The Expert Witness

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ISSN 2397-2769

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THE JOURNAL FOR INSTRUCTING PROFESSIONALS & EXPERT WITNESSES

EXPERTS NEWS

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Vol 1 Issue 16 - Summer 2016 - UK £5.00 Euro 6.00

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IMMIGRATION ENGINEERING- RICS - PLASTIC SURGERY

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Welcome to the Expert Witness Journal Hello and welcome to the 16th edition of the Expert Witness Journal, the current big news at the time of publishing is the Brexit vote and how it may affect experts. Some experts have voiced concerns that scientific research and development may be curtailed.

The UK has a highly productive research and innovation base, to which EU support, both financial and non-financial, has contributed. How this will continue to develop is an area of concern.

Certain areas of expertise may become busier in light of Brexit, such as pension and employment experts. Ultimately it is virtually impossible to predict what may happen but, as the old Chinese proverb says ‘may you live in interesting times.’

Inside this issue we have a mixture of experts articles, mostly non medical featuring Coercive or Controlling Behaviour in Intimate Relationships, Asylum issues and Female Genital Cutting in Context. We also feature Interpreting experts and a range of engineering articles including Water technology and Flooding.

You will also notice that we have included a special Scottish supplement inside this issue.

While this is aimed at informing and promoting our Scottish experts, there are many interesting articles within the supplement, along with a list of areas that we provide experts in.

Our main article kindly supplied by Alec Samuels is titled ‘The Expert: Contemporary Problems’ and highlights problems in expert evidence going beyond the rules.

We will be exhibiting at Law Glasgow in September, The EWI conference in September and Law London in October. Please stop by and say hello if you are attending any of these.

Chris Connelly

Acting Editor Email:chris.connelly@expertwitness.co.uk This Journal and any related website and products are sold and distributed on the terms and condition that: The publisher, contributors, editors and related parties are not responsible in any way for the actions or results taken any person, organisation or any party on basis of reading information, stories or contributions in this publication, website or related product. The publisher, contributors and related parties are not engaged in providing legal, financial or professional advice or services. The publisher, contributors, editors and consultants disclaim any and all liability and responsibility to any person or party, be they a purchaser, reader, advertiser or consumer of this publication or not in regards to the consequences and outcomes of anything done or omitted being in reliance whether partly or solely on the contents of this publication and related website and products. No third parties are to be paid for any services pertaining to be from ‘The Expert Witness Journal’ The publisher, editors, contributors and related parties shall have no responsibility for any action or omission by any other contributor, consultant, editor or related party. ABC audit applied for 2016. The information in this magazine does not constitute a legal standpoint. Printed in Great Britain 2016.

The Expert Witness Journal, Second Floor, The Landmark Building, Back Turner Street, Manchester M4 1FR www.expertwitness.co.uk - www.expertwitnessjournal.co.uk

All rights reserved, material in this publication may not be reproduced without written consent. Editorial material and opinions expressed in The Expert Witness Journal are of the authors and do not necessary reflect the views of Expert Witness or The Expert Witness Journal. The publisher does not accept responsibility for advertising content. The information in this magazine does not constitute a legal standpoint. Printed in Great Britain 2016. The Expert Witness Journal, Second Floor, The Landmark Building, Back Turner Street, Manchester M4 1FR www.expertwitness.co.uk - www.expertwitnessjournal.co.uk

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Contents

Some of the highlights of this issue

The Evidence Basis for Scar Severity Assessment and Scar Treatments

by Mr Ciaran O’Boyle

page 16

Life Expectancy – Working Towards an Accurate Prediction

by DA Shields, JR Brigstocke, JH Scurr

page 23

Causation of Psychological Injuries and Index Incident Assessment

by Koch HCH & Newns K (2016)

page 26

Asylum Aid Asylum Aid is a national charity that provides legal representation to asylum seekers

page 34

Female Genital Cutting in Context: The Example of Sierra Leone

by Jacqueline Knörr

page 37

The National Registry of Public Service Interpreters: Regulating Language Experts, Protecting the Public

by Stephen Thacker, Deputy Chairman, NRPSI

page 43

The Expert: Contemporary Problems

by Alec Samuels

page 48

BFPA – An Invaluable Source of Technical Expertise BFPA Consultant and Director of Systems Services Ltd comments upon the crucial role played by expert witnesses in litigation

page 58

Uniper Technologies

page 61

Hazards Associated With Water Quality in Closed Pipe Systems

by Dr Pamela Simpson

page 64

Expert Witness Demand Rises as Winter Storm Flood Victims Seek Legal Redress

by Richard Allitt

page 67

Surveyors Acting as Advocates – the Challenges and Potential Pitfalls

by Martin Burns RICS

page 78

Swiming with Movie Sharks

by Dr Angus Finney

page 81

Professor J. Peter A. Lodge

MD FRCS

Recognised internationally as an expert in complex surgery for disorders relating to the liver, gallbladder and bile ducts as well as weight loss (bariatric) surgery Surgical training primarily under the guidance of Professor Geoffrey R Giles, and the New England Deaconess Hospital (Harvard Medical School), Boston, USA, under the guidance of Professor Anthony P Monaco.

Please enquire via my website, www.peterlodge.com Email: peter.lodge@nhs.net Telephone: Secretary +44-(0)113 2065175 Fax: +44-(0)113 2448182 Mobile: +44-(0)7775 825934 Address: HPB and Transplant Unit, St James's University Hospital, Leeds LS9 7TF EXPERT WITNESS JOURNAL

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News & Events New Methods for Collecting Forensic DNA to Combat Sexual Violence in Conflict Researchers from the University of Leicester have launched a new project to investigate alternative ways of collecting DNA evidence from victims of sexual violence in conflict zones and displaced communities, including refugee camps.

sic science to offer justice to victims of sexual violence and support the prosecutions of perpetrators around the world.”

The project will also examine wider areas in parallel to the DNA-related research, including aspects related to the interviewing of victims and witnesses. The interviewing of victims and witnesses is a crucial part of the investigation of sexual violence in these regions, but there is currently a lack of research on issues relating to interview practices in these regions, for example, how the use of language interpreters influences the interview setting.

The project, which is led by Dr Lisa Smith from the University of Leicester’s Department of Criminology, will explore new methods for collecting forensic DNA evidence in cases of sexual violence for use in regions where victims do not have access to medical facilities in order to provide victims with access to justice that may otherwise be unavailable.

The research is being launched before representatives from the UN and Education Secretary Nicky Morgan at the UN’s HeForShe’s First-Ever #GetFree Tour at the University of Leicester on Tuesday 29 September.

Professor Mark Jobling from the University of Leicester’s Department of Genetics added: “The technology for DNA testing is powerful and robust, and in the UK, where we have a functional criminal justice system, we’re accustomed to its routine use supporting convictions for rape. We aim to be smart about how we apply it, so we can also make a real difference in the more dangerous and chaotic situations that exist in conflict zones.”

Dr Smith explained: “In regions experiencing armed conflict, it is well documented that sexual violence is used strategically by armed groups against communities, families, and individuals. Although the use of sexual violence as a weapon of war is prohibited by international criminal law, these cases are notoriously difficult to prosecute, often because of a lack of available evidence. Forensic examinations of victims are often not carried out due to a lack of access to medical facilities, lack of trained medical and police professionals, and safety and secur.

❖

The project will be highlighted amongst other Leicester research at the UN HeForShe event. Leicester has been chosen by the United Nations as an IMPACT champion to identify and test gender equality initiatives for the UN Women’s HeForShe 10x10x10 international campaign to get a billion boys and men involved in championing the rights of women. Ten university leaders worldwide – including Professor Paul Boyle, President & Vice-Chancellor of the University of Leicester - will join 10 world leaders and 10 company chief executives to spearhead the campaign with game-changing action for gender equality.

❖ Interpretation of blood pattern analysis evidence ❖ Expert witness services ❖ Urgent responses and reporting within 5

working days, if required ❖ Forensic training for police customers, forensic

scientists or other interested parties (Bespoke courses can be arranged) ❖ Auditing and quality systems consultancy to

Dr Smith said: “The HeForShe campaign aims to achieve gender equality, and sexual violence is just one of the ways that women, men, and children are victimised around the world. The HeForShe campaign is led by UN Women, and part of their remit is the aim to end sexual violence against women and work towards peace and security for women and girls worldwide. This research project hopes to use forenEXPERT WITNESS JOURNAL

Ethos Forensics provides: Forensic consultation in relation to DNA and body fluids evidence

ISO 17025 Contact, Forensic Consultant Sue Carney MPhil, BSc (Hons), MCSFS Telephone +44 7796 546 224 www.ethosforensics.com

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News & Events Judicial Criticism of an Expert Witness

by Alec Samuels At the end of the day the judge may have to choose between expert A on one side and expert B on the other side, to accept the evidence of expert A and reject the evidence of expert B, preferably with reasons. But this process does not in itself involve judicial criticism of the rejected expert. However, in a medical case the judge may feel it necessary to go further. He may say that the witness was not objective and independent, was ingenuous, added to his report as he went along, sought to “explain” what he had said previously, refrained from commenting upon the evidence relating to the vital issue in the case, namely the conduct of the defendant doctor. In

such circumstances the judge may say that the evidence of the expert has been weakened and carries little impact, or he may reject the evidence totally.

The judge may be content to leave his criticism on the record in his judgment; or require the instructing solicitors to send a copy of his judgment to the expert witness; or require a copy of his judgment to be sent to the accreditation body or appropriate regulator such as the General Medical Council Rich v Hull and East Yorkshire Hospitals NHS Trust [2015] EWHC 3395 (QB), [2016] Med LR 33. © Alec Samuels, 2016

UK to Capitalise on Forensic Science Excellence A new report by the Government Chief Scientific Adviser sets out how the UK can capitalise on its expertise in forensic science.

consistency, and collaboration be overcome by all those who are involved in forensic science? ◆ how can we find better ways to assure the identity of people and organisations on the internet?

The UK has a long-standing reputation for being at the forefront of forensic science innovations, including developing DNA fingerprinting and profiling.

But the power of analytical science and its many applications has the potential to deliver benefits to society that go far beyond the criminal justice system.

The report draws on evidence provided by experts in several fields. The review starts with forensics - the use of analytical science to assist the courts - but then moves on to explore the many ways in which we can use analytical scientific tools, combined with the approaches and skills of forensic scientists, to assure the authenticity and provenance of products and services.

Author of the reports Sir Mark Walport says: Forensic science offers great potential as it draws on almost every discipline and in doing so creates widespread opportunity for innovation. The UK needs to capitalise on its current high standing in the traditional applications of forensic science and seize the opportunity to become a world leader in the development and use of technology for prevention, deterrence and detection of fraudulent products and services.

The report identifies some questions for policymakers, practitioners and UK industry: ◆ how can we ensure innovation goes beyond the traditional boundaries of forensic science, and think more broadly about applications in new markets and new forms of public service delivery? ◆ how can policymakers and practitioners better understand the opportunities and challenges those innovations in existing forensic techniques and emerging technologies present? ◆ how can the barriers to communication,

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News & Events Bad Teeth Hurting Career Prospects Public say poor oral health ranks alongside scruffiness, and ahead of weight and dress code violations, as barriers to getting hired

official data shows deep oral health inequalities are persisting, with a child born in Blackburn being nearly seven times more likely to experience decay than one born in the Surrey constituency of Health Secretary Jeremy Hunt.

Britain’s tooth decay crisis is damaging life chances, as new evidence reveals over three quarters of the population believe poor oral health will hinder job applicants.

Independent studies have shown oral health problems can have a lasting impact on children's school readiness, impair their nutrition, development, and ability to socialise with other children. More than a quarter of teenagers say they are too embarrassed to smile or laugh due to the condition of their teeth.

Dentists argue these new figures show why government must act to break the link between decay and deprivation.

A new survey by YouGov for the British Dental Association shows that 77% of respondents felt that decayed teeth or bad breath would hinder a candidate's chances of securing employment in public or client-facing roles – while only half that number (38%) felt the same about being overweight.

62% felt applicants with visibly decayed teeth, missing teeth or bad breath would be at a disadvantage securing any role, with 6 in 10 believing it could hinder promotion prospects.

Henrik Overgaard-Nielsen, Chair of General Dental Practice at the British Dental Association, said: “In a competitive jobs market people are realising that bad teeth mean bad prospects. This new evidence is a stark reminder that a winning smile isn’t just for fans of selfies, it’s for anyone who wants to get on in life.

The survey comes as MPs gather in Westminster to launch the All-Party Parliamentary Group for Dentistry and Oral Health.

Tooth decay remains the number one reason for hospital admissions among young children. Recent

Professor Charles Claoué

Mr Jeffrey S Hillman

Consultant Ophthalmic Surgeon

Consultant Ophthalmic Surgeon MB ChB DO FRCS (Edin) FRCOphth

BA, BChir, MB, MA (Cantab), DO, MD, FRCS (Eng), FRCOphth, FEBO, MAE.

Specialising in; 1) Advanced Cataract Surgery: Surgery for Astigmatism, Multifocal and Accommodating Intra-Ocular Lenses; Small Incision Surgery (Phakoemulsification) and "No Needle No Patch No Stitch" Surgery.

I am a Consultant Ophthalmic Surgeon and was an NHS Consultant at St James's University Hospital and Hon Senior Lecturer in the University of Leeds for 25 years and continue in private practice. My interests are general ophthalmic medicine and surgery with special interests in cataract surgery, intraocular lenses and glaucoma as well as trauma and medical negligence.

2) Excimer Laser and other Refractive Surgery Techniques for Myopia, Hyperopia, Astigmatism and Presbyopia; PRELEX and LASIK.

I have been preparing reports supported by Literature references for over 20 years. Between 1992 and 2015 I have advised in 1330 cases, 70% for Claimants' solicitors, 27% for Defence solicitors and 3% on joint instruction

3) Corneal Disease and Surgery including Corneal Transplants/ Grafts, Anterior Segment Reconstruction.

Reports for medicolegal work are available, including personal injury and medical negligence cases. Professor Claoué is a Bond Solon and Professional Solutions trained medical expert witness in ophthalmology, and a Member of the Academy of Experts.

I have a rapid response facility for cases with tight time constraints.

Contact: 135 Wigton Lane, Leeds, West Yorkshire LS17 8SH Tel: 0113 268 9601 Fax: 0113 237 0884 Email: Jeffeye@btinternet.com Website: www.mrhillman.com

EXPERT WITNESS JOURNAL

Contact: Miss Nadia Bouras Tel: 020 8852 8522 Fax: 020 7515 7861 Email: eyes@dbcg.co.uk Web: www.dbcg.co.uk DBCG Legal Ltd 36 New Atlas Wharf, Arnhem Place, London E14 3SS

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News & Events BDA Northern Ireland urges DHSSPS to address rising dental demand The number of patients registered in the General Dental Service in Northern Ireland has risen from 908,266 in 2005 to 1,145,472 in 2014 (BSO figures), and this figure is likely to continue to rise.

BDA Northern Ireland welcomes the Department of Social Services and Public Safety's progress towards to carrying out dedicated workforce planning for dental professionals, but urges that the increasing demand for more complex and specialised dental care is addressed.

Factors such as an ageing and increasingly dentate population, increasing need for provision of dental services to special needs patients, as well as growing expectations from patients about all types of dentistry, are all leading to an increased demand for more complex and specialised dental care.

The BDA has called for consistent workforce planning in Northern Ireland . The most recent review of workforce planning for the dental workforce was carried out in 2005. Prior to that, a review of the Dental Workforce was carried out in 2002 and this review predicted that over the ten year period 2002-12, the supply of dentists would not be able to meet the increasing demand for their services.

Peter Crooks, Chair of the BDA's Northern Ireland Dental Practice Committee said: "Workforce planning is welcome and much needed in order to enable the population needs for general and specialised dental services to be met in future. But effective workforce planning is key to enabling sufficient numbers of clinicians to have those skills necessary for patient care. It is clear from the expansion in demand for dental services over the last ten years, that informed dental workforce planning is necessary, but this must be underpinned by contractual arrangements for the workforce in the future." â–

The 2002 review recommended, among other things, that DHSSPS should consider incentives to recruit and retain dentists in the Health Service and review the resource implications associated with any expansion of student dental training places, and consideration should be given to increasing the number of foundation training places available.

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Events Expert Witness Seminar

* Please note this programme may be subject to change.

Jointly organised by Headway - the brain injury association and the Spinal Injuries Association, kindly supported by Irwin Mitchell LLP

For more information please contact Melanie Dickens on 0115 924 0800 or fundraising@headway.org.uk

Headway - the brain injury association and the Spinal Injuries Association (SIA) are increasingly aware of the importance of Expert Witnesses in personal injury cases. This September they will present an exciting new joint event for Expert Witnesses which will benefit expert witnesses in any profession.

Expert witness skills masterclass how to avoid the pitfalls Thursday 27th - Friday 28th October 2016 An expert witness is a key element of many criminal and civil trials and assists the court in understanding issues which lie outside the knowledge or experience of the court. Becoming an expert witness should never be embarked upon without some form of prior preparation.

This half day seminar aims not only to increase the knowledge of existing experts but also give professionals who may be considering becoming experts an understanding of what is expected of them as an expert witness. It will also, of course, be of interest to members of the legal profession, as they will hear direct from experts themselves.

Delivered by a former healthcare professional who has retrained as a legal professional, this course aims to give you a clearer understanding of the role of expert witnesses; the Civil Procedure Rules and Practice Directions; issues of case-law imposing liability on expert witnesses; and the selection and role of a single joint expert.

Thursday 29th September 2016 Museum of Science and Industry, Manchester 1:30pm - 5:00pm The programme will include the following sessions : • What solicitors want from an expert • What counsel wants from an expert • The expert witness' view • Mock Trial: Cross examination of an expert witness • Panel discussion: What a judge wants from an expert and lessons learned

The second day will concentrate on court room procedure, how to prepare for court and common pitfalls when giving evidence in scenarios designed to prepare expert witnesses for the realities of court-room crossexamination. www.rsm.ac.uk

BOOK NOW (w) www.ewi.org.uk (e) events@ewi.org.uk (t) 020 7936 2213

Half day am/pm including lunch Members: £135 Non-Members: £155 Annual Conference Members: £235 Non-Members: £295 Students: £80 Annual Conference and Dinner Members: £295 Non-Members: £355 Dinner only All guests: £90

www.facebook.com/ExpertWitnessInstitute twitter.com/EWI_Global

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Events Re:Cognition Health

how to explore areas of agreement and disagreement and draft joint statements.

Proud to sponsor The Alzheimer’s Show Olympia, Hammersmith Road, London on 10th and 11th June 2016. www.alzheimersshow.co.uk/london/

Module Four: Witness Familiarisation; including how to prepare and effectively present evidence in hearings including arbitrations, ICC, courts and other jurisdictions.

All course dates

Bond Solon

Module One - 19 September 2016 Module Two - 20 September 2016 Module Three - 26 September Module Four - 27 September Module Four assessment day (additional cost) - 21 October www.http://www.rics.org/uk/training-events/trainingcourses/expert-witness-training-/london/

Courtroom Skills (1 day) Starting 13th Sep 2016 09:30 in Manchester Starting 05th Jul 2016 09:30 in London Starting 11th Aug 2016 09:30 in London Starting 20th Sep 2016 09:30 in London Cross-Examination Day (1 day) Starting 14th Sep 2016 09:30 in Manchester Starting 06th Jul 2016 09:30 in London Starting 12th Aug 2016 09:30 in London Starting 21th Sep 2016 09:30 in London

The Academy of Experts Foundation Course for Expert Witnesses 29th - 30th Sep 2016 Venue: Chartered Accountant's Hall, Moorgate Place

Civil Law and Procedure Starting 22nd Sep 2016 09:30 in Manchester

Professional Solutions Our expert witness training workshops are held in Central London 3 to 4 times per year. We limit the size of the workshops to allow plenty of time for interaction and discussion during the presentations and breaks. Many of our presenters have worked with us for over 15 years and have developed and refined our workshops as the role of experts has evolved and changed. No one else can offer this level of continuity in the delivery of learning.

Criminal Law and Procedure Starting 22nd Sep 2016 09:30 in Manchester Excellence in Report writing Starting 10th Aug 2016 09:30 in London Starting 19th Sep 2016 09:30 in London Starting 12th Sep 2016 09:30 in Manchester Cross Examination Day Starting 14th Sep 2016 09:30 in Manchester Starting 06th Jul 2016 09:30 in London Starting 12th Aug 2016 09:30 in London Starting 21th Sep 2016 09:30 in London See more at: www.bondsolon.com

www.prosols.uk.com/expert-witness/ For more information, please call Lynden Alexander on 020 7421 7476 or email him at lynden@prosols.uk.com

Law Glasgow Grand Central Hotel 28th & 29th September Welcome to LAW2016 Glasgow, the thirteenth event in the SOLICITORS group’s LAW2016 road show of legal exhibitions and conferences. LAW Glasgow is now in its fifth year and this year will again take place at the Grand Central Hotel on 28th & 29th September.

Network with over 500 legal professionals from throughout Scotland. Meet with the profession’s leading suppliers and take advantage of the special offers available to you and your firm. www.thesolicitorsgroup.com/Exhibitions/ LawGlasgowSeptember

RICS Expert witness training Training London, 19th - 27th Sep 2016 This training will equip experts with the knowledge, practical skills and confidence to prepare and undertake the role of an expert witness effectively.

The training course is 4 days in length and is modular in design and delivery: Module One: Law, Evidence and Practice; considering the roles and responsibilities of the expert.

Module Two: Advanced Report Writing; including the content, structure and style of a report and how to avoid bias.

Module Three: Expert Witness Meetings; considering EXPERT WITNESS JOURNAL

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Events Mr Jean Raymond Lemaire, President of the EEEI. MrChris Easton, EWI Governor, Easton Bevins Mr Richard Swan, EWI Governor, Gardiner & Theobald Fairway Ltd Miss Kay Linnell, EWI Governor, Kay Linnell & Co

The EWI Annual Conference and Dinner 2016 The Role of Experts; domestic and global The Expert Witness Institute Annual Conference and Dinner Celebrating 20 years of impartiality The EWI 1996 - 2016 Thursday 29th September 2016, Westminster

Topics Include: Legal Updates for Experts Informed Consent - Montgomery v Lanarkshire The Ever-changing Face of the Legal Sphere Governors’ Question Time Delivering Globally, thinking locally ...and much more TBC

Confirmed speakers include: The Rt. Hon. Sir Anthony Hooper, EWI Chair Lord Kerr, Justice of the Supreme Court Mrs Amanda Stevens, EWI Conference Chair, Hudgell Solicitors Mr James Badenoch QC , EWI Chairman Emeritus Mr David Marshall, Anthony Gold Solicitors, Chair of Law Society Civil Justice Committee Mr Michael Napier CBE QC (Hon) Dr John Sorabji, University College London, Principal Legal Adviser to LCJ and MR Professor Stephen Mayson Professor Bill Bowring, School of Law, Birkbeck University, Field Court Chambers

Location Church House Conference Centre Times Conference 9am - 6pm Dinner 6pm - 9pm events@ewi.org.uk 020 7936 2213

Expertt witness Exper witn ness skills masterclass mast erclasss – pitf pitfalls fa alls to to avoid avoid Thursdayy 27 – F Thursda Friday riday 28 O October ctob ber 2016 CPD: 12 credits credits Venue: BPP Univ Venue: University ersity L Law a School, 68aw 68-70 70 Red Lion Str Street, e ,L eet London, ondon, W WC1R C1R 4NY

This two day day course join jjointly tly or organised ganised with the e BPP School hool of Health will hoo wiilll develop de d velop o your your u understanding courtroom procedure case-law.

Drr An Anton Dellen, underst anding of co urtroom pr ocedure and case-law c w. D ton vvan an nD ellen, a fformer healthcare professional professional deliver healthcar e pr ofessio onal who has retrained retrained d as as a legal pr p offessional will ill d deliv er the he course. course se.

Day one: The role Day role of an e expert xpert witness, w the Civil Procedure Proced dur ure Rules e and Pr Practice ractice a Directions D Direct ctions D Day ay two two:: C Court ourt room room procedure procedur o e and nd h how tto o pr prepare epare ffor o cour or court urt including common ommon pit pitfalls tfalls

Early bird Early bird prices: Member rate: rate: £399 N member Non b rate: rate: £ 4 499 £499 *Early *E arly bird bird rates rates e expire xpire on Thur Thursday rsday 29 Sept September ember ber 201 2016

For F or more more inf information ormation n please contact: contact: Lisa Marsh +44 (0)207 (0)207 290 392 28 3928 rsmpr ofessionals@rssm.ac.uk rsmprofessionals@rsm.ac.uk Other course dates dates ar are ea available vailable in 2017 2017, 7, as well as oth other her medico-legal courses EXPERT WITNESS JOURNAL

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www.rsm.ac.uk/courses w www .rsm.ac.uk/courses SUMMER 2016

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Getting an Expert, Especially an Additional Expert

by Alec Samuels These days getting an expert, especially an additional expert, can be very difficult. The approached expert is unable or unwilling to take instructions. He may be too busy, he may not feel sufficiently knowledgeable or experienced, he may not like waiting for hours to be called as a witness in court, he may not like being cross-examined. The offered fee may be too small; his demanded fee may be seen to be too large. Legal aid may not be available.

matters may emerge. Furthermore a party may begin to have doubts about the robustness of the witness should the case come to trial. Therefore application is made to the judge for leave to call an additional or substitute witness. The judge will not like “witness shopping�. An extremely persuasive case will be required. A late application will almost certainly be rejected. So at the very earliest stage in the case the following matters should be considered: ■Has our witness got sufficient experience and special knowledge?

The judge is keen to expedite the pre-trial process, to bring the parties to a settlement or to bring the case to trial. He wants to minimise the costs. He will only give leave for an expert to be called if “necessary�, and will be very reluctant to give leave for more than one expert witness for each party. He particularly likes the single joint expert if the parties can so agree.

■Might he need support from another expert? ■What sort of issues is the expert for the other side likely to raise? ■Is our expert sufficiently “tough� and sufficiently flexible so as to be able to be credible and persuasive?

As the pre-trial process progresses a party may feel increasingly concerned about his expert witness, because that expert witness may begin to change his mind as he sees the report from the expert for the opposing side and the experts meet to discuss the issues and to identify the issues where they agree and where they disagree. New and more specialised

â– How will our expert stand up in court in the face of incisive cross-examination?

Reference See O’Connor v The Pennine Acute Hospitals NHS Trust [2015] EWCA Civ 1244, [2016] Med LR 11, paras 48-53.

GOOD NEURORADIOLOGY

Dr Catriona Good

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MBChB, FFRad(D), FRCR, PhD

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Dr Catriona Good is lead Consultant in Neuroradiology and Honorary Senior Lecturer at Brighton and Sussex Medical School.

Dr Good is suitably qualified to provide expert opinions on all aspects of brain and spinal neuroimaging. Including: all aspects of diagnostic brain and spine imaging, brain and spinal trauma, brain haemorrhage and stroke, neurodegeneration including dementia, movement disorders, skull base, orbital and ENT imaging, TMJ imaging and Peripheral nerve imaging.

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Dr Good has been undertaking medicolegal work for the past 12 years and is a vetted expert for Academy of Experts, Faculty of Experts and APIL (1st tier).

Cases include personal injury, clinical negligence, criminal cases and GMC and Irish Medical Council fitness to practice proceedings. She undertakes both Claimant and Defendant work and has been instructed as a Single Joint expert.

Dr Good has attended Coroner’s Court on four occasions and an Irish Medical Council hearing. Medical Report turnaround time is usually 2 -3 weeks but she can provide reports in 5 working days in urgent situations.

Dr Good can also supply Screening Reports.

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Tel: 01444 441881 ext 5718 Email: catriona.good@btinternet.com Web:www.goodneuroradiology.com Area of work Nationwide

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Why Antibiotics Should be Prescription Free

by Dr Bashir Qureshi

FRCGP, FRCPCH, AFOM-RCP, Hon. FFSRH-RCOG, Hon. MAPHA, Hon. FRSPH 1) Expert Witness in Cultural, Religious & Ethnic Issues in litigation.

2) Expert Witness in GP Clinical Negligence. Special experience in Paediatrics.

3) Author, Transcultural Medicine.

Antibiotics, also called Antibacterials, were first invented in 1907 by Alfred Bertheim and Paul Ehrlich who first synthesised “Arsphenamine” to treat syphilis. In 1928, Alexander Fleming identified “Penicillin”. Since then, Antibiotics have saved many lives and are still needed to save more lives. Akin to every drug, they have side effects and resistance. At the moment, these untoward effects are being magnified, in my Expert Witness opinion, to save NHS money. In the UK, unlike many countries, antibiotics can only be obtained by patients on a doctor’s prescription, akin to drugs of addiction.

Doctors’ appointments are getting hard to get. All doctors are pressurised by their Authorities to save money for the National Health Service, rightly so. I sincerely urge the decision makers that please make antibiotics available without prescription and let pharmacists decide to help patients. I agree that money has to be saved but I urge please save lives by making antibiotics prescription free. Let us save money for the NHS and save lives. We need to save both. We can solve problems only if we can talk about them. Honesty is the best policy.

to give antibiotics as they have seen many relatives who died of Pneumonia and TB, in South Asia. Now they are under fire from Care Quality Commission for prescribing more antibiotics than their English colleagues. I noted impartially that some English doctors are good in teaching but weak in learning.

May I ask the readers how should we solve this dilemma as avoidable deaths are overtaking life in Britain, where antibiotics are cheap but not available without prescription? How can we save lives?

Antibiotics Develop Resistance Antibiotics may develop resistance after repeated use over a period of time. Drug resistance applies to all medicines. It is logical to consider that it is better to use antibiotics and kill bacteria, until resistance develops, therefore to live longer, rather than not to

Dr Bashir Qureshi FRCGP, FRCPCH, Hon. FFRSH, RCOG, AFOM-RCP, MICGP, DCH, DHMSA, DPMSA, FRIPH, Hon.FRSH, Hon.MAPHA-USA

Expert Witness in Cultural, Religious & Ethnic Issues in Litigation.

Expert Witness in GP Clinical Negligence.

Atibiotics Save Lives I do know a case that one English woman age 40, with a cough, went to an English GP in England, who diagnosed that she had a virus infection and asked her to go to bed. No swab tests done. Following week, she saw a Locum English GP, as cough got worse and the same diagnosis was given. She went to bed and not to work. The work managers rang her and there was no answer. They rang her mother who rang her but no answer. The mother went to her daughter's flat, as she had a duplicate key, and found her dead.

