The Expert Witness

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ISSN 2397-2769

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THE JOURNAL FOR INSTRUCTING PROFESSIONALS & EXPERT WITNESSES

PSYCHOLOGY - RICS - BANKING LITIGATION Vol 1 Issue 22 - Winter 2017/18 UK £5.00 €6.00

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Consultant Psychiatrists and Consultant Psychologists Our experts cover many aspects of mental health: General adult psychiatry Child and Adolescent Mental Health Personal Injury Criminal law Immigration and Asylum matters Capacity, DoLS, Court of Protection Testamentary Capacity Psychosis Affective Disorders Anxiety disorders Personality disorder PTSD/Trauma ADHD Eating Disorders Body Image Disorders Offending/forensic matters Risk Management S37/41 Fitness to Plead Fitness to Stand Trial All our experts have medicolegal experience undertaking cases in criminal law, occupational health, personal injury, the Mental Capacity Act and Court of Protection. They have provided expert opinion on complex cases and given evidence to the courts. They have also undertaken specialist expert witness training.

Our experts are: Dr Fairuz Awenat, Consultant Clinical Psychologist Dr Ty Glover, Consultant Psychiatrist Dr Lee Martin, Clinical Psychologist Dr Asad Raffi, Consultant Psychiatrist Dr Kirsty Smedley, Consultant Clinical Psychologist

ExpertMinds The Colony Wilmslow Altrincham Road Wilmslow SK9 4LY Area of work: North west and Nationwide Tel: 0161 826 2815 Email: info@expertminds.co.uk Web: www.expertminds.co.uk

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Welcome to the Expert Witness Journal Hello and welcome to the 22nd edition of the Expert Witness Journal and, a belated Happy new year to all our readers. In this edition we feature a wide range of topics including; Drug Testing, Forensic Accountancy and Accident and Emergency Claims.

One of our main features highlights the importance of forensic science. These articles investigate and inform on digital evidence, fingerprint technology and ‘legal highs’ identification. If you are visiting the forenics Expo at Olympia London in March please stop by our stand 1-E49 and say hello. .

We also feature an excellent article by Mark Solon of Bond Solon who reviews the annual Expert witness conference and discusses its findings.

We will also be exhibiting at Law Birmingham at the NEC in February and at Law London in Kensington in March. We value these conferences as we get to meet solicitors barristers, experts and other professionals face to face and discuss relevant matters and also explain how we operate. Please stop by and say hello if you are attending either of these conferences.

Our next issue will feature personal injury, pain management and orthopaedics, plus many general related articles. If you would like to submit or comment on any articles, please contact myself at the email below.

Many thanks for your continued support.

Chris Connelly 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’.

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.

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.

The information in this magazine does not constitute a legal standpoint. Printed in Great Britain 2017.

Expert Witness Publishing Limited, Unit 1/06, Ivy Business Centre, Crown St, Failsworth, Manchester M35 9BG

EXPERT WITNESS JOURNAL

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Suggestions to handle the National Health Service Crisis today Dr Bashir Qureshi FRCGP, FRCPCH, AFOM-RCP, MICGP, Hon FFRSH-RCOG, Hon FRSPH, Hon MAPHA-USA • Expert Witness in Cultural, Religious & Ethnic Issues in Litigation.

• Expert Witness in GP Clinical Negligence.

• Author, Transcultural Medicine; dealing with patients from different cultures.

There are many factors which have made todays’ NHS becoming stressed itself more than any stressed patient. The situation is as follows:

J. Now the remaining two disciplines Hospital Service and GP Practices are being skilfully re-organised as there is no other choice.

A. Politics, Economics and Law have as much to do with patient-care as Medicine; National money reserves are far less now than in the past.

K. British Government , the RCGP, other Royal Colleges and the BMA are really supporting the doctors under fire, and patients, as much as they can. * Please observe that there is no one person or Party to be blamed. We have a real situation to run the NHS within the resources available. Let us join hands together, not blame each other but calmly solve these issues as best as we can to reach the solution. Hope sustains life; we would win.

B. Appraisers and Re-validators are being paid to find faults among doctors by their own colleagues.

Doctors are not saints; there are prejudices.

C. Care Quality Commission is being paid to find faults in Practices by GPs and Consultants; Hospital departments and GP surgeries are shrinking.

Dr Bashir Qureshi

D. Referral Services, created and paid by the NHS, are stopping GP referrals to Hospital Consultants as much as possible.

FRCGP, FRCPCH, Hon. FFRSH-RCOG, AFOM-RCP, MICGP, DCH, DHMSA, DPMSA, FRIPH, Hon.FRSPH, Hon.MAPHA-USA

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

Expert Witness in GP Clinical Negligence.

E. "Patient complaints against doctors have changed from being a wind to a hurricane. After two complaints, a doctor may become a patient.

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.

F. Pharmacists are under pressure too. Moreover, they have to charge for their services as the dentists do. They are also human and make errors.

G. Private Healthcare Companies are very expensive and have costly investigations which many dying patients or their relatives cannot afford.

Languages spoken: English, Urdu, Hindi, Punjabi.

H. Doctors organisations have tried to use "Patient Associations" as shelters but it has back fired.

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

I. In 1998 - 2000, the third discipline of the NHS called "Clinical Public Health and Community Paediatrics plus School Healthcare" was skilfully closed.

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Contents

Some of the highlights of this issue News and Events

page 5

Annual Bond Solon Expert Witness Conference

by Mark Solon, Director, Bond Solon

page 9

Digital Evidence Does Not Exist in a Vacuum

by Alex Caithness, Principal Analyst, CCL

page 15

Identification of “legal-high” Plant Species in Forensic Labs

by Kelly Elkins, Towson University

page 25

Joint Expert Meetings – Banking Litigation, An Experts Opinion

by Andrew Kasapis - Director, Disputes/Investigations

page 29

Financial Scandals, Swaps and Tailored Loans

by Peter Crowley, Windsor Actuarial Consultants

page 32

RICS at 150 by Martin Burns

page 38

Crash Investigation- How sure can we be that collected data is accurate?

by Graham Ellis of Ellis Transport Services

page 41

Food Safety Expert

by Dr Belinda Stuart-Moonlight

page 45

The Assessment of Malingering

by Dr Imran Waheed FRCPsych

page 52

The Role of the Psychologist as Expert Witness

by Dr Andrew Hale & Dr Malgosia Kwilman-Klelund - Surrey Psychologists

page 55

What can Experts and Judges Learn From Cognitive Psychology?

Are we Biased and, if so, How? by Koch H, Cosway R, De Haro L & Kon T

page 62

Finding the Ideal Dental Expert for your next case

by Professor Paul Tipton

page 66

Chronic Post Surgical Pain

by Dr Nigel Kellow MB BS FRCA MBA - Consultant in Pain Medicine

page 71

Damages for Wrongful Birth: How Far Does a Doctor’s Responsibility go?

by Rosalind English

page 76

EYE-LAW CHAMBERS

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Eye-Law Chambers provides Expert Reports for all eye-related medicolegal cases including alleged clinical negligence, personal injury, criminal and employment tribunals. Our Experts have a wide and extensive experience.

Fast-track service available.

Professor Charles Claoué

Mr. Louis Clearkin

Mr. Saj Khan

Mr. Russell V. Pearson

Dr. Matthew Starr

Miss Vickie Lee

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

EXPERT WITNESS JOURNAL

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MedCo cashing in on medical reporting organisations claims Confederation of Medical Agencies The chairman of the Confederation of Medical Agencies has today criticised the Medco board of directors for the new annual charges to be levied on its members as bureaucracy out of control. He also criticises the MOJ for failing in its duty of oversight in allowing Medco to impose disproportionate charges on its members.

needs to increase the fees to our members by up to 100% is absurd and incapable of justification.

The confederation of medical agencies has announced that it is to seek urgent meetings with MedCo and the Ministry of Justice on behalf of its members following the announcement by Medco, a government appointed not for profit organisation that administers the instruction of medical experts in whiplash claims that is to increase the fees it charges member organisations by up to 100%.

The membership fees that Medco passes on to our members is already in the CMA’s opinion flawed in its design, possibly in breach of the competition act 1998 and places an unfair burden on the small businesses that we represent.

Whilst we are aware that some litigation has taken place it should not be the responsibility of our members to foot the legal bill for the mismanagement of Medco by the current board of directors.

The fees to be charged from April now equate to Tier 1 companies having to undertake 833 cases and Tier 2 111 cases per annum just to cover the fees Medco charges.

Medco has written to users giving notice of the huge fee increase to come into effect in April. The notice from Medco states “You are hereby given notice that the annual renewal fees for April 2018 – March 2019 inclusive have been increased.

The fees charged to Tier 2 regional based MRO’s represent 66% of the fees charged to Medical Reporting organisations whereby HVN Tier 1 providers only pay 34% of the fees. This cannot on any analysis be fair when it is estimated that the larger HVN medical reporting organisations receive approximately 70% of all instructions through the Medco portal against 30% for regional based MRO’s.

MedCo is a not for profit organisation and its usual policy has been to abate fees using surplus funds from previous years. However, if there is significant risk of financial calls on the surplus this policy cannot be maintained.

Our Tier 2 members on average receive 1000 instructions per annum so effectively will be charged the equivalent of 11% per instruction they receive, whereas, Tier 1 HVN providers receive 40,000 instructions per year and will pay the equivalent of 2.08% per instruction. This clearly puts our Tier 2 regional based members at a competitive disadvantage and should be addressed by the board of Medco immediately.

The Board has concluded that there is a significant ongoing risk of litigation resulting from the Audit programme to implement the MoJ Qualifying Criteria. This, combined with uncertainty relating to the proposed personal injury reforms as well as increased operating costs, has made it necessary to increase fees in April 2018.

MedCo will review the charging and fees abatement policy at the end of the current financial year in December 2018.

Other organisations set up by government, such as the Claims Management Regulator, which, is a selffunded body, charge fees based on the preceding years income of the company, which appears on the face of it a more fair and balanced method of recovering the costs of managing the service.

The annual subscription fee for High Volume National MROs will be £150,000 plus VAT and for Regional Based MROs will be £20,000.00 plus VAT.” The CMA chairman Ben Elsom has responses by saying “These fee increases cannot be justified at any level. Medco announced in its annual results in December that it had nearly 5 million pounds in surplus cash. To announce that due to the risk of litigation it EXPERT WITNESS JOURNAL

On behalf of the CMA membership we call on the new Secretary of State for Justice to review the MedCo operation and government policy in this area as a matter of urgency.

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Events entation. You’ll be cross-examined on one of your completed reports, once in the morning and once in the afternoon. The second cross-examination is recorded.

Re:Cognition 24 January Introduction to the Early Trial (London) Programme 6.15 PM Arrival 6.30 PM Seminar Begins 7.15 PM Q&A Details

Starting 21 Feb 2018 09:30 in Manchester Starting 09 Mar 2018 09:30 in London Starting 27 Apr 2018 09:30 in London Civil Law and Procedure - overview As an expert witness involved in civil proceedings in England and Wales, you need to understand the basics of law and legal procedure. This helps you work effectively and confidently, and to comply with mandatory requirements.

Join us for a short seminar to introduce the Janssen Early Study.

Delivered by Dr Emer MacSweeney, the seminar will explain the procedures, protocol and requirements for this study, and allow you the opportunity to raise any questions you may have about taking part.

Starting 08 Feb 2018 09:30 in London Starting 22 Feb 2018 09:30 in Manchester

If you decide that you would like to arrange an appointment, our dedicated team will be delighted to assist you.

Pro Sols - www.prosols.uk.com Expert Witness Professional Solutions provides learning that covers the entire litigation process. Our workshops give detailed help and guidance on each phase of the process:

www.recognitionhealth.com

Bond Solon - www.bondsolon.com Excellence in Report Writing - overview An expert witness’s report is a vital element in litigation. It must be clear, succinct, independent and well presented.

Many experts develop their own report-writing style or adopt other people’s. But they’ve rarely received constructive feedback from lawyers on what’s actually required from their written evidence.

Developing your practice and winning instructions writing the expert report (at introductory and advanced levels) attending expert’s meetings preparing for giving oral evidence in court and other tribunals giving oral evidence.

Starting 05 Feb 2018 09:30 in London Starting 19 Feb 2018 09:30 in Manchester Starting 07 Mar 2018 09:30 in London Starting 25 Apr 2018 09:30 in London

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.

Courtroom skills - overview The witness box is a lonely place. Many expert witnesses feel they’re on trial, standing in the dock rather than giving independent testimony to assist the court. Often, experts are unfamiliar with this environment, as few cases go to a full trial.

We aim to achieve a 90% Excellent/Very Good delegate rating for each workshop - we regularly surpass this level. This quality of our delivery is the reason why many of our clients attend every new workshop we create – we always aim to deliver quality presentations that are directly relevant to the needs of our clients.

Starting 06 Feb 2018 09:30 in London Starting 20 Feb 2018 09:30 in Manchester Starting 08 Mar 2018 09:30 in London Starting 26 Apr 2018 09:30 in London Cross Examination Day - overview The Cross-Examination Day is a follow-on course to the Courtroom Skills Training.

This intensive cross-examination training course helps you as an expert witness to refine and enhance your performance, and to gain mastery of your presEXPERT WITNESS JOURNAL

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

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Events Start: 29 January @ 8:30 am End: 30 January @ 5:00 pm DoubleTree by Hilton, Edinburgh CPD accredited: 7 hours per day

RICS Dilapidations - Preparing and Managing the Claim Training London, 28 Feb 2018 The basis of preparing a dilapidations claim, defending a dilapidations claim and negotiating a dilapidations settlement

Expert Witness Training for Medical Professionals Start: 8 February @ 8:30 am End: 9 February @ 5:00 pm Camden Court Hotel, Dublin CPD accredited: 7 hours per day

This one day dilapidations course is presented from a building surveyor's perspective and covers the basis of preparing a dilapidations claim, defending a dilapidations claim and negotiating a dilapidations settlement. Particular emphasis will be given to tenants' obligations to reinstate alterations and to the various options for achieving a settlement of the claim.

Medico-Legal issues in the Emergency Department 27 February 2018 The Royal College of Physicians, London 9:00 am - 5:00 pm CPD accredited: 6 hours

http://www.rics.org/uk/training-events/trainingcourses/dilapidations-preparing-and-managingthe-claim/london61/

Expert Witness Training for Medical Professionals Start: 15 March @ 8:30 am End: 16 March @ 5:00 pm The Principal Met Hotel, Leeds CPD accredited: 7 hours per day

Commercial Landlord and Tenant: Rent Review and Lease Renewals Training London, 13 Mar 2018 Rent reviews and lease renewals of business tenancies. This one-day course provides an introduction to the broad area of commercial property rent reviews and lease renewals, and explains the options and procedures of dispute resolution when negotiations break down

Inspire MediLaw www.inspiremedilaw.co.uk Phone: 01235 426870 Email: info@inspiremedilaw.co.uk

http://www.rics.org/uk/training-events/trainingcourses/introduction-to-commercial-landlord-tenant-/london13/

Dr Joshua Adedokun

Inspire MediLaw www.inspiremedilaw.co.uk

FCARCSI, FRCA, FFPMRCA

Chronic Pain Expert

Provider of first class conferences, training and events We provide knowledge for medical experts who need to understand the law and for lawyers who need to understand the medicine through conferences and training.

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.

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.

Benefits of Inspire Expert Witness Training Mentorship following attendance of our MedicoLegal Expert Witness Training. Marketing of your Medico-Legal expertise to get your practice up and running. Secretarial support for 12 months by experienced Practice Managers. Comprehensive Expert Witness Training course materials for easy future reference. A CPD certificate of completion (6 hours per day) will be provided by the CPD Certification Service following attendance

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:

Tel: 01625 526 665 Email: expertpainreports@gmail.com Web: www.expertpainreports.co.uk

Expert Witness Training for Medical Professionals EXPERT WITNESS JOURNAL

Spire Manchester, 170 Barlow Moor Road, Manchester M20 2AF

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Don’t let Brexit jeopardise UK’s valuable services sector Decades spent building the UK’s unrivalled professional services sector must not be thrown away in an EU deal which ignores Britain’s valuable legal services, the Law Society of England and Wales warned.

would be bad for UK PLC – to which our sector contributes well over £26bn each year.”

Professional services accounted for approximately 7.8% of UK GDP in 2016 – the latest figures – yet the EU trade deal with Canada (CETA), widely touted as the model for the UK post Brexit, does not provide a comprehensive framework for them.

Unveiling a new paper: Blind spot – how CETA overlooks legal services, Law Society president Joe Egan said: “We know that leaving the EU will result in some barriers to trade and movement being re-imposed on Britain if we leave the single market.

A free trade arrangement could include legal services but it would have to be much more far-reaching than the South Korea FTA.

“We also know that in all but one of its free trade agreements (FTAs) with non-EU states, the EU27 has not opened up its legal services markets. Yet even this exception – the deal with South Korea – is much more restrictive than we would choose, leaving it to EU states to decide whether to open their markets.

“So, as the government forges its negotiating position, we are urging them to ensure that mutual market access is at the heart of any post-Brexit deal.

“A CETA-type FTA would be equivalent to a ‘no deal’ outcome for legal services on market access. We believe including legal services is vital as the solicitor profession is fundamental to helping citizens and businesses adjust to a post-EU era,” Joe Egan added.

Need an expert fast Call our free searchline on 0161 834 0017

“The law of England and Wales is flexible, straightforward and is the law of choice for a vast number of transactions. Barring solicitors and barristers qualified in this jurisdiction from advising clients in others

Dr J P Rosie

Dr HABIBI

BDS MSc

Forensic Odontology

PAEDIATRICIAN AND SPECIALIST IN: CHILDHOOD SERIOUS ILLNESSES CHILDHOOD RESPIRATORY DISEASES CHILDHOOD SLEEP DISORDERS

I am a specialist in children's respiratory conditions including, asthma, allergies, bronchiolitis, chest infections and also serious illnesses such as pneumonia, meningitis and septicaemia. I am also a specialist dealing with sleep apnoea and other sleep problems, for children of all ages.

20 years experience. Over 800 reports. 60:40 Claimant: Defendant UK Register of Expert Witnesses. Family Justice Council Member My work in Paediatric Intensive Care has lead to a special interest in end of life care, decision-making and conflict resolution between health care professionals and families.

I have assisted the Courts in a number of high profile cases: Glass v UK (Application No 61827/00) [2004] 1 FCR 553 Charlotte Wyatt October 2004 Charlotte Wyatt April 2005 Charlotte Wyatt October 2005

Please contact Dr Rosie at; 6, Harrockwood Close Irby, Wirral, Merseyside CH61 3XY

My Private Practice is based at 84 Harley Street in London, 243 Great Portland Street in London and New Malden Diagnostic Centre in Surrey.

I am accessible, available and aim to provide the highest standard of consultation and care for children. I provide medical reports promptly and communicate properly with others involved in my patient's care.

Tel: 01745 443175 Mobile: 07885 158 039 / 07963 963194 Fax: 01745 344574 Email: john_rosie@lineone.net John.Rosie@cd-tr.wales.nhs.uk(w) GDC No. 44540

EXPERT WITNESS JOURNAL

Private Clinic Locations Harley Street Private Practice - 4th Floor Room 10, 84 Harley St, Marylebone, London W1G 7HW Harley Street Clinic - 35 Weymouth Street, London, W1G 8BJ The Portland Hospital Out Patient Centre - Great Portland Street, London, W1W 5AH The New Malden Diagnostic Centre - 171 Clarence Avenue, Surrey, KT3 3TX

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Future surrogacy costs awarded to victim of medical negligence Beverley Addison comments on a recent personal injury case which included an award of damages for the cost of future surrogacy arrangements to a patient who lost her fertility due to negligent NHS cancer treatment.

personal injury practitioners who find themselves involved with cases concerning claimants who become infertile through negligent medical treatment.

The idea of compensation to cover future surrogacy arrangements was last considered in 2001, in the case of Briody v St Helens and Knowsley AHA. In this case the claim was rejected due to the low prospects of success for a successful surrogacy taking place in 2001.

The current case goes to show just how much fertility treatment has improved over the last 17 years, and the difference that is making to those who have suffered from negligent treatment who may otherwise have been unable to have children.

The case of XX v Whittington Hospital NHS Trust is the first time that a court has ever allowed quantum of a personal injury action to include the cost of future surrogacy arrangements.

The hospital admitted negligence when they failed to detect signs of cervical cancer in the patient (‘XX’) in smear tests and biopsies carried out between 2008 and 2013. Due to that negligence XX went on to develop particularly invasive cervical cancer which resulted in a number of medical ailments for her, including complete loss of her fertility.

This case will provide an incentive for the future costs of fertility to be considered as part of any negligence claim where that need arises.

At the age of 29, XX’s ability to have children was high on her priority list and she even went as far as to delay her cancer treatment twice in order to take second and third opinions on whether there was any way for her to undergo fertility sparing surgery, which it was confirmed was no longer an option for her. The only avenue thereafter open to her was to undergo a cycle of ovarian simulation and subsequent egg harvest to allow her to cryopreserve her eggs for future use through surrogacy.

Beverley Addison is a solicitor at BTO LLP www.bto.co.uk

Mr Simon Fulford MBBS, FRCS (Eng), FRCS (Urol)

Consultant Urologist I have been Consultant Urological Surgeon at James Cook University Hospital, Middlesbrough since 2001.

I am also Consultant Urologist to the regional spinal injuries unit based at James Cook University Hospital which provides acute and long term care to patients with spinal cord injury from the whole of the North of England. In addition I have a private and medico legal practice based at Woodlands Hospital, Darlington.

The patient, through her damages action, sought the cost of four commercial surrogacy arrangements in California. She argued that undertaking a surrogacy arrangement in California would be easier for her as commercial surrogacy is legal there, but not in the UK. Her argument was rejected on public policy grounds, as commercial surrogacy continues to be illegal here and so foreign commercial surrogacy arrangements cannot be recognised by our courts and so cannot form a head of claim for damages.

Within my clinical practice I specialise in neuro-urology (including spinal cord injury), urodynamics and reconstructive surgery for incontinence and bladder dysfunction. I regularly teach on national courses about these topics. I also regularly perform radical cystectomy for bladder cancer and pelvic exenteration for advanced gynaecological and colorectal cancer.

I also maintain a general urology practice.

However, the judge did award £74,000 for the costs of two future surrogacies in the UK following the rules provided under our law. Expert evidence was led to quantify the average cost of each surrogacy arrangement in the UK.

I have been preparing expert witness reports since shortly after appointment and have attended training courses in medico legal report writing. I have appeared in court as an expert witness. I currently receive four to six instructions per month including medical negligence and criminal cases. I have worked for both claimant and defendant and have acted as a single joint expert.

Although an English case, fertility law itself is a reserved matter, and so the legislation considered in this judgment applies to the UK as a whole. The judgment is therefore an interesting consideration for EXPERT WITNESS JOURNAL

BMI Woodlands Hospital, Morton Park, Darlington DL1 4PL T: 01325 341 700 M: 07855 312 901 E: simonfulford@nhs.net

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Annual Bond Solon Expert Witness Conference

by Mark Solon, Director, Bond Solon The 23rd Annual Bond Solon Expert Witness Conference took place on the 10th November 2017. Over 420 expert witnesses gathered in Church House, Westminster, to discuss case law updates, key issues they face and the future of their profession.

The Right Honourable Lady Justice Rafferty opened the conference with a powerful keynote speech. She acknowledged the strains placed on experts but emphasised their importance in the court system. She also encouraged them to be confident and to assist the judge even if that means pointing out an error:

him/her safe from later criticism by pulling no punches when you’re there as an expert.”

She offered experts practical advice in a number of different areas. A recurring theme, however, was encouragement to focus on the important issues, use plain language, be aware of your duty to the court and be confident.

“Please don’t hang back from saying that the court might want to reflect upon (insert the error). You can phrase it to suit what you make of the personality listening, some will welcome straight from the shoulder and find deference unwelcome, some will be the reverse and some on a scale between the two.

After this inspiring keynote speech, expert witnesses had the opportunity to attend a wide range of sessions covering key aspects of their work as an expert witness.

