Factsheet 11: Defence Expert Witness Allowances in Criminal Cases

Transcription

1 Factsheet 11: Defence Expert Witness Allowances in Criminal Cases Last reviewed: April 2018 Experts giving oral evidence in criminal courts come under some special provisions that are the source of much confusion. But that need not be the case. For most expert witnesses attending the criminal court to give evidence, the situation is simple: If instructed by the prosecution (usually the CPS), you will need to invoice the CPS following the schedule set out in your contract. See Factsheet 67 for further information about working for the CPS. If instructed for the defence, you will need to claim your fee yourself from the trial court office 1. In this factsheet we consider defence expert witness allowances in criminal cases. For an in-depth consideration of allowances for prosecution expert witnesses, please see Factsheet 67. As a matter of public policy, all defence expert witnesses in criminal cases are entitled to be compensated out of central funds for their loss of time and the incidental expenses incurred in attending court 2. Furthermore, the Prosecution of Offences Act 1985 assigned to the Lord Chancellor the responsibility for making the necessary arrangements. This was duly done by implementation of the Costs in Criminal Cases (General) Regulations 1986, Part V of which is headed Guide to Allowances (see below). It contains detailed provisions for the calculation of compensation due to witnesses. These provisions apply to defence expert witnesses whether or not the defendant is legally aided. Indeed, the very existence of the Act that gave rise to the 1986 Regulations deprives defendants of the possibility that their witnesses might be paid for under a Legal Aid Order. This much is clear from Section 25(3) of the Legal Aid Act It lays down that in criminal cases the costs of representation payable from the legal aid fund:... shall not include any sum in respect of allowances to witnesses attending to give evidence in the proceedings... where such allowances are payable under any other enactment. The Costs in Criminal Cases (General) Regulations 1986 distinguish between two kinds of witness: professional witnesses, and expert witnesses proper. Professional witnesses attend court to give evidence of fact (although it may well require expertise in its observation). Like other witnesses of fact, they are deemed to do so out of public duty. Accordingly, the allowances prescribed for professional witnesses aim to do no more than compensate them for their inconvenience and incidental expenses. For experts providing opinion evidence, on the other hand, there is recognition that they are attending court not out of public duty but in their line of business. For that reason, the regulations provide that these experts may receive: the same travel and overnight expenses as other witnesses, plus an allowance for attending court which has no set ceiling amount. Commentary So if you attend court to give your expert opinion then you must claim those expenses relating to your attendance, travel and accommodation from the court of trial. This is so whether or not the defendant is legally aided. Payment will be made from central funds. Court personnel, called determining officers, assess claims for witness allowances. They are issued with guidance by the MoJ as to the appropriate levels of compensation for expert witnesses. Court attendance allowances The Guide to Allowances under Part V of the Costs in Criminal Cases (General) Regulations 1986, issued by the Public Legal Services Division, MoJ in June 2005, provides a point of reference on quantum for those engaged in determining expert allowances under the 1986 Regulations (see below). Appendix 2 of the Guide makes it clear that the fee scales contained in it are not intended to provide either a minimum or a maximum limit. They are merely a guide to the level of allowances in normal circumstances. The advice goes on to say that it may be appropriate, having regard to the particular circumstances of the case, to depart from the guidance scales. Such occasions will, however, arise exceptionally. In exercising their discretion, determining officers are told to bear in mind that each case must be considered individually 3. However, given that the Guide s rates were last updated in May 2003, they are now viewed more as a point of departure. 4 MoJ guidelines provide that expert witnesses are grouped by profession into four categories. For each of these, two fairly wide rate bands are specified, one for preparation for court and one for court attendance. Preparation covers the time spent in preparing for the court appearance, e.g. in reviewing the contents of the report on which the expert is shortly to be crossexamined. Attendance includes an element for the time taken to travel to and from the court, as well as time spent in the court s precincts waiting to be called and giving your evidence.