The post mortem showed Lobar Pneumonia, as cause of death. This could have been prevented by giving Antibiotics for upper respiratory infection. The mother feels aggrieved as the deceased was her only daughter. She did not complain to anyone and keeps crying, even now. The father has gone mad with dementia. However, Asian British doctors are inclined EXPERT WITNESS JOURNAL

As a specialist in Cultures, Religions and Ethnicities, since 1992, I have written reports, given advice, and evidence in tribunals or courts. In cases of medical negligence, discrimination in employments, personal injuries, accidents, murder inquiries by police, family or marital disputes, child abuse, sexual abuse, immigration, asylum and other litigation cases.

Languages spoken: English, Urdu, Hindi, Punjabi.

Author of ‘TRANSCULTURAL MEDICINE’ Dealing with Patients from different Cultures, Religions & Ethnicities.

Contact: Tel: 0208 570 4008 Fax: 0208 570 4008 Mob: 07710 402 276 Email: drbashirqureshi@hotmail.com Web: www.drbashirqureshi.com 32 Legrace Avenue, Hounslow West, Middlesex TW4 7RS 12

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use them for fear of resistance and die early. Drug resistance may or may not happen but lives can be saved with Antibiotics when used appropriately by wise patients.

Dr Maurice Pye MB BCh BSc Hons MD Hons FRCS London

Cultural Issues There are cultural differences not only among patients but also among doctors. Let us look at this issue: If a patient has vague symptoms with no clear quick diagnosis and he/she travels for private treatment; ■ An English doctor would diagnose "Virus infection". They are against giving antibiotics.

No swab test is done. No follow up. End of the story and end of life.

■ A French doctor would diagnose "Liver disease".

They drink a lot of delicious French wine.

■ A German doctor would diagnose "Low Blood Pressure". They may have reasons to feel low at times. History repeats itself. Some Indian doctors and healers have similar beliefs.

■ An American doctor would diagnose "Food allergy". They are prone to allergy to most things. This is the story of our times.

Consultant Cardiologist I am a Consultant Cardiologist with more than 15 years experience.

I have a wide experience in all aspects of cardiology, particularly ischaemic heart disease (angina, heart attacks), interventional Cardiology (balloon angioplasty /stents), heart rhythmn disorders and pacemakers.

I have produced medico-legal reports on behalf of Claimant and Defendant for the courts for over 10 years Nuffield Hospital, Haxby Road, York, North Yorkshire YO31 8TA Mob: 07713 627418 maurice.pye@york.nhs.uk mauricepye@aol.co.uk

Consequences to the NHS Finally, I suggest strongly that it would be a fair play to make antibiotics available without prescriptions from every chemist because it would continue to save lives of patients, reduce the NHS budget, as a result, and bring the UK in line with the rest of the world. ■

All our articles and latest news are on www.expertwitnessjournal.co.uk

Dr Ian Starke

Consultant Physician in Stroke Medicine, Medicine for the Elderly and General Medicine

Dr Joshua Adedokun

MSc, MD, FRCP (Lond), FRCP (Edin)

FCARCSI, FRCA, FFPMRCA

Chronic Pain Expert

Dr Starke has been a Consultant Physician in General Medicine, Medicine for the Elderly and Stroke Medicine at University Hospital, Lewisham and Guy’s, King’s and St Thomas’ School of Medicine since 1988.

Dr Adedokun has extensive clinical experience in the management of various Chronic Pain Syndromes including persistent Neck, Back, Neuropathic or Complex Regional Pain Syndrome especially following Personal and Occupational Injuries.

He also has wide experience in Medical Negligence claims.

Dr Starke undertakes expert examinations and reports for fitness to practise and medical negligence cases in stroke medicine, geriatric medicine and general medicine.

He provides expert examinations and reports for solicitors, immigration and HM prison services. He is able to assess clients within or outside London.

Listed on the UK register of Expert Witnesses, an APIL expert, Member of Society of Expert Witnesses, Expert Witness Institute and is a Sweet & Maxwell accredited Expert Witness 2015.

Contact: University Hospital Lewisham Lewisham High Street, London SE13 6LH Tel: 0208 333 3379 Fax: 0208 333 3381 Email: ianstarke@nhs.net

Dr Adedokun accepts instructions from Claimants, Defendants and as a Single Joint Expert.

He covers Manchester, Liverpool, Leeds, Birmingham & London.

Other locations and Domiciliary visits can be arranged.

Contact: Lorna Brindle, 07711 963 200

Tel: 0161 449 7442 Email: expertpainreports@gmail.com Web: www.expertpainreports.co.uk Spire Hospital Manchester, Russell Road, Whalley Range, Manchester M16 8AJ

EXPERT WITNESS JOURNAL

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Eminent Researcher and Cardiologist Professor Sir Nilesh Samani Announced as Next British Heart Foundation Medical Director Professor Sir Nilesh Samani has been announced as the next Medical Director of the British Heart Foundation (BHF). He will succeed Professor Peter Weissberg who will retire in October 2016 after twelve years as Medical Director of the cardiovascular research charity.

bution to this effort. These important findings are providing new insights into the causes of CHD and identifying potential future treatments to help prevent or slow the development of the condition.

Professor Samani said: “It is an enormous privilege to serve the Foundation as Medical Director. From my own experience, I know the central role the BHF plays in supporting cardiovascular research in the UK. Advances made through research funded by donations to the BHF have saved countless lives both in the UK and world-wide and reduced the devastating burden of premature heart disease on families and individuals.”

Professor Samani is currently BHF Professor of Cardiology at the University of Leicester, Head of the Department of Cardiovascular Sciences at the University, Director of the NIHR Biomedical Research Unit and a consultant cardiologist at Glenfield Hospital in Leicester.

He is a Fellow of the Academy of Medical Sciences and a NIHR Senior Investigator. In 2015 Professor Samani was knighted for services to medicine and medical research.

In October 2015 the BHF announced its new research strategy and committed to spending over half a billion pounds on research over five years . The Medical Director of the BHF oversees the charity’s research funding – the BHF currently funds over half of all non-commercial cardiovascular research in UK universities and hospitals. Through donations to the charity, the BHF funds over 1,000 different research grants at any one time.

Among his many research achievements, Professor Samani has co-led the discovery of over 50 genes associated with coronary heart disease (CHD), with the BHF Family Heart Study, of which he was co-principal investigator making substantial contri-

Dr Rajai Ahmad

Dr Gordon Williams

MD, FRCP

Cardiology Consultant

Consultant Cardiologist

Member of the Royal College of Physicians, British Cardiovascular Society, British Cardiovascular Intervention Society & British Heart Valve Society.

MB BCh FRCP FACC Spire Leeds Hospital Jackson Avenue, Leeds LS8 1NT

Dr Ahmad is an interventional cardiologist at Sandwell and West Birmingham Hospitals NHS Trust.

His clinical and research interests are in the fields of coronary artery and structural heart disease including percutaneous coronary intervention (angioplasty and stenting) and mitral balloon valvuloplasty in which he has extensive local, regional and international experience and in the management of patients with acute coronary syndromes and cardiac arrhythmias.

Tel: Fax: Mob:

0113 218 5943 0113 218 5987 07702 550 758

Email: sandra.ellerbeck@spirehealthcare.com Member British Cardiac Society

Dr Ahmad has extensive experience in all aspects of medicolegal work over more than 20 years.

Consultant Cardiologist at Yorkshire Heart Centre, Leeds General Infirmary and York Teaching Hospitals NHS Trust, involving all aspects of congenital and acquired cardiology, the management thereof and invasive and non-invasive diagnostic procedures.

Civil aviation approved cardiologist.

Contact via secretary on 0121 507 3885 E-mail: rajai.ahmad@nhs.net Sandwell and West Birmingham Hospitals NHS Trust Lyndon, West Bromwich, West Midlands B71 4HJ

Medico-legal expertise in Invasive and non-invasive investigations, Diagnostic techniques, Coronary artery disease, Hypertension, Heart failure, Congenital heart disease, Sudden cardiac death screening and General cardiology.

EXPERT WITNESS JOURNAL

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“Whilst this prestigious national leadership role is a reflection of Professor Samani’s stellar career, I’m delighted that he will continue to lead his highly successful research group in Leicester. We wish him every success in his new position.�

Professor Samani said: “Although there has been great progress, cardiovascular diseases still remain the number one killer and a growing problem in many parts of the world. The BHF has recently announced an ambitious strategy for funding research for the next five years so it’s tremendously exciting to take on this role at this stage.

John Adler, Chief Executive of the University Hospitals of Leicester NHS Trust said: “Professor Samani is a clinician and researcher of huge talent and all his colleagues within Leicester’s Hospitals will be delighted by this news, particularly as he is to combine this prestigious national role with a continued presence in Leicester."

“By working with the research community in the UK and overseas, the NHS and other funders, including the Government, and patients and the public, we will continue to make important breakthroughs that save and benefit the lives of people with heart and circulatory disease.�

For over 50 years the BHF has invested in world leading research that has helped transform the lives of people living with heart and circulatory conditions.

There are around 175,000 heart attacks in the UK each year, meaning someone suffers a heart attack every three minutes, but successful research has led to treatments that mean seven in ten people now survive. A quarter of all deaths in the UK are caused by cardiovascular disease and there are an estimated seven million people living with the condition.

Alongside his new role as the BHF’s Medical Director, Professor Samani will continue research at the University of Leicester and some clinical work at Glenfield Hospital, part of the University Hospitals of Leicester NHS Trust.

Simon Gillespie, Chief Executive at the British Heart Foundation, said: “Professor Samani is an outstanding, world-renowned researcher who has led the development of cardiovascular research at Leicester for many years.

The BHF raises vital funds to fight heart disease through legacies, fundraising and its over 700 charity shops across the UK.

“His research has greatly advanced our understanding of how our DNA affects our heart disease risk, which is now guiding researchers looking for more effective future treatments. Professor Samani has combined his research with clinical work that is bringing the benefits of research to his patients now.

Find out more about how the BHF is fighting heart disease at bhf.org.uk/research

“Everyone at the BHF looks forward to working with Professor Samani on ensuring the UK remains a world-leader in cardiovascular research and continues to fund science that is both exceptional, and most importantly, benefits the 7 million people with cardiovascular disease in the UK and the tens of millions more around the world.�

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Professor Paul Boyle, President and Vice-Chancellor of the University of Leicester said: “This is a tremendous honour and tribute to the talent of an inspirational member of our University community. Professor Samani's world-class work has helped to establish Leicester as an internationally renowned centre of excellence for cardiovascular research. His results have had a huge local and global impact. He has pioneered major advances in his field and he will bring this wealth of experience to bear on advancing the excellent work the British Heart Foundation does. The whole of the University community wishes him well and we look forward to continuing our association with him in his capacity as Professor of Cardiology at the University.�

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Professor Philip Baker, Pro-Vice-Chancellor and Head of the College of Medicine, Biological Sciences and Psychology and Dean of Medicine at the University of Leicester said: EXPERT WITNESS JOURNAL

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The Evidence Basis for Scar Severity Assessment and Scar Treatments – Do we actually know what we would like to think we know?

by Mr Ciaran O’Boyle which can be used for comparison of outcomes, the techniques require training; they are highly userdependent and liable to considerable variation in results when used by individuals of different experience. As a result, devices have not been adopted generally and largely remain research tools.

Scars and healed wounds Wounding is not a natural process and the biological processes that deal with wounds are not regarded as normal either. Therefore, it is not valid to describe any scar as “normal”. This would seem to be readily understandable, even axiomatic. However the lack of firm concepts about what scars should look like or behave like (what should be regarded as a “normal scar”), underpins both doctors’ difficulty in assessing scars and variability in those assessments. In addition, the visible appearance of a scar is only one component of what may be a highly-complex set of symptoms and physical problems including: pain; tenderness; itch; altered sensation; reduced ability to move; psychological or psychiatric issues.

In the absence of an ideal scarometer, various clinical methods to rate scars have been developed. The number of different scar scoring systems available should serve as a cautionary guide to their fallibility.

The most widely-recognised and extensively-published scar scores are described below. It should be remembered that although these scores may prove useful in assessing and comparing outcomes, they are highly-flawed as diagnostic tools and should not be considered as a means of diagnosis of hypertrophic or keloid scarring.

Rating scars When is a scar a bad scar? This question is one that is pondered frequently by specialists taking instruction in medicolegal cases which, on the face of it, may seem to be easily answered in an understandable way.

However attempts to evaluate scars for diagnosis and severity are fraught and highly-susceptible to subjective influences. Efforts to achieve objectivity in scar assessments have led to the development of many types of devices to measure certain physical attributes of skin [1]. Whilst these devices provide numeric data EXPERT WITNESS JOURNAL

Vancouver Scar Scale (VSS) This is a long-established means of scar evaluation [2,3], which uses an assessment of four features of scars: Vascularity; height & thickness; pliability; and colour. Patient perceptions are not assessed in this scoring system. Some evidence is available showing moderate or good correlation between the VSS score and objective techniques to assess cutaneous physical characteristics. The VSS remains applicable for 16

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evaluation of therapy and surgical outcomes in burns, but is yet to be adopted in general clinical use.

In determining which treatment to use for any particular condition, doctors often rely upon national or international guidelines, which in turn tend to be based upon systematic reviews of numbers of randomised controlled studies, involving large numbers of patients, often tens of thousands. The quality of evidence on which treatment decisions are made is often quoted as a Level of Evidence. The Oxford (UK) Centre for Evidence-Based Medicine (CEBM) [10] developed this scheme for ranking the available evidence for treatments, giving levels of evidence for statements regarding treatment effects and outcomes.

Patient and Observer Scar Assessment Scale (POSAS) This scale overcomes some criticisms of the VSS, in that it combines assessments of several physical features by both doctor (the observer) and patient, together with subjective, patient assessments [4]. The POSAS is still the only widely-recognised scale that considers subjective symptoms, but lacks information on function and quality of life [5]. The POSAS scale is subject to some criticism. Analysis has shown that the observer's opinion and patient's opinion may be primarily influenced by different components of the assessment scheme [6]. Anecdotally, researchers report suspicion that many patients will tend to underestimate the severity of their scars, when presented with the POSAS scale. Furthermore, the scale is relatively cumbersome, requiring about 10 minutes to complete and patients with multiple scars, or scarring over a large area, may require multiple POSAS scales to be completed at each assessment.

CEBM levels of evidence 1a: Systematic reviews of randomized controlled trials 1b: Individual high quality randomized controlled trials 1c: All-or-none randomized controlled trials 2a: Systematic reviews of cohort studies 2b: Individual cohort study or low quality randomized controlled trials

Manchester Scar Scale Proposed in 1998, this scale was an attempt to introduce a more quantitative element into scar assessment [7]. It differs from the POSAS and VSS in that it includes an additional 1-10 overall score and details on race, ethnic background, history, cause, symptoms, treatments, and responses. These additional data have been shown to improve the degree of agreement in scores between different clinical observers [8].

However, likely due to the time involved in filling this more cumbersome questionnaire, it has not been adopted in clinical practice. A further important caveat should be highlighted, in that this score was intended to be a means of comparing scars and measuring improvements or deterioration over time.

It is not and could not be a means of diagnosis of hypertrophic or keloid scars.

2c: Outcomes Studies 3a: Systematic review of case-control studies 3b: Individual case-control study 4: Case series (and poor quality cohort and case-control studies) 5: Expert opinion without critical appraisal, or based on physiology or first principles While occasional published evidence on scar treatments may approach Level 2b, the vast majority of published evidence sits in and around Level 4. This compares very unfavourably when compared to treatments of medical conditions like hypertension or heart disease, which will rely heavily upon evidence of levels 1 and 2.

Treating scars What treatment or treatments are necessary to improve this person's scars?

The answer to this question will vary tremendously, depending upon the specialist of whom it is asked.

Treatment options for scars were discussed recently in this journal, by Shokrollahi [9], who described 15 different treatment types. This list itself was not exhaustive. Additional scar treatments include intralesional cryotherapy and electrochemotherapy as well as other mainly research-based treatments still under evaluation. However, as is the case with scar scoring systems, the fact that so many different types of treatment available should be a reasonably good indication that no treatment is fully effective in all patients.

EXPERT WITNESS JOURNAL

Who do we believe?

Expert witness testimony is a mixture of statements of evidence-based fact and statements based upon the individual expert’s personal experience. With respect to scarring, both foundations are valid. In some respects they have to be as the bulk of clinical consensus in scar assessments and treatments relies upon experience; whenever an objective evidence base is present, this is mostly of a fairly low level.

Methods of scar evaluation and diagnosis are notoriously subjective and susceptible to errors, both by patients and the clinicians evaluating them. Even scar assessment scores that purport to be “objective” contain overt subjective terms in their evaluation criteria and researchers reporting outcomes of scar treatments often conclude that further more

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technical, non-standard methods of scar evaluation (for example, by recording images or 3-dimensional impressions and casts) may be required, in addition to scar outcome scores, in order to truly provide “objective” data. The result of this is that, to some extent, statements about scar severity and outcomes will necessarily involve subjectivity on the part of medical expert witnesses.

Mr Ciaran O'Boyle Consultant Plastic Surgeon MD, FRCS (Plast), BSc

Mr Ciaran O’Boyle is a Consultant Plastic Surgeon and Honorary Assistant Professor at the University of Nottingham. He has a wide range of expertise in reconstructive and aesthetic surgery, burn care, trauma, scarring, skin cancer and surgery for facial paralysis.

Good quality, prospectively-recruited, adequatelyblinded, randomised controlled clinical trials are sparse in scar and wound management, as are systematic reviews. As a result, the leading international guidelines on scar management were derived from consensus groups, rather than “pure” scientific evaluation [11,12]. The fact that these guidelines, published in 2002, have never satisfactorily been superseded is strong evidence of lack of: agreement; understanding and even motivation among doctors who assess and treat scars across the world.

Mr O'Boyle regularly receives instructions for medical assessments and expert opinion in cases of personal injury, scarring and disfigurement.

BMI The Park Hospital Sherwood Lodge Drive, Nottingham, NG5 8RX Tel: 0115 966 2119 Email: coboyle.plasticsurgery@gmail.com Web: www.ciaranoboyle.co.uk

Medical experts try to assist courts by providing impartial assessment of scars and applying their knowledge and experience to provide opinion on the best way to treat scars that are problematic. That knowledge and experience is the foundation of a doctor's entitlement to be called an "expert"[13]. However, given current knowledge and evidence, medical experts may be unable to provide advice regarding prognosis, severity and treatment, with satisfactory degrees of certainty. This renders more significant, a specialist's personal clinical experience. Although it may seem unsatisfactory to base conclusions about prognosis or best treatments upon personal experience rather than systematic reviews and randomised controlled trials, the unpalatable truth is that, with respect to scars, the evidence base does not support provision of opinion based solely upon published data.

We would like to say Give precise, quantitative and reproducible scar assessments.

References 1. Fearmonti R, Bond J, Erdmann D, Levinson H. A Review of Scar Scales and Scar Measuring Devices. Eplasty. 2010 (June); 10: e43.

2. Nedelec B, Shankowsky A, Tredgett EE. Rating the resolving hypertrophic scar: comparison of the Vancouver Scar Scale and scar volume. J Burn Care Rehabil. 2000; 21: 205–212.

3. Sullivan T, Smith J, Kermode J, et al. Rating the burn scar. J Burn Care Rehabil. 1990; 11: 256–260.

Why we might not be able to No single, common scar assessment scale.

Valid criticisms of statements What is meant by "a hypertrpohic scar"?

What is meant by "a bad scar"?

Provide evidence-based treatment plans, with nationally-agreed first-, second- and third-line treatment options, to allow for treatment failures.

International Guidelines are a consensus statement only.

Give evidence-based opinion on prognosis and final outcome.

Variable nature of wound healing.

No definitive scar outcomes analysis

EXPERT WITNESS JOURNAL

Low levels of evidence for all treatments.

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Why commit the patient to a series of expensive and probably ineffective steroid injections?

Why jump to recommend that expensive and unproven treatment?

Upon what evidence base do you give that prognosis?

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4. Draaijers LJ, Tempelman FR, Botman YA, et al. The Patient and Observer Scar Assessment Scale: a reliable and feasible tool for scar evaluation. Plast Reconstr Surg. 2004; 113: 1960–1965.

5. Truong PT, Lee JC, Soer B, et al. Reliability and validity testing of the Patient and Observer Scar Assessment Scale in evaluating linear scars after breast cancer surgery. Plast Reconstr Surg. 2007; 119(2): 487–94.

6. Roques C, Teot L. A critical analysis of measurements used to assess and manage scars. Int J Lower Extr Wounds. 2007; 6(4): 249–253.

Dr Paul Bell

7. Beausang E, Floyd H, Dunn KW. A new quantitative scale for clinical scar assessment. Plast Reconstr Surg. 1998; 102: 1954– 61.

Consultant General Adult Community Psychiatrist MB Bch BAO, MD, FRCPsych

9. Shokrollahi K. Assessment and Treatment of Scars. The Expert Witness. 2015/16; 1(14): 65-67.

Consultant General Adult Community Psychiatrist in East Belfast since 1991 having extensive medical management experience and taking especial interest in Child Protection measures, Post Traumatic Stress Disorder, Schizophrenia and improving relationships between Family and Child Care and Mental Health.

10. http://www.cebm.net/oxford-centre-evidence-based-medicinelevels-evidence-march-2009/

I have acted as an expert witness in psychological trauma and other cases for 20 years

8. Sullivan T, Smith J, Kermode J, et al. Rating the burn scar. J Burn Care Rehabil. 1990; 11: 256–60.

11. Mustoe TA, Cooter R, Gold M, Hobbs R, Ramelet AA, Shakespeare P, et al. International clinical guidelines for scar management. Plast Reconstr Surg 2002; 110: 560-72.

Department of Psychiatry Knockbracken Healthcare Park Saintfield Road, Belfast BT8 8BH Tel: 02890 565 656 Email: yvonne.mccambley@belfasttrust.hscni.net

12. Mustoe TA. Scars and keloids - Several treatments are used, but the evidence base is lacking. BMJ. 2004; 328: 1329–1330.

13. S Al-Benna, C O’Boyle. Burn care experts and burn expertise.

Burns 40(2): 200-203. ■

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We aim to provide a typical report with a turnaround time of 5 to 7 working days, on receipt of instruction. Focused treatment plans can also be offered to patients, after completion of a full psychiatric report, to treat psychiatric symptoms and presenting morbidity.

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How Useful are National Reports in Cases of Stillbirth and Neonatal Death from the Medico-legal Point of View

By Matthew Long MD FRCOG It is very difficult to imagine what parents are going through emotionally when they are told that their newborn baby has died. Fortunately, this scenario is now uncommon but this means that it is very much highlighted when it does occur. Although some of these events will be unavoidable, such as in cases of congenital abnormalities, others can be the result of substandard care. The lessons learnt from national reports auditing these events are not only important form a purely clinical point of view but also the recommendations relating to deficiencies in care can be applied to a civil claim relating to newborn deaths.

The perinatal surveillance report published as part of MNI-CORP recorded that there were 3,252 stillbirths and 1,381 neonatal deaths born at 28 weeks or greater in the UK in 2014. This gives an extended perinatal mortality rate (stillbirths and neonatal deaths up to 28 days after delivery) of 5.92/1000 total births together with a stillbirth rate of 4.16/1000 and a neonatal death rate of 1.77/1000 total births. There is a variation of these rates across the UK that reflects that the quality of healthcare delivery is not equitable.

A supplementary report from MBBRACE-UK published in 2015 further examined causes for stillbirth at term (37-41 weeks gestation) in order to identify critical gaps in care. This highlighted a number of areas of substandard care that are important to assess in relation to any case of a civil claim made in the event of a stillborn baby. Out of the sample taken around 50% of the women had at least one risk factor for diabetes in pregnancy but only one third were offered testing for this condition.

Undiagnosed diabetes in pregnancy can lead to an increase risk of stillbirth as well as the development of a large baby with the associated potential problems of a traumatic delivery, birth injury and neonatal health problems and death.

Deaths of babies around the time of their birth have been documented and audited nationally in the UK with the introduction of the Confidential Enquiry into Stillbirths and Deaths in Infancy (CESDI) report in 1992. This was a logical progression form the already existing Confidential Enquiry into Maternal Deaths (CEMD) reports that had been published at three yearly intervals since 1954. The remit of CESDI was to examine the causes of death in late fetal life and infancy, namely from 20 weeks gestation to 1 year after birth. The aim of the report was to indentify substandard clinical practice and service provision that contributed to the mortality of this group.

Recommendations could then be made in order to improve care with the consequence of lowering the mortality rate.

The report also showed that there was poor care in assessing the growth of the fetus in utero. In 66% of cases of stillbirth the national guidance for screening and monitoring of fetal growth was not followed. Additionally, the women in approximately half of the stillbirth sample studied had contacted their maternity unit to report that their babyâ&#x20AC;&#x2122;s movements had slowed, changed or stopped. The report concluded that half of these were missed opportunities in care to potentially save these babies.

In 2003 the CEMD and CESDI reports were combined to form a single report named the Confidential Enquiry into Maternal and Child Health (CEMACH). In 2012 CEMACH was further refined into the Maternal Newborn and Infant Clinical Outcome Review Program (MNI-CORP) which has been designed to allow more flexibility in focusing on certain areas of care. MBRRACE-UK is the collaboration of academics and the Stillbirth and Neonatal Deaths charity (SANDS) which oversees the process of MNI-CORP under the guise of the National Perinatal Epidemiology Unit at the University of Oxford. Information is published annually with supplementary reports further examining aspects of care.

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A stillbirth is a dramatic endpoint to a viable baby in pregnancy that is usually the result from an hypoxic episode. Some causes of hypoxia are acutely catastrophic, such as an abruption of the placenta, whilst others are progressive. From the reports cited above, an inadequate assessment of fetal growth or of women presenting with reduced fetal movements, 20

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both as a result of placental insufficiency, can result in a baby not only being stillborn but also being born with cerebral palsy. A key area in providing an expert report in these cases will rely on the interpretation of the cardiotocograph (CTG). The CTG is a machine used in maternity and antenatal units that records the fetal heart rate as well as uterine activity so that the condition and wellbeing of the fetus in relation to hypoxia can be assessed. In an analysis by the NHS Litigation Authority over a 10 year period from 20002010, a panel of solicitors were asked to submit information about their client’s claims regarding misinterpretation of the cardiotocograph. One hundred and seventy sample claims reported that in 148 of them the issue of unrecognized abnormalities of the fetal heart rate was an integral part of the claim.

These tend to involve high value claims where the baby has developed hypoxic brain injury and therefore is an important area for the expert witness to address.

Matthew Long MD, FRCOG Consultant Obstetrician, Gynaecologist & Mininmal Access Surgeon I have over 25 years experience in dealing with obstetric and gynaecological health issues. In addition to my clinical practice, I have had academic papers published in peer reviewed national and international medical journals.

I act as a medico-legal expert in the field of clinical negligence and personal injury for both Claimant and Defendant in the following areas: The obstetric management of labour and delivery; Urinary incontinence & pelvic floor problems, including pelvic organ prolapse; Minimal access surgery including hysteroscopy, laparoscopy and treatments for menorrhagia; General gynaecology.

I am fully compliant with the GMC and RCOG regulations on specialist registration and continuing education.

National reports auditing the quality of care can contribute very useful information for an expert in assessing whether care delivered could have been substandard or not. Although clinical practice can vary from practitioner to practitioner or from hospital to hospital, there are agreed clinical standards that are now clearly reported upon regarding what should constitute basic levels of care that should be provided. Although not all events of stillbirth or neonatal death will be a result of substandard care, these reports show that there are still a significant proportion that are clearly the result of this. ■

P. O. Box 302, Horley, Surrey RH6 9TB T: 01293 822 344 E: matthewlong@nhs.net

w: www.specialistgynaecologist.co.uk

Scientific Cooperation Across Europe will Continue

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Specialising in children & adults with learning disabilities.

Experience at The Central Criminal Court, and The Principal Registry of the Family Division.

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Our links as professional bodies, and our members’ individual links with academic and applied colleagues across the continent, are hugely beneficial. While the future is uncertain, we can be certain that this collaboration will continue and we can be confident in the unity of our profession and discipline.

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Life Expectancy – Working Towards an Accurate Prediction

by DA Shields, JR Brigstocke, JH Scurr Historically, life expectancy was used by the insurance industry, usually to provide pensions for widows and children, but calculating premiums had no scientific background until 1662, when John Gaunt analysed births (christenings) and deaths (burials) in the City of London. Interest in keeping such figures remained within the insurance industry until the registration of births, marriages and deaths became compulsory in England in 1837, and the first official English life tables were published in the Registrar General’s Fifth Annual Report of 1843.

Introduction There are many situations where accurately predicting a person’s life expectancy, determining how long they will live (and, indeed, the quality of that life), can be extremely useful to the court in determining a financial settlement.

Can we predict with any degree of accuracy when a person will die, as such a figure will have a significant effect on the overall settlement?

In this review we have considered the historical background to life expectancy and what steps are currently being taken to improve the forecasts. By taking a more scientific approach and comparing our results with outcome, we expect to be able to determine life expectancy with an increased degree of certainty.

Since then such tables have been regularly produced, in the UK by the Office for National Statistics (ONS, who took over from the Government Actuary’s Department in 2006). The national period life tables are produced annually and use data from population estimates and deaths by date of registration data for a rolling period of three consecutive years. The current set of national life tables (2015) are based on the mid-year population estimates for 2012-2014.

These are divided by sex, then further subdivided by country, then by local areas. Similar tables are produced by other countries such as, for example, the Central Statistics Office in Ireland.

Courts often require estimation of life expectancy, either to calculate possible financial loss due to inability to work or early death, or to estimate duration of life to calculate quantum for care provision. Occasionally, too, a request is made to calculate loss of chance due to, for example, a delayed diagnosis of cancer with a (possible) worsening of prognosis.

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encompass the whole population, thus including such risks as diabetes and smoking, yet it is sometimes hard to get an expert to accept that if your client does not suffer from such risks, he should not be penalised for his good health (or vice versa).

UK Courts use the Ogden Tables (the latest Ogden Tables being the 7th edition, published in 2011) for personal injury and fatal accident cases, following the Civil Evidence Act 1995. These are produced by the Government Actuary’s Department, based on data provided by the ONS. Unfortunately the figures for projected mortality (Tables 1 & 2) lag behind the ONS tables, the 7th edition using data from the 2008-based population projections, so for mortality projections it is more accurate to use the ONS figures. Also, the Ogden tables only give figures for the whole of the UK.

It has been recognised anecdotally for a long time that certain persons are likely to live a longer or shorter period than expected (indeed, in roughly 1000 BCE King David in Psalms 90:10 noted the years of our life are 70, or even by reason of strength 80, demonstrating an understanding that we do not all live to be the same age!). From a more modern perspective we recognise changes based on socio-economic and medical data. Tables are always produced giving figures for both sexes, as it is well-recognised that mortality varies by gender, and inequalities are also evident in different geographical locales, hence the provision of data by country and county in the UK tables. Attempts are constantly being made to try to improve the data (for example, the Longevity Science Advisory Panel - http://www.longevitypanel.co.uk/), as differences in life expectancy by socio-economic group have continued to widen. There is some overlap between medical and socio-economic risk factors (for example, increasing obesity leading to increased high blood pressure, diabetes and heart disease), but also increased research into the effects these have on life expectancy.