The point to remember is this: the first instance judge is vulnerable to an appeal. If you haven’t put him/her right when you could have done, if the decision is later overturned, your reputation will not be burnished. The Judge will much prefer that you keep EXPERT WITNESS JOURNAL

Mental strength, adaptability and resilience under pressure Phil Hayes, Chairman, Management Futures, provided the audience with some tips on how to deal with the challenges of being an expert witness and an 9

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have believed very strongly we are in the right and our client has behaved badly and should not be allowed to get away with it. But we have weighed up the options very carefully.”

independent professional. These included 5 of the tools used by business coaches. He encouraged the audience to look up from their daily workload: “If you have clear goals and focus on them, you will be better at dealing with challenges”.

Discussions between experts Nick Deal, Barrister and Head of Expert Witness Training at Bond Solon, closed the conference with a session on discussions between experts. What happens if a solicitor says to the expert “Don’t say anything?” Or if the other expert takes on the role of an advocate? What about the preparation before the discussion? What can you do if the other expert continues to send questions to you after the meeting?

Annual legal update Kathryn Clague, Lecturer, Cardiff University, summarised the procedural updates in 2017 and likely future developments. She also highlighted key cases on the admissibility of expert evidence, the court’s expectations of expert witnesses, disclosure of interests, sanctions and fees.

Is this your business or your hobby?

Sheila Robins (Managing Director, Crofton Medical Reports), Emma Carey (Client Manager and Business Development Leader, Expert Witness) and David Pearce (Chief Executive Officer, Nephos Solutions Ltd) gave expert witnesses useful and practical tips on how they can make their expert witness business more effective and efficient. One of the tips is owning an IT system that give expert witnesses the ability to manage their cases and store relevant documents.

Nick Deal picked a few of the difficult experiences that expert witnesses have had and gave the audience some great advice on how to best approach discussions between experts.

The Times and Bond Solon National Expert Witness Survey 2017 The 23rd Annual Bond Solon Expert Witness conference was also marked by the release of the results of The Times and Bond Solon Annual Expert Witness Survey 2017. The survey was conducted online from the 15th September to the 27th October 2017.

801 experts completed the survey making it one of the largest expert witness surveys ever conducted in the UK.

Specialist sessions: Criminal, Commercial, Medico-Legal and Family After lunch, delegates separated into four groups to discuss the issues specific to their areas. Criminal experts heard from the Forensic Science Regulator, Dr Gillian Tully; medico-legal experts looked at clinical negligence case law and risks in the changing personal injury market; family experts discussed finding more work in the changing family courts; commercial experts explored the in-house lawyer explosion.

Expert witnesses undoubtedly play a vital role in the justice system. However, this survey reveals that a large number of expert witnesses are not happy with various aspects of their expert witness work.

Expert debt collection What experts can do to avoid late payment from instructing solicitors?

Caroline Moore (Consultant, Hogan Lovells) and Alison Somek (Director, Somek and Associates) shared their expertise with the audience and gave sound advice on what experts can do to ensure they get paid on time.

One of the points mentioned by Caroline Moore is “getting the initial terms of engagement right. If you haven’t got a clear contractual entitlement to your fees and within a certain time, you may find it more difficult to get payment when it’s due”.

Alison Somek gave advice on business functions, due diligence, fees, payment terms and tactics for chasing invoices. However, one of the most eagerly-awaited topics was ‘when to sue?’. Alison advised experts to consider their position carefully before deciding whether to take a case to the small claims courts as it can be time-consuming and costly: it is extremely unlikely you will recover all your costs (if you consider your own time). Alison emphasised that “the times we have sued we have done so “on principle” where we EXPERT WITNESS JOURNAL

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“The fact that the litigant in person cannot afford a lawyer does not bode well for the expert being paid.

Also, experts may have to hold the hand of the litigant in person who doesn’t understand the legal process and this could take a great deal of time, possibly unpaid.”

Stress A high number of experts surveyed (50%) indicated that they have felt stressed due to their activity as an expert witness in the last 12 months. Expert witnesses play a vital role in the justice system but expert witness work can be as rewarding as demanding. Since the Jackson reforms to the Civil Procedure Rules in April 2013, experts have had to comply with court timetables and tighter deadlines for reports. Changes in costs budgeting, proportionality and funding have also put a strain on expert witness work.

Ethics and standards 30% of the experts surveyed said that they have been asked or felt pressurised to change their report, by an instructing party, in a way that damages their impartiality, in the last 12 months.

Legal aid cases The severe cuts to the legal aid budget in the last few years have impacted expert witness work. The Times and Bond Solon Expert Witness Survey 2017 finds that over a third of expert witnesses who could work in legal aid cases would refuse to do so.

Mark Solon tells that solicitors need to understand the role of experts and should not consider them as an adversarial tool. Judges need also to keep a careful eye out for bias.

Experts should also seek guidance if they feel they are being asked to do something inappropriate, because their first duty is to the court, not their instructing solicitor. It may jeopardise future work with that particular solicitor, but it is better to check or say “no” as it is the expert’s professional reputation on the line.

As in last year’s survey, 46% of the experts surveyed that they have come across an expert that they consider to be a “hired gun” even though Lord Woolf made clear in the Civil Procedure Rules 1999 that an expert’s duty is to the court not the side paying him.

75% of the experts surveyed have come across poor quality or unqualified expert witnesses. Despite the introduction of the Civil Procedure Rules in 1999, it seems that some experts don’t fully understand their role or have not been properly trained in the skills needed to act as an expert witness.

Experts are not obliged to accept legal aid cases. One must remember that expert work is for most experts a secondary source of income. If their fees are too low, experts have to decide whether or not the case is worth their time and worth coping with the stress of respecting the tight deadlines set by the Court. Also, since the judgment in Jones v Kaney, experts are now facing the risks of being sued in contract or negligence. In facing such risks experts would not work for low rates.

In addition, nearly 70% of the expert witnesses surveyed indicated that they would not continue working in legal aid cases if expert witness fees were further reduced.

The Ministry of Justice is due to review the impact of LAPSO but would not report before spring 2018.

The role of expert witnesses and their pay must be part of that review.

Some comments from the experts surveyed include: “Experts in other disciplines overstepping their expertise (but accepted by Judge that they are an overview expert - when they are not!)” “Experts in other disciplines simply giving inaccurate information related to one’s own discipline.”; “Experts who carry out expert witness work as a side line to their main career are often unaware of their duties to the court.”; “Poorly briefed experts attempting to determine the case rather than provide their expert opinion.”

“Experts unsure of their roles and responsibilities to the court and being advocates for their client’s position.”

Litigants in person In the last few years there has been a steady increase of litigants in person in civil and family cases.

The Ministry of Justice’s latest family court statistics illustrated that the number of private law applications increased by 3% (13,029 new private law applications in April to June 2017). The removal of legal aid in the majority of divorce-related disputes has led to a 20 per cent rise in litigants in person.

Yet 66% of the experts surveyed said that they wouldn’t accept instructions from a litigant in person.

Digital courts Recent changes to court proceedings in an attempt to modernise the UK legal system has resulted in a significant shift from paper to digital. The MoJ is investing £700m to modernise the courts and tribunal system, in addition to £270m being made available to develop a fully connected criminal courtroom by 2020.

Mark Solon, Solicitor and Director of Bond Solon, says: “A litigant in person has the ultimate vested interest in winning and may not understand the rather unusual position of an expert witness — that although instructed by a party in a case and paid by them, the duty of the expert is to assist the court and not to win the case for one party.

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Over 65% of the experts surveyed do not believe that the increased use of IT in courts will lead to the 11

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decline, or the end, of expert witnesses giving live evidence.

Mr Kim Neal Hakin

However, 60% of the experts surveyed don’t believe that giving evidence via video-link is as effective as experts giving evidence in court. One of the key reasons mentioned by the respondents was that body language and other elements of non-verbal communication would be missed in video links. Some experts commented on the artificial aspect of video links comparing them to “computer games”.

FRCS, FRCOphth Mr Kim Hakin is a Consultant Ophthalmologist, providing a service both in the NHS and privately.

He undertakes medico legal work at; Optegra Eye Hospital Central London, 25 Queen Anne Street, London, W1G 9HT and The Nuffield Hospital, Taunton.

His special interests include the management of cataracts, ocular trauma, eyelid and lacrimal surgery, including cosmetic eyelid surgery (blepharoplasty).

65% of the experts surveyed do not think that examination in chief should be pre-recorded.

People who act as expert witnesses play a vital part in court proceedings and trial outcomes. But there is a worry, says Mark Solon, that expert witnesses are under strain to a point that risks the right results in trials. “We must hope their concerns are heeded in the ongoing cuts review.”

Mr Hakin holds the Expert Witness Certificate from Bond Solon/Cardiff University, is a member of The Expert Witness Institute. Also Expert Advisor to Nuffield Hospitals, and formerly to the Healthcare Commission, and regularly undertakes work for organisations such as the General Medical Council, Medical Defence Union, Medical Protection Society, NHS Litigation Authority, as well as many solicitors' firms and legal agencies.

Article by Mark Solon Director, Bond Solon www.bondsolon.com

Tel: 01823 250614 Mob 07887 651551 Email: kimhakin@aol.com, carolmatravers@gmail.com.

Web: www.kimhakin.com

Read the full report at www.bondsolon.com/expert-witness/survey-report2017/

All correspondence to Nuffield Health Taunton Hospital, Staplegrove Elm, Taunton TA2 6AN, or by email.

Mr Paul Partington Consultant Orthopaedic Surgeon MB BS FRCS FRCS (T&O) Provision of timely, detailed medico-legal reports in trauma, and clinical negligence for both claimant and defendant.

Specialist interest and expertise in joint replacement complications and metal on metal claims. I have particular interest in hip and knee joint replacement and revision (re-do joint replacement) surgery, knee and hip arthroscopy and arthroscopic hip impingement surgery.

I organise Royal College of Surgeons Hip and Knee Replacement courses, and have taught recently in the UK, Germany, Ireland and Italy on the subject of joint replacement. I am currently an examiner for the FRCS (Trauma and Orthopaedics) examination.

Current member of the British Hip Society.

Expert, Association of Personal Injury Lawyers.

Consultations Newcastle, Washington, Morpeth and by arrangement nationwide.

Contact: Mr. Paul Partington Tel: 07541 878 329 Email: paulpartington@me.com Web: www.pfpartington.co.uk Address: Dilston House, Corbridge, Northumberland NE45 5RH

EXPERT WITNESS JOURNAL

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Dr Gillian Tully Reappointed in Key Role for Setting Standards for Forensic Science The Home Office recently announced the reappointment of Dr Gillian Tully as Forensic Science Regulator.

Dr Tully’s term has been extended from 3 to 6 years with her contract now expiring on 16 November 2020.

Baroness Williams of Trafford, Minister of State for Countering Extremism, said: “Dr Gillian Tully has demonstrated her experience, judgment and talent in the role to date and I congratulate her on her reappointment in this key role of setting the standards for forensic science.”

Dr Tully was originally appointed for a 3-year term ending on 16 November 2017, and has spent over 25 years working in forensic science, including a 4-year period as Head of Research and Development for the Forensic Science Service.

Dr Gillian Tully: “I am pleased to have been reappointed to my role as Forensic Science Regulator. I look forward to overseeing the introduction of standards across the remaining areas of forensic science in the criminal justice sector over the next three years, and will seek to build on the quality improvements made to date.”

The Forensic Science Regulator is an independent role responsible for establishing and enforcing quality standards for forensic science used in the investigation and prosecution of crime.

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Court Room Science Primers Launched Unique partnerships between the judiciary and science academies produces plain English primers relaying core scientific evidence to judges.

Easy-to-understand guides or primers on scientific evidence are being introduced in UK courts as a working tool for judges. The first two primers in the series, which cover DNA fingerprinting and techniques identifying people from the way they walk from CCTV, launched on 22nd November 2017. The primers – Forensic DNA analysis and Forensic Gait analysis – are designed to assist the judiciary when handling forensic scientific evidence in the courtroom. The project is a collaboration between the judiciary, the Royal Society and the Royal Society of Edinburgh.

Professor Dame Sue Black, one of the world’s foremost experts in forensic anthropology, and Crown court judge, Judge Mark Wall QC, led the primer on gait analysis. The primer on DNA analysis was led by Professor Niamh Nic Daeid, a professor of forensic science at the University of Dundee, and Lady Justice Anne Rafferty of the Court of Appeal. The development of the DNA primer also drew on the expertise of Sir Alec Jeffreys, the inventor of genetic fingerprinting who in 1984 discovered a method of showing the variation in the DNA of individuals, and Nobel Prize-winning scientist Sir Paul Nurse.

Each primer is a concise document presenting a plain English, authoritative account of the technique in question, as well as considering its limitation and the challenges associated with its application. They have been written by leafing scientists and working judges and peer reviewed by legal practitioners, all of whom have volunteered their time to the project.

Whilst the Forensic DNA analysis primer covers an established scientific technique used widely as evidence in UK courts and many courts around the world, the Forensic gait analysis primers considers a young, relatively new form of evidence in the UK criminal courts and advises that the scientific evidence supporting gait analysis is “extremely limited.”

Supreme Court justice, Lord Anthony Hughes, Chair of the Primers Steering Group says, “These are the first in a series of primers designed to be working tools for judges. They aim to tackle the agreed and uncontroversial basis underlying scientific topics, which crop up from time to time in courts. The objective is to provide a judge with the scientific baseline from which any expert dispute in a particular case can begin.

Future primers on the topics of statistics and the physics of vehicle collisions are planned.

Hard copies of the primers will be distributed to courts in England and Wales, Scotland and Northern Ireland through the Judicial College, the Judicial Institute, and the Judicial Studies Board for Northern Ireland.

“We have been very privileged to have the co-operation in preparing them of the two Royal Societies of London and Edinburgh. We are very grateful to their eminent scientists for taking the time to put complex science into a form which addresses practical trial-related questions from judges.”

Dr Julie Maxton, Executive Director of the Royal Society, says, “We are very pleased to be playing a leading role in bringing together scientists and the judiciary to ensure that we get the best possible scientific guidance into the courts – rigorous, accessible science matters to the justice system and society.”

Professor Dame Jocelyn Bell Burnell, President of the Royal Society of Edinburgh says, “We owe a lot to Professors Sue Black and Niamh Nic Deaid, from the University of Dundee for this initiative. The Royal Society of Edinburgh is delighted to support two of its Fellows in this project.”

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Digital Evidence Does Not Exist in a Vacuum Locard’s Exchange Principle sates that in forensics “every contact leaves a trace”. This most fundamental of principles holds true just as well in the world of digital forensics, but increasingly we must consider more carefully both what these points of contact are; and when contact is made, where these traces may be found.

Digital forensics is concerned with examining the traces left by a person or other entity in the digital landscape; that landscape is ever widening. 15 years ago, the ubiquitous personal computing device was the eponymous PC: a single, mostly self-contained unit, which if it connected to the web, was likely involved primarily with passive consumption of data rather than active participation.

sending ripples out and leaving their imprints across many of these different sources. Without carefully considering the sources of data and the interactions between them, we risk missing, or misinterpreting crucial information in a case.

In this article, I want to explore some of the issues that we need to take into consideration when examining digital evidence to help us better understand what these data sources might be and how they may interact.

Today’s digital lives are instead made up of a complex web of interconnected data sources; actions taken EXPERT WITNESS JOURNAL

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unless a user specifically configures the device to do otherwise, the use of these cloud storage services happens in a largely transparent manner, with files being synchronised to the cloud automatically without user interaction.

Head in the Cloud It is probably one of the least controversial statements you can make, but it’s worth stating nevertheless: the high availability of high-speed internet connections has altered the context in which we consider our computing devices. As recently as the late 1990s, a fast internet connection was a novelty afforded to enthusiastic early adopters willing to shell out a significant premium for the privilege. An offline household with no access to the web would not be considered strange in the slightest and the suggestion that one could wander along the road accessing video, on demand, at a quality and resolution much higher than terrestrial broadcasts would be borderline farcical.

This presents a new challenge for digital investigations as files and data which we might previously have expected to be stored locally on a device, may instead be stored in a remote location; a location which may very likely fall within a different legal jurisdiction.

What’s more, the owner of this data may not even be aware of this. Specialist tools and skills are required to acquire this data; to make sense of the gaps that are left or analyse the point of origin for data which may have struck out a path across the cloud.

Today though, an “always-on” connection to the internet is a baseline expectation for many people, and nothing strikes fear into the hearts of this generation of users like a downed 4G connection, and a non-functioning broadband connection is mere inches away from being a human rights crisis. Of course, this universal provision of high-speed internet provides near instant access to information and entertainment at a moment’s notice but there’s a subtler change that has been happening over the last few years that (by the very nature of this speed) if implemented correctly is almost entirely transparent to the user: our devices, though ever more powerful, are doing and storing less.

There are opportunities that the wide use of cloud synchronisation present to us as well: a user may not be aware that data that they have deleted on their device may still be readily available on the cloud. Cloud storage also often stores multiple revisions of a file so we may be able to consider the changes that the data have undertaken over time and the entities that enacted those changes.

Syncing Feeling Riding on the back of the proliferation of cloud technologies, there has been a prevailing push towards providing a consistent experience for users across the whole range of their devices. What this means in practice is that an action taken on one device can be mirrored, automatically on another.

Cloud computing, put simply is the idea that large powerful computers connected to the internet can do things better than our own comparatively puny devices, and with this high-speed, always-on internet connection we needn’t even know that these powerful, internet connected computers are involved at all.

There are other benefits as well, most prominently, it means that our experience of these services is consistent across our ever-growing range of devices, and this is never more obvious than in the case of cloud storage.

To give a practical example: someone making use of the popular Chrome browser from Google can choose to "log in" to the browser on multiple devices (their phone, tablet, home PC, work laptop). Browsing activities such as open tabs, websites visited, bookmarks, etc. will be made available on all devices.

Browse the web on your phone on the journey to work, and when you sit down at your desk, all those sites you were making use of are already open and waiting for you.

Cloud storage is a type of service that allows people to store their files and data not on their own devices but rather in a remote location available on the internet.

This has a number of benefits from a user’s perspective, such as: saving storage space on their devices; allowing access to these files from multiple internet connected devices concurrently and different locations; automatic back-up of important files; and simplified sharing of data with third-parties.

This synchronisation can also be integral to the functionality of a device’s operating system as is the case with Apple’s iOS and macOS operating systems with messages, contact information etc. all being synchronised between devices via the iCloud services; even phone calls received by an iPhone can be answered on a MacBook sharing the same iCloud account login.

On modern computing devices, the use of cloud storage approaches ubiquity. All of the major mobile and desktop operating systems currently come with cloud storage services pre-installed (Microsoft OneDrive on Windows; iCloud on Apple devices; and Google Drive on Android) and signing up to these services is either a requirement when first setting up the device, or at the very least presented in such a way that an average user would interpret it as such. Once signed-in, EXPERT WITNESS JOURNAL

This creates a new range of challenges when examining data extracted from multiple devices. When examining information which has the possibility to be synchronised between multiple devices we have new questions to answer around the provenance and attribution of the data: did it originate on the device, or did it arrive there transparently through a synchronisation operation?

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The Internet of All the Things So far, we have primarily spoken about what might be considered “traditional” computing devices (smart phones, PCs, etc.) but it is commonplace these days for everyday household items (fridges, televisions, vacuum cleaners, lightbulbs, cars, etc.) to also contain their own computing platform and connect to the internet. The name given to this new craze is “the internet of things” (usually styled as “IoT”).

This brave new frontier of evidential possibilities is somewhat complicated though: although a lightbulb may be the point of contact that Locard spoke of, the trace left may very well not reside with the lightbulb itself. The communication between elements in the internet of things is a complex network – we might use our smart phone to control a lightbulb, but that request may flow onto the internet and into the cloud, before arriving back at our home, into a hub device which manages our lightbulbs before finally arriving at the bulb itself. Traces of this action may be stored in any or all of those locations (although, in a cruel twist, the lightbulb will likely be the least complicit witness of them all in this example). Because of this, making sense of evidence from the Internet of Things requires a great deal of understanding of the infrastructure used when these everyday household items start talking to one another. It cannot be denied, though that the intelligence that these items can provide should not be understated.

We’ll leave aside the question of exactly why we’re suddenly so keen to connect everything to the internet with reckless abandon whilst seemingly risking our online privacy and security, but suffice to say that the allure of controlling and automating every aspect of our existence is too strong to resist for many - this technological trend is set to grow and grow.

And there are real benefits to consumers here. It’s hard to argue that being able to turn on your home’s heating system from your smartphone as you travel home on a particularly chilly evening is comforting; remote monitoring of your house security system gives peace of mind and telling your house by speaking out loud to dim the lights down to mood lighting mode is surely the future we’ve always been promised.

Taking in the bigger picture The jigsaw puzzle that is digital forensics is only getting more complex as newer devices come to market and get added to the growing ecosystem of people’s digital lives. CCL has over 15 years of experience in putting these pieces together so if you want to get in touch and discuss how we can help you make sense of the bigger picture then contact CCL on (+44) 01789 261200 or by email: contact@cclgroupltd.com.

Of course, with every new device that we add to our own digital lives, we create new digital traces for actions which would never previously have done so.

When considering a person’s patterns of life, every time a light is switched on, a television program viewed, the heating turned up or the carpets vacuumed, they can be a new witness to that person’s activities.

EXPERT WITNESS JOURNAL

CCL is the UK’s largest digital forensics laboratory and a leading provider of Digital Forensics, e-Disclosure, and Cyber Security services. From our

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CCL understand that data is increasingly central to businesses, so effective cyber security is key to protecting its assets, including reputation, intellectual property, staff and customers. There is a common misconception that investment in sophisticated technical solutions will by itself ensure protection from cyber-attacks. However, this is only one part of an effective defence. CCL’s cyber strategy takes organisations through the three stages of building an effective strategic response:

beginnings as an independent IT consultancy in 1986, we have grown through market demand to: • develop our digital forensic services • develop our cyber security strategy/offerings • embrace advances in new technology with internal R&D • handle large volumes of multi-channel digital evidence • provide a training academy to develop IT forensic and cyber awareness skills

1. Assess the threat and risk –against organisational strategy to identify vulnerabilities

CCL provide digital forensics services to organisations in the UK and internationally, from law enforcement agencies, civil and criminal law firms, to corporate and private clients. CCL use standard commercial forensic tools; but excel in situations that require more complex forensic capabilities and their broad experience. Together with their strong R&D capability, CCL extract and analyse data from the most obscure and unsupported technology and apps.

2. Take protective action – prioritisation of mitigation against identified vulnerabilities to enhance security infrastructure and incident response 3. Monitor and evaluate – initiate protective monitoring, testing and exercising to support effective remediation CCL’s services are methodology and governance driven to comply with their quality and compliance standards. Working internationally, they provide a broad range of ISO 17025 accredited digital forensics services to law enforcement and government, the legal profession and private sector organisations.

CCL have been recommended for accreditation to the Forensic Science Regulator’s Codes of Practice.

They also have ISO 9001 (quality) and ISO 27001 (information security) certifications.

CCL’s e-disclosure and collection services are underpinned by over a decade of experience in digital forensics. A forensic approach ensures that crucial data is not overlooked and that evidence is defensible in court. It also ensures that metadata is preserved, which can prove critical to subsequent processing, indexing, and the time line production of the data during review.

Alex Caithness, Principal Analyst

Mr Zaheer Osman

Senior Chartered Ergonomist and Human Factors Specialist

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BSc (HONS) DPS C.ErgHF FIEHF EurErg CMIOSH Mr Zaheer Osman has experience in all aspects of the consultancy and conducting technical ergonomics work. He can assess ergonomics and human factors elements involved in injury conditions specialising in musculoskeletal disorders: • Work tasks and how they are conducted • Postures adopted • Equipment suitability for the task (fit for purpose) • Task design • Fatigue • Human error • Adequate processes and procedures • Training suitability

At Forensic Defence we specialise in providing expert witnesses in a number of disciplines. We provide experts that can assist in criminal and civil cases and we will always endeavor to provide a wide selection of experts to meet our clients needs.

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Our experts have years of experience in preparing reports for Court purposes and will provide reports within the time and format required.

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Delight at University of Cumbria’s Forensis Science Recognition A lecturing team is celebrating the news that their hard work has paid off, resulting in accreditation by the Chartered Society of Forensic Sciences. laboratory setting that is controlled by external regulators means that the science used is described as forensic, from medical test through to environmental monitoring.”