2 Most experts will need to take some time preparing for their court appearance. The court considers that in the majority of cases 1 hour is sufficient for case refamiliarisation, and this time should form part of any standard attendance fee. However, should your court preparation need to be more extensive (i.e. exceeding 1 hour), there is the option that payment can be split between the two elements of preparation and attendance. In most cases, defence experts will have already prepared a written report for which a separate fee was (or is still) payable. The MoJ will take into account in its determinations that such experts ought to take less time to prepare themselves for court attendance given their prior association with the case. Conversely, newly instructed experts may be expected to claim for more lengthy preparatory time periods. Any attendance fee should reflect the total time involved in the day, including: travel time waiting time court appearance, and any extended hearing time. The Schedule of Rates from 6 May 2003 (see below) reflect attendance based on the normal court day and local travel, and should be adjusted upwards if longer journeys are undertaken 5 or the attendance stretches significantly beyond the usual court sitting time (10.30am 4.30pm). But what should you charge for your travel time? Part II of the Guide to Allowances under Part V of the Costs in Criminal Cases (General) Regulations 1986 states: 4.4 The attendance fee should reflect the total time involved that day, that is, including travelling and waiting time, and also any extended hearing time. The scales of guidance (see para 4.8) reflect attendance based on the normal court day and local travel, and should be adjusted upwards if longer journeys are undertaken or the attendance stretches significantly beyond the usual court sitting time. So there is no fixed fee or calculation to be made. Clearly it is for the determining officer to assess any court attendance fee (which includes travel time) bearing in mind how long you have spent travelling to and from the court. When deciding whether to instruct you, your solicitor will have considered your distance from the courtroom and thus likely travel expenses should the case proceed to trial. Those thoughts would have influenced him when making his selection of expert witness for the case in hand. Travel and hotel expenses Appendix 1: Current Allowances Payable under Part V of the Costs in Criminal Cases (General) Regulations 1986 (see below) defines the maximum amounts and allowances that can be claimed by experts for travel and overnight expenses. 6 Travelling allowances are defined in Regulation 24. Where possible, expert witnesses should travel to court by public transport, the full cost of which will be reimbursed so long as receipts are kept. This could include air travel if there is no reasonable alternative, or it is more economical in the long run (i.e. after taking account of savings in allowances that would become payable if air travel was not used). In such circumstances, though, you would be expected to take advantage of the cheapest fare. Private vehicles may be used, but the higher rate (45p per mile for cars and motorcycles) can be claimed only if travel using public transport was not practical or possible. 7 If you choose to travel by car when the court being attended is reasonably accessible by public transport, the travelling expenses will be calculated on the average cost of public transport currently taken to be 25p per mile. Since 2005, there s also been a 20p per mile pedal-cycle allowance! Any congestion charge and parking fees can be claimed but only where the standard mileage rate of 45p per mile is awarded. A per mile passenger supplement can also be claimed of 2p for the first person and thereafter an additional 1p per person. In cases of urgency, or where no alternative means of transport is available, you may use taxis or hired cars and be reimbursed for the full cost of doing so and of tipping the driver. Without such an excuse, though, you will be paid only the equivalent cost for making the same journey by public transport. Note that travel time should be incorporated into your daily attendance fee. As might be expected, you are not entitled to either the financial loss or daily subsistence allowances payable to ordinary witnesses. You may, however, be eligible for an overnight allowance should you be required in court on successive days. In August 2001 this was set at: per night if the court is within the city centres of London, Birmingham, Manchester, Leeds, Liverpool or Newcastle Upon Tyne, or if it is anywhere else. In June 2005 an additional 21 per night subsistence allowance and a 5 personal incidental allowance were added. All these allowances apply only to hotel accommodation. If staying with family or friends, the rate payable is 25 per night. It should be noted that the basic hotel allowances payable to you are approximately 10 less than the overnight allowance payable to ordinary witnesses. Travel time The payment of travel time allowances to expert witnesses in criminal cases has, until recently, been unremarkable. But all this changed following the case of Vogel -v- Leeds District Magistrates Court 8, a decision of HJ Calvert-Smith in the Administrative Court. This case concerned a vet who attended in his capacity as an expert veterinary witness to give evidence in relation to a cruelty to animals prosecution brought by the RSPCA. The vet lived at some distance from the court and claimed a sum of 100 per hour plus VAT for time spent travelling where this exceeded 1 hour. This, he said, was his usual fee and it had been paid to him in previous cases, apparently without dissent, by the determining officer. In this case, though, Mr Vogel s application for travelling time was refused. He sought leave for judicial review of the decision to the Administrative Court, but it was refused.