The ONS tables allow one to look up the age and sex of a person and be given a remaining life expectancy.

The ONS also give cohort life tables that provide mortality rates that vary over time for each age. This cohort life expectancy figure takes into account future projected mortality rates by age and for each year, so is higher than the equivalent period life expectancy. This is because the cohort figure incorporates future assumed improvements in age-specific mortality, and can be regarded as a more appropriate measure of how long a person of a given age would be expected to live on average. These tables are produced biennially based on assumptions for future mortality from the National Population Projections, produced primarily to provide an estimate of the future population of the UK and based largely on extrapolation of past trends in rates of mortality improvement (the average annual rate of improvement has been about 1.2% over the whole of the 20th century), together with expert opinion as to future mortality rates.

Early work on reducing mortality was based on such methods as vaccination, reduction of scurvy in ship’s crews, and improvement in sanitation. Once the prevalence of infectious diseases began to reduce, public health experts began investigating chronic diseases such as heart disease and cancer. The first modern paper to show a significant association between smoking, lung cancer and heart disease was that of Doll and Hill in 1954 (Doll R, Hill AB. "The mortality of doctors in relation to their smoking habits". BMJ 1954;328 (7455):1529–1533), together with further follow-up papers. In 2004 this allowed a calculation of reduced life expectancy of those who smoke until 40 of 1 year, those who smoke until 50 lose 4 years, and those who smoke until age 60 lose 7 years.

However, such a figure does not represent the actual likely age at death, but rather gives the median value (middle value in a sorted list of numbers), and clearly for a given age and sex there will be a range of values of years lived within this group. The distribution of deaths within the group will be roughly bell-shaped with negative skew, with a peak at the mode (the value that appears most often in a set of data), with a range either side. Currently for men the mode is 86, seven years more than the mean (average) of 79, and the median is 3 years more than the mean, so the term 'life expectancy' can be misleading. Accordingly, an attempt can be made to determine which side of the median any particular person is likely to fall, and also to calculate how far away from the median death might occur.

Since this seminal paper, there has been a steady stream of epidemiological studies looking at life expectancy in such diseases as hypertension and heart disease (the pre-eminent study being the Framlingham Heart Study, commenced in 1948, which now allows an easy calculation of an individual’s 10-year cardiovascular risk score), diabetes and, of more recent interest, obesity. Early papers tended to look at a single risk factor, which led to difficulties in calculating a cumulative risk caused by several, often overlapping, diseases, but more recent papers have recognised this problem and analysed multiple related risk factors together - see, for example, the

Unfortunately, one occasionally meets an ‘expert’ in a case who is prepared to state that there is no need for any recalculation from the median given in the ONS tables. However, from a medical perspective it has been clear for some time that it is possible to give a potentially more accurate estimate of mortality than this in individual cases. The argument usually raised in favour of using the median is that the tables EXPERT WITNESS JOURNAL

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excellent paper by Leal, Gray and Clarke (“Development of life-expectancy tables for people with type 2 diabetes.” European Heart Journal 2009;30:834-9) that contains a series of tables that enable one to look up life expectancy based on level of diabetic control, blood pressure control and cholesterol levels for the two sexes. However, to produce an accurate figure one needs access to the whole of a patient’s medical record (including such factors as place of origin, height and weight, and information on their educational achievement, occupation and smoking and drinking history as well as their full medical history), together with constant searching of the scientific literature for newer papers on the various risk factors identified. The literature is being constantly refined as, for example, we gain a better understanding of how good control of blood pressure or diabetes impacts upon the overall survival figures. Such work is essentially a full-time job.

New risks are also being identified, for example, stress, particularly at work (with the suggestion, for example, that the cardiovascular health risk of stress is not dissimilar to the risk from cigarette smoking, according to Laura Kubzansky, Professor of Social and Behavioral Sciences at Harvard School of Public Health).

Conclusion Early tables to calculate life expectancy were prepared primarily for the insurance industry, who require an analysis for the purposes of calculating premiums, and current tables are produced for government statistical purposes. Such tables clearly have limitations with regard to life expectancy for an individual.

Whilst there can be no certainty about calculation of life expectancy and there will always be exceptions to any rule, using all the available risk factors we are confident that our predictions in individual cases can be more accurate than the median quoted in the ONS tables. We are now preparing an increasing number of life expectancy reports, and are attempting to correlate our predictions with the actual date of death, to determine the accuracy of our predictions.

There are two groups who require more detailed examination and clinical expertise – neurological damage (either at birth or subsequently) and patients diagnosed with cancer. For the former, there is again an increasing body of literature as to outcome in traumatic brain or spinal cord injury, but there is, perhaps, less certainty as the development of complications such as pressure sores, chest infections or sepsis can rapidly alter the outcome, and outcome from neurological damage from stroke is again difficult to predict accurately. Brain damage in infants is the group that perhaps requires the most detailed analysis, as the greatest single proportion of damages in the UK is paid as compensation to successful claimants in brain damage at birth litigation. One author in particular, David Strauss, has been responsible for providing data in cases both of such brain injury (and in the UK by Lewis Rosenbloom – see, for example, Strauss D, Brooks J, Rosenbloom L, Shavelle R. Life expectancy in cerebral palsy: an update. Developmental Medicine & Child Neurology 2008,50:487–493) and spinal cord injury, for the latter together with such other authors as Shavelle, DeVivo and Frankel.

Accordingly, there is no reason to accept the median figure given in the ONS tables as to life expectancy, as this represents the starting point for such a calculation, not the end point. To identify the various risk factors and calculate a more appropriate figure takes time, access to considerable data regarding the client, and an active interest in the field such that the literature base can be kept up to date.

For cancer, there are now grading systems for every type that will give a reasonable idea of possible survival, though a difficulty sometimes arises as to what difference a late diagnosis has made – when essentially an educated guess has to be made as to what stage the cancer might have been at (and hence what chance of a cure) compared to when it was eventually diagnosed. Various factors may help (such as the histological grade of the tumour), but for the moment this area remains rather grey (and often requires further input from an oncologist and from other specialities such as pathologists and radiologists).

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Above, Okinawa community members harvest hijiki seaweed from the waters off Camp Courtney - often credited as the secret to a long and healthy life (Islanders hold the world record when it comes to longevity, with a higher percentage of centenarians than anywhere else) Medico-Legal Chambers UK Ltd. Suite 314 The Mille 1000 Great West Road Brentford TW8 9DW DX 117800 Brentford 4 Tel. 0207 259 9216 Email medleguk@btconnect.com 25

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Causation of Psychological Injuries and Index Incident Assessment

by Koch HCH & Newns K (2016). psychological issues, as well as any pre-event and post-event stressors (Leckart,2009). This process may well involve ‘apportionment’ i.e. the estimation of the percentage of psychological injury caused as a direct result of the index event, as opposed to other unrelated pre-event or post-event factors. The notion of apportionment is typically applied with respect to three time frames: prior to the index event, the index event period itself and, thirdly, at the time of the medico legal assessment period (typically 3 – 36 months later).

Conducting psychological assessments for medicolegal purposes, in the area of psychological injuries following index events such as road traffic accidents, medical and work accidents, is a complex task as rarely does one event occur in total isolation from other events, trends or predispositions. Psychologists acting as experts are required to understand and debate theories of injury causation, conduct a qualitative (and sometimes quantitative) analysis of data and attribution, and give a prognosis for future injuries with or without treatment. This discussion paper highlights the key issues inherent in these complex assessments.

Effects of other adverse events A common misconception is that the more ‘stressors’, or adverse life events, an individual has experienced across the course of their lifetime, the more pathology and disability is apportioned to their previous history.

Background The ability to reliably identify a psychological ‘injury’, to understand its causes and to establish appropriate attribution to a trigger event are crucial to the successful functioning of the civil court and to the law firms and the clinical experts who provide services to them. Ensuring and maximising evidential reliability involves careful consideration of any pre-injury EXPERT WITNESS JOURNAL

However, two important factors can run counter to this: a] the positive ‘toughening’ effect of adverse life experience resulting in resilience and increased coping ability for subsequent [e.g. index] stressors, 26

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and b] the time gap between previous life events and the index event, which may well have allowed the individual to resolve or otherwise overcome a previous trauma.

treated with psychological therapy or anti-depressants).

Of course a prior history of trauma can also leave the individual with a vulnerability or pre-disposition to later psychological problems. The balance between these issues in any one particular case requires careful consideration (Koch et al, 2014 a).

Other = Childbirth, termination, house move, alcohol misuse, non-prescribed drug use.

Furthermore, it is well known that symptoms of anxiety and depression are common in the general population. The UK-based NICE guidelines (2009) state that after one prior treated episode of depression, there is a 50% chance of a further episode within that individual’s lifetime. This raises the relevant medico-legal question – might the claimant not have had the particular symptoms claimed even if the litigated event had not occurred? This, essentially, is the powerful ‘but for’ question.

Fig I Work Accident and Injury Redundancy Fear of Redundancy Work Harassment or Stress Disciplinary Situation Car Accident Motorbike Accident Cycle Accident Pedestrian Accident Significant Mental Illness Hospital Stay Medical Accident Childbirth Termination House Move Alcohol Misuse Non-Prescribed Drug Use Antidepressant Medication Significant Financial Debts Marriage Divorce Relationship problems or Separation Neighbour Dispute

Social = Significant financial debts, marriage, divorce, separation and relationship difficulties (such as living apart).

A checklist of stressful life events is shown in figure I below:-

ther issues, which experts need to grapple with when assessing causation, include: a) What were the effects of the claimant’s pre-event personality including their resilience, and tendency to minimise or maximise their distress? b) Indication in their pre-event history of a significant predisposition of vulnerability to the development of further symptoms when experiencing stressful events? c) To what extent do the frequency and severity of any pre-event episodes of psychological symptoms predict further such episodes at/or around the time of the index event? d) Further, how might the above conflict with, or else confound, the ‘egg-shell skull’ principle, which insists that the Court must take the claimant ‘as it finds him/her’? (Koch, 2015)

Bereavement or Serious Illness to Close Relatives/Close Friend Problems with your Children

Pre-event Stressors There is no exhaustive list of possible stressors or adverse life events to investigate. However, the typology and list below illustrates some of the more typical events and issues to be considered:

Theories of Injury Causation Clinical and medico-legal experience has demonstrated that one of more events can result in a variety of independent or dependent (linked) outcomes. Two main theories that can apply are the Single Cause Theory (SCT) and The Domino Cause Theory (DCT) from Industrial research (RRC International, 2015).

a) Typology: Work = Work accident (and injury), redundancy, fear of redundancy. Work harassment, conflict or disciplinary situation, significant work stress.

Medical = Significant medical illness, significant medical illness to partner, children or parents, termination, child birth.

SCT Theory predicts, in a simple, straight forward way, that a single index event occurs which causes a direct result, in terms of some form of psychological symptom or injury, with no relevant antecedent events or context and no relevant post-index event events or context.

Psychological = ongoing (chronic) or recent psychological symptoms (which may or may not be

The DCT theory suggest that there is a sequence of one or more events or circumstances that affect or

Traffic = Car accident, motorbike accident, cycle accident or pedestrian accident.

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influence the emergence, severity and duration of psychological symptoms e.g. prior similar events (e.g. prior road accident), prior adverse events, vulnerability or predisposition/personality. The DCT also takes into account the legal concept of ‘Thin’ & ‘Crumbling’ skulls (Koch et al 2015). This multi-causal theory suggests that preceding an index event there is a combination of causal factors that lead to post index event psychological symptomatology. This model also presupposes that for most, if not all, individuals there is a threshold of coping, resilience and emotional wellbeing that needs to be ‘breeched’ or ‘overcome’ by one or more events in order that a clinically significant or diagnosable psychological injury to occur. Within this threshold, individuals may well experience ‘near misses’ or situations which ‘could have led to an accident’ but not develop a psychological injury.

Memory effects: a) Short-term and long-term memory impairment. b) Impaired concentration at interview.

Motivational effects: a) The claimant’s lack of perceived relevance of particular areas of questioning. b) The intention to mislead or perhaps overemphasize index event effects Another important factor, which can amplify both memory and motivational effects, is the ‘recency effect’. In many interview situations, the index event is either the most recent event of any significance or, perhaps, one of two (or three) recent significant events. As a result of ongoing litigation, and the perceived emphasis of the assessment interview upon the index event, the event itself can acquire greater cognitive and emotional significance for the claimant.

This can, understandably, result in other life events being placed rather further back in the claimant’s mind. This process, if not taken into consideration at interview, can adversely affect the quality of the claimant’s recall of their own previous history thereby affecting the validity of the information upon which the expert bases his/her opinion.

A third multi-causality theory (MCT) which considers that there may be several independent causes that impact and result in a post-index event psychological injury. This model is more complex than the SCT or DCT theories and involves a more advanced analysis.

When conducting an analysis of an index event, it is common to distinguish between an immediate cause(s) and underlying or antecedent causes. These underlying causes may be significant or ‘root’ causes, or contributory causes. It is not infrequent that a post-index event psychological injury occurs as a result of a multiple chain of events. Understanding this has diagnostic, attribution and prognostic implications.

Level of symptomatology in 12-month pre-index event One key medico-legal issue is to establish the extent to which any previous stressors resulted in any marked pre-existing anxiety or depressed mood (or other psychological symptoms), which may have been ongoing at the time of the index event. From a medico-legal perspective, the individual must then be construed as someone with an ongoing or pre-existing problem at the time of the index event, rather than being a vulnerable person with a pre-disposition to develop anxiety, depressed mood or other psychological symptoms. In such circumstances, GP records and claimant self-report are used to assess the level of psychological distress during the immediate 6-12 month period prior to an index event.

Making a comparison with the world of physical accidents analysis (e.g. plane crashes), it is interesting to be aware of work by Reason (1990), an occupational psychologist, who developed a model of accident causation for ‘organisational accidents’. He showed that organisational accidents do not typically arise from a single cause but from a combination of ‘acute’ and ‘latent’ failures. The acute failures are unsafe acts which have immediate effects on the integrity of the system. Latent failures are pre-existing, dormant circumstances and often unrecognised until they interact with an index event – they increase the likelihood of an active failure. Returning to our medico-legal context, the implication of this research is that we should be aware of and look for such ‘latent’ factors when conducting our own medicolegal assessments although it is difficult to assess relative attribution and subsequently quantum to these latent factors.

Subsequently, a post-accident diagnosis such as “the claimant suffered an exacerbation of pre-existing symptoms” may be appropriate when it is clear that the claimant had pre-existing emotional difficulties at the time of the index event.

Attribution: Science or clinical clarity?

The process of apportionment can be a subjective judgment, whereby the expert simply ‘pulls a number out of the hat’ citing the use of ‘clinical judgment’ from years of professional experience.

Obviously, this is neither acceptable nor scientific.

Recall Effects: Faulty Memory or Intent?

It is often observed that claimants appear to have difficulty in recalling full details of their own history.

Initial questioning may result in gaps and inconsistences in recall, which on re-questioning and prompting can then be explored in more depth. These gaps can be due to the following memory effects and/or to motivational or intent effects. (Koch et al 2014) a).

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When more than one adverse event exists, some form of quantitative apportionment is requested and required.

The three models that have been promulgated to assess relative attribution are: 28

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1. GAF score comparisons, 2. Mixed mathematic/linguistic valuation (MMLV) and 3. Non-mathematical impressions (NMI).

perspective. Naturally, a psychologist does not simply transpose the orthopaedic apportionment percentage since this, typically, does not take into consideration the psychological symptoms, e.g. the emotional impact of chronic pain and the psychological impact of not being able to function physically, as before, in one’s everyday life.

1) GAF (Global Assessment of Functioning) scores: Leckart (2009) stated that the overall clinical assessment requested by the GAF score allows a numerical comparison of assessments at different occasions in the claimant’s history.

Further ‘apportionment’ complications arise in situations where there are multiple index events/ accidents to consider; for example, if two or three traffic accidents have occurred within a short period of time. In these circumstances, symptoms can appear to ‘overlap’. It is then incumbent upon the expert to decide, clinically, how much of the current morbidity/injury is attributable to each of the accidents. This process involves identifying proportionality such as ‘33% x 3’ or ‘50% x1’ and ‘25% x 2’. It is also likely that no rigorous or scientific procedure can be applied in such circumstances and the examiner will have to resort to their subjective judgment.

This approach involves identifying the particular ‘baseline’ GAF score that best describes the claimant prior to the injury in question (and just after the index event), which is then compared to a GAF score representing the claimant’s level of functioning at the time of assessment.

The baseline GAF score is readily determined through a careful clinical interview and inspection of the medical records. In terms of ‘functioning’ this process helps establish what the individual could and could not do and their level of feeling, thinking and behaving before the most recent injury.

Sources of data In exploring history and the aetiology of the alleged psychological ‘injury’, the five main sources of data are the claimant’s subjective self-report, the results of the doctor’s Mental State Examination, the objective psychological testing results (if available), any contemporaneous records (GP, hospital; occupational health) plus any other collateral sources of information such as witness statement from relatives, friends and colleagues. Generally, when an expert has difficulties in identifying causation, the problem lies in having insufficient or inadequate data from these sources (Leckart, 2010; Koch et al 2014 b).

Then, the claimant’s immediate post-event and current GAF scores are determined in the same way.

With simple arithmetic, the net result is an apportionment figure. It is recorded as a simple number on a 100-point scale or as a range (e.g. 65 – 70). Its greatest utility is in assessing changes in a claimant’s level of functioning across time.

2) Mixed mathematic/linguistic valuation (or MMLV) allows the use of broad, common-sense categories to be used to represent attribution in terms of labels such as: predominantly (over 50%); partly (49% or less), materially (33% or more with clarification).

The validation of a claimant’s self-report is partly achieved by a review of medical or occupational records. It is also dependent on the claimant’s clinical presentation, which might include vagueness, evasiveness, and/or an over-dramatized or unrealistic presentation. The issues inherent with this review have been considered elsewhere (Koch, Lillie and Kevan, 2006).

This valuation can be aided by the use of a “Likert scale” where the Claimant is asked to describe their pre-accident difficulties on a scale of 0-10 and then rate these again post-accident.

3) Non-mathematical impressions (or NMI) is a procedure in which the examiner elects not state attribution in any substantive or concrete way, preferring the use of descriptive terms only such as ‘predominantly’, ‘partially’.

With specific reference to attribution and causation, the following GP-record related information is pertinent: 1. Mention of index or other accidents.

Whichever approach is taken, it is always important to have established a comprehensive history in which the individual’s adverse experiences are catalogued and their reactions and styles of dealing with those events are determined. At that point the psychologist’s job is to assess how the individual’s personality and previous experiences affect how they view the current, litigated stressor to form a subjective opinion about what proportion of the current psychological disability is due to the litigated event and what proportion is due to other factors.

2. Mention of relevant adverse events (pre- or post-index event).

3. Mention of psychological symptoms and, where present, their severity and duration as well as the treatment provided (e.g. psychotropic medication or referral to a specialist service) linked to the index event.

4. Medical certification for psychological symptoms.

Conclusion Causation is central to every legal case (Young, 2015).

The index event may be ‘material’ or ‘contributory’ to an injury, and must be seen in the multifactorial array

Many cases involve situations in which the ‘psychological’ claim is as a result of a ‘physical’ injury, which in turn, has been apportioned from an orthopaedic EXPERT WITNESS JOURNAL

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of the available evidence. The expert needs to analyse this from a biopsychosocial perspective taking into account pre-existing, precipitating and perpetuating factors, plus also taking into consideration personal and social resilience and protective factors. He must also apply logicality and, where possible mathematic apportionment to the expression of a robust opinion which cogently reflects a theory of causation which is as scientific and reliable as possible.

At a legal level, according to Young (2015), the ‘but-for’ test of causality stance constitutes a high bar for criminal cases and less stringent in the Tort context. An index event in a personal injury case can contribute materially and substantially to a resultant liable psychological injury although not uniquely or even majorly so (Young, 2015).

It is our view that the medical/clinical and legal fields need to consider Young’s concept of ‘biopsychosocial’ causality in order to specific its multifactorial components and interaction (Young, 2015). Judicial and medico-legal decision making in relation to multifactorial attribution needs further debate. ■ References Koch HCH, Leckart B, Shannon K & Hetherton J (2014 (b)) Reviewing Medical Notes. Expert Witness Journal.

Autumn.

Koch HCH, Leckart B, Willows J & Lucas V (2014 (a)) What resulted from the index event? The dilemmas of causation and apportioning psychological distress.

Expert Witness Journal. Summer.

Koch HCH, Lillie F.J. & Kevan T. (2006) Perfect Attendance: Decision Making Model for assessing the significance of GP attendance records – Legal – Medical 16-17 January

Dr Dawn Bailham Consultant Clinical Psychologist MSc Forensic Psychology DClinPsych Doctorate in Clinical Psychology BSc (Hons) Psychology

Koch HCH, Vallano J, De Haro L (2015) Thin or Crumbling skulls: Recommendations for applying these rules consistently to pre-existing status. Solicitors Journal.

Dr Dawn Bailham is a Consultant Clinical Psychologist with over 14 years experience working in Child and Adolescent mental health inpatient and community settings, Forensic mental health with adults, adults with learning disabilities, and younger adult males. In her current position Dr Bailham is Lead Psychologist in a low secure CAMHS inpatient service for adolescents aged 12 – 16 years with emerging personality disorders.

Leckart B (2010) Apportioning Psychiatric Injuries. www.drleckhartwetc.com. December 1.23.

NICE (2009) Depression in Adults: Recognition and Management. CG90. www.nice.org.uk.

Dr Bailham has considerable experience spanning 10 years of assessing parents and children within the family courts and preparing reports. She has experience of conducting forensic assessments particularly for domestic violence, sex offending and physical violence.

Reason J (1990) Human Error. Cambridge University Press, UK.

She has attended court as an expert witness on numerous occasions giving evidence in the family courts, and on a number of criminal law and personal injury cases. She completed the University of Cardiff Bond Solon Certificate for expert witnesses working in criminal law in September 2013, as well as additional modules in family law.

RRC International (2015) Loss Causation and Incident Investigation. RRC. London.

Young G (2015) Causality in Criminal Forensic and in Civil Disability Cases: Legal and Psychological Comparison. Int J Law Psychiatry. 42-43, 114-120.

Tel: 07801 266 010 Email: dawnbailhan@icloud.com

Dr Hugh Koch and Dr Katie Newns can be contacted at www.hughkochassociates.co.uk.

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Area of work Northamptonshire and Nationwide.

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Distinguishing Shades of Grey – Expert Opinion for Defence or Prosecution on Coercive or Controlling Behaviour in Intimate Relationships “Not only is coercive control the most common context in which [women] are abused, it is also the most dangerous” Evan Stark (2007) Coercive Control. How Men Entrap Women in Personal Life.

If I am instructed as a Forensic Psychologist and Expert Witness in the Family Courts working on cases involving domestic violence and abuse, it is extremely common for instructions to include conducting a psychological assessment, interviewing parties and commenting on presence or absence of risk factors for an alleged perpetrator, recommendations for possible treatment, harm experienced by an alleged victim, or offer opinion on the motivations of both parties.

duces a specific offence aimed at cases when an individual is in a controlling and/or abusive relationship, but may not have been physically assaulted: evidential issues here are less straight-forward. The difficulty for the Courts in trying such cases is likely to be two-fold:

In the criminal arena domestic violence prosecutions are often focussed exactly on that: violent offences of assault, or worse, with accompanying physical injuries, and consequent evidential aids such as medical records or observations by police officers or medical staff. It is fair to say that in criminal proceedings experts have generally been restricted to offering opinion on matters of fact, and have not been called to give opinion on psychological state, other than the broad category of psychiatric comment on mental disorders.

• Although the Stark statement above seems quite definitive, contemporary research strongly suggests things are unlikely to be as clear-cut as suggested

• In cases where the offending behaviour comes to the attention of the authorities, without evidence of physical injury, prosecutions will often come down to one word against another

In such cases, if the Government is responding to public concern by creating offences such as ‘coercive control’ which inherently centre on the ‘grey areas’ of the psychological and emotional, then the Court system must be prepared to admit Expert opinion which addresses or assesses the psyche of the offender behind the alleged crime, and potentially the harm done to the alleged victim. This could include Expert testimony on opinion of why victims of intimate partner violence and abuse will frequently continue to support their alleged victimisers.

In an attempt to take account of harm done that is not about physical violence, and that domestic abuse includes the psychological, physical, sexual, financial and emotional, the Serious Crime Act 2015 introEXPERT WITNESS JOURNAL

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absence of particular personality characteristics and behaviours, in both men and women, at age 15, rather than their gender.

What is coercive control?

The 2015 legislation does not define whether behaviour is controlling or coercive, leaving this to juries and Magistrates to decide as a matter of fact – and therein lie the grey areas. Three possible difficulties seem to present themselves with these kinds of nonphysical behaviour: 1) Deciding if the behaviour is intentional.

2) Deciding if it does harm.

3) Proving it was intentional even if it was.

For example, one of my first Expert Witness cases for Family Court involved a couple where both had a history of being in care, previous abusive relationships, substance use and so on. They had behaved violently and abusively towards one another, and each had tried to control the other. This behaviour did not happen by accident, but if it had been the subject of criminal action, was it fully intentional in the sense meant by the Act?

1) Is it intentional?

Home Office guidance on the cross-Government definition of domestic violence and abuse outlines controlling or coercive behaviour as follows:

While just about all behaviour, abusive or not, has some degree of intentionality, some sense of goaldirectedness, this is not the same thing as a deliberate pattern of intentional behaviour.

• Controlling behaviour is: “a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.”

These findings are counter to the received wisdom or stereotype that all domestic abuse is about one party dominating another, such as controlling finances or deciding what clothes an individual should wear. For criminal cases, it seems important to be able to distinguish as effectively as possible, where this is the case, and where it is not.

• Coercive behaviour is: “a continuing act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.”

2) Does it do harm?

As a psychologist and psychotherapist, I would suggest that being involved in any kind of relationship where there is a serious degree of inequality, power-imbalance, or disrespect inevitably does do harm of varying sorts and levels.

Collectively, this is understood as a “purposeful pattern of behaviour which takes place over time in order for one individual to exert power, control or coercion over another”.

Note the flavour of the language: ‘designed’; ‘used’; ‘purposeful’; ‘in order to’. Behind this seems to be a sense that all people behaving abusively know what they are doing and do it deliberately – consciously and instrumentally, to gain a worked–out goal, much as an armed robber uses violence or the threat of it.

The difficulty is that while some intimate partner violence and abuse is entirely calculated, and deserves the title of ‘coercive control’ or even ‘intimate terrorism’, research suggests this represents the smaller part of the spectrum.

However, the degree of harm is less easily argued.

Was it sufficiently abusive or harmful to be likely to generate life-course consequences, particularly for children? Harm due to non-physical acts is inherently insubstantial – there are no cuts or bruises. Assessing the presence or absence or degree of emotional and psychological harm is also a task that requires more that just clinical judgement; any such assessment needs reliable psychometric instruments.

The results of such psychometrics have been immensely valuable to me in compiling expert reports, because while they often support victim accounts, they have on occasions given results suggesting that the degree of victimisation is far less than that claimed. The relevance of this to proceedings is obvious.

The bigger picture Over the last five years a major international research effort, the Partner Abuse State of Knowledge (PASK) project has studied over 12,000 recent papers and 17 areas of interest in intimate partner violence and abuse. These findings, starting from research and not ideology, suggest strongly that up to 60% of intimate partner violence and abuse is not at this high end of worked out control, but is part of a wider pattern of bi-directional dysfunctional relationship behaviours that becomes normalised.

An awareness of cultural norms is also important as behaviour which would be considered unduly controlling in one setting may not be considered so in another. A final complicating factor is that victims, however difficult their experience, are not simply ‘harmed’: how they understand and interpret their experience greatly influences the degree of ‘harm’ felt, as work with post traumatic experience demonstrates.

More disturbingly, the research suggests that the best predictors of a predisposition towards abusive behaviours in intimate relationships in adulthood, are previous traumatic experience and the presence or EXPERT WITNESS JOURNAL

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ing between behaviour in a failing or dysfunctional relationship with one or two unhappy people, potentially trying to (non-physically) hurt one another deliberately, and â&#x20AC;&#x2DC;criminallyâ&#x20AC;&#x2122; coercive and controlling behaviour will require expert assessment. This is also likely to be the case where there is a seemingly clear â&#x20AC;&#x2DC;abuserâ&#x20AC;&#x2122;, given the defence of â&#x20AC;&#x2DC;best interestsâ&#x20AC;&#x2122; cited above.

3) Proving behaviour was intentional A key part of guidance on the offence of controlling and coercive behaviour is that for the Prosecution to prove guilt â&#x20AC;&#x2DC;beyond reasonable doubtâ&#x20AC;&#x2122; they must demonstrate that â&#x20AC;&#x153;The Defendant knows or ought to know that the behaviour will have a serious effect on the other.â&#x20AC;?

Further, Section 76 (8) (a) of the Act states that in proceedings it is a defence for A to show that:

With such a brief time having passed since the introduction of the Act, very few cases will as yet have worked their way through the system, to Crown Court at least. The question facing criminal counsel, both defence and prosecution, may be who will be brave enough to argue for the commissioning of a psychological Expert to provide direct assessment and offer opinion, allowing the interests of Justice to be served in the way that has been familiar to the Family Court? â&#x2013;

1) In engaging in the behaviour in question, A believed that he or she was acting in Bâ&#x20AC;&#x2122;s best interests 2) The behaviour was in all the circumstances reasonable This defence is not available for behaviour that causes B to fear violence will be used against them.

Iâ&#x20AC;&#x2122;ve mentioned some of the issues with assessing a â&#x20AC;&#x2DC;serious effectâ&#x20AC;&#x2122; on the alleged victim, but the bigger question is determining that the Defendant â&#x20AC;&#x2DC;knows or ought to knowâ&#x20AC;&#x2122;, meaning that â&#x20AC;&#x153;a reasonable person in possession of the same information would knowâ&#x20AC;?.

by Mr. Mark Farrall Chartered Psychologist, Forensic Psychologist & Psychotherapist BA, BSc, MSc, PhD, Dip. Psychodrama, CUEW (Civil) (Family), Cert. SAM Email: mark.farrall@ignition-learn.co.uk

The Partner Abuse State of Knowledge research suggests that many perpetrators of abusive behaviour in intimate relationships might not be â&#x20AC;&#x2DC;a reasonable personâ&#x20AC;&#x2122;, in the sense that their past experience and developmental history has led them to a somewhat skewed perspective on the world, without this being a â&#x20AC;&#x2DC;mental healthâ&#x20AC;&#x2122; question.