The university’s programme in forensic and investigative science has been running for 15 years, starting as a foundation degree, with top-up route to an honours degree, and now offering a full BSc honours with option of integrated foundation year. The society had already conferred recognition on the course because of the excellence of the theoretical provision, but as a result of the university’s recent £3.5million investment in STEM accommodation and equipment, the programme can, in addition, offer state-of-the-art practical experience to students, allowing them to work with the tools they will encounter in the real world.

A vital part of the students’ experience is the ‘major incident’ scenario that the team puts on once a year. It is an extensive undertaking that involves both staff and students from the course and across the wider university, acting as victims and witnesses, and also the police and paramedic service, who all come together to put on a realistic incident for the student to investigate. Ashleigh comments: “It is a significant undertaking and planning starts as soon as the previous one finishes. We now have a rolling programme of three scenarios so that each student experiences three totally different cases. In year one, a student will enact the role of CSI, in their second year that of forensic scientist and in the final year they will take on the role of crime scene manager. As a result of the major incident component of the University of Cumbria’s course, the society has now embedded the need for such an exercise into the criteria for accreditation, intimating that all students should take part in one.

This investment has enabled the university to grow its provision in the sciences. The implications are wide ranging, as the University of Cumbria can now apply for accreditation for the other science programmes it offers such as biology and bio-med.

One member of the team, Ashleigh Hunt, has lectured on the popular course for the past eight years.

She says of the programme: “Forensic science has been the catalyst for the science development at the University of Cumbria and this is like the rubber stamp of approval.

What then does gaining accreditation with the Chartered Society of Forensic Sciences mean to the team?

Ashleigh explains: “It proves the course is current and up-to-date – it meets the requirements of the society and the industry. It also means our students are acquiring the necessary theoretical and practical skills, enhancing their employability skills as a result. To put it simply, we know we’ve been doing things right and now it’s been recognised externally as well!”

Ashleigh continues: “Employment opportunities are increasing due to the forensic science regulator putting into place standards that laboratories and CSIs have to meet within a certain timescale and that inevitably takes extra resource. However, whilst forensic means ‘applicable to law’, it is not just about processing crime scenes – any type of testing within a

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Forensic Technology Developed at Loughborough University will Make it “Impossible” for Criminals to Destroy Fingerprint Evidence New forensic technology created by scientists at Loughborough University will make it “impossible” for criminals to erase their fingerprints from crime scenes.

print recovery rates from items recovered will mean criminals will find it impossible to conceal or destroy fingerprints.

“This research with Loughborough has seen us demonstrate the ability to recover fingerprints that would have been previously exceptionally challenging or impossible to recover.

The advanced detection technique, which allows investigators to take prints from problematic exhibits, such as spent ammunition casings, was carried out in partnership with the Defence Science and Technology Laboratory (DSTL) – an executive agency of the Ministry of Defence.

“Although the technology needs further refinement, it will be of significant benefit to forensic scientists across the world.”

Those involved in the innovation said it will make it far easier for police to recover impressions from previously problematic crime scenes involving materials subjected to high temperatures, or immersed in water or prints left on deformed surfaces.

The managing director of F&F Bob Dartnell said: “By having access to this technology we will be able to provide a major step forward in fingerprint detection and visualisation in order to enable our customer to have significant gains in their capability to aid detection rates and convictions.”

Overseeing the project for Loughborough was Dr Paul Kelly, of the University’s chemistry department.

He started work on the project seven years ago alongside PhD student Rob King, who is now a research and development applications specialist for forensic company Foster and Freeman (F&F) – the company that will make the technology commercially available later this year.

The study was carried out in collaboration with the Home Office’s Centre for Applied Science and Technology – the organisation behind the world-recognised Fingermark Visualisation Manual – which ensured that the technology was accurately developed to tackle realistic and challenging scenarios.

Dr Kelly said the technique, which uses a chemical to uncover prints, has the potential for major advancements in forensic science, and expects it to be popular across the globe.

He said: “This advancement opens up possibilities for evidence retrieval in situations where traditional methods either struggle or fail completely – for example, when attempts have been made to destroy print evidence through burning or washing.

Mr Paul Cain Senior Digital Forensics Expert • Certified Cyber Forensics Professional (CCFP) by ISC2 • Registered Expert Witness, Sweet & Maxwell 2017 • EnCase, FTK and X-Ways forensics • Forensic Foundation, Internet and Network at Cranfield University • BSc Surveying and Mapping

“The whole process, up until now, has been developed here at Loughborough, from its initial serendipitous observations through to prototyping.

But now Foster and Freeman will refine technology for commercial use.

Paul conducts and trains individuals and organisations in specialist cyber forensic investigations.

With 15 years’ experience, including 6 within law enforcement, he has conducted investigations, produced and given evidence in high profile cases.

His insight and skills of explaining complex concepts in layman’s terms have encouraged clients to go further resulting in positive outcomes.

“It’ll be gratifying to see it sold worldwide and deliver a positive impact on forensic capabilities.”

His tenacious approach to problem solving and attention to detail has led him to identify new forensic artefacts.

Paul produces high quality technical training material and presents from a practitioner perspective receiving consistently very high levels of positive feedback.

The DSTL is one of the principal government organisations dedicated to science and technology in the defence and security field and is run along commercial lines.

Expertise • Leading digital forensic investigations from response, through collection & examination to reporting.

• Developing and teaching MSc, iisp and Crest accredited cyber forensic training courses.

• Providing Expert Witness testimony in both Criminal and Civil Courts.

• Producing ISO17025 policies and technical documents.

The agency’s lead scientist on the project Steve Thorngate said it would be “impossible” for criminals to eliminate fingerprint evidence.

7 Safe Ltd, Cambridge Technology Centre, Melbourn, Hertfordshire, SG8 6BP Tel: +44 (0) 1763 285 510 - Fax: +44 (0) 122 328 1114 Email: paul.cain@paconsulting.com - Website: www.7safe.com

He said: “Through our work with Loughborough University, the ability to significantly increase fingerEXPERT WITNESS JOURNAL

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Pioneering Fingerprint Technology Verified in Court A ground-breaking fingerprint profiling method designed by Sheffield Hallam University that can provide an in-depth analysis of fingerprints at crime scenes has been proven to be compatible with reallife forensic investigations.

cleaning products and condom lubricants as well as other substances of forensic interest that will provide crime investigators with crucial background information about a criminal’s activities prior to committing a crime.

In a new paper published in the Royal Society of Chemistry’s Analyst journal, scientists from the University’s Biomolecular Research Centre (BMRC) have demonstrated that their analysis of a fingermark during an investigation into a case of harassment in West Yorkshire, corroborated the defendant’s account.

MALDI-MSI, which is a powerful technology normally used to map different molecules within tissue sections, produces multiple images of fingermarks which are made up of materials from the surface of the skin and from gland secretions.

Conventionally, fingermarks found at the scene of a crime are lifted after using a powder to enhance them, and are then compared with prints on a police database to identify a suspect.

The researchers discovered traces of a unique molecule that only forms in the body when cocaine and alcohol are consumed at the same time, providing an insight into the criminal’s state of mind at the time of committing the offence. While the cocaine abuse was confirmed by forensic tests, the defendant had denied alcohol consumption and only later admitted it prior to the court hearing.

Dr Simona Francese, project lead and reader in Mass Spectrometry, said: “This is an exciting development that demonstrates the efficiency of MALDI-based techniques to be used to provide additional intelligence to the police and forensic investigators.

“This is yet another step closer to our aim of getting this technology integrated into standard forensic procedures at scenes of crime across the country.”

Using a technology known as Matrix Assisted Laser Desorption Ionisation Mass Spectrometry Imaging and Profiling (MALDI-MSI and MALDI-MSP) the scientists can test for traces of drugs, blood, hair and

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Met Forensics Specialist Awarded for Ivory Fingerprinting Kit A Met Forensics Technician has received a national award from the International Fund for Animal Welfare (IFAW).

Mark Moseley, 42, was rewarded for his work in developing a unique ivory fingerprinting kit which is being used to combat the illegal trade in ivory.

Until now, it has only been possible to extract and keep fingerprints from ivory for up to two or three days, because of how porous it is.

Philip Mansbridge, UK Director of IFAW, said: "Mark’s dedication to developing this groundbreaking ivory kit is a great example of animal welfare in action. We hope that his efforts will inspire others to think outside the box and use their skills to help animals."

After being challenged by his two daughters to find a way to save elephants, Mark began working with Dr Leon Barron of King’s College, London, to test the viability of various fingerprinting powders and find a solution that would enable fingerprints to be preserved for a longer time period.

Mark said: "I’m very proud to receive this award and want to thank my colleagues in the Metropolitan Police Service’s Forensic Science Imaging Team, the Fingerprint Bureau and the Wildlife Crime Unit who loaned ivory for testing, as well as the United States' Embassy in London and IFAW.

Because Mark spends most of his time working at major crime scenes, the majority of his research developing the ivory fingerprinting kit was done during out of office hours. He devoted his weekends and evenings to testing ivory under all conditions, even burying some to examine its water absorption properties.

"It has been a rewarding experience and I would recommend anyone to use their skills and knowledge in order to help a cause you are passionate about."

After two years of dedication and testing, Mark was able to develop a technique that makes it possible to obtain fingerprints from elephant ivory which last for up to 28 days. This extended period gives enforcement officers more time to gather evidence of the ‘middlemen’ who have handled the ivory, whether to weigh, pack or sell it on, as well as those responsible for organising poaching in the first place.

The ivory fingerprinting kits, which are now being funded and supported by IFAW, can be used on the ground to find and catch elephant poachers and traders in Kenya and other ivory crime hotspots.

The IFAW Animal Action awards were held at the House of Lords, and hosted by conservationist and TV presenter Bill Oddie.

EXPERT WITNESS JOURNAL

Above, Testing in operation.

Top,: Baroness Gale of Blaenrhondda (left) and TV presenter and conservationist Bill Oddie (right) presenting the International Fund for Animal Welfare (IFAW) award to Metropolitan Police Service Forensics Technician Mark Mosele 22

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Held under the patronage of His Highness Sheikh Hamdan bin Mohammed bin Rashid Al Maktoum

Dubai Hosts Emirates Forensic in April 2018 Dubai hosts the region’s largest event on forensic science and forensic medicine; Emirates International Forensic Science Conference and Exhibition, from 9-11 April 2018, at the Dubai International Convention & Exhibition Centre. The 2nd edition of Emirates Forensic will be held under the patronage of His Highness Sheikh Hamdan bin Mohammed bin Rashid Al Maktoum, Crown Prince of Dubai and Chairman of Dubai Executive Organized by INDEX Conferences & Exhibitions Org. Est. along with its strategic partner, Dubai Police, Emirates Forensic provides high quality conference and serves as an industry platform for networking and exchange of information.

Biology and DNA, and Nuclear Physics Forensic amongst many others.

Parallel to the conference runs a three days industry exhibition, showcasing the latest trends and development in the field of forensic science and forensic medicine.

Emirates Forensic features a conference, an exhibition, workshops, poster presentations and oral presentations, thereby evolving as convergence point for professionals from across the forensic science and forensic medicine industry around the world.

The topics that will be covered during the conference this year include: Forensic Medicine, Forensic Anthropology, Forensic Odontology, Forensic Chemistry, Trace Evidence/Explosives, Forensic Genetics &

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Identification of “legal-high” Plant Species in Forensic Labs

by Kelly Elkins, Towson University Despite recent efforts to legalize marijuana, the plant remains a Schedule I listed substance under the United State Drug Enforcement Agency (DEA) Controlled Substances Act (CSA). Indeed, the plant remains the most common plant-based drug submitted into evidence in forensic labs in the United States; however, other, less common plant-based drugs are increasingly showing up in forensic labs, as adolescents and young adults increasingly seek out “legal high” drugs.1 In a May 2016 case, three Massachusetts students brought Hawaiian baby woodrose, Heavenly blue morning glory, and sleepy grass seeds to their school. Two of the students consumed the seeds, while the third spit them out. In another case, several students consumed seeds at a junior-prom high school dance in a nearby town, sickening many and sending one to the hospital. Boston television news station WCVB5 and the Daily Mail reported upon the use of these seeds as emerging “party drugs.”2,3

Many commonplace plants and their seeds may be abused for their stimulant, hallucinogenic, analgesic, euphoric, and sedative effects. Since they are legal, people often falsely believe that these substances are safe to consume. As they may be advertised and sold as organic and natural products or in pill or capsule form or as extracts, these substances often appear to be beneficial to one’s health. In addition, doctors and pharmacists often may not be familiar with their active ingredients or potential effects, or be ill prepared to advise on any appropriate use. Users may risk serious adverse reactions with other medications, herbals and vitamins they are taking. In a 2011 U.K. study, the authors reported that the top three abused plants were Salvia divinorum, Kratom, and Hawaiian baby woodrose.6 Hawaiian baby woodrose is known by biologists as Argyreia nervosa. Ipomoea purpurea is morning glory.1,5,7 The seeds for both plants are legal and easy to obtain as they are sold over the internet and at hardware, nursery and garden stores. These seeds are commonly used to grow beautiful ornamental plants, and but can be soaked, crushed, or used as a source from which to extract a substance with powerful narcotic effects when ingested.5 Other reports have shown the seeds being used to make teas. Documented doses of morning glory seeds include anywhere from 150 to 700 seeds and 170-700 seeds. 4,5 A common dose of Hawaiian baby woodrose seeds is 5 to 10 seeds.4

In a case reported in 2010, one male reportedly died after consuming Hawaiian baby woodrose seeds with a friend.4 The death occurred when one of the users became agitated and jumped out of a window.4 The surviving male ingested 6 seeds and could not recall how many the other consumed.4 Other cases have involved 3-8 seeds5 It was also reported that the men in this case had been smoking marijuana in addition to consuming the seeds.4 Concurrent use of morning glory seeds and marijuana has also been reported.5 EXPERT WITNESS JOURNAL

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Morning glory and Hawaiian baby woodrose plants produce d-lysergic acid amide, LSA, a drug that is similar in structure to the more famous lysergic acid diethylamide (LSD).5 A dose of 2 to 5 mg of LSA will produce hallucinations in users.4 LSA is a Drug Enforcement Agency Controlled Substances Act Schedule III substance in the United States1,4 LSA is classified as a Class A drug under the Misuse of Drugs Act in the United Kingdom.4

wood plant (Artemisia absinthium) that is used to make it.1 Other plants may be sold containing synthetic cannabinoid designer drug compounds that have been sprayed on or soaked into the material. 6,10 These are widely distributed on the internet and sold as “Spice” or “K2” with labels including “incense,” “plant food,” “bath salts,” and “not for human consumption.” 6,10 A U.K. group performed an evaluation of UK-based websites and “legal high” products.6 These include Galium aparine, a plant that contains less caffeine than the coffee plant beans, as well as mint, liquorice, tea, raspberry, clover, and marigold plants. Sometimes, they are also applied to psychotropic plants including marijuana, Salvia divinorum, or Kratom.6,9,10

LSA users and doctors have documented that it causes flushing, dilated pupils, nausea, loss of a sense of time, memory loss, anxiety, hallucination, tachycardia, hypertension, and suicide.4 Reported fatalities due to drug use often reflect the concurrent use or consumption of one or more other drug such as alcohol or marijuana.4,5

Forensic chemists are tasked with the identification of the drug evidence submitted to the crime lab. Forensic chemists are trained to identify marijuana using color tests, microscopic evaluation of their trichomes and cystolithic hairs, and using gas-chromatography or thin layer chromatography to separate out and identify the main hallucinogenic component, Δ9tetrahydrocannabinol, or THC. However, in cases where the plant material has been smoked or ground, it may be difficult or impossible to identify morphologically, even using a microscope. In some cases the concentration of THC is too low to detect. In these cases, the marijuana plant can be identified using DNA analysis.11-16

In addition to Hawaiian baby woodrose, morning glory, and sleepy grass, several other herbal plants have been reported for drug use.1,7,8 These include Salvia divinorum, nutmeg, Jimson weed, poppy, Mahuang, Betel nut, Yohimbe, Kava, cloves, and wormwood (used to produce Absinthe).1,7 Salvia divinorum is a perennial herb from the mint family with large green leaves and white flowers that is endogenous to Mexico and produces the hallucinogen Salvinorin A. It has been used by the Mazatec Indians for medicinal and ritual purposes.9 The U.S. DEA lists it as a “drug of concern” but it is not currently controlled under the Controlled Substances Act.9 Several U.S. states, European countries, Japan and Australia, however, have controlled Salvia divinorum and / or Salvinorum A. The rest of the plants are legal and not under consideration for control at this time. Nutmeg, Myristica fragrans, is a tropical tree endogenous to the Spice Islands of Indonesia and produces the hallucinogens myristicin and elemicin.1 Jimson weed grows naturally in tropical regions and produces atropine, an acetylcholinergic antagonist, and the hallucinogens scopolamine and hyoscyamine.1,7 Ma-huang, Ephedra sinica, is a shrub that produces ephedra alkaloid stimulants.1 Betel nut, Areca catechu, is the source of arecoline, a stimulant that reportedly gives a buzz like that felt after drinking six cups of coffee.1 Yohimbine is found in the bark of the Yohimbe tree (Pausinystalia yohimbe) and has stimulant and hallucinogenic effects.1,7 Kava, Piper methysticum, produces the Kava lactones and is used as an anxiolytic.5 The cloves tree, Syzygium aromaticum, grows in Indonesia and produces eugenol and nicotine which act as analgenic and stimulant drugs, respectively.1 Poppy (Papaver somniferum) plants are natural sources of morphine and codeine narcotic drugs.1,7 Most of these natural narcotics are extracted from poppies grown in Asia, Latin America, and the Middle East in countries such as Afghanistan.1,7 Finally, Absinthe contains thujone, a drug with euphoric and hallucinogenic effects, from the wormEXPERT WITNESS JOURNAL

Species identification has been shown to be important for solving cases; however, forensic labs typically do not employ forensic botanists, specialized staff who can differentiate the flowers, leaves and seeds of plants by their morphology. For example, the season or month of the year can be determined using pollen grains or leaf fragments to understand the timeline of a case. Species identification can be used to verify alibis. Components of trace mixtures on drug paraphernalia can be determined by species identification.11-16 New forensic DNA tests identify and differentiate selected species of plants used as drugs. One method identifies Salvia divinorum.17 Another method is able to differentiate four “legal high” plants – including the morning glory consumed by the students in the recent cases. The assay also detects Hawaiian woodrose, Jimson weed, and marijuana. The assay employs the polymerase chain reaction (PCR) that probes and copies selected segments of an organism’s DNA and then uses a post-PCR melt method to analyze the DNA copies that were produced. To develop the test, the team targeted unique regions of the plants’ genomes and tested the focused PCR reagents against two dozen species. The process was continued iteratively until PCR amplification was strong and the 26

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reagent proportions were optimized for them to work in concert.18 While multiplexing PCR primers to analyze tens of sites simultaneously is routine in human DNA typing, this study was the first to demonstrate simultaneously determining the identities of four “legal high” plants in a multiplex using post-PCR melt curve peak temperatures.18 The assay development and testing was published in the Journal of Forensic Sciences.18 An assay to detect Kratom (Mitragyna speciosa), a plant in the coffee family used for its opiate-like pain relief, is under development.19

now, the local home improvement store in Somerset, Massachusetts nearby the schools whose students ingested the seeds last year has been asked to stop selling the Hawaiian baby woodrose, Heavenly blue morning glory, and sleepy grass plant seeds2,3 to restrict access but a tailored approach is needed as many species are toxic at some level including many flowering plants.

Acknowledgements Towson University Masters in Forensic Science graduate students Ashley Cowan, Anjelica Perez and Alicia Quinn are acknowledged for their contributions to developing the assays discussed herein.

Chemical identification methods, such as gas chromatography-mass spectroscopy, liquid chromatography, and infrared spectroscopy, can be used for identification if the active drug from the plants has previously been identified and is a member of the labs’ identification databases. As an advantage to the other methods, the new plant DNA detection assays can be used by forensic scientists with no specialized training in botany to identify the plants using instrumentation widely available in their labs.17-18

References 1. Ghosh A, Ghosh T. Herbal Drugs of Abuse. Sys Rev Pharm 2010 Jul-Dec;1(2):141-5.

2. http://www.wcvb.com/article/home-improvement-storeasked-to-pull-seeds-with-lsd-like-effects-offshelves/8234558 3. http://www.dailymail.co.uk/news/article-3575339/AreFLOWER-SEEDS-new-party-drug-Police-warnteenagers-hospitalized-eating-garden-products-psychotichigh.html

In addition to “legal high” plant species identification, a recent study focused on the identification of psychedelic mushrooms in forensic cases.20 Another PCR-based species identification assay was developed to differentiate psychedelic “magic” mushrooms and marijuana in a single test tube.21

4. Klinke HB, Mueller IB, Steffenrud S, Dahl-Sørensen R. Two cases of lysergamide intoxication by ingestion of seeds from Hawaiian Baby Woodrose. Forensic Sci Int 2010;197(1–3):e1–5.

5. Juszczak GR, Swiergiel AH. Recreational use of D-lysergamide from the seeds of Argyreia nervosa, Ipomoea tricolor, Ipomoea violacea, and Ipomoea purpurea in Poland. J Psychoactive Drugs 2013;45(1):79–93.

Having assays available is integral to law enforcement’s efforts identify these plants and trace material to understand the circumstances of cases and control misuse. If a drug or plant is not restricted, there is no criminal penalty. However, local, state, and federal crime labs, medical examiners’ office, and public health offices have a mission to keep their inhabitants safe. Laws concerning controlled substances continue to evolve. For example, the Smoking Opium Exclusion Act of 1909 banned the importation, possession and use of “smoking opium.” The 2005 Combat Methamphetamine Epidemic Act limited the sale of cold medicines containing pseudoephedrine (a starting material for making methamphetamine) and required photo identification for purchase. Stores are required to keep logs for two years. While federally the U.S. government still has marijuana classified as a CSA Schedule I substance (banned and no acceptable medical use), twenty nine states and the District of Columbia have passed legislation allowing the use of marijuana for medical use and seven states have legalized recreational use.

6. Schmidt MM, Sharma A, Schifano F, Feinmann C. “Legal highs” on the net-Evaluation of UK-based Websites, products and product information. Forensic Sci Int 2011 Apr;206(1-3):92-7.

7. Marnell T, editor. Drug Identification Bible. 4th Edition. Colorado: Denver, 1999.

8. Shulgin AT, Drugs of abuse in the future. Clin Toxicol.

1975 8(4):405-56.

9.https://www.deadiversion.usdoj.gov/drug_chem_info/sal via_d.pdf 10. Ogata J, Uchiyama N, Kikura-Hanajiri R, Goda Y. DNA sequence analyses of blended herbal products including synthetic cannabinoids as designer drugs. Forensic Sci Int 2013 Apr;227(1-3):33-41.

11. Coyle HM. Nonhuman DNA Typing: Theory and Casework Applications. CRC Press, 2007.

12. Lee C-L, Miller Coyle H, Lee HC. Genetic analysis of individual seeds by amplified fragment length polymorphism method. Croat Med J 2007 Aug;48(4):563-565.

The DEA considered controlling kratom last year as a result of its effects on users but the plant remains legal in the United States even as many countries around the world – including Thailand, Malaysia, and Burma where it is endogenous – have banned it.

In the United States, Kratom is sold as a homeopathic or herbal remedy in shops across the country. For EXPERT WITNESS JOURNAL

13. Ferri G, Alù M, Corradini B, Beduschi G. Forensic botany: species identification of botanical trace evidence using a multigene barcoding approach. Int J Legal Med. 2009 Sep;123(5):395-401.

14. Allgeier L, Hemenway J, Shirley N, LaNier T, Miller Coyle H. Field testing of collection cards for Cannabis 27

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sativa samples with a single hexanucleotide DNA marker.