3 After a lot of toing and froing between the Justices Clerks Society (JCS) and the MoJ, and a considerable period of uncertainty, matters have been clarified. In March 2006 the JCS published News Sheet No: 05/2006 in which they tell us that they approached the MoJ with a view to addressing the issue. The MoJ response was that the application for judicial review was rightly refused on the grounds that payments to experts are at the discretion of the court under Regulation 20, but that:... it would be wrong to adduce from [the Vogel] case that payment for time spent travelling to and from court should not be claimed. The MoJ went on to say that in its view attendance at court to give evidence under Regulation 20 can extend to time spent travelling because this is within the terms of guidance given in paragraph 4.4 of the MoJ Guide to Allowances. It states: The attendance fee should reflect the total time involved that day, that is, including travelling and waiting time, and also any extended hearing time. The scales of guidance reflect attendance based on the normal court day and local travel, and should be adjusted upwards if longer journeys are undertaken or the attendance stretches significantly beyond the usual court sitting time. With this reply in hand the JCS felt able to offer courts the following alternative take on the importance of the Vogel case: Courts may therefore conclude that the decision in Vogel could be narrowly construed as simply upholding the right of determining officers to use their discretion under the Regulation, rather than as determining that time spent travelling to and from court cannot be claimed. Cancellation fees There is nothing written specifically about the payment of cancellation fees for defence experts in criminal cases. Rather, various regulations imply a right to such fees, and associated guidance for determining officers suggests a mechanism for assessing what may be due. In essence, court officers will assess any claim made for cancellation fees on its merits. Section 19 of the Prosecution of Offences Act 1985 states: (3) The Lord Chancellor may by regulations make provision for the payment out of central funds, in such circumstances and in relation to such criminal proceedings as may be specified, of such sums as appear to the court to be reasonably necessary (a) to compensate any witness in the proceedings, and any other person who in the opinion of the court necessarily attends for the purpose of the proceedings otherwise than to give evidence, for the expense, trouble or loss of time properly incurred in or incidental to his attendance; Furthermore, Regulations 16 and 20 of the Costs in Criminal Cases (General) Regulations 1986 provide as follows: 16. General (1) Where, in any proceedings in a criminal cause or matter in a magistrates court, the Crown Court, a Divisional Court of the Queen s Bench Division, the Court of Appeal or the Supreme Court (a) a witness attends at the instance of the accused, a private prosecutor or the court... the expenses properly incurred by a witness referred to in sub-paragraph (a) shall be allowed out of central funds in accordance with this Part of these Regulations, unless the court directs that the expenses are not to be allowed out of central funds. And Expert witnesses, etc. (1) The court may make an allowance in respect of an expert witness for attending to give expert evidence and for work in connection with its preparation of such an amount as it may consider reasonable having regard to the nature and difficulty of the case and the work necessarily involved. While cancellation fees are not mentioned specifically, it s clear that should an expert witness attend court but then not be called to give evidence, compensation would be due for all expenses and attendance fees. If, at short notice, the expert could re-use the time reserved for court to undertake other fee-paying work, then the court would expect the invoice to be decreased accordingly. However, what if the case is cancelled before the expert had travelled to court so can t claim to have attended? The Part V Guide has the following to say: 4.5 An expert warned to attend court may sometimes be cancelled at relatively short notice, for example, because of a change of plea. The expert should not as of right be paid a fee for the cancelled attendance, but if work in preparation for the attendance has been reasonably carried out, an appropriate fee may be paid. Each case should be considered on its merits where preparatory work has been undertaken. 4.6 Short notice of a change of date, or a late cancellation (see para 4.5 above), may also involve an expert in expenses, either in the loss of alternative work that day or in the engagement of a locum. Whilst the expert should try to mitigate the consequences of a late change of date, it may not always be possible to rearrange other work or to cancel a locum appointment. It is not practicable to give firm guidance on all the situations which might arise, and where a claim is made it should be considered on its merits. Care should obviously be taken to avoid late cancellations and changes. So, a defence expert should not by right expect a cancellation fee if given relatively short notice of a late cancellation or change of trial date. However, any work reasonably completed (or, indeed, any reasonable expenses outlaid) in advance of the court appearance may be reimbursed, at the determining officer s discretion. This would include booked travel and accommodation that cannot be refunded. In addition, all time taken to prepare for the case should be compensated at the agreed rate, as should any time you have booked out for the hearing, so long as you can t reuse it for other work. You will be asked to fully justify any claim that you could not earn money during the hours you had previously assigned to attending court. But remember, payment of cancellation fees is at the determining officer s discretion... it is not a right.