Dr Mark Farrall is the founder and Director of ignition.

He is a Chartered Psychologist and Forensic Psychologist, and a qualified psychotherapist.

The point is that an individual who has had certain developmental or traumatic experiences, even when behaving in a manner that to an objective observer may appear controlling and abusive, really might not understand the behaviour in this way for themselves.

With both of the individuals in the couple mentioned above, whom I assessed for Family Court, neither had any internal model of what a â&#x20AC;&#x2DC;goodâ&#x20AC;&#x2122; relationship was â&#x20AC;&#x201C; and neither understood their relationship as â&#x20AC;&#x2DC;abusiveâ&#x20AC;&#x2122;, even while their behaviour was definitely â&#x20AC;&#x2DC;intentionalâ&#x20AC;&#x2122; to some degree.

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At its most serious, offences committed by so-called â&#x20AC;&#x2DC;family annihilatorsâ&#x20AC;&#x2122;, where an individual will kill their family and themself, can be understood as an entirely misguided and distorted attempt to protect, although clearly this is in the realm of post facto speculation.

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Shades of grey How will the burden of proof be served in prosecutions under the Act? In family cases the standard is of course the balance of probability but criminal courts answer to the higher standard of beyond reasonable doubt.

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If research about a â&#x20AC;&#x2DC;stable abusive personalityâ&#x20AC;&#x2122; arising from personality characteristics and previous traumatic experience is taken seriously, then the question of intention becomes very problematic. DistinguishEXPERT WITNESS JOURNAL

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Asylum Aid Asylum Aid is a national charity that has been providing legal representation to asylum seekers in the UK for 25 years. Our strap-line, protection from persecution, is at the heart of what we do: we take on the most complicated cases of people who face human rights abuses abroad, and secure protection in this country and the chance for them to start new lives.

Asylum Aid’s small team of specialist solicitors actively ensure that we are accessing the most extremely vulnerable refugees, including those who have been trafficked and forced into exploitation, stateless people, who cannot enjoy the protection of any country, women who are fleeing domestic violence, “honour” crimes, rape or FGM, and unaccompanied children, who have been forced to flee alone.

Our specialist children’s caseworker sat for hours with him, gaining his trust, learning the extent of his terrible story. We worked with doctors, social workers and other experts to gather together the evidence in support of his application, to make sure that his word would be believed. When all the detail of the story and the supporting medical evidence was presented to the judge at Ibrahim’s hearing, he was finally believed. The judge ruled that he would be in grave danger if he ever were to be returned to Afghanistan, and immediately granted him refugee status so that he could begin to build his life here in the UK.

Children like Ibrahim*, who was just 13 years old when he came to the UK from Afghanistan. Ibrahim was abused by his family when he was unsure about attending a local religious school, and was eventually forced to go. At the school, he was yet more brutally treated, beaten, whipped, and hung by his ankles.

Cases like Ibrahim’s require our lawyers to take more time to build trust and put together the strongest possible case, but at Asylum Aid we strongly believe that each individual applicant’s life is worth that dedication and concern. While all of our legal work is provided free to our clients on the basis of our legal aid contract, we are able to spend that extra time on these complex cases because of the additional funding we receive from trusts and individuals who support us.

Although still extremely young, Ibrahim began to work helping out in a restaurant on top of his classes, in order to support his family and bring home some more money. It turned out that in the restaurant, however, he was at even greater risk than at school.

One night his employer attacked Ibrahim and raped him.

Tragically, instead of finding support and protection from his family and community, Ibrahim was the one blamed for bringing shame on the town. The local Imam led the community against him, protecting his attacker instead, and he, still a child, was sentenced to death. Ibrahim had no choice but to abandon his home and family and flee for his life. He turned to smugglers, who took him on the long and terrifying journey to England, where he hoped to start again.

Every year, we are able to represent roughly 100 people through their asylum applications, and are successful in over ¾ of our cases. We are also able to reach many more, up to around 1,000, through our outreach surgeries for destitute asylum seekers and our weekly legal advice helpline.

The experiences of our legal team give us a direct insight into the functioning of the British asylum determination procedure, and allows us to see the areas where it is dysfunctional, or where there are particular issues that work against people seeking international protection. We use this expertise to inform our policy and campaigning work, in order to try to be able to reach yet more refugees, by improving the UK asylum system for all, and influencing British attitudes to be more welcoming and understanding towards them.

But his troubles did not end when he tried to claim asylum in this country, because the Home Office dismissed his story completely, refusing to believe he had been raped, or that his life was in danger; they planned to send him back as soon as he reached the age of 18. But our lawyers at Asylum Aid understood that he could never be safe in Afghanistan, and desperately needed this country’s protection.

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Childcare:

Counselling:

“I could have opened up more but my little boy was there, I don’t want to bias his mind, I don’t want him to go through that trauma. When it’s just you and your child, you struggle. In the interview there was a bit of disturbance because he wanted attention.”

“The fear follows you. The system is so demanding that I lost the energy. We waited for a long, long time for our asylum decision, I was drained and I needed support. I was used to having the whole family around me, but we were left alone. I felt lonely and isolated.”

-Annick, Cameroon

Female interviewer & interpreter: “My brain, when I was facing a young man, it was not connecting properly to my mouth, I couldn’t explain myself clearly. My culture is from the Middle East, I think it made me uncomfortable trying to explain myself. He wasn’t good for me to speak to.”

-Zara, Iraq

-Ariam, Eritrea

Information: “You don’t know what rights you have. All you know is that there is democracy here, but you don’t know as a woman what you are entitled to. You don’t know if you can ask things. Women from my community don’t have confidence, they are scared and they don’t know that they have rights.”

-Hani, Sudan

Trained interviewer & interpreter: “The interviewer was difficult to deal with and I faced more problems with the interpreter at the trial. He was just not willing to translate fully what I was saying. He was skimming over very important things like he didn’t want to talk about some of the things I was saying.”

-Shukri, Somalia

Our major area of policy concern over the past decade has been the women’s project. Asylum Aid takes on a disproportionate percentage of women’s cases, as they are often more difficult then men’s.

Because of the increased likelihood that a woman will face persecution in the domestic sphere, at the hands of her community, family or husband, women’s cases often lack documentary evidence in support of their claim: you do not get a certificate to show that you have been abused by your husband, or that your family has tried to kill you or mutilate you; so for women fleeing this type of persecution, it is yet more vital that they are able to give a coherent and complete account of their experiences when interviewed, as their oral testimony will often be all the evidence they have.

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The women’s project at Asylum Aid has forged partnerships with over 160 other organisations, from the women’s sector and the refugee sector, as well as major human rights organisations, under the Charter of Rights of Women Seeking Asylum in order to campaign for a fairer, more gender-sensitive asylum system.

The campaign that we are currently running, the Protection Gap, focuses on five basic measures to help women who have experienced sexual violence or other forms of gender-based violence to be able to tell their stories effectively and thus receive the protection they need. These five measures are; childcare during asylum interviews; the right to choose to speak to a female interviewer and female interpreter; counselling referral for women who disclose gendered violence in their interviews; better training for Home Office decision-makers on how trauma affects memory and disclosure; and better information for asylum seekers about their rights as women within the system.

agents for change in the country they now call home.

Asylum Aid also engages on the wider discussion on refugee issues, providing an informed and compassionate voice in the national discussion, which has become so salient in recent months due to the surge in arrivals across Europe. We take every opportunity to speak out, in the media and at public events, to put forward that considered, legally informed, and human-centred perspective. ■

We decided to focus on these five demands because, aside from the huge difference that they would make to women’s experiences of the asylum process, they mirror the demands that the UK among others have called for in the International Protocol that was drawn up as a result of the initiative to end sexual violence in conflict. These are all measures that we say are the minimum standard for women who have been raped in conflict situations abroad, and yet if those same women seek sanctuary in the UK, we do not provide them.

Names & identifying details have been changed.

Interviews are available on request. www.asylumaid.org.uk/protectionga //media@asylumaid.org.uk //

The demands were developed and the campaign run on a model of participation and leadership by refugee women. An advisory group of experts-byexperience, women who have themselves been through the British asylum system have been taking forward various actions under the Protection Gap campaign.

Dr Roger Ballard MA, PhD, F.R.A.I.

Consultant Anthropologist Dr. Ballard is a Consultant Anthropologist who regularly accepts instructions to prepare expert reports for use in legal proceedings in which members of Britain’s South Asian minorities have found themselves caught up, and in which social, cultural, linguistic, familial and religious issues are in some way at issue.

Most recently, they have produced a leaflet with information for lawyers representing women asylum seekers, with key points that they need to tell their clients, including the right to apply for asylum separately from their husband, or to seek help if they are experiencing domestic violence; and they have organised and run an initial information session for recently arrived asylum seeking women, giving them support and information relevant to their upcoming asylum interviews.

He has prepared over 800 such reports for use in the Criminal, Civil, Immigration, Family and Administrative courts, as well as in Asylum and Immigration Tribunals.

Consultancy: Dr. Ballard also welcomes requests to undertake research and/or to devise training programs on a consultancy basis, particularly from the providers of Health, Educational, Welfare, Social, Family and Legal services seeking to devise more ethnosenitive forms of service delivery.

Contact Centre for Applied South Asian Studies Red Croft, Howard Street,Stalybridge SK15 3ER UK Tel/Fax No.: 0161-303-1709 Mobile: 07591 804 898 E mail: roger@casas.org.uk Website: www.casas.org.uk

Working with refugee advocates in this way not only allows us to ensure that we are always campaigning on issues that they themselves consider to be important and worthwhile, but also to empower the women involved, building a community among the group and providing them with opportunities to be active EXPERT WITNESS JOURNAL

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Female Genital Cutting in Context: The Example of Sierra Leone

by Jacqueline Knörr societies a result of increasing migration and the ensuing violent conflicts and ethnic splintering and diversification in the Upper Guinea Cost region. In short, secret societies developed to facilitate affiliation across ethnic and subethnic boundaries by using coherent hierarchies and rules. Thereby, groups wanted to achieve cohesion against foreigners or effectively neutralize or integrate them with the vow to secrecy (Bledsoe 1984; Little 1960; D’Azevedo 1962). Secret societies served as a protection against betrayal from within as well as infiltration and attacks from without. They played important roles in connection with the slave trade and colonization, but also in relation to more recent conflicts.

Contextualizing Female Genital Cutting from an anthropological perspective Female Genital Cutting (FGC) is a rather difficult topic to convey. It involves practices that seem bizarre, incomprehensible and cruel to outsiders. Yet, it is these circumstances that provide the opportunity to point to the specific character of a social anthropological perspective on ‘the other’, which involves highlighting the respective local (emic) context of phenomena, processes, and practices without ignoring their interaction with outside influences and their impact. In the following I will contextualize FGC using Sierra Leone as an example. It is not my intention to legitimize, judge or condemn FGC, but to show that outsiders might only reach an (approximate) understanding of this practice if they approach and analyze it considerate of its specific social, cultural, political and historical context (cf. Shweder 2002).

The secret societies’ most important social task is the initiation of youth into the adult world. The initiation rites traditionally served to pass on social values, regulate sexual behavior, transfer spiritual and medical knowledge, impart strategies of political decision-making and conflict regulation as well as practice religious rites. Nowadays, initiations normally last between a few days and a number of weeks while the focus is on the genital cutting and the accompanying rituals.

(Female) Genital Cutting as a dimension of the culture of secrecy Genital Cutting is part of a cross-cultural and crossreligious initiation ritual which is practiced among most ethnic groups living in the Upper Guinea Coast region of West Africa. In Sierra Leone, both girls and boys are genitally cut to initiate them into gender-specific, so-called secret societies – Poro being the major such society for men and Bundu/Sande for women1.

Sierra Leone – and much of the Upper Guinea Coast – is influenced by a culture of secrecy (Ferme 2001; Knörr and Trajano Filho 2010; Højbjerg 2007) that is sustained by secret societies and informed by specific ways of handling knowledge and information in general society. The ‘secret’ in secret societies does not allude to their existence or their members’ identity, it rather stipulates that the societies’ knowledge – which includes knowledge about initiation rituals – may only be known and imparted to initiates. Revealing such knowledge to persons outside the secret society is considered a betrayal, punishment for which ranges from cleansing rituals to public humiliation, social exclusion, or even death.

Secret societies are organized in hierarchies. The ascent to higher levels is traditionally connected to growing older and thereby achieving increased proximity to the ancestors. The highest-ranking members of secret societies are ascribed spiritual powers, which they use together with their ritual and medicinal knowledge and their connection to the ancestors to control and sanction the social, ritual, and religious conduct of their contemporaries. Someone who violates the norms not only damages the social equilibrium of the community but also insults the ancestors, who might exact revenge in a number of unpredictable ways, not least by allying with their confederates in the secret societies.

To this day, secret societies also have considerable economic significance. The highest-ranking members who carry out the initiation rites are compensated for their work in numerous ways. They are entitled to demand services from the initiates and ask considerable initiation fees of the parents. The village chiefs

Little is known about the historical origins of these secret societies. One explanation considers the

1, Depending on ethnic identity, either Bundu (Bondo) (Society) or Sande (Society) may be used to refer to the major traditional female secret society. However, with a lot of interethnic interaction taking place, secret society terminology has become less rigidly restricted in ethnic terms. Bundu is used throughout this text.

Next to Poro and Bundu exist smaller secret societies that cultivate more specialized – like medicinal or military – knowledge. However, they are less widely distributed and membership often exists in addition to the membership in Poro or Bundu.

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receive money and material services for allowing the use of the secret bushes where the initiation takes place. Membership in secret societies also plays an important role in urban-rural relations, particularly between Freetown and the other Sierra Leonean regions. Initiations often take place in an initiate’s (parents’/grandparents’) place of origin ‘upcountry’ and thereby serve to maintain links between urban migrants and their rural relatives.

rituals. Thus, the secret societies do not merely control conduct within their own gender’s sphere but (thereby) also impact the opposite gender’s social reality.

Initiation is conceptualized as the most momentous ritual both for the individual, the group of those initiated together, as well as for the community and society as a whole (MacCormack 1975; Ferme 2001).

It takes place at specific times (often during school holidays) after a period of preparation. In many communities initiations are only organized every few years, depending on the number of potential initiates and socio-economic conditions.

The fact that secret societies are not organized along ethnic lines is of particular social significance, albeit rituals do display ethnic characteristics and secret societies in villages often coincide with the ethnic make-up of the population. Every member of Poro or Bundu is a member of Poro or Bundu everywhere and can participate in the society’s meetings and initiations regardless of ethnic belonging. Secret societies thus also function as bridges across ethnic and national boundaries.

Initiation is also perceived as being connected to a disambiguation of the biological and social gender.

Following this view, uncut boys are still partly girl and uncut girls are still partly boy until the respective other gender’s genital parts are removed and enable a person to pass on to the – biological, social, religious, and ritual – unambiguous spheres of the female and male adult worlds (Ahmadu 2000; MacCormack 1975). Ambiguous genders are seen as bearing many risks, including infertility for women and impotence for men. Hence, genital cutting is regarded as a means of both genital and personal purification and cleansing (Ahmadu 2000; Gruenbaum 2008).

Female Genital Cutting as a dimension of gendered socio-cosmologies To understand the issues at stake here, it is also important to know that Sierra Leonean society has long been – and in many ways continues to be – characterized by the division into male and female spheres of influence, with gendered secret societies as their major representations (Knörr and Trajano Filho 2010; cf. D’Azevedo 1962). The organization in such gendered societies implies both male and female influence in social, ritual, and economic respect (Bledsoe 1984).

Other arguments for FGC include sexual control, easier delivery, preparation for the birth pain, and the creation of lasting and dependable female bonds based on the shared experience of initiation and intimate pain (MacCormack 1975). Initiation is a social event that is meant to strengthen group and gender identity. As men are initiated members of secret societies as well, it is believed that only a female counterpart can keep some balance between men and women. Being the most important part of the initiation into the powerful Bundu Society, FGC is – quite contrary to Western views – perceived as promoting rather than suppressing women’s interests as well as strengthening their solidarity vis-à-vis men and Poro (Dellenborg 2004; Day 2012; cf. Ahmadu 2000; Irele and Jeyifo 2010).

Bundu, the major female secret society, is organized in local sections that have a leader, called Sowei, who conducts the initiations and also carries out the genital cutting (Bledsoe 1984; Dubinskas 1976). In Sierra Leone, all females (except the Krio/Creoles) are expected to undergo FGC and almost 90 per cent of women are estimated to undergo FGC as part of their initiation into adulthood and the Bundu Society (UNICEF 2013). Although FGC is often associated with the religion of Islam, it is not a religious, but a social practice, that predates Islam and is spread among different religions (Hernlund 2000). As the majority among the Krio are Christians and refer to Christianity as one reason to reject FGC, Christianity is sometimes and erroneously seen as preventing girls/women from having to undergo FGC in Sierra Leone.

Non-initiates are – regardless of age – not considered real adults and therefore have no adult rights in the more traditional realm of life. They cannot participate in the rituals and celebrations connected to initiations and are largely excluded from social, political, religious, and economic life. They find it difficult to find a spouse and do not receive support during pregnancy or birth as the woman carrying out the cutting is also the midwife for the initiated women. They cannot benefit from the social, financial and economic networks that are largely established and controlled by Bundu women2.

Particularly the social and sexual conduct between men and women is strictly regulated in more traditional society and is subject to many taboos whose violation incur harsh punishment. A man breaking the taboo of sexual contact to a girl during her initiation has to pay large fines to the girl’s family and the female secret society and must endure painful cleansing

2, Economic interests have led many Krio women to subject themselves to FGC in order to be successful in their trading businesses between town and country (Knörr 2006; cf. White 1987).

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Girls or their parents, who want to avoid initiation and the associated FGC often suffer grave reprisals.

They are threatened and humiliated in various ways and excluded from the village community. At the time an initiation is due, the entire village may gather in front of the girl’s house to insult her. Corporal punishment and the abduction of girls to enforce FGC against her and/or her parents’ will are quite common. In the face of such massive reprisals and the personal and social ramifications of refused initiation, many girls and parents give up their resistance. The police shies away from interfering in such conflicts, considering secret society ‘business’ to be beyond their jurisdiction and out of fear that their involvement in such ‘business’ would give cause to revenge and punishment by the secret society.

this specific elite constellation a societal division between the Krio on one side and everyone else on the other as well as a social, economic, and cultural gulf between Freetown and the rest of the country continued to exist well beyond colonial times (Bledsoe 2005, Moran 1990). This gap is also reflected in the fact that in Sierra Leone being modern and educated has long been associated not only with Westernization and Christianity – as is the case in many other formerly colonized parts of the world –, but also with the Krio as an ethnic group.

The Krio for the most part reject traditional female secret societies most and foremost because they practice FGC, which many also consider evidence of a lack of civilization among the ‘natives’. The discourse on female secret societies and FGC is thus connected to a discourse considered more significant than the latter in general Sierra Leonean society, namely the relationship between modernity and tradition, development and backwardness, conservatism and progress – a discourse that is, as pointed out earlier on, closely connected to the relationship between the Krio on the one hand and all other groups on the other.

Initiation into Bundu as an act of emancipation, or: What colonial legacies have to do with FGC Only the Krio, who live in and around Freetown, are not ethnically obliged to undergo initiation and FGC. Their descendants belonged to different groups of freed slaves, who had fought for the British during the American war for independence and were then freed as a reward, but also comprised rebellious Maroons as well as Africans who had been rescued from slave ships – the last group making up the vast majority of the settlers (Dixon-Fyle and Cole 2006; Wyse 1991; Cole 2013). The majority among these rather heterogeneous settlers underwent a process of creolization, in the course of which many indigenous persons were also included. Original identities lost their significance over the course of time and a new shared identity as Krio developed (Knörr 1995; Cohen 1981; Porter 1963). Next to the transatlantic slave trade and colonialism, the settlement of freed slaves has been of major historical significance for Sierra Leone (and other West African countries) and continues to impact present-day society in various ways.

There is, however, also significant resistance against this – more or less exclusive – link being made between modernity and Krio-ness. People want to be recognized as modern and educated while being (for example) Mende, Temne, or Limba. In this context, Bundu plays a quasi-emancipatory role, albeit not, as might be expected from a Western perspective, in the context of a discourse centered on the liberation of women. It rather focuses on the relation between traditional and modern life styles and the latter’s connection to the relationship between Krio and all other Sierra Leoneans. The Krio’s rejection of Bundu and FGC – often couched in a more general discourse stating Krio superiority – lends both of them additional appeal in the eyes of many (non-Krio) Sierra Leoneans. Secret societies used to be powerful symbols of indigenous opposition to colonialism and foreign suppression and may nowadays serve as a means to distance oneself from the Krio and demonstrate that ‘Krio-dom’3 does not serve as a benchmark for everyone’s ways of seeing and doing things. Mende, Temne, Limba and others want to be accepted as modern, educated, and civilized without having to deny their ethnic identity and traditions, and Mende, Temne and Limba women want to be able to engage in Bundu activities according to their (ethnic) traditions and be recognized as modern and educated women at the same time. As a matter of fact, most (non-Krio) women in Freetown do not perceive Bundu membership (including FGC) being in contradiction to being educated, civilized, and modern – despite some anti-FGC activists voicing otherwise.

The motivations for the settlement of freed slaves in Sierra Leone were not merely philanthropic in nature, but involved missionary and economic interests as well. Save for a small Muslim minority, the Krio were members of Christian churches. Many had already had prior contact to the European ‘civilization’. Hence, they were considered suitable to bring education, civilization, and Christianity to the Sierra Leonean ‘pagans’ and were therefore fostered as an elite by the British colonizers. Besides being active church members and missionaries, the Krio also worked in the administration, the education sector, the judicial system, and as middlemen. After independence had been achieved, the Krio’s political and economic influence waned, but they continued to play important roles in the areas of education and jurisdiction and within the churches. As one result of

3, Krio-dom: Krio-ized version of ‘Creoledom’, which featured in the title of Arthur Porter’s book on Freetown and the Krio (1963).

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Initiation and Bundu membership traditionally signify the shift from childhood to female adulthood and go along with having access to knowledge, connections and mutual support systems only shared among initiated women. In a more modern context – and in Freetown most notably – initiation and Bundu membership may also function to demonstrate that being modern is not ultimately tied to being (or becoming) Krio. Many Krio like to think that the ‘natives’ strive towards becoming Krio once in Freetown. Many ‘natives’ like to think that they can be ‘native’ (even in Freetown) and modern at the same time. Through initiation a link may be created between indigenous tradition and (non-Krio) modernity, whereby the latter is indigenized and liberated from the Krio bias and exclusivism. ‘Living the link’ by combining indigenous tradition and a modern lifestyle serves as a non-Krio alternative to the elitist Krio notion of modernity, which is situated outside and in opposition to indigenous traditions. Bundu membership may serve as a symbol of (transethnic) connectivity among initiated women in Freetown, as proof that modernity does not preclude the practice of indigenous traditions and does not need to come in Krio disguise.

the very scarce options girls and young women had to make a living after the war (FGM in Sierra Leone.

2014). Furthermore, during the war the rebels and marauding bands also comprised young girls and women who had often been abducted. These women and girls often suffered forced initiation, performed by already initiated girls and young women, so that they could be considered adult women and become ‘bush wives’ (Coulter 2009). Due to the high demand for initiations after the war, many of them continued performing FGC to generate some income.

A member of a Freetown-based NGO providing reintegration measures to female ex-combatants reported that many young women, who were socially ostracized due to the atrocities they had committed during the war, aimed to be initiated into Bundu both as a measure of self-protection and a means to proof their proper social reintegration. As programs for young ex-combatants were offered mainly by NGOs that did not consider initiation an option for reintegration, many young women left these camps to seek reintegration through initiation instead.

On the national level of post-war politics as well it quickly became apparent how important Bundu and the associated initiation and FGC still were to the majority of Sierra Leoneans. Zainab Bangura, who in the early 1990s had been an important informant concerning my research on identity politics in Sierra Leone, was the only woman candidate in Sierra Leone’s presidential election in 2002. When rumors (were) spread during the campaign that she supposedly opposed FGC, she was chased out of a number of villages on her campaign trail and faced severe hostilities also in Freetown.

Among initiated women in Freetown Bundu membership often implies the situational dissociation from non-initiated, more specifically, Krio women. Not being members of Bundu, Krio women experience social exclusion, even in institutional contexts not characterized by traditionalism. Young Krio women studying at Fourah Bay College, Sierra Leone’s largest university, told me that conversations including ‘secret society talk’ were often hushed when they joined a group of initiated female students and ‘society women’ among the students confessed that they enjoy “teaching these snobby Krio women a lesson” by excluding them from ‘society talk’.

During the 2002 campaign many politicians (both men and women) spent significant funds on widespread female initiations in their electoral districts. The wife of President Kabbah, for example, sponsored the initiation of 1,500 girls. After a public speech by a well-known Sierra Leonean anti-FGC activist, mass demonstrations erupted in Freetown that were led by the then Foreign Minister Madame Gbujama, who went on to become Minister of Social Welfare, Gender and Women’s Affairs. She concluded her speech with the following words directed at the president: “We will sew up the mouths of those preaching against Bundu. I urge you to stand firm for the secret society, and I remind you not to forget your roots” (cf. Bosire 2013). The incumbent president quickly announced that he supported Bundu as he himself also had a traditional background.

Post-war society and the role of Bundu for reintegration Between 1991 and 2002, Sierra Leone was ruled by war, anarchy, and violence and millions of people were fleeing different military and rebel groups4.

During the war initiations rarely took place, but when a sense of normalcy and hope for a better future was established after the end of the war initiations greatly increased (Bosire 2013). Initiations were then also experienced as a means to normalize social relations which had often been interrupted and destroyed during the war.

Given the vastly increasing demand for initiations after the war, Sowei were in high demand and young women and even girls were hastily trained as circumcisers in order to perform FGC. Performing FGC in the context of initiation into Bundu provided one of

4, Much has been written on the Sierra Leonean war, see e.g. Richards 1996; Reno 2003.

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employs a rhetoric that many Sierra Leoneans consider an insult to their entire social and cultural ways of life. The global anti-FGM discourse rather than taking into consideration the social and cultural context in which FGC is practiced, deals with it solely in the framework of discourses on violence against women, human rights, bodily injury, and barbaric African customs. Within the female secret society’s rationality FGC is not understood as a deliberate act of violence and oppression against women and stigmatizing it as such in public discourse is perceived by many as declaring the majority of Sierra Leoneans violent and violence-advocating persons. To avoid such a misrepresentation, even staunch FGC opponents in Sierra Leone point out that any successful campaign against FGC must have knowledge of and most of all respect for the perspective of the proponents as well.

The global Female Genital Mutilation (FGM) discourse, or: Nasty consequences of good intentions Genital cutting is not an issue commonly discussed publically in Sierra Leone. It is part of the complex of secrecy and seen as a normal requirement of initiation that is in no need of justification. However, the work of a number of national and international NGOs fighting against FGC has turned it into an increasingly controversial topic, particularly in Freetown, but also beyond (see below). The phenomenon of traditional secret society organization is no longer only discussed in connection with local peculiarities such as Krio-native relations or in terms of the question whether it is compatible with Christianity and Islam, but also by referring to the global discourse on ‘Female Genital Mutilation’ (FGM) (cf. Shell-Duncan and Hernlund 2000; Boyle 2002). This FGM-focused discourse – due to a lack of knowledge, perhaps – often ignores the general societal context, where FGC is an important dimension of the initiation into secret societies or rejects its introduction into the debate as an explanatory framework, conceptualizing it as mocking legitimation, as an attempt to trivialize or euphemize FGC.

I hope my argument shows that significant differences and contradictions exist in judging social and cultural practices, depending on the context of meanings and the social and cultural logics as part of which they are observed, experienced, negotiated and classified. In the case of FGC as an important dimension of initiation into the secret society, judgments range from the completion to the mutilation of femininity, from violent oppression of women to ensuring their rights vis-à-vis men.

By listening to those who have experienced FGC it quickly becomes apparent that the majority among them feel discredited by the global FGM discourse and by the terminology and arguments it applies.

They feel that the terminological denunciation of the practice of FGC and its interpretation as violent action against women retroactively stigmatizes those who have undergone the practice as mutilated, as having been robbed of their sexuality and femininity, as humiliated and degraded. As well as that the whole culture of those practicing FGC is portrayed as a culture of inhuman barbarism. The women themselves rarely view themselves and their culture in the same manner and do not want either to be publically referred to or perceived as such.

Social anthropology should, first and foremost, aim to understand and explain social practices within their own contexts of meaning before taking sides or joining forces. Regarding the FGC discourse social anthropology can do what it can always do, i.e. present the different perspectives and practices in the contexts of their (respective) local meanings to make them more comprehensible and negotiable – in the academic discourse, in (developmental) political practice, and in the public debate. Social anthropology can show that one’s ‘own’ perspective of the ‘other’ is not always the same as what the ‘other’ means in the ‘other’s’ own context. It can illustrate the social, cultural, political, and historic context in which, for example, FGC is practiced and attains its meanings for a society, a group of people, an individual. Social anthropology can help to understand why the current anti-FGM discourses and activities often fail to succeed and instead inflict further damage on those they want to support. If outsiders want to take a side – e.g. participate in eradicating FGC – they should make sure that the measures and rhetorics chosen to that end are informed by the local social and cultural contexts of meaning rather than solely by supposedly universal values and norms. They must keep the affected persons in mind at all times and refrain from engaging in rhetorics that the latter perceive as humiliating and degrading. ■

When I addressed the topic of FGC with initiated women – which was only possible after creating trust and affirming that I would not inquire about any secret Bundu knowledge – they were often surprised that FGC is of such interest to foreigners. Even young, formally educated women, e.g. students at Fourah Bay College, were astonished. One student told me: “It’s painful, terribly painful. But then came the gratification, the celebration. You are treated with respect, like a grown-up woman, not like a little girl.

You quickly forget about the pain.” And regarding the global FGM discourse, another commented: “It’s okay to be completely against cutting, no problem.

But please tell your people, I am not mutilated.”

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References Ahmadu, F. (2000) Rites and wrongs: An insider/outsider reflects on power and excision. In: Shell-Duncan, B. and Y. Hernlund (eds.) Female ‘Circumcision’ in Africa. Culture, controversy, and change, 283-315. Boulder and London: Lynne Rienner Publishers.

Jacqueline Knörr Social Anthropologist, Head of Research Group, Extraordinary Professor

Behrendt, A. (2005) Female Genital Cutting in Moyamba and Bombali Districts of Sierra Leone. Dakar: Plan International.

Jacqueline Knörr is a Social Anthropologist. She is Head of Research Group at the Max Planck Institute for Social Anthropology and Extraordinary Professor at the Martin Luther University, in Halle/S., Germany. She obtained a PhD (1994) and a Habilitation (2006) in Social Anthropology and has conducted long-term field research in West Africa and Indonesia.

