Prosecution lawyer. At any stage the judge or, in the Magistrates’ Court, the magistrates (‘the bench’) (in Scotland, sheriff) may also ask questions. The same procedure is then followed by the Defence. Save for Northern Ireland, there may also be witness statements read to the court in the absence of that witness (for example because the evidence is agreed between the parties or the witness is too ill to attend – but see paragraph 4 above regarding Scottish witness evidence). When all the witness evidence has been heard, the Defence lawyer and the Prosecutor may give closing speeches, summing up the evidence that has been heard and applying the law to the evidence as they see it.

22.36  In a Magistrates’ Court (or, in Scotland, Sheriff Court) trial, the bench or resident magistrate will usually retire to consider their verdict. On their return to the court room the Chairman of the bench or resident magistrate or sheriff will announce the verdict of ‘guilty’ or ‘not guilty’ (or, in Scotland, a verdict of 'not proven' is additionally available) and give reasons. If the verdict is guilty, pleas in mitigation will then be heard. If there is a bench they will again retire to consider sentence, and will return to announce the sentence. If the case is before a resident magistrate (Northern Ireland) (s)he will similarly proceed to sentence.

22.37  In a Crown Court trial, the judge will sum up the case and the Jury will then retire to consider their verdict. On their return to the court room the Chairman of the Jury will announce the verdict when asked by the judge. If the verdict is guilty, pleas in mitigation will then be heard. The judge will then determine the sentence.

22.38  In the case of a civil trial, heard in the County Court or High Court, there is no Prosecutor. The case is brought by a Claimant ('Plaintiff' in Northern Ireland, 'Pursuer' in Scotland) and defended by a Defendant ('Defender' in Scotland). Broadly the same procedure is followed as in criminal trials, but often there is no opening of the case by the Claimant’s lawyer, and (save for Northern Ireland) witness’ evidence in chief is usually taken to be the witness statement that has been prepared and lodged at court on their behalf. (In Northern Ireland, evidence in chief is still formally given orally and statements are not commonly used).

22.39  In the case of a civil proof, heard in the Sheriff Court or Court of Session in Scotland, the Pursuer’s evidence is led first, followed by that of the Defender. The normal procedure is for all evidence to be led orally at the hearing, except in special circumstances where the evidence of witnesses is taken prior to the hearing (see again paragraph 4 above). The Sheriff or Judge(s) will usually, having heard the case, retire to consider their judgement and deliver this in writing thereafter. There is the possibility to have a civil case heard before a jury in the Court of Session.

Preparing for court

22.40  If a witness statement has been prepared on your behalf you should re-read this to remind yourself of your evidence. If you are engaged as an expert witness you should re-read your report, the reports of other experts and all documents appended to those reports.

22.41  Check in which court your case is to be heard and find out the location of the court and whether there is parking at the court or nearby. Plan to arrive in good time for the hearing allowing for journey time (you may wish to consider staying locally the night before).

22.42  When you arrive at court you will have to pass through a security scanner, after emptying your pockets. Once inside the court look for the court listing sheets (usually pinned to the walls or in glass fronted cabinets). These set out the court lists for each judge in each court room. Once you have found the case name, note the judge’s name and the court number and its location. If you cannot find any court listing sheets ask the usher, clerks or other court staff as sometimes they are delayed in posting the lists. (When attending either the Court of Session or any Sheriff Court in Scotland, witnesses should speak to staff on the front desk for directions to the appropriate court). When attending court you should dress appropriately in a suit – a trial is a formal occasion. Ensure that your mobile phone or pager is turned off or switched to silent.

22.43  You will probably hear how the judge is addressed before you start to give your evidence or you can ask the Advocate. As a guide:

In the Magistrate's Court, the decision makers are addressed as “Sir”, “Madam”, or "Judge" depending on whether they are a lay magistrate or a District Judge (or "your worship" in Northern Ireland)

The Chair of the RCVS Disciplinary Committee is addressed as “Sir”, “Madam”, or "Chair"

County Court judges are addressed as “Your Honour”

High Court and Appeal Court judges, Scottish Sheriffs and Court of Session judges are addressed as “My Lord” or “My Lady” or “Your Lordship/Ladyship”

What happens when you are in the witness box?