J. Forensic Sci 2011 Sept;56(5):1245-1249.

By Kelly Elkins, Towson University Kelly Elkins, PhD, is an Assistant Professor of Chemistry in the Chemistry Department and Master of Science in Forensic Science Professional Science Master’s program at Towson University (TU) in Towson, Maryland; TU offers undergraduate and graduate forensic science programs accredited by the Forensic Science Education Programs Accreditation Commission (FEPAC). Prior to her current appointment, she was Director of Forensic Science and Assistant Professor of Chemistry at Metropolitan State College (University) of Denver in Denver, Colorado where she managed the FEPAC-accredited undergraduate forensic science program, and internships and undergraduate research program in Criminalistics. She is the author of Forensic DNA Biology: A Laboratory Manual published by Elsevier in 2013, four peer-reviewed book chapters, and 25 peer-reviewed papers in journals including the Journal of Forensic Sciences, Drug Testing and Analysis, and Medicine, Science and the Law. Her upcoming Forensic Chemistry textbook is expected to be published in 2018. She is a member of the American Chemical Society and the American Academy of Forensic Sciences where she has been recommended for promotion to Fellow at the 2018 national meeting. She has been interviewed

by NBC 9News Denver, FOX 31 News Denver, ABC 7 News Denver, The Denver Post, and Forensic Magazine as a forensic expert. Her research was recently highlighted by GenomeWeb.com.

15. Shirley N, Allgeier L, Lanier T, Miller Coyle H. Analysis of the NMI01 marker for a population database of cannabis seeds. J Forensic Sci 2013 Jan;58 Suppl 1:S176-82.

16. Curtis K, Coyle HM. Development of a Quantitative Real-Time Polymerase Chain Reaction (RT-PCR) Assay for Plant Species. J Forensic Res Crime Stud 2014 Mar;1:1-5.

17. Murphy TM, Bola G. DNA identification of Salvia divinorum samples. Forensic Sci Int 2013 Jan;7(1):189-193.

18. Elkins KM, Perez ACU, Quinn AA. Simultaneous identification of four “legal high” plant species in a multiplex PCR high resolution melt assay. J Forensic Sci 2017, 62:593-601.

19. Cowan AC, Elkins KM, unpublished results.

20. Kowalczyk M, Sekuła A, Mleczko P, Olszowy Z, Kujawa A, Zubek S, Kupiec T. Practical aspects of genetic identification of hallucinogenic and other poisonous mushrooms for clinical and forensic purposes. Croat Med J. 2015 Feb; 56(1):32–40.

21. Cowan AF, Elkins KM. Detection and identification of Psilocybe cubensis DNA using a real-time polymerase chain reaction high resolution melt (PCR-HRM) assay. J Forensic Sci 2017, DOI: 10.1111/1556-4029.13714.

Mr Simon Rhys Kirkham Drug Researcher & Adviser Solicitor LLB (Hons), MEWI

DR NICHOLAS PEGGE

Simon Kirkham has over 25 years' experience providing reports prior to criminal proceeding under the Misuse of Drugs Act and the Proceeds of Crime Act, and giving oral evidence in the Court of Appeal and on every crown court circuit in England, Wales and Northern Ireland, in magistrates courts and the Royal Court ofJersey.

All controlled drugs can be dealt with.

CONSULTANT CARDIOLOGIST MA (CANTAB.) MB BS (LONDON) FRCP (LONDON) I have more than 8 years experience in providing authoritative, well researched expert reports in all areas of cardiology, drawing on more than ten years experience as a consultant cardiologist in the management of patients with all forms of heart disease.

All controlled drugs are covered, including new psychoactive substances and legalhighs. Specific areas include: price, effects, consumption, patterns of use (personal use and intent to supply), potency, purity, packaging and street and dealer practices.

Cultivation of cannabis cases additionally involve review of the growing operation, equipment, paraphernalia, yield, costs, medical uses and assessment of quality.

I an independent operator in invasive cardiology, including coronary angioplasty, pacemakers and complex device implantation, and have been lead clinician in my NHS department.

I have given oral evidence under cross examination and have provided more than 40 expert reports to the GMC.

Tel: 0208 977 8984 Mobile: 07930 405 548 Email: srkirkham@talktalk.net

Dr Nicholas Pegge Goring Hall Hospital, Bodiam Avenue Goring by Sea, West Sussex BN12 5AT tel: 07881 503 579 E-mail: n.pegge@sky.com Web: www.drpegge.com

EXPERT WITNESS JOURNAL

London Office: 29 St Marks Road, Teddington London TW11 9DE Area of Work Nationwide

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Joint Expert Meetings – Banking Litigation, An Experts Opinion

by Andrew Kasapis - Director, Disputes/Investigations Duff & Phelps Ltd. - www.duffandphelps.com As a banking expert witness, I have been involved in many joint expert meetings. In most cases I have been the sole expert for one side, against a sole expert on the other side. On some occasions, in larger cases with multiple issues, I have been part of a group of experts working for the same side. In this article, I am going to focus on the one-on-one expert situation.

agreement and clarify the remaining issues to make it easier for the judge to reach a decision. Joint meetings can therefore be beneficial to both parties at the same time as to the court.

It’s usual for the experts to take notes throughout the meeting on issues both agreed upon and disagreed upon, to create a simple record of the meeting. It has been suggested by some lawyers that there should be a more formal process of recording the meeting. I personally like the less formal recording process as I believe that the detail of discussion around technical issues between experts should stay frank and open. I believe a formal recording process would make the experience more stilted and more guarded.

As is probably well understood by readers of EWJ, the joint expert meeting usually takes place after both experts have each written their own report and close to the dates for evidence to be heard. The two experts agree to meet to have a discussion on any technical matters specific to the case within each expert’s area of knowledge. They discuss their individual opinions on these issues with the aim to deliver a joint expert report.

The record of the meeting serves to help the expert nominated to provide the initial draft of the joint expert report. In my experience, it is not unusual for the drafter to only consider (or, perhaps recall) what they wanted to hear, as opposed to what was actually said. This is a downside of a more informal recording process. The joint expert report should usually list issues in two groups; those issues where the experts

Based on my experience of joint expert meetings, I believe that there should be open and frank exchanges between experts with respect to the technical facts of the case. Joint expert meetings should be a fluid exchange of opinion and the primary objective of the meeting should be to reduce the areas of disEXPERT WITNESS JOURNAL

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The result of such a meeting is that more of the issues can cause disagreement and the issues can become more complicated. Thus, the joint expert report created from this meeting may not help the judge in any meaningful way.

agree and those where the experts do not agree. In my experience, the joint expert report is, correctly, leaner and more focused on the most pivotal issues than the individual expert reports, which generally take a more detailed approach with supporting material across a wider range of issues. The joint expert report becomes a guide for the judge to navigate the more complex individual reports.

Another sign of a bad joint expert meeting is where the expert who drafted the joint report believes that there shouldn’t be any changes to their first draft.

One expert’s memory and understanding of a meeting will not always match the other expert’s take when the joint report is written, hence changes to the initial draft of the joint report are usual and to be welcomed, as they typically make the final draft clearer and a more useful summary for the judge.

In my experience, the joint expert meeting and report should cover: (i) The list of pivotal issues of the case (using individual reports as reference); and (ii) those issues that are agreed on, allowing the parties to set these aside; and

The drafting of a coherent joint expert report can become complicated in cases where there are multiple experts on both sides. This can be the case where experts are retained for different areas of expertise but where those areas of expertise sometimes overlap. This happens occasionally in banking litigation matters. Logistically, handling multiple expert meetings and the production of an agreed useful joint expert report or reports can become very complicated.

Where areas of overlapping expertise are not just from experts on opposing sides, but also between experts on the same side, it can become very difficult logistically to reach an agreed position before the deadline given by the court, which is often soon after the set date for the meeting. To avoid this danger in cases within the finance litigation sector, some lawyers hire experts with expertise that is very broad to save money. In my experience, although I recognize that sometimes finding the right expert with specific expertise can be time-consuming, this will cause more overlaps and confusion.

(iii) a discussion of the issues not agreed upon.

An expert can have a degree of flexibility in their opinion, as long as the opinion can be supported by experience, evidence and common sense. It is uncommon to be presented with completely new evidence at the point where the opposing experts are due to meet and discuss the issues at hand. I have changed my opinion where I felt it was necessary, based on any additional evidence, although this is rare. I have on occasion toned down or qualified my opinion due to a more rounded understanding of events and issues. This is, of course, one of the objectives of the process.

Therefore, there are times when my first report may be slightly out of step with the more evolved joint expert report. It is important in these situations to go immediately on record to qualify any change in the opinion presented to the court.

Overall, in my opinion, joint expert meetings can be very productive. The expert for the other side is generally an experienced professional and the meetings have produced succinct opinions. I would like to think that the joint reports created for these cases have helped judges to make an informed decision, as far as the technical issues of each case were concerned.

A banking market risk expert is different to a banking credit risk expert and very different to an interest rate derivatives trader. One expert could have overlap across these three categories and differences of opinion within each category.

If, for example, the case concerns the trading of credit default swaps (CDS) and the associated market in 2008 and both experts have traded the same product at the same point in time, it would be expected that there will be much in common between the experts.

The reality can be quite different. For example, an emerging market credit hedge fund trader and investment grade CDS market maker at a bank would have different opinions on the issues presented, as the market maker would see a wider array of information than the hedge fund trader. In addition, emerging markets are completely different to investment grade markets. Emerging CDS markets are much more volatile and less liquid than investment grade CDS markets which mean that these two experts are likely to have faced different issues and thus have differing perspectives on the CDS market in 2008.

I would expect two opposing experts that have relevant and similar experience not to differ significantly across the spectrum of case issues. Although in my experience, it is rare to find two experts with the exact same experience and it is even rarer to find two experts that agree outside of the most fundamental technical points.

In my experience, experts will differ on a few key pivotal points, but in some rare occasions entrenched viewpoints or lack of expertise can create disagreement on a point that shouldn’t be in debate. With the addition of ego and where an expert takes it upon themselves to litigate the case, you can end up with an unhelpful and unproductive expert meeting.

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In my opinion, where a case requires multiple experts, lawyers should hire experts with relevant experience to the specific case issues and attempt to avoid overlap in expertise. This can be hard to do in practice (and expensive), as a market practitioner’s expertise is not necessarily clearly defined. The emphasis should be on the experts to be honest and clear at all points in the process. Right from the outset, i.e. in discussing the potential instruction, it is incumbent on the experts to declare exactly what their expertise is and not stray outside it.

In a joint expert meeting, there may be areas that one expert considers important but, that the other sides’ expert may deliberately avoid, believing that there is no issue to discuss or being unwilling to have the issue addressed in the joint report. As an independent unbiased expert with a duty to the court, it is not the expert’s job to formulate these views within any strategic litigation plan. My advice is to politely but firmly reiterate that the point requires discussion. Circulating an agenda or list of issues that each expert wishes to discuss in advance of the first meeting can assist with this.

A consequence of reading many case documents and being immersed in a huge amount of case details is that an expert can appear to have tunnel vision, where they may focus completely on a single or limited objective or view. This occasionally is also as a result of having very defined and narrow instructions.

I believe the other expert’s report can be beneficial to read in fact I believe it is necessary as it can provide a completely different perspective of the key events. This can only be a good thing, whether or not it challenges or reinforces my own views.

I try to ensure that counsel receive a detailed brief concerning the result of the joint expert meeting, keeping to the technical issues discussed and observing the without prejudice nature of the meetings.

Counsel can then determine their own strategy independently. My job as the expert witness is to present unbiased opinions based on evidence presented to me within the context of my experience and understanding of the market.

Never miss a copy of the Expert Witness Journal by purchasing a subscription, receive your copy direct from our printer.

Call 0161 834 0017 or email:admin@expertwitness.co.uk

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Financial Scandals, Swaps and Tailored Loans Major financial scandals in the UK over the last thirty years followed a pattern. Usually, they involved people in power, with limited knowledge of the financial facts of life. They were assisted by officials who enforced a ‘cover-up’ of what was actually going on.

Often, whistleblowers that realised the danger were victimised, removed from their jobs, and silenced with legal gagging orders, which they accepted to avoid personal financial penury. Eventually, the facts emerged, legal action and redress schemes ensued, and the press had a field day. Each such scandal appears to have done permanent damage to the industry involved.

Of all the above, the second wave of swap misselling has unique features. Obviously, it is a repeat in some ways of the 1988 scam, albeit with some new features.

Most of the victims, let alone the general public, do not understand it. It affects other professions, notably accountants and lawyers, adversely. The government has a severe conflict of interest – to sell off its major (now 73%) stake in RBS while enforcing honest future bank behaviour, and redressing past wrongs. It has apparently prioritised the first well above the last two, resulting in banks still promoting “hedging” on their websites.

So swap misselling seems to continue. There is also a “sister” affair, the “Tailored Business Loan” scandal, involving Clydesdale and Yorkshire Banks, and being the subject of at least one highly publicised group action. I cover this later.

Life assurance companies submitted us to pension misselling (although banks joined in), and the Equitable Life debacle. Banks treated us to the first wave of interest rate swap misselling (known as the “Hammersmith and Fulham” swaps affair), PPI misselling, LIBOR rigging, the HBOS collapse and rescue, the local HBOS Reading fraud, the second swap misselling spell, the Northern Rock collapse and bailout in 2007, major collapse of the sector in 2008, (requiring a substantial public funded bailout), and RBS’s continuing “GRG” (Global Restructuring Group) controversy, accused of maltreatment and destruction of small and medium sized businesses.

The genesis of the swap misselling process is that victims are persuaded to exchange cash flow risk for capital risk. Cash flow hedging involves avoiding higher outgo due to increases in short term rates, primarily bank base rate. This is a genuine risk, although, as we will see, not necessarily a major one.

However, the capital risk then imposed is far more insidious for the reason that, while most businesses can take steps to ameliorate the damage caused by cash flow strain - by cutting on-going costs to reduc-

The table in Appendix A illustrates some issues.

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Of b), those companies now behave very differently from their trusting past. As an example of one with which I have worked, who had a relationship with Barclays of some twenty years, fought their egregious swap misselling successfully. They now use five banks, not one. There is minimal trust, however, and when HSBC tried to woo them, but insisting on an exclusivity agreement, they never even got through the door.

ing expense outgo. This can be done by, say, cutting overtime, a ban on recruitment and restricting staff replacement, slowing refurbishment, deferring new projects, mothballing nonessential ones, and ultimately imposing redundancies and selling any non core businesses – addressing what has become “overtrading”. None of this is pleasant, but is essential during a recession. However, there is little a business can do when capital risks manifest themselves. The effect is similar to having negative equity in ones house/mortgage package. However, while residential homeowners have regulatory protection against this risk, (as long as they continue their regular payments), no such protection applies to corporate loans.

If the borrower’s capital position driven by the swap deteriorates to a sufficient degree (as it did when Base Rate collapsed in 2008/2009), the reality is that the firm loses a lot of its capital value, and is exposed to enforced depredations from the bank’s “Recovery Units” (originally set up for that purpose, but since the crash clearly used to recapitalise otherwise insolvent banks). The usual remedy, refinancing with another bank, is difficult in a recession, and the swap puts the cherry on the cake, not only due to the negative swap value, but the need for the bank to allow for future worsening. Accordingly, banks wrote off many of the companies over which they now had control, and just used their assets to bolster their own reserves, under substantial pressure from new government agencies such as the Asset Protection Agency and UKFI, set up to “arms length” the antisocial behaviour from the senior civil servants and politicians who drove it. Borrowers were designated as“toxic debt”, and then thrown to the wolves.

Of c), the image of a bank lending your business money, and then using any excuse to gouge you and ultimately break you up is very strong. Borrowers now stay away, and collapsed demand has led to a dead ½% economy. It will take more than adverts with black horses and rugby sponsorship to change that.

The cessation of corporate borrowing in any meaningful way has stymied economic growth for seven years. Widespread dissatisfaction in economic progress has prompted, among other things, to two protest votes - Brexit and the 2017 attack on David Cameron’s replacement. It’s the economy, stupid.

So how on earth has this all happened?

The process was driven by two widespread misconceptions - that the word “hedging” is being used with its commonly accepted meaning – and that there is only one type of “interest rate risk”. Read any set of accounts today – even those audited by one of the “big four” – and you will see promotion of those misconceptions.

Let’s take these one at a time: Hedging While the man in the street would almost certainly see this term (and the associated sales aid terms, Insurance and Protection)as moving away from risk, sloppy usage has led it to be used for derivatives at large. However, the derivative product corresponding most closely to this term is an interest rate cap.

This provides the relevant benefits with no downsides, and has no capital risk. Accordingly, a single or regular premium is usually charged if you want to buy one of these.

SME businesses can now be divided into three groups. a) Those destroyed or permanently damaged by the above behaviour b) These which survived the process, capable of strong future growth c) Those who observed the above, but escaped ‘bank punishment’

In contrast, a swap (the product most commonly sold – or mis-sold) contains both a cap and a floor. A floor is pure financial detriment – containing both cash flow risk, and capital risk (the latter being due to the way the swap market works, where everything is considered in capital terms – and therefore becomes acute). Prudence (and regulators) insists that if a smaller entity is exposed to this risk, additional reserves be held in case the capital position gets worse.

However, this was never explained to borrowers. By withholding this information (conventionally disclosed via a Credit Support Annex, a document endorsed by the ISDA, the regulatory body for swaps –

Of these, a) a few have managed to successfully sue the bank involved, most recently Stuart Wall’s “Opal Investments” is an example- as usual, the settlement was kept secret, but as the claim was estimated to be between £50m- £600m, a result in the hundreds of millions is not unlikely. As RBS is 73% publically owned, the public is effectively being kept in the dark about spending its own money for nefarious purposes (covering up a bank’s own past wrongdoing), apparently to facilitate the sale of that very bank to a different sector of the public. You couldn’t make it up! A smaller company, Property Alliance Group, has just announced it is appealing a prior loss.

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expose their clients or employers to substantial undisclosed risk.

see Appendix B), the bank turned the borrower into an amateur derivatives speculator. The speculation could easily render the business severely weakened or even insolvent. However, the borrower is kept ignorant of this. One might wonder why a sane bank would want to make loan to amateur derivative speculator. However, making the loan was the only way to sell the swap (at a profit!).

Published accounts are bedevilled with a third misusage of language – that “The company is “managing” its interest rate risk with derivatives.” If it does not even understand how to measure fixed rate risk – the risk it is assuming in exchange for perceived cash flow risk – how can this be called “managing”, in any accepted sense of the word?

Once this is understood, it begs the question of what the bank’s business model really is. Is it to add value to clients, or sucker them in with the ultimate aim of their likely impoverishment or destruction? If Harold Shipman had been a banker, would he have been a role model for bankers?

The other problem is that, in economic terms, fixed interest rates are not ‘hedging’, and, since 1997 (and probably before), the company is speculating that national economic conditions will improve. Currently, selecting or staying in fixed rates is a gamble on Brexit being successful – if not, the forward curve will fall, and floating interest rates will suddenly seem like a good idea.

While this may have been approved practice when Fred Goodwin ruled the roost, one might hope that things have changed since. Before we look at bank behaviour again, we will look at the second misleading term.

Carillion is the most recent victim of misassessing “ Interest Rate Risk” – following the demise of Mouchel and Connaught Plc – and….. Enron! Accountants who ignore the rest of the company – not paying your bills – it’s all there!

Interest Rate Risk For anyone experienced in actuarial or technical banking, the term “interest rates” at any point in time refers, not just to the current short term rate, but a whole series of rates extending into the future. This can be visualised as a single graph for each day, with a curve which can move from day to day.

Fixed Rate Loans These have recently been marketed as “Tailored Business Loans” – most of which are fixed rate loans with market linked break costs (although there have been some more exotic variants). This type of product has been around since arguably 1694, used when William III borrowed £1.2 million to wage war on France – those government loans are now called “gilts”. They have been described in actuarial literature since at least the beginning of the last century, and the break costs are both well known, and well researched. On the face of it, a borrower chooses at the outset between fixed and floating rate loans. If rates rise, he is deemed to have made a wise choice, and resists any bank pressure to switch to a floating rate.

Why should he then escape, penalty free, if rates fall?

This may be difficult to grasp, but the essence is that if you contract into a swap, you are exposed to the risk that this curve moves against you. The message is simple – if that curve falls, you lose money. Ultimately, your finances can be so weakened that the whole banking word sees you as insolvent. If you do not understand what I have just said, or do not fancy being exposed to that risk, do not buy a swap, or indeed any derivative with downside (a collar or structured collar are the other ones).

Indiscriminate use of the word “hedging” is an easy trap to fall into. Take, for example, in the Court of Appeal hearing – CGL Group, Mr and Mrs Bartles, and WW Property Investments, against the combined might of RBS/NatWest, and Barclays Banks, handed down on 24 July 2017. We see the word “hedging” appear in the first sentence – and its usage is never really critically examined. This judgment was handed just 1 month before RBS settled with Opal. I suspect Opal had an experts report that described the true nature of the derivatives sold a little more fully – otherwise why should RBS waste public money on an action they would expect to win?

The clear answer appears to be that “interest rate risk” means different things to different people. The bank knew that, by locking you into a fixed rate, it was offering you a riskier product, as banks can take more up-front profit from selling fixed rate loans (if they do not reserve properly). However, every other bank sees this, and marks you down as a riskier prospect. If they take on your lending, they see a borrower exposed to the forward curve. They’d rather take on a floating rate borrower.

Also, as we have seen above, accountants (or at least their reporting rules) prefer fixed rate loans, as they can ignore capital risk in excess of the loan amount in the balance sheet. So your accountants may, in their ignorance, be suckered into riskier products.

Accountants have hidden the risks with the following assumptions – banks are always honest and their banks are both solvent and obey the spirit of regulation, or at least its letter. The buying behaviour of accountants can always be described as “hedging” (cash flow hedges or capital hedges) - even if these practices EXPERT WITNESS JOURNAL

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This situation is clearly depreciable, and has killed demand for UK corporate finance. No government who hopes to thrive, let alone survive, can let such conditions continue for too long. However, we are nearly at the ninth anniversary of rock bottom interest rates.

This is helped from two directions – FRC “advice” and accounting definitions in accounting standard FRS102.

Regarding the first, as part of risk disclosure, the FRC recommends that company directors should state in the accounts what proportion of their loans should be fixed rate, and what balancing proportion floating rate. I have aske a number of directors why they favour, for example, 70% of borrowing to be at fixed rates, but have not received any specific answers apart from:

For either swap or TBL misselling, to establish a cause of action requires close examination of the sales process. Unfortunately for victims, this was often done in a way that shows the lender’s full expectation of subsequent objections. Swaps were hard sold with documentations denying that “advice” was given – even though the untrammelled word “hedging” merits much further examination. For TBL’s, there is usually little or no documentation, as there was no product to sell.

a) They have acted on advice from their finance department, who have much experience and knowledge in this area. b) They looked at similar firms and copied them

By incentivising TBLs with commission payments (or implying that job security depended on their sale), those banks clearly did not reserve for the extra risk they had pumped into their borrowers’ balance sheets. An actuarial approach would be to reserve for the extra risk – however, in that case, there would have been no extra day 1 profits!

c) They do not really understand it.

If a firm states in its accounts it requires 70% of its borrowing to be fixed rate, it’s a bit difficult to say afterwards in court that you were mis-sold to by a bank!

FRS102 allows – no, actually requires - a company to report fixed rate loans in the balance sheet as original capital less capital repaid – ie, the “book” value of the loan. This depends on the loan being “basic” – ie, no frills on the rate, such as extra penalty interest, etc).

Accordingly, a fixed rate is always “safer” to accountants, as the accounts look neater with the same (or predictable) numbers in the P&L every year, and a simple deduction for capital repaid in the balance sheet.

Accordingly, any possible legal action comes down to what was - or was not – represented or misrepresented at the point of sale. Successful TBL actions have been rare – the John Glare loss has since been supplemented by the Philip and Helen Thomas win over Triodos Bank.

The Glare case did put into the public domain the technical issues shown above, demonstrating clearly that Clydesdale, in collaboration with NAB, set the loan rate idiosyncratically, in conjunction with the swap market. (This contrasts with evidence given by Clydesdale Bank to the Treasury Select Committee on17 June 2014, when the motive for such sales was described as “simplicity for the borrower”, rather than citing extra profits generated by up-risking clients without needing a swap salesman. “There is not an embedded swap in any of these products” is in contrast to the bank’s own published Report and Accounts.

Simple enough? What could possibly go wrong?

The only problem is that banks don’t see it like that.