Bledsoe (1984) The political use of Sande ideology and symbolism. American Ethnologist 11, 3: 455-472.

Bosire, T. O. (2013) Politics of Female Genital Cutting (FGC).

Human rights and the Sierra Leone state. The case of Bondo secret society. Newcastle upon Tyne: Cambridge Scholars Publishing.

She publishes and lectures widely and internationally and has many years of experience preparing expert reports.

Issues dealt with: discrimination and violence based on gender, religion, and ethnic identity; Female Genital Cutting/Mutilation (FGC/M), human rights, secret societies, political persecution, trafficking, child soldiers, domestic and sexual slavery, and homophobia.

Boyle, E. H. (2002) Female Genital Cutting: Cultural conflict in the global community. Baltimore: The John Hopkins University Press.

Cohen, A. (1981) The Politics of Elite Culture. Explorations in the dramaturgy of power in a modern African society. Berkeley: University of California Press.

Contact: knoerr@eth.mpg.de www.eth.mpg.de/knoerr Max Planck Institute for Social Anthropology Advokatenweg 36, 06114 Halle/S., Germany

Coulter, C. (2009) Bush Wives and Girl Soldiers. Women’s lives through war and peace in Sierra Leone. Ithaca, N.Y.: Cornell University Press.

Day, L. (2012) Gender and Power in Sierra Leone Women chiefs of the last two centuries. New York: Palgrave.

D’Azevedo, W. L. (1962) Some historical problems in the delineation of a Central West Atlantic region. Annals of the New York Academy of Sciences 96 (2): 512–38.

and W. Trajano Filho (eds.) The Powerful Presence of the Past.

Integration and conflict along the Upper Guinea Coast, 1-23.

Leiden: Brill.

Dellenborg, L. (2004) A reflection on the cultural meanings of female circumcision. Experiences from fieldwork in Casamance, Southern Senegal. In: Arnfred, S. (ed.) Re-thinking Sexualities in Africa, 79-94. Uppsala: The Nordic Africa Institute.

Little, K. (1960) The role of the secret society in cultural specialization. In: Ottenberg, S. (ed.) Cultures and Societies of Africa, 199-213. New York.

MacCormack, C.P. (1975) Bundu: Political implications of female solidarity in a secret society. In: Raphael, D. (ed.) Being Female: Reproduction, power, and change, 155-163. The Hague: Walter de Gruyter

Dubinskas, F. A. (1976) ‘Everywoman’ and the ‘super’-woman: An investigation of the Sowe, spirit of the Mende women’s secret society, Sande: The relation of her form as an ideological construction to its bases in the social and economic position of women. Unpublished manuscript.

Porter, A. T. (1963) Creoledom: A study of the development of Freetown society. Oxford: Oxford University Press.

Ferme, M. C. (2001) The Underneath of Things. Violence, history, and the everyday in Sierra Leone. Berkeley and London: University of California Press.

Reno, W. (2003) Sierra Leone: Warfare in a post-state society.

In: Rotberg, R. I. et al. (eds.). State Failure and State Weakness in a Time of Terror, 71-100. Washington, D.C.: Brookings Institution Press.

Gruenbaum, E. (2008) Patterns of Female Genital Cutting in Sierra Leone: A preliminary study. Research report submitted to UNICEF.

Richards, P. (1996) Fighting for the Rain Forest: War, youth and resources in Sierra Leone. Oxford: James Currey/Heinemann.

Hernlund, Y. (2000) Cutting without ritual and ritual without cutting: Female ‘circumcision’ and the re-ritualization of initiation in the Gambia. In: Shell-Duncan, B. and Y. Hernlund (eds.) Female ‘Circumcision’ in Africa. Culture, controversy, and change, 235-252. Boulder and London: Lynne R i e n n e r Publishers.

Shell-Duncan, B. and Y. Hernlund (eds.) (2000) Female ‘Circumcision’ in Africa. Culture, controversy, and change. Boulder and London: Lynne Rienner Publishers.

Shweder, R.A. (2002) “What about female genital mutilation?” and why understanding culture matters in the first place. In: Shweder, R.A., M. Minow and H. R. Markus (eds.) Engaging Cultural Differences: The multicultural challenge in liberal democracies. New York: Russell Sage Foundation.

UNICEF (2013) Monitoring the Situation of Women and Children.

Højbjerg, C. K. (2007) Resisting State Iconoclasm among the Loma of Guinea. Durham, N.C.: Carolina Academic Press.

Knörr, J. (2000) Female secret societies and their impact on ethnic and transethnic identities among migrant women in Freetown, Sierra Leone In: Knörr, J. and B. Meier (eds.)

Women and Migration: Anthropological Perspectives, 62-80.

Frankfurt and New York: Campus.

White, F. (1987) Sierra Leone’s Settler Women Traders: Women on the Afro-European frontier. Ann Arbor: University of Michigan Press.

Knörr and Trajano Filho (2010) Introduction. In: Knörr, J.

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The National Registry of Public Service Interpreters: Regulating Language Experts, Protecting the Public

by Stephen Thacker, Deputy Chairman, NRPSI This article is intended to inform legal professionals and others about the work of the National Register of Public Service Interpreters (NRPSI) and Registered Interpreters. It will outline how we can help you and how you can help us to ensure you are provided with the best language service. It will outline the challenges facing the public service interpreting profession and public services. And it will explain why, when you are looking for an interpreting expert, your first port of call should be the National Register and your first choice must be a Registered Interpreter.

What is Interpreting?

In order to get the best from an interpreter, it is important to understand their role. National Occupational Standards (NOS) define interpreting as the process where one spoken language is ‘transferred’ into another to achieve effective communication. For an interpreter to do their job effectively, they must have a full command of the languages they interpret and be able to reflect accurately the information and ideas, cultural context and intention of the speakers they are interpreting for. And they must do this impartially, clarifying language and cultural misunderstandings where appropriate. This explanation of interpreting highlights the specific knowledge and skillset required to be a professional interpreter.

NRPSI Registered Interpreters are recognised as the ‘gold standard’ throughout Europe and the world.

They have the language expertise, experience and security clearance you need, and follow a strict code of professional conduct.

Interpreting is not a mechanical process solely about converting words from one language to another; it requires an understanding of the cultures of both languages being interpreted and the subject area of the communication. It is the ability to make sense of differences across cultural boundaries that defines a good interpreter. NOS also make it clear that interpreters must understand and respect confidentiality, have a good understanding of the subject area they are interpreting, work within their professional expertise and adhere to a common code of conduct.

The National Register is free to search via NRPSI’s website (www.nrpsi.org.uk). You can search this online database comprising 1,900 interpreting professionals, who between them speak over 100 different languages, by language and postcode. With NRPSI, your nearest language expert is only ever a phone call away.

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An interpreter’s role and responsibilities also often extend to providing a written report of the interview for which they have interpreted. In a legal context, a statement sufficient for court proceedings can be required.

In Europe, the EU Directive on the Right to Interpretation and Translation in Criminal Proceedings was formally adopted on 20 October 2010. It was implemented by EU Member States in the three years that followed and aims to provide consistent rights to non-native speakers in the criminal justice system of all EU countries. To help facilitate cross-border use of interpreters, NRPSI took part in the recent EU-funded LIT Search project championed by the European Legal Interpreters and Translators Association (EULITA).The goal is to facilitate searching across all European interpreter databases via the eJustice portal.

The challenge With the United Kingdom (UK) becoming increasingly multi-cultural and multi-lingual, it is more and more common for English not to be spoken as a first language. At the time of the last UK Census in 2011, our population, not including visitors, was 54 million and growing annually by 400,000. Of the 54 million, 4 million did not have English as a main language and 138,000 of these understood no English.

According to the Office of National Statistics, the UK population grew by around 500,000 to almost 65 million between mid-2013 and mid-2014, with net immigration accounting for more than 50% of this increase.

If the 23 June referendum results in the UK leaving the EU, NRPSI, and no doubt others, will be lobbying hard to ensure that the UK Government does not retreat from the commitment it has given to this EU Directive.

About NRPSI NRPSI is the: • Voluntary regulator of professional interpreters • Discipline authority • Custodian of quality in interpreting services • Custodian of professional interpreting standards • Custodian of the professional register of public service interpreters

By 2034, the UK population is predicted to reach between 74 and 79 million with a large proportion of the increase being made up by immigration. More recently, both the UK and the European Union (EU) generally have seen unprecedented numbers of economic migrants, asylum seekers and displaced persons seeking sanctuary. While enriching UK society, this diversity presents significant linguistic challenges for the public services including the criminal justice system, health services and local authorities.

NRPSI is a voluntary regulator, paid for entirely by registration fees. We are dedicated to improving and maintaining professional standards in the interpreting profession by ensuring that only qualified and experienced interpreters are listed on the National Register, and that they implement best practice by observing a professional code of conduct.

The response The good news is that the UK is well placed to respond to these challenges. Following a miscarriage of justice and death resulting from inaccurate court interpreting in the case of R v Iqbal Begum, in 1993 the Runciman Royal Commission on Criminal Justice recommended that a national register of interpreters ‘with proven competence and skills, and governed by a nationally recognised code of conduct’ be established. The Commission recognised that quality interpreting for the courts and public services was vital to ensure safety, fairness and justice for those who do not speak English.

To become registered, interpreters must meet NRPSI’s minimum requirements in terms of qualifications and experience, and sign up to the NRPSI Code of Professional Conduct. By doing so, they demonstrate not only their commitment to professionalism but their willingness to be held accountable as well, setting them apart from unregistered interpreters.

Significantly, all NRPSI interpreters are security vetted, the majority by the government Disclosure and Barring Service (DBS), with details of their level of clearance and date of issue displayed on their National Register record. Only by using a Registered Interpreter can you be confident that your professional language expert has been security cleared and is quality assured.

In 1994, NRPSI was founded in direct response to this recommendation with initial financial support from the Home Office and the Nuffield Foundation.

The Institute of Linguists – now the Chartered Institute of Linguists (CIoL) – was selected to run the National Register at its outset. Following an independent review, in 2011 NRPSI became an independent not-for-profit company with the regulatory role of protecting the quality of public service interpreting standards for the benefit of the public. This year, NRPSI celebrates its fifth anniversary of independence, an important milestone in its 22-year history.

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NRPSI is not: • A membership organisation • A staff association • An employer • A work-providing agency

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Since 2011, NRPSI has not been a membership organisation representing interpreters but a custodian of standards with a remit of public protection. While the professional status and contact details of Registered Interpreters are listed on the free to search online National Register, we are not a work provider or employment agency. NRPSI has a regulatory role. Our focus is on maintaining high quality interpreting services in order to protect the profession and public through the public services that use the Register.

be made against a Registered Interpreter, NRPSI provides a rigorous, free and easily accessible complaints process. This service is only available in cases involving a Registered Interpreter.

Investigates complaints about poor professional conduct or practice The low number of complaints referred to NRPSI overwhelmingly demonstrates how professionally registered public service interpreters perform their role. However, NRPSI investigates all complaints of poor professional conduct or practice about Registered Interpreters in order to uphold standards, protect the reputation of the profession and safeguard the public. Complaints are initially reviewed by the NRPSI Professional Conduct Committee (PCC). If appropriate, they are then referred to the Disciplinary Committee (DC) for a hearing before a panel. Between 2014 and 2015, of the 52 complaints actioned by the PCC or DC, 27 were not upheld, 16 resulted in advice or an admonishment being given, 7 resulted in a suspension and 2 in expulsion from the Register. All disciplinary committees comprise a majority of lay members to represent the interests of the public.

What NRPSI does Keeps the UK Register of Public Service Interpreters The NRPSI database (www.nrpsi.org.uk) is a free service that allows users to search for and find interpreters when and where they need them. It also allows people to check that an interpreter is registered and security cleared. NRPSI has around 1,900 interpreters across the UK covering 100 languages.

Recognises qualifications needed to become a professional interpreter The majority of NRPSI Registered Interpreters are qualified to honours degree level or above in the skills required to work in one of the three major public settings: Health, Law or Local Government. In addition to holding a recognised qualification, they must demonstrate a level of professional experience by having achieved 400 hours of interpreting practice in a particular language to have it registered at Full status. This level of training and experience combined sets Registered Interpreters apart from those who are not registered. In surveys we conducted in 2015, users of the Register gave NRPSI interpreters a satisfaction rating twice as high as unregistered interpreters they had used.

Promotes the importance of regulation and registration NRPSI is not a political organisation. However, we actively promote the importance of regulation and the Register to central Government, to public service users, and to the general public at national events including the Language Show Live. We also have good relationships with language schools nationally and regularly give presentations on professional standards to language students.

Implicit in the Runciman Royal Commission on Criminal Justice’s recommendation is NRPSI’s responsibility to provide Registered Interpreters who meet the current and future needs of the public services without compromising on quality. This represents a continuing challenge, especially given the recent worsening working terms and conditions experienced by interpreters, which has led to an increasing number retiring from the profession.

The NRPSI represents the ‘gold standard’ in interpreting. Those on the Register hold 2,733 qualifications between them, the most common being the Diploma in Public Service Interpreting (DPSI) Law option, which is at an equivalent level to an honours degree. In order to become registered at Full status, an interpreter must possess at least one of the following language-specific qualifications: • Diploma in Public Service Interpreting (DPSI) • Diploma in Police Interpreting (DPI) • Equivalent Interpreting Qualification [honours degree level or above] Plus: • 400 hours of public service interpreting experience undertaken in the UK • A valid and up-to-date security clearance

While we cannot influence commercial arrangements between employers and interpreters, we do have a legitimate interest in ensuring that remuneration remains sufficient to make public service interpreting a viable and sustainable profession. The very future of the profession depends on the value placed upon interpreting by those who use language services. By using professionals to provide a professional service, you can make a significant contribution towards ensuring the best interpreters remain available the next time you need them. The NRPSI Board recognises the need to maintain and grow the number of Registered Interpreters, particularly in the light of a predicted growth in demand.

Ensures NRPSI interpreters meet the highest professional standards Registered Interpreters demonstrate their commitment to professionalism by signing up to the NRPSI Code of Professional Conduct. Should the worst happen, though, and an allegation of poor practice EXPERT WITNESS JOURNAL

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As professionals in whatever discipline, we all bear a responsibility to uphold standards, the standards of our own profession and that of other professions, by bringing shortfalls in behaviour or performance to the notice of the relevant regulator.

NRPSI continues to work with the Government in the pursuit of quality. In December 2014, in its ‘Independent Review of Quality Arrangements’ the Ministry of Justice (MoJ) recommended that NRPSI should be ‘given a more vital role’, to ‘send a positive signal that the MoJ holds the interpreting profession in high regard’. Furthermore, the Government in its response indicated it was ‘keen to engage with professional interpreter organisations and with NRPSI to see how it can use its expertise on the potential development of a regulatory framework’.

We aim to have the best interpreters and for the UK to have the best interpreting service in the world. If we fall short, however, please tell us. Our complaints procedure responds to breaches of our Code of Conduct and we encourage you to use it with confidence. We also seek to listen and respond to other concerns and needs of users. As users of interpreters, you are uniquely positioned to observe NRPSI interpreters and your staff are similarly placed to give feedback. If we fall short, let us know.

How can we help each other Recent analysis of NRPSI complaints data shows that poor communication between the interpreter and the client is the most significant single factor in situations where things go wrong. To get the best from an interpreter, always ensure that they are fully briefed and agree with them in advance how the interview will proceed. When time allows, agree dates, times, fees, and the extent and conditions of the assignment in writing in advance. Ensure that your interpreter has an up-to-date telephone contact number for you so that they can keep you informed. Most importantly, arrange for them to arrive in time for the briefing and check that they understand what you are hoping to achieve. And remember that an interpreter is there to facilitate an interview between two other parties – not to instigate communication.

Only NRPSI guarantees to provide qualified experienced, accountable and vetted interpreters. By ensuring that every interpreter you commission is registered with NRPSI you can ensure you have the best. All NRPSI interpreters carry an identity card.

Please ask to see it every time.

We feel passionate about what we do, and I know our interpreters do as well. Let us help you. Ensure every interpreter you work with is an NRPSI interpreter. ■

All our articles and latest news are on www.expertwitnessjournal.co.uk

We believe we can assist you by making your services accessible to those who do not understand English.

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Reflection on Expert Work Ten years ago I examined a 13 year old girl who alleged that her step-father had sexually abused her. I will always remember this case as the girl’s mother refused to believe her and as a result of this she was forced to leave home.

Why is it important that paediatricians undertake expert witness work?

The expert witness plays an essential role as courts rely on expert witness testimony in most civil and criminal cases to explain scientific matters that may or may not be understood by jurors and judges.

Paediatricians have expertise in children and young people and many will have specialised skills which no one else can provide such as safeguarding.

As a paediatrician, I saw my role as the advocate for this child. I believed her completely: her story was so compelling. The physical examination however was not diagnostic of sexual abuse.

As a profession, paediatricians are natural advocates for children but as an expert witness that role changes as their sole duty is to the court. This detachment can be immensely challenging but at the same time rewarding.

At the time I wrote a detailed statement and recall how disappointed I was that I could not categorically state the evidence was diagnostic of abuse.

However, prior to my court attendance I received a copy of the expert witness report. I was in awe of the author immediately. My examination of this child as well as conclusions had been scrutinised in depth. We had agreed on all point but one- I had stated the evidence as presented to me supported sexual abuse.

The court requested that I meet with the expert witness which we did just prior to me giving evidence.

What she said to me at the time has always stayed with me. She thanked me for my report and pointed out that I was acting as the advocate for the child but her duty was solely to the court and as such had to present all sides of the argument. It was at that moment I decided I wanted to engage in this work.

Safeguarding Children

What makes a good paediatric expert?

Accuracy and research in report writing is crucial.

Paediatricians should familiarise themselves with all sides of the arguments and present that to the court.

Where professionals have become unstuck in the past is because they have been driven by their own beliefs.

Paediatricians should know their limitations and always defer to another expert when they are being asked for advice outside their field of expertise.

What are the main challenges faced by paediatricians undertaking expert work?

Fear is the greatest challenge to paediatricians undertaking expert work. There can be headlines which focus on high profile cases where paediatricians have been criticised.

Expert witnesses in child protection: developing excellence

What are the steps paediatricians take to prepare themselves to act as an expert?

Paediatricians rarely have any form of legal training.

Many paediatricians first legal exposure may be a request to give evidence in court, the prospect of which, many find immensely daunting.

13-14 September 2016, RCPCH London An intensive, practical course developed in conjunction with Bond Solon and the RCPCH.

Attending courses to familiarise yourself with court process is highly recommended. An expert witness course is a must. Not only will it familiarise paediatricians with the medical-legal process, it will provide the framework required when engaging in assessments and writing reports. It is important to choose a course where report writing skills and court room skills will be challenged. Meeting other expert witnesses and reading their reports is also a good way to improve skills and knowledge. ■

• Understand the expert witness role in the judicial process • Learn how to produce high-quality reports and statements • Develop your skills in a mock court situation to help you give effective oral evidence • Understand the relevant law and procedure

Reserve your place: www.rcpch.ac.uk/events

EXPERT WITNESS JOURNAL

CPD APPROVED

Emilia Wawrzkowicz Consultant Paediatrician Designated Doctor Safeguarding Children Cambridgeshire and Peterborough CCG

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The Expert: Contemporary Problems Problems in expert evidence going beyond the rules.

By Alec Samuels Despite the now fairly comprehensive rules, codes, practice directions, practice notes1, guidances and judicial decisions touching upon the role and duties of the expert, there remain a number of problems seemingly not covered which need to be resolved, principally by the application of professional standards.

Simultaneous or sequential disclosure?

Simultaneous exchange of expert reports is the norm. However sequential exchange can sometimes enable the issues in the case to be more readily identified logically step by step and unnecessary duplication and repetition avoided. The risk is that the expert may concentrate upon answering the received report instead of giving priority to expounding his own professional scientifically supported opinion.

When to instruct the expert Should the expert be instructed early on or later on in the case? The early expert report may identify the issues, narrow the areas of disagreement, and in civil cases promote a quick settlement and save costs; but in the light of witness statements and other developments the report may need to be revised and changed, and accordingly be open to challenge for inconsistency, and may then lengthen the process and increase the costs. The later expert report may be well timed and promote a settlement; or it may reveal how the lengthy negotiations could have been avoided had the report been available much earlier.

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Meeting of experts In a case of any consequence the experts should normally meet together, face to face, in the absence of the lawyers, in order to narrow the issues, obtain a feeling for the nature of opposing views and their reasons, the strengths and weaknesses of opposing experts, and of themselves, and then to produce a joint report indicating the outstanding areas of agreement and disagreement. The good expert is careful and thorough and confident in his opinion, but suf48

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The court appointed expert should be given access to all the relevant papers in the case and should prepare his report and advise accordingly, free from any “taint of involvement” with either party. His report will be disclosed to the parties and he may be cross-examined in the usual way. However, the advocates may feel a little inhibited in too severely challenging the court appointed expert. The greater the judicial control of the proceedings the more likely we shall see concurrent and court appointed experts.

ficiently intelligent and flexible to recognise when he should modify or amend his opinion having seen and heard what the other experts say. Contact by Skype or telephone or email may be appropriate and acceptable, but is normally likely to be less satisfactory in terms of depth of mutual understanding.

The single joint expert The single joint expert SJE is comparatively rare, as might be expected in an adversarial system. However, in relatively small value cases, small claims and fast track, where expert evidence is only required on valuation and quantum matters, the single joint expert may sensibly be agreed by the parties. In times of shortage of public funding the advantages of the single joint expert are becoming more apparent. In children’s cases in the Family Division permission is required for expert evidence and the evidence must be necessary2 and the evidence of the single joint expert may be more readily seen by disputing parents to be impartial and acceptable.

Permission of the court Expert evidence requires the permission of the court and the parties or their solicitors must provide a list of issues for the expert to address, the type of expert and the name of the expert, and a costs estimate. The threshold or the bar to be overcome in order to obtain permission for a late expert report or new fresh evidence expert report is high. The factors the judge will take into account are the nature of the issues, the number of the issues, the reasons for the application, the amount at stake, the effect upon the trial, the delay, any special features, and justice overall6.

Incidentally, there must be no unilateral or secret communication with the single joint expert by one of the parties, this will taint the process3.

The judges respect the expert who is willing to modify his opinion7. However, there are limits. At the trial the expert said that there was sexual abuse of a child; the accused was convicted; after the trial the expert said that there might have been sexual abuse; such fresh evidence looks promising for an appeal8.

The rules do not provide for the court to give permission to a single joint expert to convey to the court the opinions of other experts whom he has onsulted on matters which are not within his expertise4.

The claimant’s expert submitted a report favouring the case for the claimant, namely whiplash suffered in the accident. Having met the defendant’s expert the claimant’s expert changed her mind and agreed that the injury was not related to the accident. The claimant applied for permission to instruct a new expert. The application was refused, as not being reasonably required to resolve the proceedings.

Possible cases where a new report might be permitted would be if the original expert lacked the necessary expertise or behaved improperly, e.g. accepted a bribe9.

The assessor The court may appoint an assessor to assist the court in dealing with a matter in which the assessor has skill and experience. The assessor may be directed to prepare a report, which will be supplied to the parties, and to attend the trial5. The concept of an assessor has certain attractions. The expert sitting with the judge can advise upon the expert issues, and talk informally with the judge in his room. However, there are objections. The assessor, who is not a judge, albeit a man of integrity, may psychologically be drawn to one side or the other, convey or impart his opinion to the judge, and the judge may be tempted to accept the opinion: the risk of judgment by expert, not judgment by judge. The extent of any influence upon the judge is unknown. Furthermore the concept of the fair trial requires that all the evidence and all the submissions should take place in public, not partly in the privacy of the judge’s room.

If an expert withdraws from the case the court and the other party should be informed as soon as possible and steps taken to obtain permission for a replacement expert10.

There is no legal objection to a party going from expert to expert until he finds a favourable expert, apart from the cost and the delay caused by not finding the right expert in the first place. But once permission for the chosen expert to give evidence has been obtained from the court, permission for a substitute expert will need a compelling case. Expert shopping after the permission stage resonates with the search for a partial and favourable opinion rather than the search for an independent professional opinion. In civil cases if permission is obtained for the

The court appointed expert The court has the inherent power to instruct an expert but a court appointed expert is a rare phenomenon. The role of the judge is to judge, not to select or instruct an expert witness. However, the parties might welcome the judge selecting an expert witness, especially a named and agreed expert witness.

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testing. Exceptional cases may arise where the material is complex, and a senior expert is required, or very specialised and unusual expertise is required and there are few qualified experts available. In civil matters the litigant may well be a litigant in person LIP. The consequence may be a disadvantage for the litigant, an “inequality of arms”, an “unfair trial”; though the evidence of the “junior” expert is not necessarily less cogent than that of the “senior” expert. Reliance upon human rights and fair trial article 6 may be possible and arguable, but procedural matters are usually treated by the ECHR as domestic matters17. The judge cannot order legal aid. He may adjourn the case for the LAA to reconsider; judicial review could challenge the LAA; the judge may direct the use of court funds18.

new expert the judge will usually require the report of the first expert to be disclosed11. In criminal cases the judge will be particularly concerned to protect the fair trial and not to confuse the jury.

If a written statement refers to a privileged expert report then privilege is deemed to have been waived and the whole of the expert report must be disclosed12.

It may be that the practice and the law should be changed so that a condition of receiving permission to adduce the report of an expert would be that all previously obtained expert reports on the matter should be appended and disclosed. Traditionally expert reports are covered by privilege, unless and until proffered in the litigation, the adversarial system. Today we are moving towards mutual disclosure, in the interests of truth. By definition the expert should have no involvement in the dispute between the parties. The advocate must disclose the decided legal cases against him. It is suggested that all expert opinions should be peer-reviewed, and stored on an accessible national database, disclosing the name of the expert but redacting the names of the parties and witnesses and any privileged or confidential information. In this way the quality of the work of the expert would be open to public inspection.

Pro bono The legal profession has a long, strong and honourable tradition of offering its services pro bono to deserving indigent litigants. “I hold every man a debtor to his profession” Sir Francis Bacon19. Therefore it is submitted that it would be desirable for each and every professional group of experts to offer to find and if need be to pay an appropriate expert from their ranks on request in deserving circumstances.

The NHS could be required to release a consultant for up to say 3 days a year to engage in genuine pro bono expert report work. If a lawyer acts pro bono for a client the court may order payment to a charity providing legal advice or assistance of a sum equivalent to what would have been ordered in respect of a normal paid advocate20.

Psychological and psychiatric evidence The judges remain reluctant if not hostile to accepting psychological and psychiatric expert evidence as relevant and admissible. Matters within ordinary human knowledge and personal experience are for the judge or the jury. The accused, facing a charge of fraud, suffered a learning disability; psychological evidence relating to suggestibility, not going to state of mind and to the distinction between right and wrong, was not admitted13. Nor was psychological evidence of post traumatic stress disorder admitted in proceedings arising out of a road accident14. Expert evidence going to suggestibility or to unreliability would not normally be admissible. But scientific evidence going beyond ordinary experience, such as diagnosis of mental illness or serious personality problems would be admissible15.

Pre-trial scrutiny and exclusion of expert The Law Commission21 recommended that pre-trial at the case management hearing CMH the judge should have the statutory power to scrutinise and to assess the expert witnesses in order to ensure that they are competent and reliable, and otherwise to exclude them. The expert who retired from active practice a few years ago may be impressive in terms of qualifications and experience but may quickly lose touch with the benefit of daily direct hands-on work and the continuing developments in practice. The limits of expertise and experience should always be stated in the report. An incompetent and unreliable expert witness can waste time at the trial and contribute little or nothing. The difficulty with the proposal is that at the CMH stage the judge will not have in his mind the whole rounded picture of the nature of the issues and may not wish to engage in a sort of pre-trial trial. Furthermore, to exclude an expert witness from the trial without giving the party the opportunity to present his expert and his evidence in the witness box may seem to be potentially unfair to that party. Expert evidence is admissible if relevant, needed as being outside the knowledge

Less legal aid The greatly reduced availability of legal aid and the limited fees allowed to experts has meant that the litigant in many cases can expect to have only a “junior” expert or even none at all. The Legal Aid Agency Guidance on the Remuneration of Expert Witnesses16 indicates the sort of situations in which prior authority may be granted and the maximum rates, and refers to particular types of case such as clinical negligence, family and children disputes, risk assessment experts, psychological and psychiatric experts, and drug and alcohol testing and DNA EXPERT WITNESS JOURNAL

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and experience of the court, and the witness is competent. If he wishes the judge can rule out expert evidence at a preliminary stage, but is most unlikely to do so if the evidence is admissible but needs to be tested at trial22.

instructing solicitors is in practice much more likely to withdraw from the case. If the solicitors do not like the report they need not seek permission from the court to adduce his evidence, they may simply instruct a different expert.

If at the trial a party calls an expert witness who acts improperly, unreasonably or negligently, e.g. is flagrantly and recklessly non-compliant with the rules, incompetent and useless and worse than useless, exceeds his duty to the court, and causes unjustifiable expense to the other parties or to the court, that party may be made subject to a wasted costs order23. The solicitors should exercise a degree of control over their witness, and not proffer him as a witness if he is manifestly not up to standard.

The expert and the new costs regime Under the new costs regime, following the proportionate costs principle27, at an early stage in the process the solicitors for each party must set a budget to be approved by the judge in a costs management order, that budget to be “frozen” and not subsequently exceeded, whatever happens in the case.

Thus solicitors and expert must work out what work is involved, a realistic deadline for delivery, and an accurate estimate of fees. Solicitors and expert must keep each other mutually informed as the case progresses. If any difficulty should arise the expert can always seek assistance or directions from the court, but that should not be necessary.

Helpful judicial guidance has been given on pre-trial management where the experts disagree, e.g. in a shaken baby syndrome case. The experts should be in clinical practice, appropriately qualified, experienced and accredited. The reports should lie within their expertise, giving the literature, the range of opinion, rational analysis, with no advocacy. Any previous criticism of an expert should be disclosed. All the experts should meet, well in advance of the trial, follow a check list if desired, narrow the issues and produce a careful minute or report24.

Solicitors have traditionally been paid by reference to an hourly rate. Increasingly clients are finding this system unacceptable, as it has the appearance of being open-ended and subject to possible abuse, and are demanding a fixed fee system. Similar pressure from clients in respect of experts is beginning to become apparent, especially in view of the proportionate costs and early budget principle28.

Liability The imposition of professional liability upon the expert25 does not appear to have deterred the experts from accepting instructions, though they must carry professional indemnity insurance and be aware of the potential consequences of incompetence.