4 Clarifications Two judgments are of particular relevance here. Although they relate to civil litigation, their rationale is equally applicable to claims made by experts in criminal cases. A further reason why court officials should take heed of them is that both judgments were delivered by the man who is now Lord Chief Justice. In Reynolds -v- Meston 9, experts who had been warned to attend the hearing of an action were not called to give evidence because the case settled the day before the trial was due to take place. Mr Justice Bingham ruled that in the circumstances the experts were entitled to receive compensation for the time they had set aside to attend court and had not been able to use. In Re Hopkins & Others 10, His Lordship was even more forthcoming. Three medical experts had appealed the decision of a Taxing Master to disallow their fees for a hearing that been cancelled at short notice. Allowing the appeal, Mr Justice Bingham said that it was unreasonable to expect experts to lose income in such circumstances, and he continued: The court is undoubtedly very much assisted by the expert evidence of medical and other witnesses at the peak of their professions. If such men are to respond to invitations to give expert evidence in court and keep time free for that purpose, it is right that they should not run the risk of a last-minute cancellation which would leave them substantially out of pocket. It would therefore be very unfortunate if witnesses such as these were deterred from making their services available, and if the court were dependent on the evidence of those who had no very pressing demands on their time. It would be a bold justices clerk or crown court official who rejected arguments based on judicial comment as authoritative as that! Claiming fees Your expert witness expenses for court attendance should be claimed from the court of trial by you and will be paid by the court out of central funds. It used to be the case that defence experts (if sufficiently well organised, and so long as the claim fell within the MoJ s rate band for the profession and was regarded by the determining officer as reasonable) could collect their fee and allowances at the Crown Court s cash office once they had finished giving their evidence. Nowadays, though, with tighter cost control and more pressure on court staff, it is very unlikely that such a speedy fee collection would be possible. Court staff need time to properly assess claims, and the option of taking advice from more experienced colleagues if necessary. It should be remembered that the job of determining officers is to ensure that invoices properly reflect the work done on a case and represent good value for money for the public Guide to Allowances under Part V of the Costs in Criminal Cases (General) Regulations 1986 As revised by the Lord Chancellor Department s Legal Aid Division in April 2003, published by the Public Legal purse. These court officers are not working on commission to drive down your invoice total. You must try to help your determining officer understand every aspect of the work you have undertaken, the inevitability of your selection for this case and the reasonableness of your final bill. In determining the payment to be made, court officers should assess: the nature and difficulty of the case the work necessarily involved whether there was a reasonable choice of experts available, and whether considerable travelling was involved. MoJ s Guidance to Determining Officers The authority for payment of all witness expenses is the regulations in Part V of the Costs in Criminal Cases (General) Regulations Expert witnesses are dealt with at Regulation 20, and the way in which courts are to approach the assessment of expert attendance fees is set out in paragraphs and Appendix 2 of the Guide to Allowances issued in accordance with Regulation 17 (see below). The only statutory requirement is that fees paid to an expert witness are in accordance with Regulation 20 such an amount as it may consider reasonable having regard to the nature and difficulty of the case and the work necessarily involved. Standing National Taxing Team advice to court officers is that they should consider time elapsed since the fee guidance was issued (in 2003!) and allow flexibility as to the rates allowed. Much can be done to influence the determining officer to pay you at the best possible rate within the appropriate band. Be as specific as possible about the amount of time spent preparing for the hearing, and any equipment used or technical help enlisted. If you are the only expert witness in the field for miles around, that should be stated. If you are not the only one, be sure to include in the claim details of your experience and qualifications to give the determining officer a feel for your eminence and the inevitability of your selection to give expert evidence. Provide full details of your travelling expenses and any parking fees incurred in attending court, including copies of tickets and/or receipts. Include copies of any court orders relating to your instruction. Submit a copy of any letter of instruction outlining what you were asked to do. Enclose any other supplementary material you feel will help support your claim, e.g. examples of how you have minimised or mitigated costs, etc. Services Division, Department for Constitutional Affairs, in June 2005, and republished by the MoJ in June Part I General 1.1 Introduction. These notes provide guidance for court staff who have to calculate the amounts of allowances payable