Banks will all see you as holding a floating rate loan, plus a fixed to floating derivative in your books, because that’s how they have to account for it. Accordingly, if the forward curve falls, you have lost money.

If you have lost enough money, you are in financial trouble – or possibly bankrupt. That is the nature of “the embedded swap”.

However, the difference between fixed rate loans and “swap plus loan”arrangement is only legal. For the former, a bank can’t just tell you ‘your loan has just broken its own covenant (although, in any bank’s eyes, that’s exactly what has happened).

The TBL controversy continues. Firms such as RGL Management exhorts potential clients to “Sue Clydesdale” for TBL sales – at the same time, the Times describes “Couples committing to their future with a ten year fix” – a young couple taking out their first mortgage – a similar contract, although Bonnie and Matthew face draconian break costs from Barclays if they change their minds – close to half the mortgage, apparently!

In practice, there is no difference in negative bank behaviour, if deemed necessary. In both cases, TBL, the bank carries out a process I describe as “covenant squatting” – close monitoring of any possible covenant breach, and if necessary attempts to create one with tactics such as engineered lowball property valuations – only the second breaks the law. For interest rate swaps, the damage the swap causes is NEVER blamed for the situation – the bank always finds something else to attack.

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The most interesting areas to focus are that of housing associations. These are organisations run on philanthropic principles (although operating as businesses) to provide social housing. They receive substantial government finance on this account. A 35

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study of their financing reveals an emerging difference into two camps – “Fixed Rate Fans” and “Floating Rate Fans”. Peabody Estates appear in the former, stating in their accounts that: “The Group is risk averse in respect of interest rate management with 81% (2016: 82%) of the portfolio currently held at fixed rates. This means we are well insulated against increases in variable interest rates should they occur.” Their Finance Director states: “Long-term gilts are very low so it’s a great time to fill your boots and get going”.

form of a lower weighted cost of borrowings whilst a higher proportion of variable debt provides the Group with the flexibility to manage interest rate risk in support of the Group’s corporate objectives.” ‘ It is interesting to note that both sets of accounts are described as “True and Fair”, not only the same Big Four firm, but the same audit partner.

Hyde Housing Association appear to be following L&Q. Who will be in each camp in a year’s time?

Financing risks can no longer be regarded as the province of the finance department – all directors are deemed responsible for corporate risk. The main problem is that finance issues can be complex, and require time to be spent that busy Directors and Senior Managers can little spare from their main duties.

I have developed a program called “Taming the Snake”, explaining the risks and trade-offs from various forms of finance, centring around a 30 minute presentation.

London and Quadrant’s March 2017 Accounts, on the other hand, state: ”At 31 March 2017, 42% of the Group’s drawn debt (inclusive of £80m of fixed paying hedges) was fixed (2016: 84%).“ This change cost London and Quadrant about £1/2 billion. They further state: “Although the refinancing came at a one-off cost to the Group, future benefits will be achieved in the Appendix A – Scandals, Notable Facts, and Consequences

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Solutions for Company Directors – Taming the Snake 1, Understand the key qualities of fixed and floating rate finance.

Windsor Actuarial Consultants is an independent firm of actuarial consultants with considerable expertise in derivatives and pensions. Our excellent actuarial and consultancy is complemented by our cutting-edge software and technical support.

2, Manage your Treasury Department – Any positions taken (speculation) needs to be understood and approved at senior level.

We are an owner-managed business.

Our consultants are both major stakeholders in the firm and qualified actuaries. They can provide the advice our clients need and they also have a vested interest in ensuring that they get the best service possible.

3, Monitor any CAPITAL interest rate risk closely – at least monthly. Such risks may destroy your business.

The level of personal commitment from us could not be higher.

4, Treat any products with risks you don’t totally understand with extreme caution, and trust own instincts against the persuasions of insistent salesmen.

Our clients include interest rate swap victims of all sizes, trustees and sponsors of pension schemes, financial advisers, solicitors and individuals.

5, If borrowing comes at the price of forced uncertainty, refrain if at all possible.

Peter Crowley, established Windsor Actuarial Consultants in 2005, combines a wide experience of financial products and pensions with a speciality for explaining the concepts in plain English.

Appendix B – The Credit Support Annex A Credit Support Annex, or CSA, is a legal document which regulates credit support (collateral) for derivative transactions. It is a standardised legal document, but is not mandatory.

Suite 46, Albert Buildings 49 Queen Victoria Street London EC4 4SA Work undertaken worldwide

Essentially, a CSA defines the terms or rules under which collateral is posted or transferred between swap counterparties to mitigate the credit risk arising from "in the money" derivative positions. In other words, if the weaker party’s debt increases to a certain level, it must pay (usually) cash to the stronger party, as the stronger party fears the increased pressure on the weaker will induce it to default.

Tel: 020 7653 1908 DX 98948 CHEAPSIDE 2 Fax: 0207 681 2778 mail@windsorac.com

Mr James Davies

The SME swap misselling racket did not involve CSAs. In that way, borrowers were kept oblivious to the risks they were exposed to. The infamous RBS’s GRG unit, Lloyds BSU unit, and others, were used to retrospectively extract liquidity from swap victims, and thus covertly serve the purpose of the CSA “through the back door”.

Chartered Electrical Engineer DipEE, CEng, FIET, MCIBSE, MEWI,MAE James Davies is a Chartered Electrical Engineer with more than 45 years international experience in electrical engineering associated with generation, distribution of power and building services (power, lighting, communications and fire alarms in buildings.)

He undertakes the design and specification of electrical installations, inspections and contract verification. Mr Davies has provided advise and prepared expert reports on such matters as electrical installation dilapidation, injury due to electrocution, component failure, cost over runs, design faults, equipment damage etc.

Never miss a copy of the Expert Witness Journal by purchasing a subscription, receive your copy direct from our printer.

He is a Member of the Expert Witness Institute and Academy of Experts and familiar with the Civil Procedure rules (CPR) and ensures that reports comply with its requirements whether acting for Defence, Claimant or both as a Single Joint Expert (JSE).

He also undertakes Expert Determination.

Tel: 01883 717 102 Mobile: 07958 697 032 Email: heapdigby@msn.com Website: www.heapdigby.co.uk Address: 6A Park Road, Limpsfield, Oxted, Surrey, RH8 0AL

Call 0161 834 0017 or email: admin@expertwitness.co.uk EXPERT WITNESS JOURNAL

Peter also advises solicitors and other professionals on the individual aspects of pensions in divorce, compensation on the loss of pension rights, pensions mis-selling and reversions. He has produced a substantial number of reports on this subject,involving cases of varying complexity, and including overseas pensions

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RICS at 150 There are some good reasons to commemorate 1868.

Between January and December, Britain had 3 different Prime Ministers. Manchester hosted the first ever Trades Union Congress. The Press Association was founded and, in Parliament Square London, the world’s first traffic lights were installed.

emerging organisation, which is now known to a worldwide audience as The Royal Institution of Chartered Surveyors, or RICS. RICS can trace its origins even further back to 1792 when the Surveyors Club was formed. By 1868 this informal gathering, which had expanded to 49 members, appointed Mr. John Clutton as their Chair, and formed a committee that drew up resolutions, byelaws and regulations. In June of that year they elected a Council and John Clutton was appointed as the first

In another corner of Parliament Square a group of people who described themselves as “surveyors” leased an impressive red brick building. Their purpose was to provide a permanent base for an EXPERT WITNESS JOURNAL

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On 23 and 24 April RICS will hold its third annual World Built Environment Forum Summit in London.

The keynote speaker is J.B. Straubel, the co-founder of Tesla, and their Chief Technical Officer. His involvement signals the extent of RICS’ ambition to make the Forum Summit a major highlight of the 150th year anniversary, and bring the voices of innovation and technical disruption in the built environment to a RICS stage. The impressive programme, which also includes speakers from ULI, Financial Times, Volvo, AECOM, Deliveroo and JLL, signals RICS’ continuing commitment to assimilating new thinking into the surveying profession, and being at the forefront of finding solutions to the major issues of our time in land, property and construction.

President of the Institution of Surveyors. Thus, was established the foundations of the current organisation, a professional body that has set and monitored standards for professionals working in land, property and construction for 150 years�.

By 1868 the group had expanded to 49 members. In June of that year they elected a Council and John Clutton was appointed as the first President of the Institution of Surveyors. Thus, was established the foundations of the current organisation, a professional body that has set and monitored standards for professionals working in land, property and construction for 150 years.

The principle ideals and motivations that led to the creation of RICS in 1868 hold true in modern society, though the day-to-day challenges for the organisation and its members are significantly greater. Globalisation of commercial markets. An ever-expanding population and increased demands for housing and infrastructure. Rapid and relentless advancements in technology. Increasing focus on creating clean air cities and tackling congestion. The reality that governments around the world are beginning to think longer term in matters of planning and development. All of this, and more, intensifies the need for chartered surveyors to be able to demonstrate excellent ethical and professional standards, while continuing to be relevant in the diverse political and economic systems where they now work. The challenges for RICS as the body which maintains standards are immense, and the 150th anniversary of the founding of RICS promises to be a busy year.

Martin Burns – January 2018

Need an expert fast Call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk

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A major challenge going forward is ensuring that standards remain up to date and relevant. It is expected that regular revisions will be made to professional guidance RICS provides to its members, and professional statements, such as those that apply to chartered surveyors who act as expert witnesses, which are mandatory. A typical example is the upgrading of expert witness training and accreditation programmes, which enable chartered surveyors, and other professionals to qualify as RICS Accredited Expert Witnesses.

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In this anniversary year and beyond RICS will seek to inspire future generations to achieve chartered status and become part of an increasingly diverse organisation of surveying professionals. RICS will continue to expand its influence, and its commitment to quality, in global markets, kicking off in the New Year with strategic partnerships in Australia and reinforcing its global collaboration with the International Facility Management Association. (IFMA). In early Spring RICS will open a major regional office in the Centre of Birmingham, which will comprise of over 200 staff who will relocate form Coventry.

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To find out more: t 024 7686 8584 w rics.org/expertwitnesscertificate e drstraining@rics.org

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Crash InvestigationHow sure can we be that collected data is accurate?

by Graham Ellis of Ellis Transport Services Over the years, I have been involved in investigating many road traffic accident cases covering cars, vans, trucks, buses and cycles. When appearing in court I have often been questioned on how robust my data is concerning the impact and how can I be sure that this reflects what really happened, without the presence of any recorded data.

ensure that the road surface was not at fault in any collision, this requires that certain police vehicles are able to switch-off the antilock system to carry out the tests. This switching off has to be done in agreement with the vehicle manufacturer as just removing the antilock brake system fuses often disables other vital systems on the vehicle, the tests have to be carried out three times and the mean deceleration figure from those three test is then used.

The only way to be sure that the calculations made match the outcome of the crash is to carry out real world testing. In my case I attend the crash test day organised by the Institute of Traffic Accident Investigators (ITAI); of which I am a national council member; where various tests are set up and recorded using high-speed track side video, drone video footage and in-car crash data modules. This collected data is then analysed and compared to the physical evidence left following the crash.

In a lot of cases vehicles are fitted with on-board computers which are able to capture a lot of data but, this is normally proprietary information of the vehicle manufacturer and external investigators (including police forces) have to approach the manufacturer for access to that data. Securing the data in a useable format can take a considerable amount of time and is normally only done in serious or fatal collision investigations. There are now tools that have been developed allow some interrogation of some vehicle makes and models but, unlike the USA, it is not mandatory for European vehicle manufacturers to allow this access. It would certainly assist collision investigators if this facility was available on all vehicle makes and models.

Once this analysis is carried out it is possible to see how closely the sets of data correlate to each other, hence the ability for collision investigators to stand in the witness box and prove that their calculations are both sensible and accurate. In addition to this testing there are also the professional journals of ITAI (Impact), the American National Association of Professional Accident Reconstruction Specialists[NAPARS] (Accident Reconstruction Journal) and the European Association for Accident Research [EVU] (online only) which report on other crash testing and accident investigations across Europe and the United States of America. All of which provides a good basis for giving evidence in court.

The tool that is currently used by a lot of UK police forces; as well as independent investigators; is the Bosch CDR (Crash Data Retrieval) which allows collision investigators to plug into the on-board diagnostic port and download a number of parameters from the manufacturers Event Data Recorder (EDR) such as, vehicle speed, brake status, steering wheel angle, crash severity (delta-v), seat belt status, engine throttle, accelerator pedal position, transmission gear position, airbag deployment data and occupant detection information. It may also be possible to interrogate the airbag module for activation signals prior to the collision.

Whilst crash testing does help, there have been significant improvements in vehicle safety over the years which has caused some collision investigators problems, for instance in the “old� days we used to be able to measure skid marks on the road surface and use these to estimate speeds. With the advent of anti-lock braking systems we no longer see long skid marks at accident scenes, if we are lucky there might be some light traces of wheel lock left on the road surface but, in a lot of cases these are difficult to see if at all and so we need to find new ways of estimating speeds at time of collision. Skid testing is still done as a matter of course at serious and fatal accidents to EXPERT WITNESS JOURNAL

Another way of accessing data is through the GPS systems fitted to modern vehicles; this is useful as it will give access to a number of items, the route taken prior to the collision, date, time, latitude, longitude and altitude. So groundspeed and track can be derived from that recorded data giving average speed in the time leading up to the collision.

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It is also possible that the in-car entertainment (infotainment) systems can yield valuable data that can be utilised to reconstruct the vehicles movements prior to impact; this is a new and developing line of potential information that will require further work over the coming year or so. We do know that with connected vehicles that they are communicating with road side infrastructure and this may give rise to useful pre-collision data and indicate if the driver was utilising any online sources to communicate outside of the vehicle.

30 - Mathematical Constant in the formula d1 - Striking Vehicle’s Pre-Impact Skid Distance (measured in feet). Note: Measure the skid marks from the start to the point of impact (offset in the mark) and then subtract the wheelbase (front to rear axle distance of the skidding vehicle) from the skid distance.

With all of the fore-going there is now sufficient information from the vehicle itself to allow a picture to be built up as to what has occurred prior to and during the collision. This availability of data means that I am able to stand in court and prove that the data is clean and accurate and has not been manipulated.

f - The adjusted drag factor of the vehicle leaving the skid marks on the roadway surface. Note: if the vehicle is a passenger car, van, SUV or pickup truck and all four wheels left skid marks and the roadway was level, the roadway coefficient of friction is the vehicles drag factor. For a dry travelled asphalt surface the coefficient of friction is usually within the range .6 to .8 g’s. If the roadway surface is wet or has gravel on it, the coefficient of friction can be significantly less.

However, not all vehicles are fitted with the latest computerised data capture equipment so how can that be dealt with? The answer is that we have to go back to basics and utilise the tools that have been in existence for a number of years. We go back to assessing speed at impact from things such as crush damage, again this can be verified from crash test measurements and comparing the calculated collision speed to that recorded by the on-board “black boxes” fitted to the test cars. This is a well-established and well tested method for assessing speed at time of collision. When investigating an accident a common question that arises is, “How fast were the vehicles going?” If the skid distance of the striking vehicle and the maximum crush depth of the target vehicle are known, a simple estimate of the speed of the striking vehicle can be made. This is done by determining the impact speed of the striking vehicle by measuring the maximum crush depth of the target vehicle and inputting the distance in the Crush Factor Formula.

d2 - The target vehicle’s maximum crush depth (measured in feet from the normal undamaged position to the maximum permanent crushed position) of either the side or rear surface. Note: this calculation cannot be used for head on collisions. This may only be used for T-bone or rear end collisions. cf - The crush factor of the target vehicle is vehicle specific, but the average crush factor for the side and rear surface is 27. The crush factor values are based upon statistical analysis of 1000 vehicles involved in accidents where the speeds of the vehicles were verified by independent means.

The following example illustrates how the combined speed formula works:

The Minimum Speed Formula uses the pre-impact skid distance of the striking vehicle and the roadway drag factor.

The striking vehicle left 59.5 feet of pre-impact skid marks and had a wheel base distance of 9.5 feet. Subtracting the wheelbase distance from the total skid mark distance gives a pre-impact skid distance of 50 feet. The skidding occurred on a roadway that was level, dry asphalt. The drag factor was measured to be .7 g’s. The vehicle impacted into the side of another car and left 18 inches (1.5 feet) of permanent crush damage.

Both the Crush Factor Formula and the Minimum Speed Formula are then combined in the following way to determine the Striking Vehicle Start of Skid Speed.

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Above, Car to car impact with scooter in foreground ready for rear-end collision It is also necessary to mirror real-life driving situations as possible and so test such as truck to line of stationary vehicles reflects incidents investigated previously. The tests allow investigators to understand the mechanics of the collision in controlled circumstances and to be able to view what happens in this situation. There have been several high profile cases where trucks have driven into the rear of lines of traffic and so this is a reason to carry out testing, to confirm what we thought had happened is seen to have happened.

The combined formula was used to determine the start of skid speed.

This formula works as an approximation of the start of skid speed for situations where one car, van, SUV or pickup truck impacts into the side or rear of another car, van, SUV or pickup truck. This is a relatively easy way to determine if the vehicle was traveling in excess of the speed limit and to decide whether or not a more detailed accident reconstruction would be helpful. This simple estimate of the striking vehicle speed and the speed of the target vehicle can be confirmed by the conservation of linear momentum method. In collisions that involve vehicles that impacted either head-on or head-on at an angle, this skid mark / crush factor method can be used but, it requires a different approach to that shown. In those cases either conservation of linear momentum or some other method can to be used to determine the speed of the vehicles.

Above, Truck into rear of stationary traffic queue Some cases only involves a single vehicle and the other “object� is a pedestrian, and we still need to know the speed of impact between the two. The calculation for pedestrian throw was initially derived by John Searle back in 1983 and, over the years; those derivations and other similar formulae have been extensively tested both in crash test days and in court and found to be accurate. I could layout the full formulae as to how this is done but suffice it to say experienced investigators are used to calculating speed from throw on a regular basis.

The above was taken from a 2008 paper by Todd Hutchinson in Motor Vehicle accidents and accident reconstruction; there are also home grown formulae that calculate in SI units of preferred. Nowadays we do not have to manually calculate these results as there are computer programmes available to investigators that allow us to enter the key parameters and the programme crunches all the numbers and finally spews out a result(s) that the investigator can utilise.

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Above, This is a case where a mix of techniques may be necessary to carry out the investigation. Fatal accident in Birmingham, December 2017.

Electrical Investigations

From the foregoing it can be seen that whilst technology can aid the collision investigator, the basic laws of motion still apply and in the absence of technology we revert back to those basic laws and calculate the potential speed of vehicles.

Reader may like to note that the Institute of Traffic Accident Investigators will be holding another crash test day at Bruntingthorpe proving ground, Leicestershire in the summer of 2018. Dates and application form for attendance will be published on the ITAI website as soon as available. (www.itai.org)

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) Capability Statement on electrical failure investigations Offers ideas and solutions the improve design/manufacturing processes

Ellis Transport Services.

61 Bodycoats Road, Chandlers Ford.

Eastleigh, Hampshire, SO53 2HA. Tel: 023 8027 0447 Mobile: 07710 589105 e-mail: galellis@gmail.com or graham.ellis@ellistransportservices.co.uk

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www.antony-anderson.com 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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Food Safety Expert Dr Belinda Stuart-Moonlight provides an insight into litigation involving food safety Types of work undertaken Holding the CUBS (Cardiff University) Certificate for both criminal and civil expert witness work, Dr Stuart-Moonlight takes instruction in both arenas.

Her technical competence is within the fields of environmental and public health and hygiene, including:

Dr Belinda Stuart-Moonlight is proud to hold Lawyer Monthly’s award, Expert Witness of the Year, 2017.

She cut her teeth as an Environmental Health Officer (EHO) in Central London and went on to conduct research in microbial survival at King’s College University of London. She began consultancy work in the late 1990s, and in 2001 established Moonlight Environmental – her business that delivers consultancy, auditing, training and expert witness services.

• food safety / poisoning (contamination with physical, microbiological, chemical or allergenic matter) • due diligence • competence of food business operators and adequacy of their food safety management systems and HACCP plans

One of her early clients was the iconic Borough Market, now well known as ‘foodie heaven’ to connoisseurs, but then very much in its infancy as a fine food market. Moonlight Environmental grew up with the market and still retains the pick of those start-up stallholders, some of whom have become multi-million-pound food manufacturers and traders.

• food, water (including pools and spas) and environmentally transmitted infections (including Campylobacter, Salmonella, E coli, Staphylococcus, Clostridium, Leptospirosis, Cryptosporidium, Giardia, Hepatitis and LCMV) • Norovirus outbreaks

As growers and producers, the stallholders were largely unaware of a need for advice and certification.

Belinda’s consultancy business, engaged by the Trustees of Borough Market as trader auditor and workplace safety adviser, was soon regarded by those ambitious businesses as indispensable.

• merits of enforcement action (food and workplace safety) • workplace safety, risk assessment and safe systems of work, particularly in the food industry She finds that her training and early career experience as an EHO (where in the 1990s she was colloquially known as the ‘prosecution queen’ at the Royal Borough of Kensington and Chelsea) has held her in good stead in understanding one dimension of a criminal case. More latterly her experience as the ‘gamekeeper’ in her consultancy work now closes the circle, to give a fuller understanding and context to subjects in cases in which she is instructed.

With her roots still in consultancy, auditing and training, she is never out of touch with the day-to-day business of best practice and problem prevention.

This means her expert witness work is informed by current industry practice, in addition to considerable experience, knowledge and wisdom.

Food Safety and The Criminal Sentencing Guidelines (2016) – A New Focus on Risk and Increasing Source of Instruction Food safety cases naturally make up the bulk of Dr Stuart-Moonlight’s workload. In February last year a change came into effect to make the issue of sentencing in criminal cases arguably more formulaic.

“A crucial element of my work as an expert witness is to collaborate with my instructing solicitors, their barristers and any other experts appointed. I find, particularly in civil cases, that I work closely with medical microbiologists in large outbreak cases. The latter cover causation – which bug or toxin caused illness – and I cover breach. In reviewing breach, I look at evidence of whether the control systems, for instance food safety management, environmental cleaning and disinfection, water quality management, were (i) adequate and (ii) effectively implemented.”

EXPERT WITNESS JOURNAL

That change in emphasis means an increasing call to analyse evidence and provide opinion on the areas of culpability and particularly, harm and risk of harm.

Perhaps that shift can be illustrated by picturing a mouse running across a kitchen surface: alarming to 45

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most people, but if a whole mischief (a rather apt collective) of mice scampers through the food business, the human reaction is one of revulsion.

However, in looking at the risks one should ask: • what are the overall risk issues (disease from pathogenic microorganisms and allergy from proteins in their urine)?

• what are the pathogens that cause the risk to arise?

• how likely are these pathogens to be carried by mice in the geographical area in question?

• how well do the pathogens survive in the environment?

• how easily are the pathogens transferred from surface to surface?

• what sort of food is involved? (This is key to whether pathogens might survive in or on food) • who is the consumer? Vulnerable groups would be made more ill more easily

• do all Aspergillus species produce mycotoxins?

(Given that the sample had not been analysed beyond genus level) • what environmental conditions are required by the mould to produce mycotoxins and were these conditions present in the cake and packaging environment?

• how many recorded food incidents and cases of illness resulting from ingestion of mycotoxins have occurred in this country in the last 10 years?

• what are the permitted levels of mycotoxins in food?

• what levels of mycotoxins are necessary to cause serious illness?

The local authority had not tested the cake for mycotoxins themselves so there was no indication of the level of the toxins, if indeed any were present.

The conclusions were that there are limits defined in food law for aflatoxin presence in different classes of foodstuffs. Mycotoxin production only happens at certain temperatures and levels of available water.

Further, that the identified presence of aflatoxins in food is rare in the UK and mainly associated with products at import from third countries. It had never been noted with UK-produced chocolate cake.

Finally, the disease, aflatoxicosis, is rare throughout the world with little or no disease being recorded in the UK.

The surprising fact that some experts are beginning to realise is that risks to health from a mouse infestation (though not necessarily rats), particularly in retail food establishments handling low risk, wrapped food, are less significant than generally assumed, even by enforcers. Given the association of plagues and the natural human reaction to rodents, a measured and objective approach is needed and this can contrast starkly with the precautionary principle required in general food law. In the sentencing process, the Court thus requires quality technical guidance to assess microbiological risk, even if nobody has been made ill.