Compliance with the rules The courts have taken a fairly strict line for compliance with the procedural rules and are more reluctant to grant relief for non-compliance then before. Trivial matters can be overlooked, but not serious or significant non-compliance, when good reasons for granting relief will be required. The judges want efficient and just procedure. They will not tolerate unnecessary delays and postponements and disruptions. Delay by the solicitors in instructing the expert might not be seen as good and sufficient cause for extending time29. The lawyers are expected to co-operate, not take opportunistic points30. Therefore it is imperative that the solicitors keep the expert fully informed of the requirements and progress of the case, and the date by which the expert report must be delivered. If failure to comply with the rules by the solicitors was in effect caused by failure by the expert, the solicitors will look to the expert for redress. Failure by the expert could give rise to an action for tort and breach of contract against the expert.

Redaction or withholding The expert sometimes complains that there are redactions in a witness statement or documents are withheld from him or he is asked or instructed not to deal with or mention certain matters. Legal privilege, the right to withhold information passing between the client and his legal adviser, may conflict with the duty of transparency and disclosure to the court, in the pursuance of justice. If the expert feels that “his hands are being tied behind his back” so that he cannot properly fulfil his duty to the court then he should withdraw. He must be independent. He does not exclusively serve the client. In any event in his report he should make it absolutely clear exactly what material in substance has been supplied to him and the basis for his report26. The report must not be inaccurate or incomplete. The solicitors should not ask the expert to amend his report, except to correct errors of fact or to clarify meaning and expression.

Any pressure upon the expert to change his mind would be wrong and anyway counterproductive. The expert in difficulty may always seek guidance from the judge. However, the expert in dispute with EXPERT WITNESS JOURNAL

Concurrent evidence, “hot-tubbing” Concurrent evidence, witnesses from both sides in the witness box together, “hot-tubbing”, is still a relatively uncommon practice (never in criminal cases) but is gradually gaining popularity. The experts in like disciplines take their place together in the witness 51

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trial the judge were to spend a working day with an independent leading expert, a senior member of the appropriate professional organisation, going over the fundamental concepts in that field of expertise, the terminology, the structure of the discipline, the current problems, the setting for the issue in the case?

At the trial the judge could then more readily and more effectively get to grips with the issue in the case.

Resources will always be a challenge. But a pilot scheme could test practicality and efficacy. Naturally the judge must always bear in mind that although he is an expert in dealing with experts he must never see himself as an expert expert. The role of the judge is to understand and evaluate the evidence of the expert.

box, and the parties are invited to agree an agenda.

The judge then invites one expert to give his evidence, essentially summarising the report. The judge asks questions. Then the other expert is invited to ask questions. Then the process is repeated with the second expert. Then the parties are invited to question both witnesses. Then the judge summarises the differences between the experts, and invites them to confirm or correct the summary31. Experience shows that the advocates lose a degree of control and the judge plays a more significant role, acting more as an inquisitor than a passive listener. The experts need to be well prepared. They (who should be informed beforehand that they will or might be subject to hot tubbing) tend to reveal their character and personality and to struggle against any appearance of bias and to seek so far as possible to agree with each other. The interplay between the experts can be revealing. They have to choose their words particularly carefully. The expert who cannot manage confrontation and challenge, cannot keep calm and rational, should not be instructed as an expert witness for trial. The danger in hot tubbing is that it may become a sort of jousting match, a theatrical performance, each trying to score points off the other in a competitive sparring game. The more flamboyant, smooth and good looking expert may constitute a risk that he may be seen to have an advantage over his more mundane opponent, whereas the better scientific evidence should be the criterion.

The appropriate specialist professional body could be invited to put forward an appropriate specialist expert to act as a pre-trial technical adviser. The judge would read through the bundle. The judge could ask his questions, they could both discuss the speciality and the general problems. The expert would be strictly debarred from giving any opinions on any issue in the case. At the trial proceedings would take place in the normal way, the expert having played his part and withdrawn from the case. The judge would be better informed; the parties would rely upon their own expert evidence; the proceedings would proceed more speedily and efficaciously.

Presentation Prolixity is a big problem in life, and in the law, and in expert reports. The good report sets out accurately the instructions, the qualifications, the facts, the evidence, the investigations and tests, the analysis, the reasoning and the conclusion. The model style is plain concise English.

Objective and Unbiased Expert evidence should be the independent product of the expert uninfluenced by the pressures of a possible court appearance. Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate. The opinion must be verified by a statement of truth32. The good expert is aware of the risk of bias. Bias may be not at all obvious, a subtle unintended subliminal subconscious bias. A good relationship with the party, or the instructing solicitors, or the police, may lead to a psychological or expectation bias. Contact with the first witness may lead to a cognitive bias. Confidence, particularly over-confidence, or vanity, may lead to inflexibility and arrogance, characteristics much disliked in our cynical society, reluctant to accept evidence at face value.

Contingency fee for expert The expert may not seek a contingency fee, i.e. 25 or 50 per cent increase in the fee if the instructing party wins the case. He owes a duty to the court, must be independent and impartial, committed to the scientific or medical truth, and not in any way influenced by the interests of the instructing client and solicitor or the possible outcome of the case33.

The fee of the expert should not depend upon the outcome of the case.

Top up The expert whose fees are being paid by the Legal Aid Agency seeks a â&#x20AC;&#x153;top upâ&#x20AC;? from the solicitors or the litigant. Is this legal? Is this professional? The Legal Aid Guidance on expert witnesses in legal aid cases34 says nothing about top up. Public contracts often prohibit top up. The practice appears to be unprofessional, and contrary to the spirit of the rules, because in seeking more money from the litigant the

Education and training All are agreed that education and training in the understanding of expert evidence are essential for all those engaging in the forensic process. The issue in the case is a technical, scientific or medical issue.

There are witness statements and expert reports and pleadings and skeleton arguments from both sides.

Would it not be helpful that in good time before the EXPERT WITNESS JOURNAL

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expert would appear to be subject to incentive to produce a report at risk of bias.

How not to perform: In an obstetrics clinical negligence case the judge gave his views on the expert witnesses. Those for one side were exemplary, impressive, impartial, measured, helpful, candid, straightforward and of palpable integrity. Those for the other side were forgetful of the duty to the court, stepped outside the area of their expertise, were overly keen to support their side, unproven, illogical, tortuous, equivocal, disingenuous, indeed breathtaking, went in for creative advocacy, and were most unsatisfactory40.

The scientific nature of the evidence The jury, layman, may see medical or scientific evidence as powerful and compelling evidence, and therefore particularly high standards must be required. Specious and spurious statistical evidence in a cot death case led to the miscarriage of justice conviction in the case of Sally Clark35. The triad or triage of symptoms for the shaken baby syndrome SBS are open to misinterpretation, see the conviction of Louise Woodward in USA in 199736. Subjective expert summaries, saying that the evidence against the suspect or accused is “moderate” or “strong” or whatever seem less than satisfactory. An evaluative opinion based on reliable scientific evidence but not supported by robust statistical evidence should be declared inadmissible, or rejected at trial, or the jury advised to treat with particular caution. However, less than robust evidence has been admitted in recent times, in DNA, fingerprints and footwear marks, causing some concern amongst the judiciary and the legal profession37. Wherever possible a statistical figure should be given supported by the raw data, and the material worked upon, the tests carried out, the literature consulted, the analysis, the logical and consistent reasoning, and the conclusion38. The concept of probability and cause and effect require a fundamental understanding by the expert.

Finding the “right” expert Finding the “right” expert is often a problem.

Experience and knowledge are invaluable, especially local knowledge of the leading medical practitioners and experts in the subregional and regional centres of excellence hospitals and of the leading scientists in the local universities. There is no substitute for the recommendation from a reliable source. There are a number of appropriate institutions willing to supply names such as the Royal Colleges, the British Academy of Forensic Sciences, the Expert Witness Institute, The Law Society, the Universities, and others. A careful scrutiny of the law reports can reveal some telling judicial remarks on the performance of expert witnesses in the witness box.

Giving instructions The expert is largely dependent upon the instructions given by the police or the CPS or solicitors or whoever; although it is always open to him to ask for clarification or further information.

However, the fuller, the more relevant, the more factual, the more accurate the material supplied the easier the task for the expert and the more likely that he will be able to produce a good report. Although the expert should be given a “free hand”, nonetheless specific questions directed to the issues perceived as relevant by the lawyers will make the report more likely to be relevant and persuasive.

The quality of the expert Compliance with the rules may be taken as axiomatic.

Quality goes far beyond. Factors such as character and personality and professional integrity, coupled with medical or scientific skill, and the power of presentation and persuasion, identify the ideal to strive for. The capacity to develop an appropriate and good relationship with the instructing solicitor and counsel, the party, the opposing expert, and the judge or jury, greatly contribute to the litigation process and the attainment of justice. The ideal expert witness is trained and qualified and accredited. He has requisite experience and is active in his speciality. He has a reputation for integrity and skill and objectivity, and presents well in the witness box.

He is uninfluenced by the pressures of litigation.

A third party is to blame The expert is instructed by the defendant. He makes a very careful and indeed admirable expert report giving a well supported opinion that the defendant acted wholly properly and did not in any way depart from proper careful or professional practice. The instructing solicitors are pleased, as on the basis of the report they will be able either to defeat the claim or to settle for a nominal or very small sum, although the injuries suffered by the claimant were very severe.

However, the expert forms a strong view on the evidence he has seen that in fact a third party, not a party to the proceedings, was grossly negligent and was indeed fully responsible for the injuries suffered.

Instructing solicitors say that he must not say anything about this in his report, it is irrelevant to the case for the defendant, it would be unhelpful, and indeed could provoke a damaging counter-attack. It

The solicitor’s advice to the expert might be: Be frank. Comply with deadlines. Be organised. Say if there is a problem. Be clear. Be accurate. Avoid technical jargon. Adhere to the rules. Do not offend the judge. Be user-friendly. Give value for money.

Estimate your fees correctly.

The expert’s advice to the solicitor might be: Give the full facts. Define the general issues. Arrange an early meeting of the experts. Provide a precise and succinct agenda. Sort the bundle. Be competent. Give guidance39.

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is for the solicitors for the claimant to sue the third party if they wish. The expert says that he is a witness to the court, he has a duty to the “truth”, and he should not stand by and not disclose matters which might benefit the rights of the claimant. Should the expert say nothing about the third party? Or withdraw from the case? Or put his views regarding the third party in his report? Or seek directions from the judge? Such a situation is unlikely often to arise.

• Have the professionals developed the standards of professionalism necessary for the attainment of justice? © Alec Samuels, 2015 References 1, Criminal Procedure Rules part 35. Civil Procedure Rules part 35. Civil Procedure rules part 35. Family Procedure Rules part 25. Practice Direction (Criminal Proceedings: Various Changes) [2014] EWCA Crim 1569, [2014] 1 WLR 3001. The Crown Prosecution Service CPS Guidance on Expert Evidence 2014. Protocol for the Instruction of Experts. Expert witnesses in legal aid cases, Ministry of Justice 1 July 2014 and 5 September 2014.

Forensic Science Regulator documents on validation and cognitive bias effects 18 September 2014.

Conclusions The regulations and rules and directions and guidance for expert evidence are now fairly detailed and have improved and made more consistent the practice. However, there are still many subtle problems remaining to be resolved, largely ethical and professional.

2, JG v Lord Chancellor [2014] EWCA Civ 656. Re H-L (A Child) [2013] EWCA Civ 5, [2013] 1 FLR 1250. There may be problems in apportioning the costs. Speak v Myerson [2012] EWCA Civ 1723.

3, Edwards v Bruce and Hyslop (Brucat) Ltd [2009] EWHC 2970, QB, para 13. Peet v Mid Kent Health Care Trust [2001] EWCA Civ 1703, [2002] 3 All ER 688.

• Is legal privilege in respect of an expert report justified in a truth-seeking process?

• Should discarded reports be required to be disclosed?

• Is it proper to withhold information from the expert?

• Is the report made in the best format41?

• Could the evidence of the expert be better presented?

• Is there sufficient protection against partiality and bias?

• Would a less contentious or adversarial process be possible for the experts?

• Is the single joint expert the way forward?

• Would greater judicial control of the process, including directing and appointing expert witnesses, reduce unhelpful contention?

• Could the greater use of assessors give more support to the judge?

• Do the lawyers adequately instruct the experts?

• Is legal liability a deterrent?

• Could we do more to overcome the severe shortage of legal aid?

• Is the level of fees a disincentive?

• Are “top up” fees ethical?

• Would a data base of expert reports better reveal the quality of the experts?

• Is the current system for presenting expert evidence to the judge and the jury the best we can devise?

• Is the current forensic process too formal, too clumsy, too slow, too expensive?

• Is it right to exclude so much psychological and psychiatric evidence?

• Would a more searching investigation into the quality of the expert at the pre-trial stage be helpful?

EXPERT WITNESS JOURNAL

4, Wall v Mutuelle De Poitiers Assurances [2013] EWHC 53, QB. 5, CPR Rule 35. 15. The fact that the judge orders the parties to instruct an expert does not make that expert a court appointed expert Beauty Star Ltd v Janmohamed [2014] EWCA Civ 451.

Concurrent and court appointed experts, Nigel Wilson [2013] 32 CJQ 492, 586.

6, Cosgrove v Pattison [2001] CP Rep 68.

7, Guntrip v Cheney Coaches Ltd [2012] EWCA Civ 392. The position of a party whose expert has conceded the opponent’s case: the unresolved tension between experts’ role to further the party’s cause and their obligation to assist the court, Adrian Zuckerman (2007) 26 CJQ 159-165.

8, R v S [2012] EWCA Crim 1433.

9, Stallwood v David [2006] EWHC 2600. See also Guntrip v Cheney Coaches Ltd [2012] EWCA Civ 392.

10, Clarke v Barclays Bank [2014] EWHC 505 (Ch).

11, BMG (Mansfield) Ltd v Galliford Try Construction Ltd [2013] EWHC 3188 (TCC).

12, ACD (Landscape Architects) Ltd v Overall [2011] EWHC 3362 (TCC).

13, R v Jackson-Mason [2014] EWCA Crim 1993, [2015] 1 Cr App R 6.

14, R v Collins [2014] EWCA Crim 773.

15, R v Turner [1975] QB 834, 841G-842B, CA. 16, Legal Aid, Sentencing and Punishment of Offenders Act 2012 part 1 ss 1-62. Civil Legal Aid (Remuneration) Regulations 2013 SI 422, amended 2013 SI 2877. Criminal Legal Aid (Remuneration) Regulations 2013 SI 435, amended 2013 SI 2803 and 2014 SI 415. Legal Aid Agency Guidance on the Remuneration of Expert Witnesses April 2015.

17, Q v Q [2014] EWFC 7, paras 12, 15, 16.

18, Q v Q [2014] EWFC 7.

19, The Common Laws of England, preface, 1636.

20, Legal Services Act 2007 s 194, as amended by legal Aid, Sentencing and Punishment of Offenders Act 2012 s 61.

21, Expert Evidence in Criminal Proceedings in England and Wales, Law Commission no. 325, 21 March 2011.

22, Practice Direction (Criminal Proceedings: Various Changes) [2014] EWCA Crim 1569, [2014] 1 WLR 3001, CPD V Evidence 33A. 23, Senior Courts Act 1981 s 51. Medcalf v Mardell [2002] UKHL 27, [2003] 1 AC 120. Harrison v Harrison [2009] EWHC 428

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34, Legal Aid Agency 1 July 2014.

(QB), [2009] 1 FLR 1434. Street v Larkins [2013] EWHC 1408 (Ch).

35, R v Sally Clark [2003] EWCA Crim 1020 – statistical evidence, and non-disclosure of evidence, by expert witness.

24, R v Henderson [2010] EWCA Crim 1269, [2010] 2 Cr App R 24, especially paras 1-7 and 200-221.

36, R v Henderson [2010] EWCA Crim 1269. There must be a logically consistent case based on the expert evidence. But fresh expert evidence is unlikely to be admitted. R v Arshad [2012] EWCA Crim 18.

25, Jones v Kaney [2011] UKSC 13, [2011] 2 AC 398.

26, Civil Procedure Rules part 35 rule 35.10.

27, Webb v Liverpool Women’s NHS Foundation Trust [2015] EWHC 449 (QB) para 54. CPR part 44.

37, R v Dlugosz [2013] EWCA Crim 2, (2013) 1 Cr App R 425 – DNA. R v C [2010] EWCA Crim 2578, [2011] 3 All ER 569 – DNA. R v Smith [2011] EWCA Crim 1296, [2011] 2 Cr App R 16, especially para 61 – fingerprints. R v T (Footwear Mark Evidence) [2010] EWCA Crim 2439, (2011) 1 Cr App R 85 – footwear marks.

28, Coventry v Lawrence [2014] UKSC 46, paras 49 and69.

Justice in an age of austerity, Lord Neuberger, JUSTICE, 16 October 2014, paras 37-52. Justice in one fixed place or several?, Lord Thomas LCJ, sixth Birkenhead Lecture, 21 October 2013, (2014) 127 GRAYA 17-29. English Civil Justice after the Woolf and Jackson Reforms: A critical analysis, John Sorabji, CUP, 2014. Criminal Justice and Courts Act 2015 ss 88-89.

38, R v Dlugosz [2013] EWCA Crim 2, (2013) 1 Cr App R Practice Direction (Criminal Proceedings: Various Changes) [2014] EWCA Crim 1569, [2014] 1 WLR 3001, CPD V, 33A. Home Office draft guidance 23 September 2014.

29, R(C) v Lewes Crown Court [2009] EWHC 805.

39, Making the solicitor-expert witness relationship work, Catherine Leech and Robert Sells, Expert Witness Supplement, Solicitors Journal, Summer 2014, pp 13-19. The Effective and Efficient Clinical Negligence Expert Witness, Michael R Young, Otmoor Publishing, 2014.

30, Denton v White [2014] EWCA Civ 906. Walsham Chalet Park Ltd v Tallington Lakes [2014] EWCA Civ 1607. CPR 39 The Mitchell Guidance, A Higgins [2015] 33 CJQ 379; J R Williams [2015] 33 CJQ 394.

31, CPR v 35.11. For research see Getting to the truth: Experts and judges in the “hot tub”, Professor Dame Hazel Genn (2013) 32 CJQ 275-299 and Concurrent and court-appointed experts –from Wigmore’s “Golgotha” to Woolf’s “Proportionate consensus”, Nigel Wilson (2013) 32 CJQ 493-507 – the Australian experience.

40, Sardar v NHS Commissioning Board [2014] EWHC 38 (QB), [2014] Med LR 12, paras 31-40.

41, For a damning criticism of the presentation of fingerprint evidence see R v Smith [2011] EWCA Crim 1296, (2011) 2 Cr App R 16, paras 61-62 – experts all retired police officers, no notes kept, obsolete method of presentation, not up to contemporary standards. ■

32, CPR part 35 and supplementing Practice Direction 35.

33, CPR part 35 and supplementary Practice Direction 35.

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Can Cigarettes Cause Fires?

by Emma Wilson - Prometheus Forensic Services I am sure that the majority of you reading this will immediately think of some long ago safety video which is telling you that cigarettes can cause fires and do so on a regular basis. If however a fire investigator trusted by the court told you that they cannot unless they are illicit would you believe them? More importantly perhaps, should you believe them?

cigarette, no air movement around it and the fume hood is not drawing air. In order to be considered to have passed the test at least 75% of the cigarettes within the batch must self-extinguish when reaching one of the thickened bands. However that means that up to 25% of the test batch are able to burn to completion and they would still meet the regulations.

These cigarettes are called REDUCED ignition propensity specifically because they can still cause fires but the chances are less than if they had remained unmodified. It is therefore untrue to insist that legally manufactured and bought cigarettes cannot cause fires and that any fires where the ignition source is identified as a cigarette must have been illicit products. Remember that there is a 25% allowed failure rate under test conditions.

The vast majority of countries around the world have regulations in place determining the quality and safety standards of the cigarettes that are legal to sell and purchase within their borders. The US have the Safer Cigarette and the EU and UK have the Reduced Ignition Propensity (RIP â&#x20AC;&#x201C; an unfortunate moniker) cigarette. The EU regulations came about as lit cigarettes which had been left unattended were recorded as one of the leading causes of fatal fires in Europe. It was suggested that the number of fatalities could be reduced by over 40% with the introduction of RIP cigarettes. They are designed such that they have thicker areas within their wrapping paper which quenches the smouldering of the cigarette when they are reached. This means that the cigarettes selfextinguish when left unattended and are thus less likely to cause a fire.

The test does not necessarily replicate real life. The still air used in these tests is certainly not realistic when investigating an outdoor fire. Under these circumstances the lack of air movement in the test is not present. In general outdoor conditions cigarettes, including those which have been deemed to meet the EU regulations, are more likely to continue to burn.

In a series of experiments undertaken by the authors there was a 75% failure rate of the cigarettes to selfextinguish when lit and laid on carpet in an outdoor area. This was similar for all of the brands tested. One cigarette of each of the packets used was tested to determine if they had the required thickened areas within their papers and they did. In a recent case a Fire Investigator had excluded a possible ignition by cigarette due to the EU regulations. However the fire had occurred outdoors and they had failed to take into account the difference in the conditions when making those conclusions.

Since the 17th November 2011 all cigarettes sold in Europe have to comply with these measures.

However this does not mean that a cigarette cannot cause a fire. We really should explore what RIP actually means. The test used in order to determine that a batch of cigarettes meets the regulations is undertaken in laboratory conditions. That is a lit cigarette is put on top of sheets of filter paper and allowed to burn until it self-extinguishes in the presence of minimal airflow. That is, there is no draw on the EXPERT WITNESS JOURNAL

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Above, picture of a test conducted outdoors and the complete burn rate was 100%. Opposite, a test of unburnt cigarettes to showing the thicker bands of paper intended to end the smoulder.

excavated then excluding ignition sources on the basis of them not being found is not robust and should be challenged.

If we accept that outdoor conditions can invalidate the test criteria used to deem that a batch of cigarettes has reduced ignition propensity then we must ask if there are other situations which would make it more likely that RIP cigarettes will continue to smoulder rather than self-extinguish. Would for example an open window or door cause the failure rate of RIP cigarettes to increase above 25%?

When carrying out a review of a case I always request copies of all images taken at the scene, the notes taken by the examiners at the scene, statements and reports and any relevant witness information used to inform the original conclusions. With this information I can form my own conclusions on the cause and origin of the fire as well as discuss any issues with the scene investigation.

Emma Wilson Prometheus Forensic Services emma@prometheus-fs.co.uk 01372 224025

Ultimately a fire investigator would not be able to legitimately exclude an RIP cigarette from having caused a fire if the only reason for doing so is that it was an RIP cigarette. It appears that when a fire is determined to have been caused by a lit cigarette there is an automatic assumption by some investigators that the cigarettes were illicit because they caused a fire. There is rarely any testing involved to determine that the cigarettes in the property were illicit rather than RIP. If this line of thinking were taken into a criminal court setting then it is possible that there could be potential accidental causes for fires which are being excluded. We do not want to see miscarriages of justice and ignoring inconvenient evidence creates those situations. Remember they are Reduced Ignition Propensity cigarettes not No Ignition Propensity cigarettes.

So how would a Fire Investigator determine that a cigarette could be the cause of a fire? Anyone examining a scene should take photographs or digital images of all pertinent evidence or information which they later rely on in forming their conclusions. Sometimes the pertinent information is that an ignition source is not present within the property, for example the occupants were not smokers. In this case there is no direct evidence to capture in an image but the examinerâ&#x20AC;&#x2122;s notes should cover the negative findings or the absence of certain items such as smoke detectors and smoking materials. In order to be sure that ignition sources can be eliminated the scene should be properly and fully excavated, if it is safe to do so. Though one would not expect some ignition sources (such and cigarettes and candles) to necessarily remain at the origin point of a large fire, more robust items such as the metallic parts of cigarette lighters, tea light candles and electrical items remain and can be found. If a scene is not appropriately EXPERT WITNESS JOURNAL

Experts in Fire Investigation We are an independent company specialising in matters relating to all types of fires and certain types of explosions.

We take instructions for fire investigations from both prosecution and defence within the UKCJS, insurers and private individuals.

Services Include: Fire and Explosion Scene Examinations Case Reviews Examination of electrical appliances and installations Microscopic examination of clothing With over 50 years combined experience in fire investigation we have supplied expert witness testimony in the UK and overseas.

Contact: Ms. Emma Wilson Tel: 01372 224 025 Fax: 01372 860 701 Mob: 07801 553413 Email: enquiries@prometheus-fs.co.uk Web: www.prometheus-fs.co.uk Wesley House, Bull Hill, Leatherhead, Surrey KT22 7AH

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BFPA – An Invaluable Source of Technical Expertise

by Stephen Barrett – BFPA Consultant and Director of Systems Services Ltd comments upon the crucial role played by expert witnesses in litigation consultants, would like to make his personal expertise available to people who are in need of an expert witness regarding these subjects. The following article, written by Stephen discusses the role played by expert witnesses and is illustrated by some of his own experiences.

Chris Buxton – CEO BFPA Ltd.

Among the many every day devices where hydraulic and pneumatic systems are involved are bin lorries, lifts in shopping centres, road sweeping machines and fork lift trucks. Pneumatics and hydraulics, collectively known as fluid power systems, are generally used to move heavy weights and are often capable of exerting immense forces. As a result, their failure or misuse can have severe safety and legal implications.

Systems Services is a consultant member of the British Fluid Power Association and the UK Motion Control Alliance. We have worked with clients across the aerospace, automotive, concrete and polymer industries, as well as many more. Our relationships with many of these clients have spanned decades, giving evidence of our commitment to service and support.

In legal cases where the operation of hydraulic or pneumatic power is relevant, it makes sense to have access to an expert witness with sufficient expertise to answer questions definitively wherever possible. The British Fluid Power Association maintains close relations with a number of industry experts and can therefore refer interested parties to a selection of expert witnesses, many of whom have spent a lifetime in the relevant part of the industry. Among the clients who turn to us for advice are BAE Systems, JCB, Tata Steel and Jaguar Land Rover. If an expert witness on fluid power is necessary then there is no better place to turn.

One among many possible examples of incidents involving fluid power systems that could result in legal cases would be the failure of a forklift while attempting to raise a load and damaging a row of storage racking, along with the goods that it contains.

Another would be a bin lorry lift malfunctioning and injuring one of its operators. Yet another might involve a scrapyard's brand new compactor breaking down in a fashion that looks suspiciously like it has been damaged through misuse.

One such expert is Stephen Barrett of Systems Services.

Stephen is a qualified fluid power engineer with over 38 years in the industry. He has provided consultancy services to some of the biggest names in the world of engineering and has delivered training on fluid power and closed loop control topics to more than 800 delegates. He, like all BFPA EXPERT WITNESS JOURNAL

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Above JCB backhoeloader and opposite A380 Airbus

Even more hair-raising is the possibility of the failure of an aircraftâ&#x20AC;&#x2122;s hydraulic systems; responsible for controlling the direction in which an aircraft flies. If the hydraulic control systems fail, the aircraft could conceivably be unable to descend, manoeuvre or land. In practice there will be a back-up mechanical system for smaller aircraft that will allow the pilot to control the aeroplane in the event of hydraulic failure. Larger aircraft are likely to have three or four hydraulic systems, making the loss of all of them extremely unlikely. Faults with hydraulic systems can nevertheless cause aircraft to be grounded, which will result in heavy costs for the operators and possible disputes over who is to blame.

your case. For relevant cases, contacting Systems Services will give you access to industry leading technical expertise.

If you want the evidence provided by an expert witness to be considered during court proceedings it is important to be clear on whether the evidence is necessary to determine an issue that is crucial to the case. Courts need to give permission before evidence from an expert witness can be heard as part of proceedings. They will generally do so immediately where the evidence is reasonably required to resolve the case.

Plenty of people who are experienced mechanics have no real understanding of how hydraulic systems operate. This may result in fluid systems like the excavator arm on a back-hoe loader being neglected by their operators. It can even end up with misguided efforts to diagnose and resolve problems ending with a pressure sensor being attached at an inappropriate point, blowing apart and seriously injuring the person conducting the test. These kinds of incidents are often as much the fault of the supervisor as the technician being required to carry out the work.

Hydraulic and Pneumatic Experts The British Fluid Power Association, BFPA, represents hydraulic and pneumatic businesses commercially and technically throughout the UK. With some 240 Distributors and Manufacturers in membership the BFPA is a true full service Trade Association with a wealth of expertise.

We can provide the best advice available on whether an incident was a result of negligence or some other avoidable occurrence. We can assess whether an account of an event is realistic, based on the behaviour of which piece of equipment is technically capable. We can also assess whether expensive items of equipment failed as a result of a flaw in the manufacturing process, poor design or whether they were damaged in operation. Finally, we can shed light in cases where there is a lack of understanding as to why a particular incident happened and who was therefore at fault.

BFPA Contact: Yvonne Pearman Cheriton House, Cromwell Park, Chipping Norton, Oxon OX7 5SR Tel: 01608 647 900 Fax: 01608 647 919 Email: enquiries@bfpa.co.uk Web: www.bfpa.co.uk

For legal cases where one party is arguing that the other is at fault and vice versa, solid technical advice can be of crucial assistance. The more plausible your expert witnesses, the better the likelihood of winning EXPERT WITNESS JOURNAL

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If evidence from an expert witness is not deemed to be strictly necessary to resolve the case then the court will make a judgement based on the value of the claim, the effects on the different parties and the costs of procuring the evidence. If evidence will shed light on a central issue of the case, without strictly being necessary to determine the case one way or another, then it might still be permitted by the court.

About the author.

Stephen Barrett MIET, MRAeS. As a qualified Fluid Power Engineer, Stephen Barrett has over thirty-eight yearsâ&#x20AC;&#x2122; experience in hydraulics and control systems within the Motion Control industry. In addition to extensive consultancy work Stephen is an experienced trainer having trained over 800 delegates in various fluid power and closed loop control subjects.

Clarity over whether knowledge of fluid power systems is of critical importance or will shed significant light on a case is required before employing an expert witness on the subject. It should also be remembered that the expert witness has a duty to the court to provide accurate, full responses to the questions put to them. This is their primary responsibility, rather than to assist the party that called for them to give evidence.

Contact: stephen.barrett@systems-services.co.uk Tel.: 01205 724242 For general enquiries regarding Expert Witnesses in the Fluid Power Sector contact Yvonne Pearman at the BFPA on Tel.: 01608 647900, or Yvonne@bfpa.co.uk

If you think that expertise on fluid power systems might be necessary to help determine your case, please don't hesitate to get in touch and we'll advise you on what kind of information we can provide and the likely fees.

All our articles and latest news are on www.expertwitnessjournal.co.uk

Electrical Investigations

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Dr Antony Anderson CEng FIEE Electrical Consultant and Expert Witness Investigates and reports on causes of electrical system & machine failures including alleged automobile cruise control/electronic throttle control malfunction (uncommanded sudden acceleration)

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26 Westfield Drive, Gosforth, Newcastle upon Tyne, NE3 4XY Tel +44 (0) 191 285 4577 Email: antony.anderson@onyxnet.co.uk

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Uniper Technologies Uniper Technologies has extensive knowledge and experience in providing technical solutions to the power and energy industry.

