Ambush defence

Last updated March 08, 2019

An ambush defence is one in which defence evidence - notably from expert witnesses - has not been adduced in advance to the prosecuting authorities, leading to their inability to rebut it. The term is used in United Kingdom jurisprudence. Since 1987, the possibility of the ambush defence has been much reduced by The Crown Court (Advance Notice of Expert Evidence) Rules 1987, made under section 81 of the Police and Criminal Evidence Act 1984, which in essence require the defence to provide the prosecution with copies of expert witness reports in sufficient time for the prosecution to consider the nature of and if necessary prepare rebuttal evidence opposing the report.

An expert witness, in England, Wales and the United States, is a person whose opinion by virtue of education, training, certification, skills or experience, is accepted by the judge as an expert. The judge may consider the witness's specialized opinion about evidence or about facts before the court within the expert's area of expertise, referred to as an "expert opinion". Expert witnesses may also deliver "expert evidence" within the area of their expertise. Their testimony may be rebutted by testimony from other experts or by other evidence or facts.

The United Kingdom, officially the United Kingdom of Great Britain and Northern Ireland but more commonly known as the UK or Britain, is a sovereign country lying off the north-western coast of the European mainland. The United Kingdom includes the island of Great Britain, the north-eastern part of the island of Ireland and many smaller islands. Northern Ireland is the only part of the United Kingdom that shares a land border with another sovereign state‍—‌the Republic of Ireland. Apart from this land border, the United Kingdom is surrounded by the Atlantic Ocean, with the North Sea to the east, the English Channel to the south and the Celtic Sea to the south-west, giving it the 12th-longest coastline in the world. The Irish Sea lies between Great Britain and Ireland. With an area of 242,500 square kilometres (93,600 sq mi), the United Kingdom is the 78th-largest sovereign state in the world. It is also the 22nd-most populous country, with an estimated 66.0 million inhabitants in 2017.

The Police and Criminal Evidence Act 1984 (PACE) is an Act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, and provided codes of practice for the exercise of those powers. Part VI of PACE required the Home Secretary to issue Codes of Practice governing police powers. The aim of PACE is to establish a balance between the powers of the police in England and Wales and the rights and freedoms of the public. Equivalent provision is made for Northern Ireland by the Police and Criminal Evidence Order 1989. The equivalent in Scots Law is the Criminal Procedure (Scotland) Act 1995. Although PACE is a fairly wide ranging piece of legislation, it mainly deals with police powers to search an individual or premises, including their powers to gain entry to those premises, the handling of exhibits seized from those searches, and the treatment of suspects once they are in custody, including being interviewed. Specific legislation as to more wide ranging conduct of a criminal investigation is contained within the Criminal Procedures and Investigation Act 1996.

An example of the ambush defence is found in a paper given by Judge John Milford QC at a 1994 Joint Conference entitled "Beyond reasonable doubt" organised by the Royal Society of Medicine and the Expert Witness Institute. Discussing the trial of a train driver following the 1984 derailment of a train near Morpeth he wrote:

The Royal Society of Medicine (RSM) is one of the major providers of accredited postgraduate medical education in the United Kingdom. Each year, the RSM organises over 400 academic and public events. spanning 56 areas of special interest providing a multi-disciplinary forum for discussion and debate. Videos of many key lectures are also available online, increasing access to the Society’s education programme. The RSM is home to one of the largest medical libraries in Europe, with an extensive collection of books, journals, electronic journals and online medical databases. As well as providing medical education, the Society aims to promote an exchange of information and ideas on the science, practice and organisation of medicine, both within the health professions and with responsible and informed public opinion. The Society is not a policy-making body and does not issue guidelines or standards of care.

The Expert Witness Institute is a UK legal institute for expert witnesses founded by Lord Woolf, Michael Davies (judge) and other legal experts. It was incorporated as a non-profit making company in 1997.

Morpeth is a historic market town in Northumberland, North East England, lying on the River Wansbeck. Nearby villages include Mitford and Pegswood. In the 2011 census, the population of Morpeth was given as 14,017, up from 13,833 in the 2001 census. The earliest record of the town is believed to be from the Neolithic period. The meaning of the town's name is uncertain, but it may refer to its position on the road to Scotland and a murder which occurred on that road. The de Marley family was granted the Barony of Morpeth in c. 1080 and built two castles in the town in the late 11th century and the 13th century. The town was granted its coat of arms in 1552. By the mid 1700s it had become one of the main markets in England, having been granted a market charter in 1199, but the opening of the railways in the 1800s lead the market to decline. The town's history is celebrated in the annual Northumbrian Gathering.

The case of R v Allen 1985 illustrates the position which applied hitherto. The driver of a train which came off the rails at the Morpeth curve was prosecuted for driving under the influence of alcohol. However, the defence at the last minute provided medical evidence which suggested that at certain times the driver might pass out and the prosecution not having prior knowledge of this were unable to rebut it. The driver was acquitted.

External links

Court Management of Expert Witnesses article in the Expert Witness Institute newsletter, Autumn/Winter 2004, from which the above excerpt is taken.

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