22.44  The court usher (clerk in Northern Ireland) will ask you whether you wish to swear or affirm. This relates to the evidence that you will be giving making it “sworn evidence” or “affirmed evidence”. Save for Scotland, where the choice is either to swear on the Holy Bible or to affirm, you will be asked the holy book on which you want to swear. The court usher has copies of the holy books of the main faiths. You will then be asked to read the oath (or affirmation) off the card handed to you.

22.45  You will be asked to state your name and professional address and your professional qualifications and experience. In the case of a civil trial you will be taken to a copy of your sworn statement (or, for expert witnesses, their report) usually they are in a bundle of documents called the trial bundle, a copy of which will be provided in the witness box and you will be asked to confirm the contents of your statement/report as your evidence. If you have any corrections to your statement which you want to make, this is the time to do so.

22.46  You are then likely to be subject to examination in chief (criminal trial only except Northern Ireland) when the advocate will put to you questions to support their case. When being asked questions it is important to listen to, and answer, the question that is asked. Answers should be directed towards the Judge/Magistrate/Chair/Jury (not the lawyer who is asking the questions) and should be given slowly and clearly enough to permit a written note to be taken. A commonly used guide is to watch the judge’s pen – when the judge stops writing, it is time to continue speaking. You should answer the questions as fully as you need to, but no more, bearing in mind that the advocate cannot ask you leading questions. Use simple, non-technical language. If you have to give a technical answer, explain it. If you do not understand the question, you should ask for clarification. If you do not know the answer to a question you should simply say so.

22.47  In civil cases your witness statement will usually stand as your examination in chief (except in Scotland where there is no general practice of lodging witness statements and the evidence of witnesses will be taken by examination in chief (as outlined above) unless previously taken by commission (see paragraph 4 above). Expert reports in Scottish civil cases are usually lodged with the court and available to all parties prior to the proof (civil trial) hearing. However an expert is still required to speak to their report and will be examined in chief on this. Lodging of reports is not obligatory and, on occasion, an expert will give evidence without being able to make reference to his report.

22.48  You may then be subject to cross examination (in both criminal and civil trials), which is when the advocate for the opposing side will put questions to you. They must give you an opportunity to comment on anything in their client's case which differs materially from your evidence ie 'put their case'. They may ask you questions about matters that you have not covered in your evidence, but which assist their client's case. They may also try to further their client's case by casting doubt on the validity or accuracy of your evidence. It is important to remain professional when responding to cross examination. You should not allow yourself to become angry or upset with the advocate’s questioning, they are simply carrying out their role which is to test their opponent’s case by cross examination. It is also important to be precise but complete in your answers. For example, if you are asked whether a particular scenario or outcome is possible, and in your view it is, but unlikely, then you should give the complete answer, and not merely answer “Yes”.

22.49  After cross examination there may be re-examination by the advocate acting for ‘your side’. This does not always happen and is usually used to clarify aspects of what has been said during cross examination.

22.50  At any time the judge or Chair may also ask questions, and when they do so they will invite the advocate to ask further questions if they wish to do so, arising out of the judge’s question.

Remuneration levels for witnesses

22.51  The RCVS does not usually offer guidance as to remuneration levels, unless the fees charged are so high as to risk bringing the profession into disrepute. The RCVS recommends discussion with others working in the field to establish the reasonable ‘going rate’ for expert witness work in any particular field or area of practice. Generally, witnesses of fact are entitled to expenses, including loss of earnings. In Northern Ireland, witnesses of fact are not paid a professional fee for attending court. In Scotland, any loss of earnings are paid net of tax and National Insurance.

Other tribunals

22.52  The principles outlined in this annex are applicable to tribunals and arbitrations and veterinary surgeons and veterinary nurses acting as witnesses are not immune from prosecution or disciplinary proceedings.

Further information

22.53  The following organisations offer further information and advice:

1. Veterinary Defence Society
2. Society of Practising Veterinary Surgeons
3. British Veterinary Association
4. British Equine Veterinary Association
5. Animal Welfare Science, Ethics and Law Veterinary Association
6. Veterinary Benevolent Fund
7. BVA Legal Advice Helpline (for BVA members)