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The role of the expert witness in Police Custody
- Mar 17, 2025
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Background
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.
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.
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.
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 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.
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.
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 Criminal Procedure Rules Part 19 and the accompanying practice direction. This mainly covers: the expert’s duty to the court; criminal cases being dealt with justly; providing independent, objective and impartial opinions; only providing opinion on areas within their expertise; clearly distinguishing which of their evidence is of fact and which is of opinion; responding to reasonable timeframe requests; and maintaining expert credibility (Criminal Procedure Rules, 2023; FFLM, 2023).
Expert evidence of opinion – criminal law
The expert witness CHCP can be requested to provide expert opinion on various aspects of medico legal care that has the potential to support or refute the prosecution in a criminal case. This expert opinion can be provided regarding a detainee whom they have assessed in custody, or as independent expert testimony without any prior involvement with the accused. This could include:
• To comment on the significance or causation of injuries.
• To comment on medical components of the procedure used to obtain blood samples under the Road Traffic Act for the purpose of testing for levels of alcohol or drugs in the detained person.
• To comment on medical reasons given for failing to provide blood samples under the Road Traffic Act.
• Scientific medical opinion in relation to any of the forensic samples they obtain and exhibit.
• To comment on a detained person’s fitness to interview, considering mental health, intoxicants, mental capacity and any other vulnerabilities.
• To give an opinion on the detained person’s physical or mental health at the time of assessment in custody.
For a CHCP to provide this type of expert evidence, the level of knowledge and experience expected is of a higher standard, which would involve further studies within their specific field of forensic expertise. The CHCP needs to have the ability to collate information, consider different types of evidence, critically analyse and create a robust opinion; in order to provide a credible expert witness report and provide oral expert evidence on the court stand. Formal expert witness training is required, and should be regularly updated and appraised (FFLM, 2023).
The CHCP may be competent in all clinical areas within custody, however they may not necessarily be expert in all these areas. It is up to the CHCP to self-certify what area or areas they consider to be expert in when providing opinion, and defer their opinion where they consider it to be outside their expertise.
Expert evidence of opinion – civil cases and liability
Additionally to the CHCP expert witness role in the criminal justice system, much like in a hospital or community setting, there can be investigations into the standards of care provided to a detained person in custody. This could be a civil liability case brought about by the custody patient or their relative.
Liability expert witness work also requires a significant level of experience and knowledge working as a CHCP, to be considered credible to comment on what is a reasonable and responsible standard of care in the custody setting. Further studies in the clinical field and formal expert witness training is also expected, to be considered a liability expert, as well as maintenance of continuing professional development. All the aforementioned abilities of collating, considering and analysing information and evidence to create a robust opinion remains crucial for this role.
Sound knowledge of, and an ability to apply, the legal test for liability is integral, as well as a thorough understanding of the Civil Procedure Rules part 35 (Eyre and Alexander, 2015; Ministry of Justice, 2021)
The Independent Office for Police Conduct (IOPC) sometimes request professional commentary from senior custody clinicians when conducting formal investigations concerning the care of a detainee in police custody. A CHCP formally trained as an expert witness, within liability, could be viewed as beneficial for clinical accuracy within investigations like these, which are, almost always, investigated by lay people with no previous clinical knowledge. As a proportion of these cases have the potential to become criminal cases, where the stakes can be so high, it is of the utmost importance that the individual, the patient, and the organisation are provided with clinically accurate and expert opinion.
Expert evidence to explain technical subjects or meanings
CHCPs are regularly requested at both Criminal and Civil proceedings to assist the Court in understanding technicalities, relevance and the meaning of clinical presentation and jargon. This evidence is often presented alongside the provision of evidence of fact or evidence of opinion.
Conclusion
There is, as of now, an unprecedentedly high proportion of nurses and paramedics working as CHCPs within Custody. To juxtapose this there are now fewer forensic healthcare expert witnesses than ever before, owing to the lessening numbers of FMEs working in the custody setting as it becomes, largely, a nurse-led service. This dearth of expert witnesses has a negative impact upon the criminal justice system at all levels. It is clear there is now a significant requirement to provide highly specialised education and training opportunities for CHCPs to attain expert witness status. Furthermore, in order for CHCPs to provide credible expert evidence, there should also be the provision of formal expert witness training and education for this professional group.
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