5 under Part V of the Costs in Criminal Cases (General) Regulations 1986; they should not be taken as a definitive statement of the law. The notes supplement the information given from time to time in MoJ Circulars issued under the Costs in Criminal Cases (General) Regulations The Regulations. The Costs in Criminal Cases (General) Regulations 1986 are made under Sections 19 and 20 of the Prosecution of Offences Act They follow, in the main, the Costs in Criminal Cases (Allowances) Regulations 1977; the primary difference is that unless a case is privately prosecuted, the expenses of prosecution witnesses must not be paid from central funds. The rates of scales applied by the Regulations are determined administratively by the Lord Chancellor with the concurrence of the Treasury under Regulation The rates and scales of allowances effective from time to time are notified to courts by the Ministry of Justice. The rates in force at the time of publication are contained in Appendix One to these notes. These should be updated as new rates are published. 1.4 The Regulations apply to both summary and indictable cases but they do not apply to payments made under a legal aid order. Witnesses expenses may not be paid under a legal aid order where payment can be made under another enactment e.g. out of central funds. 1.5 The Regulations provide (at Regulation 16(1)) that the expenses properly incurred by a witness or interpreter called on behalf of a defendant, a private prosecutor or the court or a medical practitioner (who makes a report otherwise than in writing to which S.34(5) of the Mental Health (Amendment) Act 1982, or S.30 of the Magistrates Courts Act 1980 (now S.11 of the Powers of the Criminal Courts (Sentencing) Act 2000) or S.32(2) of the Criminal Justice Act 1967 applies) shall be allowed out of central funds unless the court directs that the expenses are not to be allowed out of central funds. Therefore there is no requirement for the court to make an order for the payment of those expenses. In general, an allowance should be the same if the witness, interpreter or medical practitioner attends on the same day in one case or more than one case (see Regulation 16(2) and 16(3)). 1.6 Court staff should note the definition in Regulation 15 of the terms used throughout Part V of the Regulations. Part II Allowances Regulation 20 Expert Witnesses and Interpreters, etc. 20(i) Expert Witnesses 4.1 An expert witness is a person of any calling, profession or trade who gives evidence because of his expertise. In most cases one would expect that the witness has been called by the defence or a private prosecutor specifically to give an independent and expert view on some technical matter in the case. It is not, however, always easy to distinguish an expert witness from a professional witness. The Oxford Companion to Law describes expert evidence as evidence given to a court by a person skilled and experienced in some professional or technical sphere of the conclusions he has reached on the basis of his knowledge, from facts reported to him or discovered by him by tests, measurements or similar means. Courts might find the following example to be of some assistance. A consultant doctor giving factual evidence of a defendant s medical condition, perhaps in mitigation, is a professional witness. A consultant doctor giving an opinion based on the factual evidence of a defendant s medical condition as to the probable effect on the defendant s actions or state of mind should be regarded as an expert witness. The expertise of some witnesses, particularly forensic scientists, may cover a wide range. An example is a questioned document examiner. He or she is a forensic scientist who is equipped by qualifications (including possession of the Forensic Science Society Diploma in Document Examination), training and experience to deal with comparisons of handwriting and/or typewriting, printing on paper and their substance or origin, erasures, deletion etc. This could involve the use of specialist techniques and equipment. Armed forces and prison medical officers, and other specialists called to give evidence in a professional capacity who are salaried employees of a government department do not incur a loss of expense and should not be paid a professional or expert witness allowance. Court staff should note that no payment from central funds should be made to an expert witness called by a prosecutor, other than by a private prosecutor. 