EWJ FEB 59 2025 web - Flipbook - Page 72
The Role of the Expert
Witness in Police Custody
by Laurie Small, Custody Healthcare Practitioner and former expert
witness with Somek & Associates
Historically, providing healthcare in custody and obtaining medical forensic
samples has been undertaken by specialist doctors; namely Forensic Medical
Examiners (FMEs). Along with this clinical role, FMEs will provide expert
evidence in Court.
However, over the last decade, this role has been
increasingly undertaken by nurses and paramedics.
While this opens up new opportunities to this cohort
of healthcare professionals (HCPs); as well as providing a larger pool of practitioners to provide healthcare
to those detained in custody, this tends to be a professional group who are less accustomed to the expert
witness role, compared to their medical colleagues. As
a result, there has been a drive, nationally, to train
forensic HCPs to become accredited expert witnesses.
expert evidence is commonly called upon by the criminal justice system. However, it may also be required
by the Civil or Family Courts. The types of expert
evidence requests that may be required of the CHCP
are as follows:
Evidence of fact
This is where the CHCP would be expected to submit a statement and/or attend Court to confirm the
facts of their involvement with the detained person,
for the purpose of administration of justice. A typical
reason for the CHCP to be summoned to Court is for
a drug-drive procedure, where the accused’s defence
is around the technicality of how the blood sample was
obtained, or about their failure to provide a sample.
Generally speaking, to become a Custody HCP
(CHCP), a period of 3-4 years’ post-registration experience within emergency care settings, the ambulance service, mental health, or substance misuse
services, is recommended by the Faculty of Forensic
and Legal Medicine (FFLM) (2024). This is seen as an
acceptable timeframe for the relevant competencies to
be achieved by incoming nurses and paramedics. As
the custody environment poses its own unique challenges, most workplaces provide a specified training
schedule to introduce the intricacies of forensic healthcare. The introduction of statement writing and court
room skills is an example of working practices which
will be new to those incoming practitioners from
primary care settings.
Whilst this type of evidence is not expert evidence as
such, but professional evidence of fact, it may become
expert evidence if the observation, comprehension
and description of such evidence requires their expertise, if this is within the practitioner’s scope of
knowledge and experience (General Medical Council,
2013; FFLM, 2023).
However, Rix (2021) says that professional evidence
of fact, is in itself expert evidence, stating that “If the
professional’s expertise is required for the observation of
factual evidence, this is evidence of fact, given by an expert,
the observation of which requires expertise and it is therefore
a form of expert evidence.” In fact, “the term ‘professional
witness’ or ‘professional evidence’ do not exist in the law of
evidence.” (FFLM, 2023). They both suggest the reason for the use of the different terminology by the
courts is that of cost, as they pay less to a professional
witness than to that of an expert witness.
One of the many roles of the CHCP is to obtain
forensic samples for evidential purposes. This sits
alongside their clinical responsibility to provide
healthcare to detainees. Forensic sampling can include
taking intimate swabs and/or hair samples, to prove
or disprove a detainee’s involvement in a crime. It can
also include the obtainment of blood samples to detect levels of intoxicants in their blood at the time of an
alleged offence; such as driving offences, murder, or
serious sexual assault. CHCPs are regularly requested
to document visible injuries of a detainee. This can be
to support the detainee’s defence claim, or it can be
presented by the prosecution to bolster their claims.
This is often recorded on a body map diagram, with
descriptive annotations of the wounds and markings,
as well as measurements. CHCPs are often asked to
provide court statements, and less commonly oral evidence in court, in relation to obtaining these forensic
samples or documents.
The level of training required to present this type of
evidence is usually provided at “shop floor” level or as
part of the classroom induction to a CHCP role. With
further self-directed reading and seeking feedback
from senior colleagues to consolidate on this skill.
The CHCP should be well informed of their
obligation to provide expert evidence in accordance
with “The Code of Practice on Expert Evidence of the
FFLM” and their governing body, namely the Nursing and Midwifery Council (NMC), the Health and
Care Professions Council (HCPC) or the General
Medical Council (GMC), (FFLM, 2023). This includes
ethical issues such as obtaining consent from patients
in custody, to obtain and disclose evidence; and being
aware of their responsibility to comply with the
Expert witness work
Expert witness work, within the forensic field, is
multi-layered. Some requires more formal training
and experience than others. The professional and
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