Our expertise has been called upon by numerous clients to support them when disputes arise. Assistance has been provided during initial fact finding through to early resolution, arbitration and during High Court legal proceedings.

To deliver such a significant range of services, we have expertise in the following disciplines: · Rotating plant (gas turbines, steam turbines, wind turbines) · Steam generator, balance of plant · Electrical plant (generators, transformers, switchgear) · Civil engineering · Fuel handling · Materials forensics

A subsidiary of the international energy business E.ON, Uniper owns and operates generation assets and has offices in Europe and at several international locations. Its services include commodity trading, project development and full life asset technical support. Uniper Technologies is an engineering unit of Uniper and provides engineering and technical support to them on a commercial basis, as well as many other customers throughout the world.

Uniper Technologies has an energy industry heritage that can be traced back five decades to state owned utilities in Germany and the UK.

Most expert witness cases require a number of disciplines to come together to help identify the root cause and this is one of Uniper Technologies’ greatest strengths. Not only do we have the essential technical support but we can utilize expertise from other areas within the wider Uniper Group, such as Operations, Quality and Health and Safety. Many of these skills and competences may be applicable in others sectors outside of the Energy Industry.

Over this period Uniper Technologies has developed a high level of expertise and competence which has been deployed on the full asset life cycle including: · Feasibility; · Specification and tender assessment · Build · Commissioning · Operation · Upgrades · Decommissioning · Demolition EXPERT WITNESS JOURNAL

Pivotal to the support provided, Uniper Technologies has its own in-house materials failure analysis and testing facilities and chemistry laboratories, all of which help underpin investigations.

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During this case Uniper Technologies called upon numerous areas of expertise: materials, steam turbine design, chemistry, finite element analysis, quality specialists, non destructive testing and operations.

All of this expertise is available in-house and was instrumental in building an alternate case.

Blade failure â&#x20AC;&#x201C; gas turbine A compressor blade on a gas turbine failed shortly after an outage. The extent of damage was significant, requiring a replacement rotor (turbine and compressor) but we were asked to undertake a root cause failure analysis. Via detailed forensic analysis of the failed parts, it was established that the cause was fatigue failure of the blade, just above the blade/rotor fixing. Further analysis of the geometry and material hardness at this location revealed a machining error combined with an issue with the process to improve the surface hardness of the material which gave rise to premature initiation of fatigue failure.

Expert Witness and Arbitration Independent, technical and authoritative advice for the power and energy industry Full asset life cycle services include feasibility, speciďŹ cation and tender assessment, build, commissioning, operation, upgrades, decommissioning and demolition.

Engineering expertise disciplines including rotating plant (gas, steam and wind turbines), steam generators, balance of plant, electrical plant (generators, transformers, switchgear, civil engineering, fuel handling and materials forensics).

In-house specialists from materials, quality, gas turbine design and operations disciplines were utilised in the root cause analysis.

Enquiries: Gary.Hewitt@uniper.energy info@uniper.energy T +44 2476 192900 www.uniper-engineering.com

The outcome, when the results were presented to both the operator and the maintenance company, was a settlement resulting in a compressor and turbine free of issue being supplied and installed.

Our engineers are highly experienced and we take great pride in their development to expert level. The team is supplemented by specialists with leading academic knowledge in their fields. Underpinning this is a comprehensive competency framework managed by our Technical Head (Expert) community.

Electrical plant The above examples relate to mechanical aspects of power plant which had been operational for years.

One of our more interesting case studies arose from a failure due to a mal-operation of a piece of electrical equipment during the early stages of operation.

We have been called upon by many customers to make a provisional assessment of the concern and our advice is seen as independent and authoritative.

Fortunately many of these cases are resolved but there are some where we are called into the legal process either via arbitration or High Court proceeding.

Case studies Here are examples of how our expertise has supported clients. Identification has been removed to maintain client confidentiality.

Our expertise was sought by the plant owner to establish the root cause of the mal-operation and to attend a partial strip down of the generator to ascertain the extent of the required repair work to enable return to service. This was of particular significance because there was a dispute between the OEM and the plant insurer as too whether this was a latent defect issue or an operational issue and therefore which, if any insurance was liable to refund the return to service work and what the most cost effective route for return to service would be. The specification, design, installation and commissioning data all needed to be reviewed and, based on our experience of building power plant, we were able to identify the stage the fault was introduced. In this case the expertise provided was primarily on Technical design as well as the operational regime and maintenance approach.

Blade failure â&#x20AC;&#x201C; steam turbine The insurer of an operator sought expert advice on a multi-million pound claim following failure of a turbine. The root cause analysis by the maintenance company concluded that the failure was associated with operation outside the design envelope. Our forensic analysis showed that the blades were in fact vulnerable to cracking. After a number of contributing factors had been considered, the level of liability between the operator and maintenance company was ultimately settled via lawyers for both parties.

EXPERT WITNESS JOURNAL

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investment it makes in its scientific and engineering community. This is underpinned by strong technical leadership and a technical career path with structured and managed competency framework.

Since Uniper Technologies supports its own operational assets and also specifies and project manages the building, decommissioning and demolishing of power plant, it is involved at all stages of the asset life cycle and has access to associated expertise, not only in-house but also in other areas that would be difficult to obtain, such as operational expertise.

Within the energy industry we believe we have a strong reputation as independent and authoritative practicing engineers. This has enabled many clients to understand the basis of the concern and ultimately the grounds for a claim. ■

UK Water Technology Sector to Boost Economy by £8.8bn by 2030

Mr Michael Casey Water Treatment Consultant Bsc.(Hons),CChemFRSC,CSci.

A specialist in all aspects of industrial, commercial and institutional water treatment,including all areas of Steam and Cooling Water chemistry, heating and chilled water systems operation and Legionella risk control and mangement.

In excess of 23 years experience in all aspects of water treatment.

Extensive specialist experience in Steam Generator water treatment design, management and failure mechanisms.

Specialist UK Consultant to Babcock Wanson.

The UK's share of the global water technology market could be worth £8·8bn by 2030, providing 71,000 jobs and involving around 960 small and medium enterprises (SMEs), suggests a new report published today by the UK Water Research & Innovation Partnership (UKWRIP).

Deep Water Blue Limited Business & Technology Centre. Bessemer Drive, Stevenage, Herts SG1 2DX Tel: 0870 460 2980 Fax: 0870 460 2988 Mob: 07957 358803 Email: mick.casey@deepwaterblue.co.uk Web: www.deepwaterblue.co.uk

The first comprehensive attempt to analyse the UK's current and future performance in the global water technology market, 'HTech0: Tapping the Potential: A Fresh Vision for UK Water Technology' highlights global opportunities worth over $50bn in the next six years alone.

Dr Pamela Simpson

But despite successful water privatisation, world class consultants and a reputation for fair dealing, the UK has just 3% share of the global water technology market and lags way behind pioneering countries such as France, the US, Japan and Germany.

C.Biol, M.I.Corr, M.W.M.Soc

Dr Pamela Simpson is a Chartered Fellow of the Society of Biology.

She established Whitewater Technologies Limited in 1998, before which she spent over eight years working in the speciality chemicals industry, initially as a technical and European director of the Industrial Biocides Division of a major chemicals manufacturing and processing company.

To meet the report's 2030 vision of a 10% UK share of the global market, the report proposes four essential steps: a strengthened public-private UK Water Research & Innovation Partnership to provide leadership; a sharper focus on commercial opportunities and customer needs; independent national testing, validation and demonstration facilities and a co-ordinated international marketing strategy.

She has developed a broad knowledge of the application of microbial control techniques in product preservation and antimicrobial surface protection, process water control, and microbial issues within hot and cold closed systems for both healthcare new-builds and commercial premises. She is also an approved trainer for Legionella awareness courses for water treatment engineers.

Her recent work involved expert work for microbially-influenced corrosion in a range of commercial and healthcare buildings of hot and cold closed systems. She was on the Steering Group for the writing of BSRIA BG50/2013: Water treatment for closed heating and cooling systems.

In the report's foreword, Sir Mark Walport, government chief scientific advisor, comments: "I welcome the 'UK plc' approach to developing this report and the commitment to continuing this approach in the implementation of the findings and actions. This will result in a better alignment of research to market opportunities and valuable economic growth in the water technology sector."

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Deep Blue Water

Contact: Tel: 01384 441 851 Mobile: 0777 1788 048 Email: info@whitewatertech.co.uk Web: www.whitewatertech.co.uk Area of work Nationwide

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Hazards Associated With Water Quality in Closed Pipe Systems

by Dr Pamela Simpson Pre-commission cleaning of closed circuit pipework systems and the subsequent monitoring of water quality are essential in any building.

The implications of getting these wrong can be catastrophic.

The resulting problems include disruption to occupants whilst systems are re-cleaned or, in the worst cases, complete closure of buildings whilst entire systems are ripped out and replaced due to early failure.

A closed re-circulating pipework system is one which, as the name implies, is closed i.e. the water in them is not exposed to the atmosphere and is not significantly depleted due to evaporation or draw-off.

The water is permanently enclosed and typically spends all of its time being heated, cooled and re-circulated in the process of delivering heating or cooling. All systems serving terminal devices from radiators to fan coil units or chilled beams are examples of closed systems.

that sand, grit, jointing material or welding slag can cause blockages and consequent heating or cooling dead spots.

Danger not ended All of this debris should therefore be removed by dynamic flushing of the system during pre-commission cleaning. But successful removal of these items does not end the danger.

Most closed re-circulating systems are constructed, predominantly from carbon steel pipe. Carbon steel has the significant advantage of being both strong and cheap. However, as we should all remember from our school science days, in the presence of oxygen and water it will corrode rapidly i.e. within hours. Our high strength steel is replaced by low strength semi soluble particles of soft brown rust or, if the supply of oxygen is limited, black magnetite.

Thick walled steel pipe has some tolerance built into it and can survive for a while. Thin walled steel has less.

The potential problems start during construction. In large buildings, heating and cooling circuits can include pipes that are over a metre in diameter. In an ideal world, these pipes would be installed in a clean, debris free condition but in practice, nothing can be ruled out.

Dynamic flushing of pipework involves circulating highly oxygenated water through the pipes at high velocity. Hence, as weâ&#x20AC;&#x2122;re removing the problem of system debris we are potentially encouraging corrosion. As a result, following the dynamic flush, some form of chemical clean is usually essential to remove corrosion products from the surfaces of steel pipes.

Above, Tubercle formation within a closed hot and cold water system

Corrosion process potentially controllable In theory, once the system is put into operation, the corrosion process should be controllable. If there is no replacement of the water in the system, the oxygen in the water should gradually become depleted thereby stifling the corrosion. Furthermore, corrosion inhibitor chemicals can be added to further reduce the rate of corrosion.

Hard, hats, coke cans, plastic bags and even dead foxes have all been found inside systems. If left undetected, when the pumps are switched on, items such as these can cause major damage to expensive boilers, chillers and pumps. The smaller particles can be just as bad. Some modern control valves have clearances of less than half a millimetre. This means EXPERT WITNESS JOURNAL

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However, corrosion protection regimes can go wrong and water quality monitoring is therefore essential.

significant damage to surfaces, in particular where pipework may have bends, uneven surfaces, abrasions, or joints and welds.

Above, Pseudomonas spp biofilm development on surfaces of pipework

Corrosion pits associated with microbially influenced corrosion

For, example whenever water is lost from a system, whether due to system modification or to replace a component, fresh oxygenated water is drawn in whilst water containing valuable corrosion inhibitor is lost. This combination can be sufficient to initiate a burst of corrosion.

Increasing electrolytic corrosion risk Other bacteria of concern are nitrate/nitrite reducing (NRB) and nitrite oxidising bacteria. These bacteria can cause rapid loss of nitrite-based corrosion inhibitor from the system and so increase the risk of electrolytic corrosion. Also, the ammonia produced by some of these bacteria when metabolising nitrite can lead to stress corrosion cracking of brass fittings if present at significant levels.

Furthermore, inhibitor levels can drop even without water being taken out of the system. The active ingredients of inhibitors can be used up in developing protective layers on pipes or reacting with oxygen in the water. But, even more shocking is the realisation that some inhibitors can provide a food source for bacteria - and not just any bacteria. The bacteria we can find in closed systems can initiate catastrophic damage on a scale equal to or worse than that cause by simple debris or oxygen induced corrosion.

During the pre-commission cleaning stage of any new build, it is important to prevent microbial presence wherever possible and to avoid areas of low flow rate or dead legs where bacteria can multiply, settle and develop biofilms unhindered by circulating biocide chemicals.

Many types of bacteria present All natural sources of water (including mains water) contain many different types of bacteria, some of which may multiply and lead to problems within closed systems if they encounter suitable conditions for growth. Mild steel, stainless steel and copper are thought to be particularly prone to microbial influenced corrosion (MIC). For MIC to occur, it is necessary for some types of bacterial species to colonise the metal surface. The extracellular material produced by rapidly multiplying aerobic bacteria species eg Pseudomonas spp develops into a biofilm (i.e. slime) which produces both aerobic and anaerobic zones.

Above, The formation process of a microbial biofilm.

Biocide wash For many systems the precaution of a â&#x20AC;&#x153;biocide washâ&#x20AC;? is included as part of the pre-commission cleaning process. This involves circulating a biofilm disrupting chemical through the system to destroy any biofilms that may have developed during the construction process.

The anaerobic conditions enable anaerobic bacteria such as sulphate reducing bacteria (SRB) to multiply and a potential difference is established between different areas of the metal surface. SRB metabolise naturally occurring sulphate in the water to produce sulphuric acid under bacterial clumps. This results in accelerated, localised pitting corrosion and eventual perforation of the pipe. Corrosion by SRB can cause EXPERT WITNESS JOURNAL

Bacteria related problems and their potential to incur major costs on the system owner should never be forgotten or under-estimated. As an over-riding principle it should be remembered that it is much, 65

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much easier and cheaper to maintain microbiological control within a closed heating and cooling system than to clean up a badly fouled system containing biofilm.

this guidance requires an organisation that can draw on expertise across a range of specialisms including pipe system design, pre-commission cleaning, water treatment chemistry, corrosion and microbiology.

Microbiological control can be achieved by: • Ensuring the system is free of suspended solids and debris which may be utilised by bacteria as an energy source.

• Carefully managing biocide dosing and maintaining records of the treatment efficacy.

• Regularly monitoring and sampling the system water content in a correct fashion (refer to BS 8552 water sampling of closed systems).

• Maintaining good flow around the system to ensure that biocide treatments are properly circulated.

This is essential if monitoring is to be carried out at appropriate intervals and the results interpreted in a way that identifies potential risks as soon as they occur so that any necessary remedial actions can be taken before things get out of hand. ■ Dr Pamela Simpson, specialist in water microbiology www.whitewatertech.co.uk About the author Dr Pamela Simpson Dr Pamela Simpson is a Chartered Fellow of the Society of Biology. She established Whitewater Technologies in 1998, before which she spent over eight years working in the speciality chemicals industry, initially as a technical and European director of the Industrial Biocides Division of a major chemicals manufacturing and processing company.

She has developed a broad knowledge of the application of microbial control techniques in product preservation and antimicrobial surface protection, process water control, and microbial issues within hot and cold closed systems for both healthcare new-builds and commercial premises. She is also an approved trainer for Legionella awareness courses for water treatment engineers.

Above, Scale, biofilm, and corrosion deposits within pipework

Her recent work involved expert work for microbially-influenced corrosion in a range of commercial and healthcare buildings of hot and cold closed systems. She was on the Steering Group for the writing of BSRIA BG50/2013: Water treatment for closed heating and cooling systems.

Using and appropriately qualified contractor It can be seen that pre-commission cleaning and on-going monitoring of water quality incur too many potential pitfalls to be left to installing contractors or building maintenance contractors. It is usually essential that a properly qualified pre-commission cleaning or water treatment specialist contractor is involved in these activities.

Testimonial I worked with Pam on a large healthcare project where specialist input was required to identify potential microbial problems in the heating & chilled water systems. She is very knowledgeable in her field, conscientious, pleasant and approachable. I would highly recommend Pam for all aspects of microbiological matters.

Adam Sands | Senior Project Engineer Vaughan Engineering Services Ltd

BSRIA Guides BG29/2012 Pre-commission cleaning of water systems and BG 50/2013 Water treatment for closed heating and cooling systems provide an explanation of the procedures, tests and monitoring regimes that need to be adopted. However, proper implementation of EXPERT WITNESS JOURNAL

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Expert Witness Demand Rises as Winter Storm Flood Victims Seek Legal Redress If flooding claims were straight forward there is no doubt that the number of claims would already be much higher. The complexity of flooding claims has previously been a barrier to claims but with the increased incidence of flooding and the ever rising costs involved, the insurance industry is now much more likely to take a closer look at the options for recovery.

Historically it had been thought that flooding damage was entirely due to natural causes bringing little prospect of cost recovery. However with the costs continuing to rise, more insurers are considering the possibility that in some cases there is something which could have been done to determine a different outcome from a flood event i.e. there is liability in some cases.

Looking back on earlier in 2016 we can reflect on a winter characterised by named storms e.g. Storm Desmond, wreaking havoc to home and business owners alike. This is a scenario set to be repeated.

Rapid urbanisation combined with a warmer wetter climate means that over 3 million people in the UK alone will be at higher risk of flooding by 2050. The Environment Agency estimates that one in six homes in England is at risk from flooding. Of these, 2.4m are at risk from flooding from rivers or the sea alone, 3m are at risk from surface water alone and 1m are at risk from both. With flooding comes damage to homes and property.

Insurers Seek Redress as Costs Escalate: Winter 2015/16 > £5bn The most recent period of flooding is expected to have cost as much as £5bn overall. The estimated total pay-out from the insurance industry just as a result of Storms Desmond, Eva and Frank in December 2015 and January 2016 is likely to reach £1.3 billion.

The Association of British Insurers have reported that the average pay-out per household is likely to be £50k (compared to £31k for the 2013/14 storms) with the number of individual claims reaching nearly 15,000.

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Expert Advice required to bring clarity to Complex Flooding Cases The complexity of flooding cases means that it can be difficult to determine the cause of flood damage because the evidence is often hard to access or has been destroyed in the initial clean-up phase. However, it is crucial to the legal process to gather the appropriate facts for subsequent examination and almost certainly this will mean it will be necessary to engage the services of an expert engineer. The rising number of claims has inevitably therefore meant a rise in demand for Expert Witness testimony.

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Richard Allitt of Consulting Engineers Richard Allitt Associates has seen this growing demand for Expert Witness services; he has been engaged to advise on a number of cases from all the recent major flooding incidents e.g. in Carlisle and York. He outlines later on the requirements for a good Expert Witness and his views on the recent rise in claims.

Where a flood is caused or contributed to by someone’s act or omission, the possibility of liability arises and claims can be made in relation to flood damage and in order to recover at least some of the resultant losses. Gradually the courts have come to recognise that in some cases it is often for example, the neighbouring land use rather than nature that is the cause of the flooding. The effect of this has been to put increasing duties on parties to take action to avoid flooding in certain circumstances.

So who is at fault?

Surface water, groundwater and overflowing sewers are increasingly common causes of flooding.

Flood damage continues to be considered a “natural nuisance”, but that does not mean that measures could not have been taken to deliver a different outcome. As the law stands:

Types of flooding include: • Surface water flooding - occurs when heavy rainfall overwhelms the drainage capacity of an area.

• Landowners owe a ‘measured duty’ in negligence and nuisance to take reasonable steps to prevent natural occurrences on their land from causing damage to neighbouring properties • Landowners have a right to protect their property against a common enemy (such as flooding) In determining what is meant by ‘measured duty’, the court will consider what is fair, just and reasonable as between two neighbouring landowners. It must have regard to all the circumstances, including: The extent of the foreseeable risk; • Sewer flooding - occurs when sewers are overwhelmed by heavy rainfall or when they become blocked.

The availability of preventive measures; The costs of such measures; and The resources of both parties e.g. where the defendant is a public body with substantial resources, the court must take into account the competing demands on those resources and the public purposes for which they are held. It may not be fair, just or reasonable to require a public authority to expend those resources on infrastructure works in order to protect a few individuals against a modest risk of property damage.

Much of the recent legal precedence for flooding arises from a case called Leakey v. National Trust which was in fact not a flooding case at all but one to do with land slip. However, in this case and subsequent others that were deemed to be involving a ‘natural process’ it was concluded that there is a duty to do what is reasonable in the circumstances to prevent or minimise the known risk of damage or injury to one’s neighbours or to their property.

• Groundwater flooding - occurs when underground water levels rise above surface level.

This is most likely to occur in low lying areas underlain by permeable rocks.

• River flooding - occurs when a watercourse cannot cope with the water draining into it from the surrounding land.

Landmark floods ruling that could cost councils millions The most recent case shaping the law in this area (Robert Lindley Limited v East Riding of Yorkshire Council) concerns a farming family from Burton Fleming near Driffield in Yorkshire. In December 2012 the Local Authority decided to divert flood waters from a nearby village by pumping it downstream, where the river then flooded farmland,

• Coastal flooding - results from a combination of high tides, low lying land and, sometimes, stormy conditions.

• Flooding as a result of localised private drainage failure - for example failure in the operation of soakaways.

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including that belonging to Robert Lindley Limited causing considerable damage to their carrot crop. Not surprisingly the claimant felt they should be fairly compensated for this loss.

evidence be it a written report or verbal, should be independent of both parties and they have a duty to the court. Their role is to help the court to understand the specialist matters involved.

The case brings to the fore the importance of detailed examination of the precise basis upon which any person/body is seen to be liable for flood damage. In this case, there was a statutory provision entitling the claimant to compensation.

Tort law is the most common basis for a flood damage claim which will most likely be in negligence or nuisance. Where manâ&#x20AC;&#x2122;s activity (or inactivity) causes or contributes to the damage, there is a real possibility of establishing liability in tort, contract or statute.

Principles of duty breach, causation and loss need to be addressed; causation will be a key issue and with the exception of the most straightforward cases, expert evidence will be needed.

Sophisticated Modelling can bring lucidity to technically complex flooding cases Unquestionably, flooding cases are often technically complex because there may be many causes â&#x20AC;&#x201C; heavy rainfall, blocked drains, inadequate sewers, changes made by claimant on their own land. The skill of an expert witness is required to disentangle the causative factors and work out what is relevant from a legal point of view. The causes are very often multiple for which potentially a number of defendants may be liable.

Judge warns of far reaching consequences This claim was said by His Honour Judge Behrens to be a test case and he acknowledged that his ruling would have far reaching consequences. The decision to award compensation has been hailed as a landmark decision by the farming community and it is thought that it could lead to considerable financial penalties falling on local authorities who will face further claims by many other farmers who have also suffered crop losses during episodes of flooding.

The fact that expert evidence (usually through the use of hydraulic flood models) is required and the fact that one claim on its own may be of a relatively low value is not always a barrier to proceeding, since claims can be combined and insurers can join forces by co-ordinating the provision of legal and expert evidence. Neither is expert evidence always overly complicated. However, experts are able to construct sophisticated hydraulic modelling of a flood area to identify the cause and mechanism of the flooding.

Local authorities may be sued by owners of both residential and commercial property that is adjacent to areas of the highways that are prone to flooding. If they are found to have been negligent, they could be liable for damages. They may be judged that they should have assessed the risks and taken steps to mitigate them and to monitor the area when the risk is greatest. There is no doubt with such a ruling and the likely financial impact of such a ruling that the role of the Expert Witness in such cases will continue to grow in importance.

Seek Expert advice early on Solicitors are not qualified to give advice on flood risk or interpret technical flood reports so it is helpful to engage the services of a flood expert at an early stage to ensure the best documentation is captured in terms of evidence such as photographs, witness reports and news articles. In the current digital age, social media is also a valuable source of evidence; early engagement of a flood expert will enable the right information to be captured to assist the progress of a case in the long term. The recovery claim may not always come to court immediately it can in some cases get underway possibly years later. Early engagement of an expert witness can also be crucial in determining much more quickly whether there is even likely to be a case to proceed.

Assessing whether there is any liability is partly about recovering money for insurers, but it also has the benefit of highlighting the flood causes to any third parties offering the opportunity to take action to prevent the same thing happening again.

Role of the Expert Witness An expert witness is expected to have the appropriate experience and qualifications to allow them to give their opinion on matters which are the subject of litigation within their specialist area. When they are giving evidence to the court, although they may have been engaged by the claimant for example, their EXPERT WITNESS JOURNAL

Expert Witnesses are important to the legal process as their opinions carry great weight in the final outcome.

Necessarily then, an Expert Witness is an objective, independent subject-matter expert and will be a recognized authority in their relatively narrow area 69

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of expertise. It is not sufficient that the selected expert is an experienced water engineer or scientist, but it is also essential that the chosen Expert Witness is also knowledgeable in matters of court protocol and procedures and have the skills necessary to carry out what maybe complex arbitration work. This additional legal related experience is fundamental and can make the difference between success and failure of a claim.

“What makes you qualified to be an Expert Witness?”

I am a Fellow of the Institution of Civil Engineers which is the highest grade of membership. It is for civil engineers and technicians who've made a big contribution to the profession and recognises your high level of knowledge, ability and experience. I also enjoy chartered status as a Chartered Engineer and Chartered Environmentalist. According to the Engineering Council, Chartered Engineers are characterised by their ability to develop appropriate solutions to engineering problems, using new or existing technologies, through innovation, creativity and change. This is a peer reviewed process. A Chartered Environmentalist must show a commitment to environmental best practice and a high degree of expertise in their field. Both these endorsements demonstrate that the depth of my knowledge and experience is recognised by my peers in the industry.

Profile of an Expert Witness To understand more about what it is like to be an expert witness and what skills are required, we interview Richard Allitt of Richard Allitt Associates who has over 40 years’ experience in the drainage & wastewater industry. He tells us both about his company’s experience and his work as an expert witness.

I have been responsible for the development of many leading edge modelling techniques for urban drainage modelling and take an active role in the writing of the CIWEM UDG (the industry’s leading body) User Notes and other guidance. I am also an Approved Auditor for the Water Industry Commissioner for Scotland and in this capacity am responsible for technical audits of sewerage models built for various catchments in Scotland. I have also led a series of research projects for UKWIR (United Kingdom Water Industry Research) furthering industry knowledge on topics such as Integrated Urban Drainage Modelling and Urban Creep (the loss of permeable surfaces e.g. the paving over of driveways) which contributes to flooding and other problems.

Profile of Richard Allitt BSc, FICE, CEng, CEnv Experienced Flooding & Drainage Expert “Can you tell us a bit about your professional background” I am Managing Director of Richard Allitt Associates Ltd a leading specialist provider of hydraulic modelling, surface water management and flood risk consultancy for the urban drainage industry. I am a Civil Engineer by profession and have spent my career in the drainage and wastewater industry working for a number of Local Authorities as well as for Engineering Consultants in the wastewater industry.

“How does the flooding industry recognise your expertise?”

I have spent over 40 years in the industry and I have been asked to make technical presentations and share my knowledge at industry conferences for the last 15 years or more e.g. at the European Water & Flood Modelling Conference. In addition to conferences I frequently present at a wide range of other events such as Flood Risk Managers meetings and have also been asked to present at CPD Training sessions held by legal practises to talk about how to prove a flooding case (or defence as case may be) with hydraulic computer modelling.

This was prior to setting up my own consultancy in 1996. The company celebrates its 20th anniversary in 2016; a milestone which the company is very proud to have achieved in an industry that is continually evolving.

The majority of the firm’s work is hydraulic modelling of sewerage systems and the preparation of Drainage Area Plans, Sewerage Management Plans and Surface Water Management Plans for clients such as Local Authorities and Water Companies.

“How has the company been able to stay at the forefront of the industry?”

The company’s success stems from our philosophy of seeking out the latest technological advances to ensure that it develops an approach that is continually leading edge. Our aim is to resolve flooding problems in the urban environment using the latest analytical techniques. Our most recent tool is one which can provide Local Authorities and Water Companies with real time street by street urban flood alerts.

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“What experience do you have testifying in legal cases?”

I have worked with numerous legal practises acting for the claimant or defendant or in some cases jointly, in nearly 100 cases over a period of many, many years. Numerous legal practises have returned time and again to work with me on flooding cases valuing the knowledge and expertise I can bring. Increasingly, I am called in before a case is even taken to 70

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court, as there is now recognition that taking expert advice at an early stage can make the process more efficient and helps determine whether there is a case to be made.

Expert Witness Services Flooding & Drainage

“Have you provided testimony for both claimant and defendant?”

Whilst testimony will always be impartial and a representation of the technical facts I have over the years been engaged by both claimants and defendants. This means I have been engaged by legal practises, Local Authorities & Government Agencies, Water Companies & commercial premises as well as private householders. I have also provided testimony in matters of adjudication.

Celebrating 20 Years 1996-2016

“I found him to be an impressive witness. His reports & evidence were careful, detailed and...displayed impressive technical command & understanding of the issues.”

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• Highly experienced experts offering constructive, practical advice on all flooding & urban drainage issues for legal disputes & court cases.

Sometimes the opposing sides will each have their own experts and have on occasions provided contrary evidence so it is important to be robust in your knowledge and it is therefore pleasing to hear endorsements such as that where my evidence has been deemed more valid. In one such matter the Adjudicator said

• Specialist advice for complex ‘what if’ scenarios to determine both the cause & prevention of flooding.

“In the main I prefer the evidence provided by Mr Allitt as this has addressed the broader causes of the flooding more persuasively…” He went on then to adjudicate based on my evidence.”

Richard Allitt Associates Ltd 01444 401840 www.raaltd.co.uk

richard.allitt@raaltd.co.uk

“What tools do you rely on to inform your testimony?”

Within Richard Allitt Associates our software modelling program of choice is InfoWorks ICM which offers exceptional results through its general versatility and functionality. It provides us with the ability to test a wide variety of 'what if flooding scenarios’. This facility is key to legal cases where we can show what would have happened if different actions had been applied to essentially the same storm or flooding data.

Hydraulic modelling for legal cases needs a very highly skilled modeller who can test alternative hypotheses and can provide clear plans and visualisations. As a skilled modeller I am not only experienced at identifying the causes and mechanisms of the flooding but can also advise on solutions which can prevent repeat occurrences.

“How many years have you been supplying expert witness services?”

My services have been in demand for well over 15 years and many legal practises return frequently to ask for advice with new cases. The number of flooding claims continues to grow.

“Are there any notable cases you have been involved with?”

I have been involved in many cases over the years but a couple stand out as those that have been viewed as test cases have altered the way in which the law has subsequently been applied.

• Bybrook Barn –v- Kent County Council An example of where the Leakey principle was applied where a highway authority was held liable because it was responsible for an inadequate culvert which caused a risk of flooding to neighbouring land.