4.2 Payment for preparation/attendance at Court Where the attendance of an expert involves only normal preparatory work (up to one hour) it is usual to agree and pay an attendance fee only, which is inclusive of this. Where preparation is more extensive (exceeding one hour) payment may be split between the two elements of preparation and attendance, and a fee may be paid for preparatory work in addition to the attendance fee. 4.3 In determining the attendance fee for an expert witness who has earlier prepared a written report for which a separate fee is payable it will be necessary to take account of the fact that the amount of preparatory work needed for the attendance is likely to be less than that required of an expert newly introduced to the case. This will also apply when a pathologist who has earlier been paid for conducting a post mortem examination attends to give evidence as an expert witness. 4.4 The attendance fee should reflect the total time involved that day, that is, including travelling and waiting time, and also any extended hearing time. The scales of guidance (see para 4.8) reflect attendance based on the normal court day and local travel, and should be adjusted upwards if longer journeys are undertaken or the attendance stretches significantly beyond the usual court sitting time. 4.5 An expert warned to attend court may sometimes be cancelled at relatively short notice, for example, because of a change of plea. The expert should not as of right be paid a fee for the cancelled attendance, but if work in preparation for the attendance has been reasonably carried out, an appropriate fee may be paid. Each case should be considered on its merits where preparatory work has been undertaken. 4.6 Short notice of a change of date, or a late cancellation (see para 4.5 above), may also involve an expert in expenses, either in the loss of alternative work that day or in the engagement of a locum. Whilst the expert should try to mitigate the consequences of a late change of date, it may not always be possible to re-arrange other work or to cancel a locum appointment. It is not practicable to give firm guidance on all the situations which might arise, and where a claim is made it should be considered on its merits. Care should obviously be taken to avoid late cancellations and changes.

6 4.7 No rates or scales of allowance for expert witnesses are set under the Regulations; the amount to be paid is a matter for discretion. In determining the payment to be made, regard should be had to the nature and difficulty of the case, the work necessarily involved, and such factors as whether there is a reasonable choice of experts available and whether considerable travelling is involved. 4.8 As there are no prescribed scales of allowance for expert witnesses, guidance is given in Appendix Two to assist officers determining the fees payable by providing a point of reference on quantum for use when exercising their discretion in determining claims. Guidance on points of principle is already available in the Taxing Officers Notes for Guidance (paragraphs 128 to 134), the Notes for Guidance of Justices Clerks (paragraphs 52 to 53) and published decisions of the Costs Judges. It is intended that the information will be reviewed annually. Other registered medical practitioner (b) Higher Fees (where more than 2 hours work necessarily undertaken) Daily maximum Consultant Other registered medical practitioner (c) Examination and report to determine fitness for detention centre training All registered medical practitioners Regulation 25(2) Registered Medical Practitioners Motor Mileage Allowance Maximum amount with effect from Motor-cycles 45p Motor cars 45p Appendix 1: Current Allowances Payable under Part V of the Costs in Criminal Cases (General) Regulations 1986 The maximum amounts and allowances shown are those in force at the time of publication. The date of their introduction is given. The figures should be amended from time to time as new rates are published. Regulation 21 Expert and professional witness and interpreters etc overnight allowances Maximum amount with effect from Hotel London, Birmingham, Manchester, Leeds, Liverpool or Newcastle Upon Tyne city centres 85.25* Hotel elsewhere 55.25* Overnight (other than at a hotel e.g. with family or friends) *Plus Night Subsistence Allowance and 5.00 Personal Incidental Allowance Regulation 24 Travelling allowances (a) Public Transport Rate Rate per mile with effect from Motor-cycles: 25p Motor cars: 25p (b) Standard Rate Rate per mile with effect from Motor-cycles: 45p Motor cars: 45p (c) Passenger Supplement First passenger: 2p Each additional passenger: 1p (d) Parking Fees and Congestion Charges fees actually and reasonably incurred where the Standard Mileage Rate is paid (e) Pedal-cycle 20p with effect from Appendix 2: Guidance for Taxing/Determining Officers when assessing Expert Witness and other Allowances 1. As there are no prescribed scales for the remuneration of expert witnesses... [this] guidance is issued to assist taxing/ determining officers by providing a point of reference on quantum for use when exercising their discretion in determining [claims from expert witnesses]. 2. The figures are based upon allowances made throughout England and Wales. It is intended that the information will be revised annually. 