The result? The Judge was persuaded that the local authority had not provided sufficient evidence for their assertion that the case should be sentenced using Category 1 risk of harm.

Risk of Cancer from Eating a Mouldy Chocolate Cake - Chemical Contamination Risk One of the first food cases to be sentenced under the new Sentencing Guidelines involved a chocolate loaf cake. A consumer had purchased the cake which had, it seemed, green frosted icing. In fact, the ‘frosting’ was actually mould. Dr Stuart-Moonlight’s instruction was to comment upon the scaremongering in the EHO’s witness statement, which suggested that a consumer could develop cancer from eating the mouldy cake. The required evidence was therefore about the likelihood of, and potential seriousness of, the health effects associated with the mould.

Other Typical Food Safety Criminal Cases Integrity of Enforcement Investigation and Decision Making A seemingly open-and-shut case brought by a local authority involved a party of 15 businessmen, all but one of whom were taken violently ill after eating an evening meal. It involved unsafe food, lack of a safe management system, food temperature abuse, and lack of training. Dr Stuart-Moonlight was instructed by the caterer/defendant’s legal team.

As a result of the rapid and violent onset of the illness, EHO’s were able to begin their investigation on the day following the meal. They obtained food samples, one of which, the soup, contained high levels of the food poisoning bacterium Clostridium perfringens. Two of the diners, who said their soup had been lukewarm or cold, submitted faecal specimens and these contained both the Clostridium perfringens bacterium and its toxin – the element responsible for diarrhoea symptoms. The EHOs should have had this case in the bag. Indeed the scale of the outbreak was such that the Health Protection Agency conducted epidemiological and microbiological analysis and concluded that food temperature abuses were the cause of the pathogen in the food.

The Environmental Health Officer’s train of thought was that Aspergillus species (identified by the laboratory as the mould causing the green fluff) can generate mycotoxins (toxic and potentially carcinogenic compounds); these can cause cancer and cancer is a serious threat to human health. For this reason, at sentencing, the prosecution invited the Court to consider the harm category as Category 1 – the most significant – and importantly, carrying the highest fine.

The technical material required to provide an objective view of the risk involved questions such as: EXPERT WITNESS JOURNAL

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The second, equally sad case again concerned temperature abuse, where meat from a pub’s Sunday roast was served up on a Tuesday as the ‘Pensioner Special’. The meat and gravy had probably been heated and cooled several times and left out of the fridge for too long. The final reheat, as in the previous case, had not been completed with sufficient temperature to kill the Clostridium perfringens bug. The pensioner died not directly from the infection but as a result of choking on her own vomit, a symptom caused by the infection.

A detailed investigation of the records found that the food samples submitted for microbiological examination had not been taken in accordance with the relevant Codes of Practice and Practice Guidance.

Samples had been maintained overnight in an office fridge that was too warm and this could have enabled the microbial levels to grow in the sample and give an unreliable result. Furthermore, for three days the sample of soup in the laboratory had been confused with a sample of custard.

The evidence, of which there was plenty, in fact had dubious integrity, and the case against the caterer did not go to trial. An unexpected result welcomed by Dr Stuart-Moonlight’s instructing solicitor.

Hygiene Emergency Prohibition Procedures (closure) and Pests in Food Businesses Persistence to carry on in the face of obvious danger is always surprising to those in the business of safe practice. Last year a local authority brought a leading hotel chain to prosecution for infestation after infestation within one of their premises’ kitchens and restaurants. Dr Stuart-Moonlight was instructed by the Council’s legal team. Her role here was (1) to comment on the sufficiency of the hotel’s claim of due diligence, (2) to comment on defendant claims that the enforcement action was unreasonable and (3) outline the risks associated with rats, mice and cockroaches.

Fatal Food Poisoning Outbreaks The businessmen’s dinner did not, fortunately, result in any deaths. However, two cases of fatal pathogenic food poisoning illustrate two other aspects of how the ‘day job’ historically as an inspector and currently as a consultant practitioner, crucially informs expert witness work.

The first was a landmark case with the most significant fine (pre-Sentencing Guidelines) in the food safety arena.

It was claimed that the infestations were largely historic but with good photographic evidence taken by the EHOs, it was clear that there were moist, plump droppings indicating that rodents were still present.

The evidence of all life stages of cockroaches meant that the infestation was very likely to have been long standing. The obvious dirt and defective structure contributed food and water resources and harbourage for the pests.

Christmas dinner at a hotel was a busy affair involving the cooking of turkey, which would then be reheated according to demand. While normal safe practice is to cook, cool, maintain chilled and then reheat, failures to adhere to the standard time/temperature combinations led a customer to die and dozens of others to suffer food poisoning from Clostridium perfringens.

The case examined the method of cooling and the time taken to cool the turkey. If cooling takes too long then Clostridium spores germinate and subsequent vegetative bacteria multiply to unsafe levels. The records for cooking and cooling of the turkey led Dr Stuart-Moonlight to question the speed with which it was claimed the meat had cooled down. As an experienced consultant and auditor she knew that meat does not normally cool as quickly in an ambient setting as the records suggested. Further, that with the numbers of covers to be delivered and staff on shift, time pressure would have been acute.

The hotel was a Grade II listed building, and Dr Stuart-Moonlight was compelled to question claims by the hotel’s expert witnesses that older buildings with their charming nooks and crannies had some sort of licence to accept a pest problem, almost an inevitability they suggested. Indeed, the sheer scale of the operation – a quarter to half a million meals per year - should have been matched by proportionate controls, she argued in her evidence.

The case involved a very intense and long meeting between the experts (two for the defendant and just Dr Stuart-Moonlight for the prosecution). For a week following the meeting several drafts of the joint statement were exchanged and finally, once agreed and submitted, the hotel chain changed their plea from not guilty to guilty.

In respect of the chef and his collaborating manager, the prison sentence did not relate to poisoning but to falsifying records about the details of cooking, cooling and reheating.

This is another example of how day-to-day consultancy work dovetails and informs expert witness work.

Having the knowledge of the records required, and what they would be expected to look like in an honestly completed fashion means alarm bells ring when falsified records are submitted. The manager and chef were jailed for perverting the cause of justice.

EXPERT WITNESS JOURNAL

Peanut Allergy Death When new legal requirements were implemented regarding allergen labelling in 2014, Dr StuartMoonlight was approached by the Food Standards Agency to provide nationwide training for EHOs and TSOs (Trading Standards Officers) on recognising 47

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compliance and enforcement of the Food Information for Consumers Regulations.

A significant element to the case was the question of whether it was possible to do an effective deep clean in the number of hours that a ship was in port between cruises. Calculating space volumes (as misting is one element of decontamination) of the number of cabins, public and back rooms within the cruise ship and reviewing this against the number of crews sent on board to decontaminate, the conclusion was that a full and effective clean could not have taken place.

One case notable in this field, not only for its tragic outcome but also for the resistance of the defendant to acknowledge culpability, is one of a curry house where a peanut allergic customer died from consuming a contaminated product.

The customer was very aware of his allergy and had specifically requested the takeaway meal he was ordering to be made without peanuts. Told that the product would be safe, he went ahead with his curry order, with fatal results.

Judgement found in favour of the claimants and although the cruise line subsequently appealed, the judgement was upheld.

Instructed by the defence, Dr Stuart-Moonlight examined the training records of the staff, including those of the chef, to ascertain knowledge and understanding in practice of cross-contamination. She also examined the effectiveness of management and supervisory controls of staff practices. Additionally, the supply chain was reviewed.

Norovirus Outbreaks Norovirus outbreaks are a recurring issue for civil litigation. The virus is easily transmitted and quite resilient. Unlike foodborne outbreaks, which may be modest as well as large in scale, Norovirus outbreaks often affect many people.

Cases frequently hinge on policies and procedures to: • maintain a safe environment through adequate cleaning and disinfection

The evidence suggested numerous defects in the management of food safety. The recurring practice of falsification of records also arose with a false training certificate. The restaurant had previously been alerted by another allergy sufferer, who had beenhospitalised after eating its food but had survived.

She, too, had received a verbal reassurance that the food did not contain peanuts. Against this backdrop the owner/defendant did not put systems right and at his trial continued to refuse to accept responsibility.

Whilst in prison, his appeal has failed.

• try to stop people already affected from entering a resort/hotel/food business/cruise ship. This is obviously not a practical control for hotels and food businesses • contain the virus once initial cases arise • step up cleaning and disinfection during an outbreak • decide when controls are failing and the resort/hotel/food business/cruise should close to new visitors

Civil Cases Holiday and Travel Litigation Examining procedures and the sequence of events is always crucial in expert witness work, and in the arena of holiday and travel litigation this can be more ambivalent, because people may have arrived with an illness rather than have caught it through practices by the holiday company/resort.

The virus is transmitted through the air as well as food. Where outbreaks arise in food businesses, policies and procedures associated with the effective exclusion of food-handling staff are critical. Sometimes they are the primary source of the pathogen, for instance if they vomit in the kitchen and the virus enters food. Sometimes food handlers become infected, just like visitors and diners. If they subsequently return to work too soon, they recirculate the virus through food, resulting in new cohorts becoming ill.

This was the assertion made by a cruise line in a case brought by numerous people who suffered Norovirus while on a cruise. Given that anyone could bring the virus onto a ship and it could be difficult to contain, it is likely that an outbreak might occur. But what made this case different was that there were Norovirus outbreaks on cruise after cruise. The implication was that the bug was residing on board and re-emerging with every new cohort of holidaymakers.

In analysing evidence in large outbreaks, particularly associated with holiday litigation, the illness recording logs are often key. They help show the profile of the outbreak, shedding light on the source as well as the perpetuation of the virus.

Since the company asserted that the virus was being brought on with each new batch of travellers it was necessary to look at its policy and procedures.

Cleaning and disinfection and protection from crosscontamination in the control of infected materials were key to see whether the cruise ship was working in a safe manner appropriate to the outbreak.

EXPERT WITNESS JOURNAL

Dr Stuart-Moonlight’s experience of working with businesses putting Norovirus control policies in place helps her to know what is possible and what is rhetoric when analysing Norovirus outbreak evidence.

Waterborne Infectious Disease Cryptosporidium is a protozoan that causes infectious 48

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intestinal disease and is not uncommon in the UK. It is highly resistant to chlorine and therefore outbreaks occur through public water supplies (often indicated by a ‘boil water notice’) and via swimming pool and spa water.

Dr Belinda Stuart-Moonlight is one of the UK’s foremost food safety and infectious disease experts, with over 15 years’ expert witness experience. She is tenaciously thorough, her growing reputation built on exacting attention to detail. Her numerous successful outcomes are grounded in scientific knowledge and ongoing experience of industry practice through her consultancy, training and auditing work. She frequently wins plaudits in her capacity as an expert witness in both criminal and civil cases:

The bug comes from faeces of animals or humans. A dead rabbit in a water supply tank was responsible for a large outbreak several years ago. In civil litigation cases the origin of illness is sometimes unknown.

Claimants list a range of observations about food and leisure pools/spas. Dr Stuart-Moonlight’s job in analysing the evidence, along with medical microbiologists, involves narrowing down the potential sources and scenarios that could have caused the symptoms and/or confirmed illness. In respect of Cryptosporidium, her experience and qualification in pool water quality management assist in reviewing evidence to help provide opinion on whether water was the source and if so, the effectiveness of its quality control.

Why choose Dr Belinda Stuart-Moonlight as your Expert Witness? ❖ Has worked on landmark cases ❖ Cardiff University CUBS certificate in civil and criminal arenas ❖ Every action instigated as EHO successful in Court ❖ PhD in microbiological risk and its legal context ❖ Daily experience of industry practice through consultancy, auditing and training work ❖ In large outbreak cases, she is fundamentally a breach expert (reviewing systems), complimenting causation evidence of medics and microbiologists ❖ Advisor to ABTA and Chartered Institute of Environmental Health (CIEH) for 10+ years Areas of work in the food safety arena include: Microbiological, chemical and physical contamination risk, food fitness, the due diligence defence, HACCP, staff training, travel related gastroenteritis, food poisoning incidents and outbreaks, food safety management and health risk criteria and statutory notices.

Areas of work in the infectious disease arena include: Norovirus on cruise ships, Norovirus in other hospitality settings e.g. hotels, other infectious intestinal diseases of protozoal, viral and bacterial origin, food poisoning and infections caught during employment such as Leptospirosis Areas of work in health and safety include: Suitability of Health and Safety policy, general and specific risk assessment, employer’s and employees’ duties so far as is reasonably practicable, accidents and safe systems of work, safety in kitchens and food factories and health in kitchens and food factories.

Conclusion Dr Stuart-Moonlight speaks with incredible passion and excitement about her chosen field. “I’m the luckiest person, I have a job I love and every instruction excites me with the prospect of learning something new. Cases are like mini PhDs and I so enjoyed doing my research.”

MOONLIGHT Environmental Web: www.moonlightenvironmental.co.uk Tel: +44 (0)1303 210004 Email: office@me-ltd.biz

Need an expert fast Call our free searchline on 0161 834 0017

Straddling so many disciplines keeps the work fresh, certainly. It is the requirement to delve beneath the obvious, however, that makes the work of the expert witness essential. Where local authorities may develop tunnel vision and fail to see beyond the norm or the prescribed; where laws put in place for public protection are made a convenience to avoid revealing poor practice; or where the seemingly obvious cause of illness is claimed as the truth – this is where the voice of a fresh, forensic mind can close the gap in the legal process.

Dr Louise Teare Consultant Medical Microbiologist and Director of Infection Prevention & Control MB BS MSc (Medical Microbiology), MBA, FRCPath NEBOSH Cert, Dip of Hospital Infection Control

An experienced clinical microbiologist who has made a significant contribution to national agendas and policy making groups on microbiology and infection prevention and control matters.

The essence of being able to opine on food safety issues in legal cases comes from continuing to work in the practitioner role. Teaching food safety at every level from how to wash hands to advising a Board on liability gives Dr Stuart-Moonlight regular contact with culture and understanding of issues within the field. Her continued auditing of abattoirs, food factories and caterers exposes her to current standards and practices. Her consultancy work with food industry clients means that she continues to provide safety management systems in a world of increasing technological innovation in the surveillance and recording of food and infectious disease. One thing that can be said is that the whole arena of food law is never, ever, dull. n

Special interests include; MRSA infection and gentamicin toxicity.

A member of the Vale of Leven Inquiry team into the outbreak of Clostridium difficile. A member of the Healthcare Commission Investigation Team reporting on “An Investigation into outbreaks of Clostridium difficile at Maidstone and Tunbridge Wells NHS Trust”.

Address: 64 Mill Road, Stock Ingatestone, Essex CM4 9LL Mobile: 07770 736 427 Email: louise.teare@meht.nhs.uk Website: www.consultantmedicalmicrobiologist.co.uk/

The views and opinions expressed in this article are those of the author and do not refer to specific individuals or companies.

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‘Tis the winter sickness season – when is someone Fit to Work?

The Christmas festivities are over, and as the dark days of winter are stretching out ahead of us, GP Surgeries in the UK are expecting a surge in patients over the Winter months. The NHS is also bracing itself for one of the worst Flu outbreaks in its history. This is also not good news for employers, who may see their workforce hit by illness and unable to work or worse still, feigning a bug to get a day off work.

Managing absence can be a minefield, and employers need to be clear in their approach, and consistent with all staff. So, how do you know when someone is fit for work? Or whether they are just pulling a sickie?

Read on to understand how employers can manage absence effectively, and the steps they can take to get employees back to work.

discretion and continue to pay staff at their usual rate, if they are off for a day or two. Others will not pay for the first three days’ sick leave, as is permitted by the Statutory Sick Pay legislation. It is critical you are consistent in what you do.

What to do with AWOL staff ?

If your employee fails to notify you of their absence from work, you should first try to make reasonable efforts to contact them. You may also want to consider whether to get in touch with the employee’s emergency contact if you have these details. There may be a justifiable reason to explain the absence, like an accident on the way to work.

Assessing absence You should have a policy in place for staff to notify their manager formally if they are too unwell to attend work that day. We recommend that your policy includes the requirement for the employee to phone their manager or HR, and prohibit emailing or texting. A phone call enables the employer to more clearly understand the nature of the sickness, and how long it is expected to last. It also means you can discuss any work scheduled for that day that may need to be handed over to another member of staff.

If the employee fails to call you by the start of their working hours, it becomes an unauthorised absence.

If you make contact with the employee, or they return to work, you will need to determine whether you consider the absence as unauthorised and potentially follow up with a disciplinary hearing. You should follow the disciplinary procedure documented in your Employee Handbook.

Returning to work after a long-term absence If an employee has been off on long term sick leave, a review meeting will help you both determine their fitness to work and whether a phased return to work is the best approach. You may want to consider getting an independent assessment to help you establish the employee’s fitness to work. Other considerations include: • Understanding whether the illness was caused by workplace factors e.g. stress or bullying, or an accident at work

During, or after the, call, you should also consider if the reason for absence is genuine: • Does the employee often call in sick?

• Is there a pattern to when the employee calls in?

We would recommend carrying out a Return to Work meeting after any absence, regardless of the length of time off. These meetings are designed to ensure that you are satisfied with the reason for the absence, and to bring the employee up to speed on any work they may have missed. They are also effective in reducing the number of non-genuine shortterm absences.

• Whether absence is related to a disability (as defined under the Equality Act 2010), which may recur

If you suspect an employee is falsely claiming or exaggerating an illness you should investigate and gather evidence as proof. This may involve reviewing their self-certification form, or their fit for work note. You may also want to seek their consent for obtaining a medical report from their GP.

• Whether the employee is capable of returning in the same capacity as their original role • Is it safe for the employee to return – both for them, and for other members of staff?

You are required to consider and make reasonable adjustments if a disability is involved. However, you may also agree to take certain steps to support the

Your absence policy or employment contract should also clearly state what your arrangements are regarding Sick Pay. Many employers may use their EXPERT WITNESS JOURNAL

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discussed can be made to provide support to a disabled employee to enable them to remain in work.

But just how do you determine whether an employee with a disability is “Fit for Work”?

return to work regardless – these can include: • reduced hours, or varied start & finish times • alteration of duties • relocating an employee’s workstation • purchasing specialist equipment it is worth implementing these steps for a trial period, with regular review meetings to assess their effectiveness

Start with a discussion with the employee – understand what their disability is, and the impact it has on them. There may be obvious adjustments that you can make that you can agree with the employee. For more complex cases, you may want the support of specialist medical advice – from GP’s, Occupational Health Specialists, Optometrists or similar. Our HR Medical Specialists are experts in supporting employers through the absence management process and can provide specific tailored advice for each case to help facilitate the return to work. Working in partnership with these services, and the employee, will allow you to determine how much of their role they are able to do.

What does “Fit for Work” actually mean?

You may be familiar with terms such as ‘doctors note’ or ‘sick note’, but these were replaced by “fit notes” in 2010. A fit note can be provided, free of charge, to the employee by their GP after the first 7 days of illness.

The fit note was intended to operate as a tool to help employees return to work, with the doctor assessing whether the health of the employee affects their fitness to work and identifying if they could return subject to some changes. Therefore, the GP should consider if the employee is either: • Not fit for work • Fit for work subject to certain possible adjustments

Cold and Flu season aside, determining whether someone is Fit for Work can be a complicated matter for employers. However, there are simple steps that you can take to help make the process clear and simple. Start with an absence policy that is communicated to all staff, and enforced consistently at all levels. You should also monitor absence levels to identify the early warning signs that you may have a problem.

An employee management platform such as Breathe HR, which we have successfully implemented with many of our clients, provides the tools to be able to track absence easily, and highlights any areas for concern before they become a problem. Open and honest conversations around absence and returning to work will help minimise the abuse of your policies.

If you are unable to fulfil the adjustments recommended by the GP, then the fit note must be treated as though it is advising the employee is “unfit for work”.

An employee may decide they feel able to return to work before their fit note states. If the fit note states they are unfit to work then you would need to establish that they are covered by your Employer Liability Insurance if they return to work early. You are not obliged to agree to an employee returning early to work, especially if you are unable to make the adjustments in time to facilitate an early return.

If you do have concerns about whether an employee is Fit for Work, don’t be afraid to seek professional advice. Every illness and every business is different, and what is reasonable for one business will not be reasonable for another. If you’re in any doubt about your responsibilities as an employer, then a specialist employment lawyer can provide the advice and guidance you need to manage your employees effectively, and avoid the cost and risk of claims later down the line.

Unfortunately, the aim of the Fit Note has not been fulfilled and in a further attempt to improve attendance at work the Government introduced another scheme – also helpfully named “Fit for Work”. This allowed GP’s and employers to refer staff for occupational health assessments if they were off work for more than four weeks. An announcement in December 2017 has been made though that the scheme is to be scrapped following its low take up. In its place will be a revised Government strategy aimed at getting more disabled people into work. Watch this space to find out what shape this will take.

Pam Loch, has specialised in employment law since being a trainee solicitor. Pam originally qualified as a Scottish solicitor and became dualqualified when she moved to a firm in England.

Disability and being ‘Fit for Work’ Workers with a disability have the right not be discriminated against by employers – these rights are enshrined in law by the Equality Act 2010. As an employer, you must consider and make reasonable adjustments to ensure that workers with disabilities are not disadvantaged when doing their jobs. It’s always worth noting that what is “reasonable” depends on each scenario, and factors like the size and financial resources of the employer are very relevant.

Many of the reasonable adjustments already EXPERT WITNESS JOURNAL

Head Office: Tunbridge Wells 01892 773970 info@lochlaw.co.uk www.lochlaw.co.uk Offices in; London, Edinburgh and Brighton 51

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The Assessment of Malingering

by Dr Imran Waheed FRCPsych “There were no real demons, no talking dogs, no satanic henchmen.

I made it all up via my wild imagination so as to find some form of justification for my criminal acts against society” [“Son of Sam” serial killer David Berkowitz].1 Deception is a frequent behaviour that occurs in day to day life. In the setting of the doctor-patient or lawyer-client relationship, self-disclosure is rarely complete and accurate and individuals are selective about how much they share with others.

psychological symptoms in order to avoid responsibility or punishment; escaping criminal liability is a common motivation to malinger. In civil cases, it is not unusual to encounter individuals who exaggerate symptoms for financial reward.

Malingering has been defined by the American Psychiatric Association as “the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives”.

Malingering itself is not considered to be a form of mental illness or psychopathology but although it can occur concurrently with mental illness.

Since it is unusual for people to admit they are faking symptoms, detecting malingering can be challenging, particularly for clinicians whose traditional relationship with patients is based on the assumption that a patient is in genuine need of assessment and treatment.

The consequences of failing to detect malingering can be the wastage of vital resources to the detriment of those who have genuine mental illness. In the medico-legal context, confidence in justice is eroded when individuals who malinger escape criminal liability or receive financial rewards.

According to DSM-IV-TR, malingering should be strongly suspected if any combination of the following factors is noted to be present: (1) medicolegal context of presentation; (2) marked discrepancy between the person’s claimed stress or disability and the objective findings; (3) lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen; and (4) the presence in the patient of antisocial personality disorder (ASPD). However, criticism has been levelled against this criteria and some have suggested that they result in a misclassification rate of over 80%.

The clinical assessment of malingering is usually approached through (1) Clinical interview, (2) Collateral information and (3) Use of one or more validated instruments (e.g. the Structured Interview of Reported Symptoms [SIRS].

One of the leading authorities on malingering, Richard Rogers, suggests that the clinical interview can unearth an unusually high number of symptoms that are rare or improbable. Rare symptoms are valid symptoms that are infrequently reported. Malingerers will sometimes endorse improbable symptoms although improbable symptoms are almost never reported even in severely disturbed patients. It is also important that the clinician pays close attention to evidence of inconsistency or contradiction when evaluating a suspected malingerer.

The distinction between malingering, factitious presentations and feigning is not always well understood. In contrast to malingering, factitious presentations are characterised by the intentional production or feigning of symptoms that is motivated by the desire to assume a “sick role”. Feigning is the deliberate fabrication or gross exaggeration of psychological or physical symptoms without any assumptions about its goals.