As well as carrying out sophisticated modelling work, as an expert witness I will gather essential data and evidence required to inform the model. It is important to know what data is required and how best to obtain it. If required I visit the site in question, observe and photograph conditions and infrastructure to enable visual comparisons between the conditions observable at the time of the incident.

• Cordin & Others –v- Newport City Council This was a case where strict liability applied to an escape from a reservoir where flows should have been discharged carefully through a sluice gate.

In the latter case the judge remarked :

My company employs the use of its UAVs or ‘drones’ which can carry out aerial surveys. These aerial surveys are extremely useful in being able to identify things such as ‘urban creep’ where hard landscaping has prevented water soaking away leading to flooding, or identifying ditches and embankments which are not observable from ground level.

“I found him to be an impressive witness. His reports and evidence were careful, detailed and to my mind displayed impressive technical command and understanding of the issues. Overall his evidence was compelling.”

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“Do you think you always need an expert in flooding cases?”

In straightforward cases where the cause is clearly observable it may not always be necessary to employ a hydraulic modeller. However where more data is required and cause is not clear then the modeller should be highly skilled and experienced in order to understand all the possible scenarios. The software helps the modeller to address a wide variety of ‘what if’ questions and can be used to test a variety of alternative hypotheses. There is no doubt that employing a skilled flooding expert will result in clear plans and visualisations which will enable everyone without specific knowledge of the industry to understand unambiguously what has occurred. The expert witness will in this case not just be a (albeit well informed) subjective opinion but be able to provide objective data to illustrate that opinion. In flooding related matters the right expert witness can bring facts and clarity to facilitate the process of law.

“Have you seen a rise in demand for Expert Witness services?”

This would appear to be the case but there are a number of factors at play here. Incidents of flooding are occurring with increasing regularity but this has been accompanied by a realisation that there can on occasions be a case to be made for compensation. The complexity of flooding situations is such that it can be hard to disentangle the facts without employing an expert and this has meant that we are being called in earlier in the process as well, which ultimately means the quality of the evidence is much better too. ■

“Have you ever turned down Expert Witness work?”

I would only ever take on work as an Expert Witness if I felt I was the right expert for the case in question.

I would always advise an informal discussion prior to accepting any appointment. There are occasions where I have advised that I don’t think there will be a case to answer but it is up to the client whether they still wish to pursue matters further.

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Trees: Appreciating the Value of the Underground World

by Mark Chester - Cedarwood Tree Care There tend to be two views regarding tree roots. The first is that they reflect the crown spread above ground. The second is that once trees have been planted, we tend to forget about them. The issue of the extent of root spread is one which can influence the design and layout of developments. It can be used to restrict the extent of development, and in some cases, to justify refusal of consent. With care and an informed approach, opportunities can be pursued and trees be successfully retained. The needs of both existing and new trees can also be realistically accommodated.

resistance unless it is fully justified and supported by detailed technical evidence.

Fortunately, the document which informs how trees are retained on development sites, BS5837:2012, is a recommendation, a series of guidelines. It facilitates a degree of flexibility. It is my role, in guiding my clients, to identify solutions where they may be possible, and to provide the technical evidence to support a proposal. Sometimes, this needs lateral thinking.

Equipped with this and an array of technical tools, I have been able to secure consent for clients, and to ensure that mitigation is proportionate.

In an ideal situation, with good soil and unrestricted access to nutrients and moisture, roots tend to grow in an even range. However, such situations rarely exist, especially in our urban settings. When surveying trees for suitability to be retained within a potential development site, a calculation is made to determine how much space should be allocated to the roots. This space is typically shown as a circle, and is called the Root Protection Area. For those seeking to regulate planning and the extent of development, the Root Protection Area (RPA) is often seen to be sacrosanct, and any encroachment in to it can meet with

The starting point is to appreciate that the RPA is below ground. With care, it can be possible to install infrastructure above ground. Whatever happens above ground, we need to ensure that we avoid or minimise compaction, maintain drainage and retain and possibly enhance aeration of the ground below.

The use of cellular grids which are laid on the surface and filled with gravel helps to meet these objectives. It spreads the weight of passing traffic and thereby limits compaction. It is a recognised method for providing access. I have used it to enable access to a site where there was a tree off-site (and within a Conservation Area). The site, within my adopted

Above, Trees within a roadside hedge.Where are the roots?

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For another site, I faced a different challenge. The tree was situated with the trunk in a neighbouring garden but branches growing over the boundary. The normal expectation would be for roots to be growing beyond the boundary. If this was the case, then foundations using piles and beams would be needed, rather than the normal trench method. Again, I sought to excavate pits to explore the situation below ground. The ground on the application side was covered in concrete and compacted. Conditions were not particularly inviting for tree roots! It was not possible to excavate beyond 100mm and it was no surprise to me that no roots were identified. The application has been approved without the need for costly construction methods. If a pile and beam construction approach is needed, then it is a valuable method for achieving development. However, if there are no roots to protect, it becomes excessive.

Hereford, where there is increasing pressure to develop, was a garden to a larger property. The principle of development was recognised, but there was local sensitivity, especially with this being a Conservation Area. The planners needed to be reassured that the proposed new dwelling could be constructed in practice.

There was a small area of hard standing by the entrance, which has been used for parking a car.

However, this was clearly insufficient to accommodate the machinery and materials associated with construction. By using the grid method, I was able to demonstrate that the additional hard standing could be created without compromising the root area. It ticks the boxes of minimal compaction and of unrestricted water infiltration and air movement. I remember that case well, not only because the application was successful but also because the report was used as the template for an accreditation scheme I developed with the training organization Lantra.

It is important to provide the conditions of the rooting area by ensuring there is no compaction of the growing environment. It is possible to install infrastructure above the ground. It is important, in doing this, to ensure that the ground level is not altered, by excavation or by the addition of materials. Where footways need to be installed within the RPA, I have used decking to avoid compaction. For one particularly challenging site, with a tree being retained and on a steep slope, the use of decking has allowed access to a previously inaccessible garden area. The slope was so steep that I needed to tred carefully when inspecting the tree, and I appreciated the dry weather and ground conditions.

Working with known, or likely, areas of roots is one thing. One of the challenges sometimes is to establish whether the roots are following the expected parameters. This can be very useful in informing the extent of mitigation works required, and can justify not implementing costly, but unnecessary measures.

Several years ago, I worked on a proposal to install wind turbines on an exposed hill side in south Wales.

Wind turbines are tall, with long blades. They are substantial pieces of equipment, supplied as parts with considerable lengths.. This particularly site, accessed via a long-established forestry track, needed the construction of a new road, with substantial foundations, to facilitate delivery. This new road was to follow the existing track, which passed close to a mature Beech hedge. In order to construct the new road, the existing feature needed to be excavated, and there were concerns that the construction process could be detrimental to the trees.

The construction process is stressful to trees being retained. One of the factors that I consider when assessing trees for suitability to be retained is whether they have sufficient vigour to withstand the stresses ahead. It is possible to assess vigour in advance using chlorophyll fluorescence measurements, and whilst these can only be used when the tree is in leaf, they can inform management.

The hedge had open fields to one side, and the forest track to the other. My observation was that roots were more likely to be flourishing on the field side than growing under the track. The planning officials required this reassurance ahead of making an approval for the proposals. My solution was to dig a series of small pits between the trees and the track, ideally to 600mm depth, and record any roots that I found. If there were few roots in this compacted ground, it was very unlikely that they would extend under the track. In the absence of roots, the track could be excavated and the new road installed without compromising the trees. I actually found the ground to be so heavily compacted that I was unable to dig any of the pits beyond 100mm depth and, unsurprisingly, I didnâ&#x20AC;&#x2122;t find any roots. I have used this approach repeatedly to inform both the direction of construction works and the extent of mitigation works.

EXPERT WITNESS JOURNAL

I mentioned at the start that so often, the environment below ground can easily be overlooked. It is, however, vitally important to the health of our trees, whether they be ones being retained or newly planted. There has been much research over the past decade or so exploring how soil conditions can be improved, equipping trees to resist attacks from various pathogens. My associate Kevin Martin, who manages the trees at the Royal Botanic Gardens, Kew, where there is a collection of some 14,000 trees, has been trialing techniques to enable some of the specimens to respond to the effects of compaction.

He has found that the use of an air spade to break up the surface, the application of compost and a good covering of mulch is proving effective. One of the challenges that Kevin faces at Kew is that the collec74

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tion includes trees which are botanically or historically important, and whose life needs to be extended for as long as possible. When one is considering trees planted by King George lll in the late 1700s, and irreplaceable, the choice of fell and replace, normally available, is not an option. The results so far are impressive, and the methodology is one which I am using. One can almost sense the relief and appreciation of the tree as the ground around is improved, a bit like giving a human patient a new lease of life!

established. However, the early years are critical, and they need to be equipped for the future.

Unless we are planting trees in a grass verge or amenity area, it is likely that the setting will have access to limited organic matter. This is usually the case with development sites. Indeed, developments on previously undeveloped sites (including gardens, which tend to be considered brown field sites) often start with the top soil being stripped and piled for possible use later. Whereas turf and shrubs may grow and thrive on a covering of soil that is deep not thick, trees need more. This is not surprising!

On the subject of rejuvenating trees, Dr. Glynn Percival, who I find a valuable source of information on plant health, has been monitoring the use of biochar, a product of high temperature charcoal production, in field trials. He has found a good response from early research, and has even found ash trees where biochar has been incorporated in to the soil are resisting Ash dieback. I am concluding from this evidence that we have the tools to equip trees to withstand the stress of development and be equipped for the future. Valuing the growing media and ensuring the trees have access to a good resource is key to them becoming established and sustained in the long term.

The Trees in Towns ll report, published a decade ago and based on a survey of tree management across the various local authorities within England and Wales, found that as many as one quarter of newly planted trees were dead within the first two years following planting. The reasons are numerous, a factor highlighted in BS8545:2014, a new industry standard for the nursery sector. One of the major factors which hinders the ability of newly planted trees to become establish and flourish is the growing conditions in to which the saplings are being place.

One of the key elements of my work, beside identifying trees for retention, is selecting trees for landscaping schemes, usually to mitigate for the trees removed as part of the development process. I recognise the importance of planting the next generation of trees.

Within the planning process, the provision of a landscape scheme can often be seen as just one of a list of documents required to achieve consent, and for many in the process, its existence with tree planting as an element is sufficient to reassure.

In 2014, I worked with Keith Sacre, who chaired the Drafting Committee for BS8545:2014 to develop training in the various elements of establishing young trees within the landscape. Keith has spent some 40 years working with trees, and has specialized in managing the establishment of young trees. Spending time with him, I have appreciated the science guiding our understanding of how trees function and the ingredients for successful establishment. One recurring comment I heard, as the course developed and I worked on marketing it, was that people did not need training in how to plant a tree. This was surely not that complicated. I appreciate the sentiment when considering the basic principles, but I am also very well aware that things that seem â&#x20AC;&#x2DC;obviousâ&#x20AC;&#x2122; to me tend not to be recognised by everyone. There is so much more to establishing young trees than simply digging the planting pit. The science guiding the subterranean environment and informing best practice is considerable.

For me, the landscape scheme is actually one of the most important documents. It is the one which places a development in to its setting. At the Trees, People and the Built Environment ll conference held at Birmingham University in 2013, the architect Sir Terry Farrell, key note speaker, spoke about how with developments, the focus is to often on the built environment. However, it is the space between buildings, so often overlooked, that matters most to those who will work and live in the development once completed.

I have written in the past about a site in Hereford, a high profile regeneration project where I have surveyed the trees for several years. Landscaping including planting a group of five Birch trees, using raised containers to create an architectural feature.

There is nothing wrong with such an approach, but it seems that no one thought about how the trees would be irrigated, especially during the first couple years. When I visited the site at the end of a notably dry and hot September (in 2014), three of the trees were already dead, and all five had been planted in the wire cages they were delivered in! Isnâ&#x20AC;&#x2122;t watering just common sense?

I can provide a landscape scheme simply to meet the requirements of planning. However, with every scheme I produce, whether to fulfill planning conditions or as part of a more holistic site development, I carefully select the trees to suit the site. It is important that the trees planted are suitable, and also contribute to and enhance the setting. This is more than just conditions above ground. How often do we dig a hole and put a tree in it, and walk away, without considering what the tree might need. Trees are generally low maintenance, especially once

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that we can recreate the conditions of the forest or nursery field in the most challenging of urban landscapes. We can do this in the subterranean environment using crates which can accommodate all that the trees need, and support usage above ground. This enables trees to be planted in the middle of car parks, and be equipped for the future.

In addition to watering, the environment in which the roots are to become established needs to be welldrained and aerated. Roots do not contain chlorophyll and so need access to oxygen in order to respire.

If the soil become water logged, anaerobic conditions will soon develop and the roots will be affected and unable to properly function. We may need to bring soil in, although it is generally better if we can use material from the site. So often, we create a planting station broadly similar in size to the root ball of the sapling and expect the tree to flourish. We then complain when roots near the surface begin to spread out and threaten to damage the surrounding infrastructure as they seek space and nutrients to sustain further growth.

We tend to create individual planting positions for trees, and expect them to grow in isolation. However, this need not be the case. We can link up the planting areas for trees, and other areas of soft landscaping such as shrubs. This enables roots to move between planting areas, and the fauna which inhabits this environment can circulate across a larger area, which is healthier for it and the trees.

How much space do trees need below ground, and what do they need to sustain growth in to the decades ahead? We can actually calculate the volume of soil needed, and ensure that good quality growing media (which does not necessarily need to be top soil) is provided. I refer to growing media for a reason. Soil is not always appropriate and research in Sweden has identified that, for urban areas in that nation, trees have flourished on brick waste from the dereliction of urban renewal. The local conditions are such that the building material includes deposits of nutrients which are able to sustain tree growth.

Finally, when we plant trees, it is important to appreciate their future potential, and how this could impact the site where they are being planted. There is little purpose in planting trees which will take several decades to mature if the site may be refurbished before they have matured. Similarly, if the trees will outgrow the site, or are noted for problems, such as invasive roots, we are incorporating problems in to the design.

I donâ&#x20AC;&#x2122;t expect my clients to recognise all of the opportunities and constraints of an individual site, and which trees would be most appropriate, and where. It is more than simply getting the right tree in the right place. This is where I can guide and inform. When the selection and planting of trees is an after-thought, this is often reflected in the results.

When I am engaged in the development process at an early stage, I can ensure that best practice is successfully incorporated in to the design. Then we can work together to achieve a quality scheme. â&#x2013;

Trees do need space. Typically, an area equivalent to around twenty cubic metres per tree may be needed.

One aspect of this which I am appreciating more is

Principle Consultant

Mark Chester

BSc (Hons); Tech. Cert. (Arbor.A.); MIOH; F.Arbor.; C.U.E.W.; C Env.

Mark has experience in Tree Preservation Orders, boundary disputes, amenity tree valuations, planning permissions and tree works.

He can provide feasibly assessments, support mediation and produce technical reports, and can guide your case through to a court hearing. Mark has undertaken specific training in cross examination and has an excellent track record of successful courtroom witness cases.

Mark Chester holds the Cardiff University Law School Bond Solon Civil Expert Certificate, enabling him to provide Expert Witness support for court cases and tree disputes, including Tree Preservation Order breaches and compensation for tree damage. A recent case summary described Mark as "a very impressive and authoritative witness."

Contact Details Telephone: 01981 570426 Mobile: 07888 838360 Email: enquiries@cedarwoodtreecare.co.uk Website: www.cedarwoodtreecare.co.uk

EXPERT WITNESS JOURNAL

A more informed approach to roots and drainage for newly planted trees within a regenerated high street (Abergavenny).

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â&#x20AC;&#x153;Successful Cities must Bridge the Infrastructure gapâ&#x20AC;?

Says New RICS President Amanda Clack FRICS is today being inaugurated as the RICS President for 2016-17. Ms. Clack is a Partner at EY, and is Head of Infrastructure (Advisory), leading on infrastructure across government and the private sector.

development of smart cities and large-scale infrastructure projects, the industry can help make these cities a success. RICS has the opportunity to lead on the issues of attracting finance, managing risk and being more sustainable.

As a global professional body, RICS recognises the economic value of infrastructure investment. An estimated $57tn is required to meet global infrastructure needs by 2030 and RICS professionals can help projects to complete on time and within budget.

A senior role model for the profession, Ms. Clack will also passionately promote greater diversity in the industry. To create a workforce fit for the future, the profession must reflect the diversity of communities globally. This includes how we attract, retain and develop talent.

During her presidency, Ms. Clack will focus on this area, as well as city development, including the creation of smart and sustainable cities. She will also work with RICS teams around the world to promote and embed international standards.

Diversity should be seen as a business strategy. If we do nothing to attract a more diverse workforce, how can we expect to deliver important projects for diverse populations around the world?

By 2050, we will have 6.3bn people living in our cities.

These enduring structures hold the key to meeting the challenges presented by climate change, resource scarcity and growing populations. Through the

Joining Ms. Clack in the RICS Presidential Team over the next year are RICS President Elect John Hughes FRICS, based in Canada, and RICS Senior Vice President Chris Brooke FRICS, based in Hong Kong.

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Surveyors Acting as Advocates – the Challenges and Potential Pitfalls Chartered surveyors spend a lot of their professional time helping clients who are involved in disputes. When problems escalate to formal tribunals, surveyors bring a range of expertise to bear. They act as advisers, expert witnesses, arbitrators, mediators and also as advocates.

Chartered surveyors are not, normally, legally qualified, and their rights to act as advocates in formal judicial proceedings are limited. Surveyors do not have a right of audience in the courts, in the same way as barristers and solicitor-advocates, though many surveyors do appear by prior leave in the Lands Chamber.

professional matters, which are to be submitted in evidence to a tribunal, are competent, and he has not made any dishonest misrepresentation.

A genuine problem for some surveyors is reconciling their client duties to the requirement as an advocate to be objective in their approach to tribunals, and being unconditionally truthful, all of the time.

Surveyor-advocates often appear before non-court tribunals such as Arbitrators and Construction Adjudicators. They also advocate on behalf of clients before Rent Assessment Committees, Leasehold Valuation Tribunals, Valuation Tribunals and Planning Inspectors.

It is not necessarily the case that advocates routinely and intentionally set out to mislead tribunals, or deliberately lie, though perhaps a few do. The central problem arises where advocates fail to grasp the subtle distinction between forcefully promoting a client’s case, and acting in a way that is insincere or, in some cases, even deceitful.

When acting as advocates, surveyors frequently appear in front of, or alongside solicitors and barristers, whose professions are subject to mandatory rules of conduct governing advocacy. It is natural, therefore, to expect surveyor-advocates to be obedient to similar rules and fundamental principles which govern the conduct of advocates as legal professionals.

The RICS Practice Statement for Surveyors Acting as Advocates sets out mandatory requirements for surveyor-advocates, which includes a duty not deceive or mislead a tribunal, or any opposing party. Whilst this is a very important duty, it is one that can be misinterpreted.

The two most important messages RICS repeatedly conveys to chartered surveyors who act as advocates is that:

It does not, for example, preclude surveyoradvocates from advancing interpretations of the evidence submitted to the tribunal in a way that is advantageous to their clients. What they should not do, and this is the crucial point, is distort the evidence, or conceal salient facts, to offset against weaknesses in their case. Part of this would appear to be answering questions put by the opposing advocate, or tribunal, candidly and unambiguously.

a) All surveyor-advocates owe a duty of care to their clients, and b) All surveyor-advocates owe a duty to the tribunal to act fairly and to assist in maintaining the integrity of the tribunal process.

Most surveyors who act as advocates do not have a problem understanding and adhering to their duties to their clients. These are duties that are conveyed throughout their training and qualification to be chartered. The responsibilities attached to a professional/client relationship are thus easy for surveyors to appreciate. And, after all, the fact that it is the clients who pay their fees, often helps to concentrate attention.

A surveyor-advocate also has a responsibility to draw a tribunal’s attention to all relevant facts, case law or legislation, whether it supports their client’s case or not. This is a burden that may in fact come as a revelation to some surveyor-advocates.

There is anecdotal evidence that the duty to disclose unfavourable evidence to a tribunal is actually overlooked by some surveyors, and indeed lawyer advocates too. It is, without doubt, a duty that can put an advocate in an uncomfortable position with his client, but that is no excuse for failing to comply with it.

A surveyor owes his client a duty to exercise reasonable skill and care in relation to the matters on which he is instructed. This duty includes exercising reasonable care and skill to ensure his statements on EXPERT WITNESS JOURNAL

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From an objective perspective it is better for surveyoradvocates to confront any possible Achilles' heel in their case at an early stage, so that they can explain to the tribunal how it will be dealt with, rather than to wait for the other side to raise it and then appear unprepared as they attempt to grapple with it.

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A surveyor advocate, when preparing a case for submission to a tribunal, could sensibly take the earliest opportunity to meet with the client, and discuss the evidence needed to support the issues or facts which are required to persuade the tribunal.

This meeting could also be used to explain the advocateâ&#x20AC;&#x2122;s duties and explore areas where those duties might possibly involve providing the tribunal with information, which would not necessarily serve to promote the clientâ&#x20AC;&#x2122;s case.

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A chartered surveyor, who takes on the role of advocate, takes on numerous and substantial burdens of responsibility. It is nevertheless a stimulating and rewarding role, which attracts many surveyors from a wide set of processional disciplines. The three principal challenges, which all surveyor-advocates face, are perhaps:

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1. Marrying the duties they owe to clients and tribunals, 2. Understanding when those duties conflict, and 3. What to do when that happens.

Martin Burns - 15 June 2016

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On completion, delegates can apply to join our Expert Witness Accreditation Service, which is an indication to appointing parties of quality and competence.

To ďŹ nd out more: t 024 7686 8584 w rics.org/expertwitnesstraining e drstraining@rics.org

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RICS Responds to the Result of the EU Referendum and it must not be allowed to impact on the attractiveness of the UK for investment, or as a place where major corporate and industrial occupiers want to do business.

The result of the referendum draws a line under the campaigns of the last few months. The British people have decided that the UK should leave the EU. There now follows a vote in Parliament, and a detailed negotiation for the UK’s exit.

Given their role in the economy, property and construction require stability, clarity and certainty.

With regards to our relationship with the EU, we need to ensure that investment into UK property and infrastructure continues. While Whitehall focuses energies into the exit negotiation, Britain must meet the housing supply and infrastructure challenges it continues to face. Projects or property transactions which were delayed, shelved or postponed due to the uncertainty surrounding the referendum must be given the confidence and security to begin to move again.

Whatever their previous political differences, Ministers must now focus on providing a stable government. The Prime Minister has pledged to "steady the ship" before stepping down, and the resulting leadership race should not distract from working towards an orderly transition.

Uncertainty over the renegotiation and the UK’s future relationship with the EU must be minimised by laying out a clear timeline and set of ambitions.

The Chancellor’s proposed "Brexit Budget" must be careful to reassure property markets. First Ministers in the devolved nations are expected to play their part in providing this reassurance.

What this means for Scotland First Ministers in the devolved nations are expected to play their part in providing reassurance. Therefore, despite talk of a future referendum for Scotland, we must adopt a collaborative UK approach when detailing the strategy for the UK’s exit. ■

There are questions around the impact on access to a skilled workforce to meet the country’s construction and infrastructure needs. We need reassurance that workforce migration will be addressed as a priority

Forensic Structural Engineer - Chartered Building Surveyor

Failure Of Duty Of Care Structural Engineers Design Failures Collapse Investigations Construction and Material Defects Timber Defects

Contact Details Landline: 01494 727 217 Web: www.abillingham.co.uk

Failure Of Duty Of Care for Building Surveyors Survey Reports Contract Administration Design Failures Schedule of Dilapidations The above are just a few of the related topics that encompass my expert reports.

Mobile: 07961 398 049 E-mail: andrew@abillingham.co.uk

5 Cheyne Close, Amersham, Buckinghamshire HP6 5LT

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“So, you’re really more on the academic side of the film industry these days, aren’t you?” So asked the cross examining QC acting for the Appellant’s side in 2014. “No, that’s not accurate,” I replied calmly, turning to deliver my clarification to the two Judges presiding over the $1bn film tax tribunal. “In addition to teaching at Cambridge University, Exeter University and London Film School, and training around the world, and holding a PHd from City University London, I manage the Film London Production Finance Market, attracting more than $300m of production value a year, and curating an event that brings more than 150 film producers and international financiers from all over the world together in October to do business.”

Film and media litigation that requires expert witness input is understandably less common than, for example, medical cases. My experience to date has so far traversed an interesting range of cases, including: 1. Four company directors of a Guernsey film operation being sued for negligence and damages totalling more than £10m. (The case was settled under arbitration for less than half the initial claim).

The frustrating element of the case was that ‘risk management’ was assigned to third party principals rather than the directors in case, but they did not have PPI, whereas the company directors were both still potentially liable and covered to a high level.

Hence the principal who has lost investment went after the principals from whom he could recoup rather than the players at fault.

Raising his eyebrows, the QC looked irritated. He’d asked a question that he should have known the answer to. Or perhaps he was hoping I was not paying attention. I continued: “I have also mentored a range of companies in South Africa, New Zealand, Canada and France, and am attached to certain film titles as an executive producer.”

2. Acting as an expert witness for a local government authority, in a case that went up against appellants Pinewood Studios. This was the most difficult case to undertake as an Expert Witness, as the entire UK film industry was behind Pinewood expanding its Green Belt studio base. However, in the fairness of democratic argument, there were a number of concerns over the forecasting put forward by Pinewood that at the time could be challenged, but only to an extent.

On the balance, it was a risk to undertake the Expert Witness role, but experience and a further understanding of the responsibilities and tasks involved in the process were learnt and underlined.

The QC moved on to distribute my most recent book, The International Film Business – A Market Guide Beyond Hollywood (2nd Edition, 2014) to the entire room of QC’s, lawyers, advisors and observers.

Described as ‘bed time reading,’ the court was directed to read a range of pages about the roles of producers, executive producers and financiers contained within the now globally established film business textbook. The court was retired and the subsequent reading was undertaken. (Not exactly a book that keeps my four young boys up late at night with torches…).

3. HMRC approached me to be an Expert Witness in the film tax tribunal case I refer to at the front of this article. After intensive consultation, I took on the high profile case, which involved thousands of documents, years of argument and disagreement, and had finally ended up at the First-Tier Tribunal (tax chamber).

Without going into details on the specifics of the case, what I learned is that there are five key roles often required by an expert witness.

However, the notion put forwards in the opening arguments that I was not qualified to be an expert witness and that my papers were unacceptable, was now roundly squashed given their change of tactics and the desire to cross examine elements of the book that suited their arguments. Understanding that this kind of tactic is inherent in the majority of complex cases is essential, and should be anticipated by an Expert Witness.

They include: a) To write a report(s), whilst being careful to avoid any opinion that cannot be evidenced clearly, and to not be drawn into commenting on matters that you personally are not comfortable opining upon

The complexity of keeping a balance, remaining fair, while dealing with issues that traverse facts, fiction, nuance and varied definitions and interpretations is precisely the art expected of a strong Expert Witness.

Taking up an advocatory approach is not an option.

In opaque industries such as the film industry, a high level of knowledge is necessary across the entire media value chain if an expert witness is to ‘lead’ counsel, solicitors and expert peers, and offer a serious insight into the issues at stake.

EXPERT WITNESS JOURNAL

b) Paying considerable attention to any rebuttal process and report (or joint agreement between opposing expert witnesses), as this further evidence carries considerable weight with the court c) Recognising that while a court or tribunal case may be completed, a Judge may well ask a range of follow up questions and your role needs to be sustained and focussed.

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d) Advising the client on a range of aspects across the industry in question, some very specific, some much broader, whilst remaining fair and neutral re the facts of the case in question.

Dr Angus Finney International Film and Creative Industry Expert

4. For balance, it’s useful for readers to know that my Expert Witness experience has also included one case that I turned down, on the grounds that a director of a company cannot hide behind ignorance when acting as a principal of a company. The case would have been very profitable in fees for my company and personally, but the important point was that I felt it was unethical and wrong to serve for the appellant given the above stated circumstances.

PhD, BA, MA in Film and Journalism

Angus Finney is a leading international film and creative industry specialist. His work includes MBA-level teaching at The Judge Business School, Cambridge University and Cass Business School, City University, London, and he is the manager of Europe’s only Production Finance Market, hosted by Film London annually.

His work has recently included acting as a government expert witness in two high profile cases, including the £1bn tax tribunal involving Ingenious Media and HMRC; and has served as an expert witness on a private film finance dispute in Guernsey.

In conclusion, when dealing with high-velocity, complex industries such as film, television and the world of digital media, it is critical to remain clear, plain speaking and transparent in all written and verbal evidence. The ‘’weight’ of evidence is always lessened if it is trumped up with obscure jargon and over-complexity. As the American author Kurt Vonnegut wrote: “It’s quite possible for good to triumph over evil, but the angels have to be organised like the Mafia…

Contact: Dr. Angus Finney Tel: 07847 582 145 Email: angus.finney@gmail.com Address:5 Larkhall Place, Bath BA1 6SF Area of work Nationwide and Worldwide

Cambridge, Cass/City, Grenoble, London University, the Sorbonne and Copenhagen Business School.

Brief biography Dr. Angus Finney is a leading international film and creative industry specialist who has taught and lectured across the world. His work includes MBA-level teaching at The Judge Business School, Cambridge University and MA-level Course Directing at London Film School/Exeter University. Finney is the manager of Europe’s only Production Finance Market, hosted by Film London annually. His work has recently included acting as a government expert witness in two high profile cases, including the £1bn tax tribunal involving Ingenious Media and HMRC; and has served as an expert witness on a private film finance dispute in Guernsey.

Finney also has considerable practical entrepreneurial and management experience: He was appointed joint Managing Director of Renaissance Films, a UK-based development, production, financing and sales company in July 1999, taking over sole MD responsibilities in 2002 before the company ceased trading in July 2005.

Finney is a Research Fellow at Exeter University, and has a PhD in Management from Cass Business School, City University London. He has an MA in Film (Documentary specialism) and Journalism from New York University, a post-graduate Diploma from City University in Newspaper Journalism and a BA from Sussex University in International Relations.

His UK training includes working with Creative Skillset, Creative England, Film Agency Wales, Film London and the Film Distributors Association; and his professional development work has extended to South Africa, Ireland, UAE, Canada and New Zealand over the past five years. Finney has mentored individual producers, directors and writers, alongside companies and senior managers in the UK, France, Ireland and New Zealand.

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Finney’s fourth and most recent book is: The International Film Business – A Market Guide Beyond Hollywood (Routledge) was published in May 2010. A second edition has been published in October 2014 and is currently being planned for publication in China in 2017. Finney has personally trained more than 1000 film producers/writers and directors, company executives and students since 2005, and delivered master classes and lectures at Judge/ EXPERT WITNESS JOURNAL

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