3. The rate bands cover a wide [range] of skill and, in some cases, a number of different kinds of skill. They provide neither a minimum nor a maximum limit, merely a guide to the level of allowances in normal circumstances. It may be appropriate, having regard to the particular circumstances of the case, to depart from the guidance scales. Such occasions will, however, arise exceptionally. 4. In exercising their discretion, taxing/determining officers are to bear in mind that each case must be considered individually. They are to take into account all relevant circumstances surrounding the claim, including such things as the work done, the status or experience of the person doing the work, and the availability of such persons in the area of the country concerned. 5. In cases of difficulty, taxing/determining officers should seek advice from the Circuit Taxing Co-ordinator. Regulation 25 Written Medical Reports (a) Report in pursuance of a request to which Section 32(2) of the Criminal Justice Act 1967 applies (Maximum amount with effect from ) Consultant 74.80

7 Schedule of Rates from 6 May 2003 Expert Support Services from the UK Register of Expert Witnesses 1. Consultant medical practitioner, psychiatrist, pathologist Preparation (examination/report) per hour Attendance at court (full day) Fire (assessor) and/or explosives expert Preparation per hour Attendance at court (full day) Forensic scientist (including questioned document examiner), surveyor, accountant, engineer, medical practitioner, architect, veterinary surgeon, meteorologist Preparation per hour Attendance at court (full day) Fingerprint [expert] Preparation per hour Attendance at court (full day) Interpreter (per hour) (with a minimum of 3 hours for those employed regularly in this capacity) Footnotes 1 Note, though, that a special situation may arise where a defendant is acquitted and a defendant s costs order under Section 16 of the Prosecution of Offences Act 1985 is obtained, and the costs order extends to legal costs in accordance with Section 16A of the Prosecution of Offences Act. If that is the case, then if the court attendance fees have not been claimed by the expert witness from the court but responsibility for payment has been accepted by the defendant, these may be claimed by the defendant as part of his claim for legal costs out of central funds. The claim will then be determined under Part III of the Regulations. It is important to note, however, that if the defendant claims a reimbursement of expert witness costs in this way, although his liability to the expert remains the amount agreed between them, the amount reimbursable by the determining officer to the defendant is capped at the amounts allowable under Regulation 16 and Schedule 1 of the Criminal Legal Aid (Remuneration) (Amendment) Regulations That is, unless the court directs otherwise, as per Regulation 16 of the Costs in Criminal Cases (General) Regulations Standing National Taxing Team advice is that the rates represent a point of departure, and the only statutory requirement is that fees paid to an expert are in accordance with Regulation 20 of the Costs in Criminal Cases (General) Regulations 1986:... such an amount as it may consider reasonable having regard to the nature and difficulty of the case and the work necessarily involved. 4 Note, though, that where an expert witness has been instructed on behalf of a defendant whose fees fall within a defendant s costs order, the applicable hourly rates are those set out in Schedule 5 to the Criminal Legal Aid (Remuneration) Regulations Although, if possible, the court will be keen to support the selection of experts in close proximity to the court of trial. 6 See also Crown Court Fee Guidance ( attachment_data/file/605372/crown-court-fee-guidance.pdf) and the Criminal Bills Assessment Manual ( publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/682988/criminal-bills-assessmentmanual-2018.pdf) for comparison. 7 Rates last raised in Valid reasons for having to use your own vehicle may include personal disability, the need to bring exhibits to court (which would be impractical using public transport), the unavailability of public transport in your geographical area, and the fact that using public transport would unreasonably increase your time costs claimed from the court. 8 See Vogel -v- Leeds District Magistrates Court (2005) CO/2857/ See Reynolds -v- Meston (1986) QBD, February 24 (unreported). 10 See Re Hopkins & Others (1988) QBD (unreported). The passage quoted from Bingham J s judgment in this case is taken from the account of it that appeared in the July 1988 issue of British Medical Association News Review. Disclaimer The information contained herein is supplied for general information purposes only and does not constitute professional advice. Neither J S Publications nor the authors accept responsibility for any loss that may arise from reliance on information contained herein. You should always consult a suitably qualified adviser on any specific problem or matter. J S Publications can be contacted at: PO Box 505, Newmarket, Suffolk CB8 7TF Tel: Fax: ukrew@jspubs.com