Malingering is important from a clinical and medicolegal perspective. In my own clinical practice, it is not uncommon to encounter patients who feign symptoms in order to obtain prescribed drugs or government disability benefits. In my medico-legal practice, I sometimes encounter individuals who feign EXPERT WITNESS JOURNAL

The study of collateral information including review of medical records, interviews with informants (e.g. relatives, other clinicians) and police reports and witness statements can uncover information that supports or refutes the self-reported symptoms of the individual being evaluated.

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In the medico-legal setting, psychometric evaluations using one or more validated instruments can provide a more objective measure of inconsistencies or contradictions in an individual’s presentation. There are a number of psychological instruments and structured clinical interviews that have been developed specifically for evaluating malingering. For example, the Structured Interview of Reported Symptoms is a structured clinical interview that may be used to differentiate malingered schizophrenia and mood disorders from genuine presentations.

Dr Ian Starke Consultant Physician in Stroke Medicine and Geriatric Medicine MSc, MD, FRCP (Lond), FRCP (Edin)

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

Dr Starke provides expert reports for clinical negligence and medical injury cases in stroke medicine and geriatric medicine and on fitness to practise.

Finally, while some clinicians and legal practitioners consider that malingering is very rare, large-scale surveys of more than 500 experts suggest that malingering is not rare in either the clinical or forensic setting. It is therefore important that malingering should be systematically assessed and evaluated when the outcome of an evaluation has important consequences.

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

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

The author Dr Imran Waheed FRCPsych is a NHS Consultant Psychiatrist and the Founder of www.psychiatricreport.com, one of the UK’s leading providers of expert psychiatric and psychological reports.

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The Role of the Psychologist as Expert Witness

by Dr Andrew Hale & Dr Malgosia Kwilman-Klelund - Surrey Psychologists I first started conducting expert witness reports approximately 10 years ago, these started with cases related to personal injury mainly from road traffic accidents and work place injury. They then evolved into forensic reports for the courts. The latter Initially, represented a slightly unnerving prospect since inevitably a higher authority is relying on my own personal testimony, prognosis and opinion in terms of what may relate to either a compensation settlement that has implications for the ability to manage a life or indeed a sentence, “custodial or suspended” that may directly effect an individual’s life and thereby future.

I guess in this way it carries a huge importance if we as psychologists are to be taken seriously.

hospitalised (immediately), let alone being able to give an objective and accurate interpretation of either the event leading to their injury (and the claim) or indeed any cognizant account of their background history.

The impartiality of the psychologist at this point is crucial, I frequently remind and bring to awareness at the beginning of assessment and prior to specific instrument completion the sensitivity of the tools being used, the implications of exaggeration on their potential claim and the need for truth.

In some cases, even an assertion of amnesia relating to the event may occur. Sometimes this may be a genuine response (in the case for example of post traumatic stress disorder - PTSD) although on occasion it might simply represent a method of absenting claimants from what may be a testing and challenging interview process. This can be, irritating and unnerving as an assessor, especially if I have an inclination as to “what on earth might be going on”. It has the feeling of a falsehood that may have “grabbed the legal system” and enabled people to “jump on the band wagon” to compensation and potentially profit!

As time has progressed these cases have also developed into personality assessments for courts, where there may have been cases of “diminished responsibility” and “intelligence testing” where the defendant may have had mitigating circumstances in their capacity to stand trial and competently give evidence. On reflection it has been a fulfilling aspect of my work and hopefully in some small part contributed to the justice of the British Court system. On balance the duration of assessment varies depending on the questions posed by the retaining lawyer, and it has certainly brought me, personally, in touch with many interesting people and predicaments. This article aims to illustrate the role of the Psychologist as expert witness and also identify some of the potential conflicts that may exist and the clear boundaries that need to be drawn in my position.

The Diagnostic Manual for Mental Disorders-5 recommends that malingering should be strongly suspected if any combination of the following four conditions is found: 1) The person is referred by a lawyer.

2) There is marked discrepancy between the person’s claimed stress or disability and the objective findings.

In terms of the psychologist’s duty to the court the use of reliable and valid psychometric instruments in assessment is essential. Nevertheless, there is the possibility that claimants particularly in personal injury cases may exaggerate symptoms in order to over optimise potential compensation in their favour, otherwise known as malingering. This unfortunately is a problem that can occur when quite often claimants feel as though they have been adversely effected by the perceived actions or non-actions of others. It however, in my experience, usually has the reverse effect if employed, “truth is the key”.

3) Lack of co-operation.

4) The presence of an antisocial personality disorder (which may be tested for in forensic cases where the history warrants it).

The first point is particularly interesting since most referrals come from lawyers, and sometimes, I will ask myself if someone in this position would truly have the state of mind and organisation of thought to go through this “hellish” process. As mentioned above, even seeing a lawyer (in some cases) therefore raises a suspicion!! I would in many circumstances rather see a priest!!

In general, I find the vast majority of claimants to be honest in their responses but sometimes there are occasions where exaggeration becomes so obvious that one would wonder how the individual managed to travel to the assessment in the first place. Their symptoms would indicate that they should more readily be EXPERT WITNESS JOURNAL

Although a strong suspicion may be a useful start in making a diagnosis in a medical setting, it is too speculative to be of much use in forensic or psychological settings. In the medical setting, accurate diagnosis is necessary as a foundation for 55

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effective therapeutic management (Overholser 1990).

Triers of fact in judicial venues are more interested in veracity or truth-telling at a point in time in relation to such issues as sanity, competence, specific intent and credibility. Credible expert testimony regarding the probability that these conditions are being faked or malingered therefore requires the support of robust psychological test data (Schretlen 1988).

missed opportunities that occurred. I just wished he could possibly have recognised this at the time, but it may come in the future!

In other situations, the role of the psychologist in assessment could if not “checked” become blurred.

For those clients suffering PTSD there is the possibility that the recounting of their “story”; the accident, the attack, the war (as encountered with asylum seekers) may be relived in the form of “flashbacks” in the assessment process. Some may talk of the “loss of loved ones”, death, and the immediate “threat of death” to themselves in circumstances that stretched way beyond their ability “to control”.

On the personal injury front, the injuries that I have encountered are quite naturally mixed and vary in their persistence and intensity. I recall the assessment of a young man who had become paraplegic as a result of a road accident involving an uninsured driver.

It was evident that his lack of mobility, the fact that the family had to move home to a bungalow in order to accommodate his needs and that all sexual functionality had been lost (leading to the end of a seemingly healthy relationship and the sense of loss associated with it) would in most cases lead to the assumption that he would answer questions and psychometric instruments in a way commensurate with his injury. In other words, the medical veracity of his condition would seem to be without doubt! But for some reason, for him, I don’t think any of this really sunk in! All this occurred as he moved around in his wheelchair offering and insisting to give me a drink and breaking two coffee cups due to his physical incapacity in the process.

On occasion, the interviewee may reach a point where “emotional breakdown takes place”, the risk of this and their potential well-being needs to be considered at all time, care, empathy and compassion need to be provided within the framework of impartiality. At this point, I as a practitioner, am drawn to remember the “core conditions for therapeutic change” of empathy, congruence and unconditional positive regard (Rogers 1957) without actually utilising them from a therapeutic change perspective. This is not our role and may lead us to a sense of paralysation!!

On several occasions it has been the case, that the process has simply been “too much” for a person to manage in one session, noticing the signs either physical, emotional or psychological that may offer clues to this impending state is important. Interview, cessation therefore takes place in a sensitive and gentle way before alternative interview time can be arranged. A good working relationship is therefore required between psychologist and lawyer in order for the process to reach completion with adequate patience on all sides. This specifically involves the patience of the psychologist who may be loaded with a busy work schedule!

As I worked through the 4-hour process of assessment it became clear that he appeared to be in almost complete denial of any problems that currently existed in his life. His profile would suggest, that this was someone continuing with life in the way they always had, tending to suggest that any admission of physical limitation or psychological injury would make “real” the level of the predicament that he was in, and subsequently lead to a sense of “personal devastation” in terms of identity and capability. The psychological component and admission of it could for him have also led in some way to the sense that he was “weak”!

I have encountered the above in the case of asylum seekers, one I recall from Darfur in Sudan and another having fled the potential threats of the “Islamic Revolutionary Guard” in Iran. Although both different in their nature, the threat of imminent death to self and / or others was present. The client from Sudan had witnessed the destruction of his village and the killing of several villagers including family members by the “Janjaweed” militia (that operate in Western Sudan and Eastern Chad). It was clear in this case that the presence of Post Traumatic Stress Disorder (PTSD) had persisted for several years, the client reported nightmares, flashbacks on a daily basis and a sense of separation and loss of his family who resided in a refugee camp along the border. It is sometimes difficult to remain detached from their plight, but sadly that is what we must do as psychologists in order to maintain an objective opinion, which the courts require!

I recall discussing the possibility of psychological treatment (since this was part of my instruction by the retaining lawyers) in order to aid, in some form, but this was not surprisingly declined. It and he, on the other-hand could of course be an example of extreme resilience in a major life changing situation and this should not altogether be discounted, but I somehow just couldn’t believe it, unless he was a true hero.

Either way, it is important to consider and draw attention to the possibility of future deterioration in mental health with a client so young, there is the future to be taken into account, whether that be 10, 20, 30 or more years hence, in which the psychological manifestations of his injury could compound leading to a sense of regret about the path of his life and the EXPERT WITNESS JOURNAL

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On the one hand this client had hoped for asylum in the United Kingdom along with his family, and on the other he feared the possibility of being returned to a country and region where his life was at high potential of risk. The difference in language (since assessment was conducted through an interpreter) made it more difficult to “pick up” on the precise essence of the interviewee’s condition, however sensitivity to the tremor in the voice, emotional presentation (tears) and the need to halt the procedure for the client’s short and medium term safety seemed important.

In my role as an expert witness, I have also been called upon to give evidence in a particularly disturbing road rage incident in which a driver who was seemingly on his way to work as on “any other day”, like we do, was provoked by tailgating along one of Southern Britain’s motorways.

All this “stuff ”, would highlight the need for a high quality interpretation service conducted in continuous fashion with the elimination wherever possible of potential bias that may incur, due to the shared cultural background of the interpreter and the client.

Since it is largely their word and the translation that we are provided with that leads to wherever possible the genuine truth (we see those beautifully constructed interpretations at the UN, but these one’s, I am afraid are “often” not the same). In these circumstances the potential risk of suicide needs also to be evaluated and reported to the necessary care team to minimise risk to human life. How often interpretation services may lead to this sort of bias I don’t know, but understanding and acceptance of it is significant in creating an either balanced or imbalanced report!

The question arises as to whether this was a deliberate act of violence or through provocation resulted in what many of us would have felt that we needed to do in order to protect ourselves from extreme provocation. The prospects were not particularly good but through in-depth interview reliable personality testing and character witnesses from his employer the custodial sentence was reduced to the minimum level that it could have been in the circumstances.

To cut a long story short, the event led to an altercation in which a previously hardworking and “upstanding” member of the community delivered a punch to his assailant of such veracity that it resulted in the death of the incumbent.

Indeed, I recall the deep remorse that was encountered. He cried throughout his custody at the police station and was unable to hold any food down for a period of three days. This was surely not the response of a genuinely violent man and it seemed that the judge and court took this into account during the sentencing procedure. So although the role of the psychologist in court often “does not serve a central part” of the proceedings, it nevertheless carries a weight with it that is given due consideration in the final adjudication.

The client from Iran was different, in his case he had fled his country after forming a relationship with a Christian woman, he, originally a Muslim, “had converted”. A family member had reported this to the authorities and he was rapidly via an, “agency” rushed out of the country, since the general belief was that religious conversion under the Revolutionary Guard warranted “execution”.

I have found that, psychological assessment and the progression of the legal process do not necessarily flow in the same timescale. The assessment is a reliable measure of the client’s condition at a specific point in time and it is often likely that the prognosis and diagnosis may alter as trial dates start to emerge, frequently these may be anything up to 2 years or so in the future. This is specifically the case if the client has undergone a course of treatment in order to address the psychological issues and their cause.

He made his way over several months and via many states by night-time lorry (being packed into the payload with others and a mixture of transported goods).

The journey was uncomfortable to “say the least”, at times so he told me, “freezing cold”, at others “boiling hot” and the treatment by various authorities, harsh.

The psychological treatment process represents another delicate issue in that although many of the presenting symptoms of PTSD or another condition may have relinquished it may not be in the “innate” interests of the claimant to state or acknowledge that “improvement” has taken place since this would render the effects of their claim potentially redundant, inadmissible or reduced. This particular aspect can lead to frustration, “why not, if you are ill”, get help, don’t wait for money, that may not come your way! Or otherwise are you really that ill in the first place! It leads us generally, in life to think carefully about what is most important “or not”! After all there are some very good practitioners out there that will enable you to resolve the underlying problem and enable you to

Eventually, this client reached Calais, where he spent some time living in “The Jungle” which was described

by Human Rights Watch (2017) as “Like Living Hell”.

He reached the United Kingdom where asylum was sought, the feeling of loss and separation was evident in his presentation and awareness and monitoring of his presenting state via interpreter throughout assessment was necessary again to ensure safety.

These two examples give some of the reality of the path that the psychologist as expert witness needs to tread, the maintenance of impartiality but the demonstration of appropriate care for the “person”.

How is it possible to balance these? It is a simple question but probably a more difficult answer!

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move on without wasted years and often unnecessary torment.

often provides information that contributes to pretrial settlements.

There is also the possibility that the repetitive reliving of events whether in asylum cases or personal injury may exacerbate the trauma related issues that the claimant may be experiencing, this occurs in the case of medical examinations, for personal injury claimants that may often be painful and also act as powerful reminders. Of the original event I have found on several occasions that the claimant may in retrospect wished “never” to pursue the legal action had he or she been aware of the additional “trials, examinations and retributions” that they would encounter before a trial date had even been set. I just have to sit there do my job and “listen intently” to what is going on for them.

At this point the retaining lawyer may decide that the results are not useful for the pre-trial strategy and the expert is simply thanked, paid and not listed as a witness. Under these circumstances the expertise of the witness is privileged and may not be revealed to anyone without the explicit permission of the lawyer who retained the report. So much of the psychological process of assessment can remain hidden and the work that was done merely disappear into the ether.

If a case remains unsettled a trial will commence in which an allotted period of time is prescribed, this time is necessarily approximate and an experienced expert will understand that these periods are flexible. Some are inevitably settled on the courthouse steps, but nevertheless it is important to recognise that the expert witness forms a “relatively small part” of the procedure although an important one. The procedure will inevitably follow a specific order but judgement and decisions may often be deferred by the presiding judge.

A refreshment and review of all the relevant information is required in the run up to a court appearance. Inevitably with time having passed this can be a challenge in terms of the particular nuances of the assessment meeting, notes relating to the client’s presentation and timing of emotional reactions during the course of interview and associated triggers leading to them becomes an imperative in terms of conveying the emotional state of the claimant when directly asked in court. If a claimant’s presentation during this time has changed either in terms of improvement or deterioration, another meeting with the claimant’s solicitor may be required and also pre-trial conferences with the retaining lawyers concerned.

In terms of preparation and to avoid any potential mishaps it is highly important that the psychologist as mentioned arrange a pre-trial conference with the retaining lawyer before the court appearance. During this time all the following should be determined before the witness is called to the stand.

1) Questions to be used in qualification

In the cases of asylum and immigration, if court appearance is not required there can be the tendency for lack of information regarding the case outcome and so from this perspective the psychologist may never fully understand the implications and outcome of the work carried out. Being able to separate from the report and develop an acceptance at this stage is therefore useful otherwise one can often be left with a sense of “what did it all lead to and where did it go?” i.e a sense of non-completion. However, in the long run I feel that leaving this to the court to decide and placing the outcome psychologically in it’s hands to be an appropriate and useful perspective to take.

2) Sequence of questions and expert’s responses in the direct examination

From a psychologist’s perspective the chances that you will prepare for the role of the expert witness and then step into the courtroom to give testimony are basically slim. Most civil and criminal trials are settled by negotiation and research indicates that for every 15 or 20 cases that the expert witness prepares, he or she is likely to give testimony in only one (Blau 1998).

As mentioned this can be disconcerting to some psychologists who more than likely experience a sense of incompletion. In reality, justice and the promotion of human welfare are probably better served when the expert’s work results in a conclusion before a trial commences. In this way expert testimony, available to both the plaintiff and defence in criminal matters

8) Any special limitations the physical environment of the courtroom may pose for presentation of charts and other visual materials.

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3) Hypothetical questions the lawyer is likely to pose to the witness following direct examination.

4) The limits of the psychologist’s findings 5) Probable approaches to be used by opposing counsel during cross-examination.

6) Something about the demographics of the jury members.

7) The presiding judges style and special expectancies

So overall my work as an expert witness has been an interesting and fulfilling experience, in some ways I hope it has had a fair and positive impact on the cases of the very interesting individuals that I have met. I hope that it has enabled the courts to decide on a satisfactory conclusion for those concerned. In addition, I have found that it is important to remain humble in one’s opinion and leave the decision making to the higher authorities concerned, acknowledging that on some occasions the impact of the work may never be 58

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truly realised. Remaining patient in the fact that a sense of non completion may often be the case!!!

Dr Krishnaswamy Madhavan

References

Consultant Clinical Oncologist

Blau, T.H (1998) The Psychologist as Expert Witness. John Wiley & Sons, New York

FRCR, Royal College of Radiologists, General Medical Council I am a Consultant Clinical Oncologist with a special interest in Head and Neck[including Thyroid] and Gynaecological Oncology.I am a member of the Haemato-Oncology and Skin Cancer groups with a particular focus on Radiation Therapy in these tumour sites.

Overholser, J. (1990) Differential diagnosis of malingering and factitious disorder with physical symptoms. Behavioural Sciences and the law, 8, 55

I have been part of the development of the centre to it's present status as a leading provider of cancer care and modern radiation therapy. In the 20 years experience in oncology,I have participated and been Principal Investigator for several studies,National and European.I was appointed Clinical lead for the Essex Cancer Research Network[NIHR-CRN] from it's inception to reorganisation of networks[2009-2013].

I have led National and Regional Audits and have been a member of the Essex Research Ethics Committee [REC].

Rogers, C (1957) The Necessary and Sufficient Conditions of Therapeutic Personality Change. Journal of Consulting Psychology, Vol. 21, pp.

95–103.

Schretlen, D. (1988) The use of psychological tests to identify malingered symptoms of mental disorder. Clinical Psychology Review, 8 451

I have actively supported the National Cancer Peer Review Programme as a reviewer.I am a Member of the Quality Standards Advisory Committee[QSAC] of the National Institute of Health and Care Excellence [NICE].

Contact Details Dr Andrew Hale CPsychol AFBPsS andrew@surreypsychologists.uk

I am a member of the Faculty board of the Royal College of Radiologists.

Contact: Dr Madhavan Southend University Hospital Prittlewell Chase, Essex SS0 0RY Telephone: 01702 385 655 Email: ksmadhavan@me.com

Dr Malgosia Kwilman-Klelund CPsychol AFBPsS malgosia@surreypsychologists.uk Surrey Psychologists info@surreypsychologists.uk www.surreypsychologists.uk Tel no: Dr Andrew Hale 07801 762833 Tel no: Dr Malgosia Kwilman-Klelund 07770 554 016

Optimum Medicolegal

Optimum Medicolegal are specialists in the rapid turnaround of psychiatric and medicolegal reports with a premium service delivered by a panel of Consultant Psychiatrists.

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.

Optimum Medicolegal have significant experience of preparing medical and psychiatric reports since 2009.

We have prepared over 2,000 medico-legal or psychiatric reports for legal firms and private organisations. Our Expert Witnesses also have Courtroom experience.

Private rooms are available for consultations at; St John Street in Manchester.

Harley Street in London.

Optimum Medicolegal also have multilingual experts, details available upon request

Address: Suite 202, 792 Wilmslow Road, Didsbury, Manchester M20 6UG Tel: 0161 207 0204 Email: info@optimummedicolegal.com

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Working in the Family Court as an Expert Witness

by Dr Georgina Hibbert, Clinical Psychologist. BSc Hons, DClinPsy Working in both a Child and Adolescent Mental Health Service (CAMHS) and independently in private practice has allowed me to see a whole spectrum of children with a wide range of mental health difficulties. The children I come across in independent practice and those I meet through my NHS work, often seem to represent a social dichotomy.

Often other professionals and clinicians are involved in the same case and so the work involves communicating with other disciplines. Sometimes court timescales mean that I only get sight of their reports at the last hour. On occasions, when parents do not cooperate, there can be little background information available. Local Authority assessments can help to shed light on the family history, but the nature of the cases often means that secrecy and untruths are a part of the family make-up. At times, it is evident that this way of being is so engrained in the family life that it has been passed on to the child/children and I come across children in my assessment for whom protecting the truth from professionals has been part of their experience of growing up. This is particularly evident in cases where domestic violence or alcoholism features. A thorough assessment therefore involves interviewing as many informants with knowledge of the child as possible, so as to best understand their behaviour and emotional presentation over time and in different settings.

As well as working therapeutically with children, my work in private practice encompasses carrying out clinical psychology assessments for the Family Court.

This is one of the most interesting aspects to my role as a clinical psychologist. Whilst the work involves bearing witness to stories of abuse, and usually at the more serious end of abuse, it can be hugely rewarding and fascinating.

When I begin an assessment, I hope to meet the whole system around a child and their family, as I need to understand the family history going back generations. My training as a clinical psychologist has enabled me to work across the lifespan, and this is essential in trying to make sense of the reasons and intentions behind the abuse. For example, I aim to look for intergenerational patterns of abuse, experiences of parenting and being parented, mental health histories and learning profiles. Without looking at the whole family system, I cannot fully understand the experience of the child within it.

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Regularly I am asked to comment on whether or not I believe a parent is able to meet the psychological, physical and social needs of their child or children.

The more complicated cases are often where there has been a history of one parent failing to protect their child or children from a violent or abusive partner. In my experience this has in the vast majority of

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recommended that four siblings aged between two and nine remain together in their foster placement, which would come at a serious financial cost to the Local Authority. This was a lengthy and complicated assessment as the youngest two were of an age at which they would have most likely been adopted.

However the strength of the sibling bond between all siblings was so evident, and had served as such a strong protective factor against the effect of abuse and separation from their parents, that I deemed a life in a loving foster placement together to outweigh being split.

cases been a mother who has failed to protect her child or children from a violent partner. The mother has not been able to prioritise her children’s needs above her own and to leave the relationship. This is due to a complicated mixture of factors. Amongst others these can include: a lack of resilience, a history of being abused themselves, a low cognitive profile, drug dependency, fear of violence, low self-esteem and a lack of any support network. The child/children have often experienced a great amount of love and nurture at times from their mother, but this has been interspersed with incidents of abuse by their father or mother’s partner. When I am instructed to comment on whether or not a mother is capable of caring for her child/children in the long-term, I need to weigh up the effects of these periods of abuse, against the mother’s ability to provide consistent love and nurture, and her understanding of these effects. This helps me to reach a decision about whether or not the mother is able to protect the child/children in the future. Sadly, in most cases, the mother has already been offered several opportunities by Local Authorities to prove she is able to permanently break from the relationship. Cases like these, and also ones that involve parents who misuse alcohol or drugs are the more emotionally challenging ones to deal with, as the love the parents have for the child/children is clearly evident.

One of the most stressful parts of the role as an expert witness has to be giving evidence in court. Sometimes solicitors representing four different parties are questioning me. Having a detailed knowledge of my report and assessment is vital if I am to be able to make my argument in the stand. There is no excuse for tiredness or even illness! Having given evidence several times now, and in different courts, the familiarity of the process is comforting, but the anticipation of the experience is always difficult. Whilst some cases have been challenging to say the least, on the whole I come out exhausted but satisfied that I have played a part in helping to make a decision about a child’s life - perhaps the most important decision that will ever be made about that child.

