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artificial cause, the opinions of men of science are not to be received.”

More recently, in R. v Somers [7] and R. v. Abadom [8] , the principle was established that an expert witness was entitled to draw upon the work of others in his field when forming an opinion. However, the expert witness should state the facts on which his opinion is based; and such facts should be proved by admissible evidence. (See R. v. Edwards below)

Post Abadom [9] , an issue arose in distinguishing between primary facts, (such as the findings of the Expert Witnesse’s colleagues and assistants) which were not covered by the Abadom [10] ruling, and “expert facts” which were admissible. In R. v. Jackson [11] . Kennedy, L.J. exceptionally allowed the prosecution to call colleagues of the expert witness.

Section 127 of the Criminal Justice Act 2003 created statutory provisions allowing the expert witness to draw on the work done by others in preparing his/her report.

Notwithstanding this, Sections 127(4) and 127(5) allow the court discretion to require the attendance of those who have worked on the case in certain circumstances.

Effectively, Section 127 creates an exception to the hearsay rule for an expert to give evidence as to the reports of his/her colleagues, subject to the court's discretion to require attendance of the relevant witness. This resolves the problem identified in R. v Jackson [12]

What are the provisions under which the judge can exclude evidence which “may prejudice a fair trial”?

Evidence which the Judge deems prejudicial to a fair trial may be excluded under one or more of:

Police and Criminal Evidence Act 1984 section 78. - Exclusion of unfair evidence;

Criminal Procedure Rules 2010/60. - Part 33 Expert Evidence

Criminal Appeal Act 1968 c. 19 section 23(2)

Human Rights Act 1998; Article 6 ECHR

Prior to PACE, under English Common Law, improperly obtained evidence had always been prima facie admissible, to the extent that in R. v Sang [13] , Diplock L.J. held: “..... a judge has no discretion to exclude relevant admissible evidence on the ground that it was obtained by improper or unfair means”

After several of miscarriages of justice, the 1981 report of The Royal Commission on Criminal Procedure led to the Police and Criminal Evidence Act 1984, section 78 of which empowered the court to “refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it”.

The key here is the catch-all phrase:”having regard to all the circumstances”. In R. v. Luttrell [14] the Court ruled that expert evidence may be inadmissible on the grounds that its “probative force is too slight to influence a decision”.

Addressing the issue of the defence “ambushing” the prosecution by introducing expert evidence during the trial, the new Criminal Procedure Rules 2010/60, Part 33.4 Expert Evidence; which came into force on April 5, 2010 require, in the interests of a fair trial, any party wishing to introduce expert evidence to serve it as soon as practicable on the cou