Many of the cases I am involved in include carrying out a ‘Sibling, Together or Apart Assessment’. The challenge here is often the knowledge of the longterm effect of my recommendation. My recommendations are always supported by scientifically grounded research and evidence regarding factors that minimise placement breakdowns. Sadly my recommendations occasionally involve having to prioritise the needs of one or two children above the needs of a sibling. For example, if it is unlikely that all children will be able to remain together due to a lack of foster or adoptive placements able to take all siblings, or if two younger children are of an age at which they are more likely to be adopted, and/or may have less challenging needs than an older sibling, my recommendation may be for the younger ones to be placed together so as to ensure a sense of permanence and stability. This recommendation is made with the knowledge that it will have serious repercussions for the older sibling, and they will struggle to understand the reasons for it. Whilst foster carers and adopters are often encouraged to maintain contact between siblings, in reality this is not always possible due to geographical locations, different priorities or sometimes because the contact is too painful and difficult for one of the children.

Graham Rogers & Associates Limited Consultant Psychologists M.Sc., (Ed Psych) M.Sc., (REBT) B.Sc. (Hons)., PGCE., Dip. REBT., C. Psychol., AFBPsS

Experience and Expertise in Psychological Assessment Experience at The Central Criminal Court, providing reports and live evidence.

Qualified as a Psychologist for over 26 years’ Former Head of Department Experienced within both the NHS & Local Government Experienced in working with offenders within the community Contact: Mob: 07952 170 627 Email: info@grahamrogers.org.uk Web: www.grahamrogers.org.uk

My role as an expert witness is always to have a duty to the needs of the child and this sometimes involves making recommendations that do not fit with the Local Authority Care Plan. For example, last year I EXPERT WITNESS JOURNAL

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What can Experts and Judges Learn From Cognitive Psychology?

Are we Biased and, if so, How?

by Koch H, Cosway R, De Haro L & Kon T The main process steps of civil litigation and the involvement of expert witnesses, barristers and judges are linked to the several main branches of psychology (figure 1 overleaf), and their effects on the behaviour of both judges and expert witnesses.

Introduction Legal psychology (LP) involves the application of empirical, psychological understanding and research to the law, legal institutions and law-centred professionals. LP applies to many areas of civil litigation such as expert, counsel and judicial decision-making, interviewing and evidence gathering, inter-professional and claimant – professional communication.

Together, legal psychology and forensic psychology form the field more generally recognised as ‘Psychology and Law’ (1).

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The interface between psychology and civil law has been discussed and illustrated in terms of communication/social psychology (2) and conflict resolution psychology (3). The interface between medico-legal case reporting and commentary and clinical opinion (4) has also been noted.

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Figure I:

As a result, those interested in how decision-making is informed by cognitive psychology, consider meta cognition or “the thoughts we have about our thoughts”. This involves positive monitoring our own thinking and behaviour and understanding how to apply specific cognitive strategies to arrive at robust decisions. We know that professionals develop schemata which leads them to consistently react in either a positive or a dysfunctional manner.

This paper continues the theme of these previous publications by discussing the crucial importance of cognitive psychology, decision making and bias to the impartial and robust delivery of opinion and justice in civil claims.

Judges, Experts and Civil Justice.

For the purposes of this article, Judges and Experts are both highly trained professionals who are faced on a daily basis with complex evidence and decisions.

There is a paucity of UK & USA research on judicial or expert decision-making behaviour. Both are being encouraged to be more actively involved in either case management (judges) or complex evidence scrutiny (experts). The changing nature of these roles require a re-think of how information and research such as Law and Psychology can interface. Some information is available on decision making in appellate courts (5) and in written decisions, dealing with concepts such as neutrality of the senior judiciary (6). The literature indicates little about how judicial and expert work and decision making occurs, how they manage uncertainty and contribute to justice. The business of judging (7) and of providing expert opinion (8) is complex and it is essential that thinking processes and the effects of cognitive bias are well understood and managed.

Logical paradox and seeking quality opinion.

Experts, barristers and judges are frequently confused by apparent paradoxes in evidence which significantly shape their opinions. These professionals may not always be aware of these paradoxical situations and logical incoherence (9). Unless one is able to recognise and manage these logical dilemmas, it is inevitable that the quality and robustness of opinions will be inevitably compromised. Such logical errors are the subject of this paper based as they are in cognitive psychology and its emphasis on bias, dilemmas, traps and snags. It is difficult to apply high level reasoning to evidence but a starting point is to be able to analyse logical rules from a cognitive psychology perspective.

Dilemmas and Paradoxes in Differential Diagnosis.

Clinicians, of any profession, understand that when faced with ambiguous claimant data they must consider a range of opinion and help the court understand the logical reasoning behind their diagnostic findings. Equally, the concepts behind symptom duration, severity, and, ultimately, veracity and reliability compound this clinical paradox. Clinical and legal professionals carefully analyse arguments for logical consistency (10).

Cognitive and legal psychology: Appropriate bed fellows?

Cognitive psychology (CP) is the study of thinking, language, perception and problem solving. The main focus is on the way we think and how this affects our behaviour. We know that when we listen, think or ‘attend’ to information we do this in a selective or divided way, focusing on some messages more than others. Concepts like the ‘cocktail party effect’ and ‘Gestalt’ effects are relevant here i.e. the ability to attend to one thought or conversation in the face of many others. Dealing with quantities of information relies on memory which has a variety of facets (semantic, accessibility, levels of meaning, temporal). Perception and interpretation of stimuli both physical and psychological affect our behaviours.

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Am I biased?

Cognitive biases are tendencies to think in certain ways that can lead to systematic deviations from rational judgment. There are approximately 200 types of cognitive bias that can affect our opinion-forming and decision making. Figure 2 below shows common examples of these.

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Functional Fixedness – Narrow or fixed ways of thinking or solving problems.

Fig 2 - Common examples of cognitive bias: Anchoring: The tendency to rely too heavily on one piece of information.

Bias blind spot: The tendency to see oneself as less biased than other people.

Irrelevant Information – Having information to digest which serves no purpose in helping solve a particular problem. This makes solving relatively simple problems much harder.

Confirmation Bias: The tendency to search for, focus on and remember information that confirms one’s preconceptions.

Common thinking errors in legal professionals.

Cognitive distortion can be seen in all professionals working in civil justice from time to time.

These distortions are logical but not rational. They create real difficulty with thinking (11). We all occasionally make these thinking errors shown in Fig 4:

Fundamental Attribution Error: The tendency to over-emphasise personality-based explanations for behaviour observed in others while under-emphasising the role and power of situational influences.

Fig 4 – Common Thinking Errors.

1. All-or-nothing thinking: Seeing things in black and white categories. A mistake means we are a total failure.

Projection Bias: The tendency to overestimate how much our future selves/behaviour will stem from one’s current thoughts and values, thus leading to sub-optimal or less accurate choices or decisions.

2. Overgeneralisation: A single negative event as a never-ending pattern of debt.

The common underlying causes of cognitive biases are a limited rationality, low costs of being biased/wrong, and/or cognitive dissonance (aiming for a consistent, explanatory belief). Professionals display certain traits in their susceptibility to decisionmaking biases such as over-confidence and bias blind spot (unawareness).

3. Disqualifying the positive: Positive experiences are rejected by insisting they ‘don’t count’ for some reason. A negative belief that is contradicted by everyday experiences is maintained.

4. Jumping to conclusions: A negative interpretation is made even though there are no definite facts that convincingly support this conclusion.

Problem solving in a legal context.

Legal professionals problem solve using many different methods, sometimes in an organised manner, irrespective whether the problem is illdefined (no clear goals, paths or expected solutions) or how well the problem is defined. Both logic and problem clarification are used to understand what rules could be applied to solving a problem. The problem-solving cycle (the process of problem definition, information organisation, solution evaluation) involves techniques listed in Fig 3 below:

5. Magnification (Catastrophising) or minimisation: You exaggerate the importance of things (such as your goof-up or someone else’s achievement), or you inappropriately shrink things until they appear tiny (your own desirable qualities or other fellow’s imperfections). This is also called the binocular trick.

6. Emotional Reading: You assume that your negative emotions necessarily reflect the way things really are: “I feel it; therefore it must be true”.

7. Should Statements: You try to motivate yourself with should and shouldn’t, as if you had to be whipped and punished before you could be expected to do anything. “Musts” and “oughts” are also offenders. The emotional consequences are guilt. When you direct should statements towards others, you feel anger, frustration, and resentment.

Fig 3 – Problem Solving Skills Brainstorming Subdivision into smaller solvable problems Hypothesis testing Lateral thinking Proof Root cause analysis Trial and error testing

8. Labelling and Mislabelling: This is an extreme form of overgeneralization. Instead of describing your error, you attach a negative label to yourself.

“I’m a loser”. When someone else’s behaviour rubs you the wrong way, you attach a negative label to him.

“He’s a goddamn louse”. Mislabelling involves describing an event with language that is highly coloured and emotionally loaded.

Common barriers to problem solving include: Confirmation Bias – unconscious or unintentional collecting of data in such a way that favours a preconceived notion.

Mental Self – Using techniques that one has become accustomed to rather than new, innovative or simpler methods.

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9.Personalisation: You see yourself as the cause of some negative external event, which in fact you were not primarily responsible for.

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5. Woolf L (2008) The Pursuit of Justice. Oxford University Press.

6. Darbyshire P (2005) Darbyshire on the English Legal System. Sweet and Maxwell London.

7. Bingham Lord (2011) The Business of Judging. Oxford University Press.

8. Koch HCH (2017) Legal Mind: Contemporary Issues in Psychological Injury and Law. Expert Witness Publications.

Manchester.

9. Merten T (2017) Logical Paradoxes and Paradoxical Constellations in Medico Legal Assessment. Psychol. Inj. & Law. 10,264-273.

10. Anderson JR (2015) Cognitive Psychology and its Implications. New York. Wortt Publishers.

11. Burns D (2000) Feeling Good. The New Mood Therapy Revised & Updated. Harper. London.

12. Cross FB (2007) Decision Making in the US. Courts of Appeals. Stanford University Press. California 13. Genn H (2008) Judging Civil Justice. Cambridge.

14. Young G & Brodshey SL (2016) The 4 D’s of Forensic Mental Health Assessments in Personal Injury. Psychol.

Injury & Law. 9, 278-281.

Reflective Practice for judges, counsel and experts.

The ability to reflect on one’s actions and engage in a process of continuous learning and intellectual improvement is crucial, and informs everyday professional practice by deliberate reflection on experience.

For many professionals, this may be the most important source of personal professional development and improvement. Reflective practice (RP) provides professionals with opportunities to critically review what has been successful in the past and where improvement in practice can be made. Typical skills of RP include seeking feedback, identify daily lessons, valuing personal strengths and accomplishments, empathising, planning for and creating one’s future practice.

Conclusion Many thousands of cases processed by the judiciary and by Expert Witnesses are managed and decided upon even if they never reach final adjudication in court. It has been suggested that cognitive patterns about decision making are best investigated within the everyday expert witness and judicial determination made in the lower courts rather than the analysis of reasoning in the Superior Courts (12).

15. Koch HCH, Newns K, Cosway R (2016) Managing Uncertainty in Experts: What are the key issues? Expert Witness Journal.

Greater understanding of the reality and practice of judicial and expert witness work will result in more precise identification of what it takes to be a good judge or a good expert in terms of specific skills necessary for such complex and demanding performance (13).

All authors can be contacted via www.hughkochassociates.co.uk For correspondence, contact lead author at Hugh Koch Associates, Festival House, Jessop Avenue, Cheltenham, GL50 3SH or at Hugh@hughkochassociates.co.uk.

Special training programmes, expert and legal supervision and increasingly validated guidelines for legal and medico-legal practice are essential (14) both for new professionals and experienced professionals needing continuing education. Research is currently underway on Expert Uncertainty (15) and a similar study involving the judiciary is planned.

Hugh Koch Associates, established in 1993, provides a comprehensive and independent psychological and orthopaedic assessments service plus access to a psychological treatment service, throughout the UK.

More recently, it has been supported that judges be provided with ‘toolboxes’ of concise guidance to help raise their awareness of scientific topics (e.g. medical conditions, engineering premises, statistics). It is recommended that they also be provided with clear guidance on how psychological processes affect the decision making process utilised by both judges and experts.

Hugh Koch Associates offer expert witness services including psychological, neuropsychological, orthopaedic, and pain Assessments. We offer a rapid assessment of specialists and experts throughout the UK who have been involved in one of the following situations: Personal Injury Types of situation: Road Traffic accidents (car, bike, lorry, pedestrian) Train Accidents (driver, passenger) Work Accidents Medical Accidents Assaults Emotional, Physical and Sexual Abuse

References 1. Wikipedia (2017) Legal Psychology. www.wikipedia.org.

2. Koch HCH, Humphreys K, Byram V, Livingstone L, Wilson S (2017) Communication Psychology in Civil Law: The Microskills of Impartiality & Neutrality. Expert Witness Journal. 14.10.17.

Natural Disaster Accidents Refugee and Asylum Seeker Mental Health Problems Brain Injuries Work place stress (bullying, harassment, relationship conflict and workload-related) Health Issues (physical and psychological) including anxiety, depression, drug misuse and chronic pain

3. Koch HCH (2017) Conflict Resolution Psychology and Civil Litigation. PIBULJ. November.

In addition, we also provide psychological therapy carried out by experienced therapists using up to date treatment techniques such as Cognitive Behavioural Therapy.

4. Koch HCH (2016) Medico-legal Case Commentary: The Psychology of Justice: The Interface Between Psychology and Civil Law. Mathews Open Access Journals. July 2017.

1(1):005.

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Telephone: 01242 263715 - Fax: 01242 528299 Email: enquiries@hughkochassociates.co.uk - Web: www.hughkochassociates.co.uk Head Office: Hugh Koch Associates LLP Ground Floor, Festival House, Jessop Avenue, Cheltenham, GL50 3SH

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Finding the Ideal Dental Expert for your next case

by Professor Paul Tipton Introduction One of the biggest problems facing the legal profession currently is the inability to find suitable experts for a case.

NHS Payment System One of the factors that drive dental decisions is the payment system. In the UK, the NHS payment system primarily revolves around activity payments (either fee per item or units of dental activity – UDA’s).

The current remuneration scheme (UDA’s) in Health Service Practice in England & Wales impacts the daily decisions that dentists make. Quite simply, if your payment mechanism encourages prevention, then prevention will be provided. On the other hand, if your payment approach encourages restorations or extractions, then restorations or extractions will take place. To give an example, a dentist receives the same payment for an extraction as he/she does for a root filling. Whilst an extraction may take 5-10 minutes, a molar root filling may take one hour.

According to research conducted for the British Dental Health Foundation, consumer confidence in Dentists is at 88%, far higher than that of doctors and twice as many people value their relationship with their dentist over their doctor (19.7% to 9.9%), yet dental litigation figures are going through the roof.

Dentists are now twice as likely to be sued than they were 10 years ago according to figures from Dental Protection. This is despite reports from the Care Quality Commission that dental patients are at lower risk than those being seen by any of the health provider.

Consent There is a professional and ethical obligation to find out what our patients want to know as well as what you think they need to know. Following on from the Supreme Court judgment in the Montgomery case, there is now legal obligation to do the same. Consent is not a matter of bombarding the patient with technical information or a smorgasbord of choices that are either specifically related to the patient or tossed into the conversation simply to fulfill the ethics of giv-

The current clinical negligence landscape has arisen due to the current NHS system of payment and a deskilling of new dental graduates.

Dentists face an ethical imperative to promote what is best to the patients and this beneficial approach to care is balanced with a desire to avoid harm if possible.

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The Bolam test is applied in law to assess whether or not the defendant in question has committed a breach of duty, and is guilty of negligence. It clearly states that a dentist is not deemed to have been negligent if he/she has acted in accordance with a practice accepted as proper by a responsible body at the time the event occurred.

ing all the options or appropriate for the clinical situation.

The best known definition of ‘consent’ comes from the Department of Health which says it is “the voluntary continuing permission to the patient to receive particular treatments, it must be based upon the patient’s adequate knowledge of the purpose, nature, likely effects and risks of that treatment including the likelihood of its success and a discussion of any altenative to it including no treatment.” Montgomery replies that clinicians translate their professional knowledge into something meaningful for the average patient. The dentist is required to inform their patient about risks, which the individual sitting in the chair would be likely to attain significance to. Unless the patient is informed of the comparative risk of different procedures, they would not be in the position to give their fully informed consent to one procedure rather than another. However, dentists are not paid for treatment planning and giving alternatives, but only for treatment.

The law does not expect the dentist to be aware of every recent development in medical science but they would however expect that the procedure or technique has become well proven and well accepted before it is adopted.

The GDC however expect clinicians to provide good quality care based on current evidence.

Causation Proving negligence is only half the battle though.

Once negligence has been identified, the claimant then has to prove causation. This is why the experts report is required.

Identifying causation is the most important factor in a case and is often overlooked by some experts. Each expert must understand that it is not enough to simply just to deal with liability, for the case to have merit.

The claimant must prove that the patient would have had a much better prognosis but for the defendant’s negligence.

The consent checklist involves: • Is the patient old enough and capable of making decisions?

• Have I given the patient sufficient information about the treatment?

• Does the patient understand what treatment they have agreed to?

The but-for test is used to identify causation. I.e. but for the negligence, the resulting outcome would have been far better/ the injury would not have occurred.

Thus the negligence in question made a material contribution to the severity of the injury.

• Does the patient know their risk susceptibility status?

• Does the patient know what his or her own involvement is?

If a defendant is deemed to have been negligent, but the resulting damage would still be the same, then there is no case as causation has been disproved.

• Does the patient understand the risks and benefits of the treatment?

• Has the patient been given alternatives?

Periodontal Disease Negligence cases take the most amount of time, are often highly complex and can involve multiple dentists over a period of time during which the patient was treated. This is especially in the area of periodontal disease where lack of care, treatments and diagnoses may have been going on for a decade or more; the patient has seen multiple dentists who have continued to misdiagnose the disease process. This becomes difficult to apportion the negligence percentage to each of the dentists involved in the case.

• Does the patient understand all the costs involved?

• Have I provided any written information about the treatment and preventive procedures?

Breach of Care A patient must prove there was a breach of duty of care in failing to reach the standard of care expected and they suffered harm/losses as a result (causation) and that harm was foreseeable and not to remote.

The periodontal disease types of negligence cases that we see in Dentistry are due to a lack of diagnosis and lack of treatments which has in turn led to tooth loss.

These teeth then need to be replaced, usually with dental implants. Dental implants are a very costly treatment and usually not available in the health service and often, should the negligence have led to loss of many teeth, then treatment cost can be in the region of £50,000 in order to replace these missing teeth with implants.

The key issue is what the standard care pertaining to the time for that particular clinical situation was and whether the dentist did something a reasonable dentist would not have done alternatively did not do something a reasonable dentist would have done in that particular situation. This is the ‘Bolam Test’ and still a relevant standard that applies some 60 years after the judgment was handed down.

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abroad in some of the complex issues of the newer techniques in Dentistry. Due to government cutbacks and lack of funding, often some of the newer graduates are graduating from dental school without basic knowledge and without having performed some of the basic dental tasks. This then leads to a lack of confidence on the dentist’s part which can be reflected in the quality of treatment that is provided. In general, many of the newer graduates from home and overseas may be de-skilled in many practical dental procedures that the experienced dental practitioner takes for granted.

Tooth Extractions The second most common cause of negligence is due to tooth extraction where it has not been explained to the patient that there are other options which could lead to the tooth being saved. If they had been fully informed they would have taken another route which would have led to their tooth being treated. This is often the result of the extraction being an easier but not always better option to complex restorative treatments to save the tooth. Again, once the tooth has been removed the usual replacement is with the dental implant and a single tooth replacement is often in the region of £3,000 to £4,000.

Dental Experts Expert witnesses, however, now operate in a regulatory and legal environment. It is much more onerous than it was 10 years ago. Not only can any participant in the court case or indeed an outside observer refer an expert witness to the relevant professional regulator but litigators themselves can also sue their own expert for damages if they think the expert is being negligent. So there is a serious professional risk.

In the latest British Dental Journal, there was an article on “The GDC – a law unto itself ”, which is well worth reading by the legal profession and describes exactly why today’s dentist are worried about being reported to their own regulator (the GDC).

Cosmetic Dentistry More recently, we are seeing complex cosmetic treatments for which the dental practitioner is either inadequately trained for or does not provide the patient with a reasonable estimate of the costs and outcome, alongside the pros and cons of such treatment. Here, the more expensive treatments include dental implants, cosmetic dentistry with veneers, etc., and also short-term orthodontics.

Patients are very often disappointed when having veneers or crowns placed, as the end result does not match their expectations which can again lead to a claim. Most dentists often do not complete enough diagnostic work in advance of treatment, so that the end result can be easily previewed by patients and amended as required.

This is why many experts have now closed their books or do not take on this type of work anymore especially the complex negligence work.

Dental implants have a failure rate and this is often overlooked. The expected failure rate has always been in the region of 5% in the lower jaw and 10% in the upper jaw. More recently, however, there is periimplantitis disease which has led to an increase in these rates. Again this is often overlooked during the treatment planning stage. The patients have the assumption that their implants will last them a lifetime.

Choosing a Dental Expert The increase in dental litigation combined with the paucity of dental experts means that finding the right expert for each particular case is incredibly difficult.

This has obviously resulted in a lack of quality experts for litigants to choose from.

The choice of dental expert should be based on the understanding and knowledge of their field and someone who has over 10 years of general dental practice. Alternatively, dentists who have gone on to have further education in a particular field, such as Master’s degrees or Specialists in Periodontics, Endodontics, Orthodontics, Prosthodontics, General Dentistry and Implantology, and finally to Professors or Consultants when required for more complex cases.

Prosthodontics My specialty of Prosthodontics deals with the replacement of teeth and this can be via crowns, veneers, bridges and implants. Prosthodontics would also include treatment of the temporomandibular joints and bite. This treatment is often wholly performed by dentists who have inadequate training in the field of occlusion (bite). Being a Specialist in Prosthodontics and a Professor of Restorative and Cosmetic Dentistry gives me an overall view of all the fields involved in Restorative, Cosmetic and General Dentistry which is essential when writing reports and coming to opinions as to plans and treatments.

The term involves the word ‘expert’ for a reason, they should have expertise in their particular field and not just be practicing in it, that shouldn’t qualify. There is definitely a positive correlation between who the best experts are and their knowledge and expertise within their particular field. Their CV, qualifications, professional standing, reputation and experience bears witness to their level of expertise.

Dental Education Dental education has also impacted upon the current climate. Dental education has changed massively over the years and I have been involved in it very closely with my company Tipton Training. We have trained dentists over the last 20 years both in the UK and EXPERT WITNESS JOURNAL

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Experts should always communicate in a non-technical language that can be easily understood by the judge and tribunal. This goes for the experts report as well. A good expert report should always be structured in a clear and concise manner, easily understood by all, as well as citing all the relevant facts, the investigation, the references, the analysis, the reasoning and the conclusion.

of an expert is to provide clarity and reasoned judgement on the complex issues and facts within the case.

Duties and Responsibilities It’s a necessary trait that an expert has familiarity and demonstrates a clear understanding of all the procedural requirements for giving evidence in a court of law. They must conform with the requirements set out in Part 35 of the Civil Procedure Rules.

The final key quality a good expert presents is decisiveness. The expert must draw on their knowledge to form a decisive opinion based on the relevant facts presented in the case. When fact-based opinions aren’t possible, an expert needs to be decisive and provide, to the best of their ability, an objective and accurate opinion based on the balance of probability. It is imperative the expert is able to understand the difference between what a dentist might to and what a dentist ought to do in any given situation.

An experts duty and responsibility is to the court only, it is their duty to help the court on matters within their expertise. Experts must remain impartial to the case as their goal is to present an independent view that is objective of the case in question. The eventual outcome of the case should have no bearing on the experts decision making. As their primary duty is to the court, they must present an honest, impartial and rational opinion based on the relevant case facts, even if that means acting against the best wishes of the party by whom they have been instructed.

Selecting the Right Expert Thorough attention is required when reviewing a case. An expert must give careful attention to his or her instructions, ensuring that they scrutinize all relevant medical and dental records and witness statements from which to draw their conclusions.

Impartiality starts before instruction. Before accepting any instruction, the expert must ensure that there will be no conflict of interest in the case in question, i.e. that the eventual opinion formed by the expert will be free from emotional attachment, bias and prejudice. This will obviously not occur should the expert have a prior relationship, on any level, with the defendant in question for instance.

Paying attention to detail helps to present a balanced but clear view of the case at hand, particularly the standards and accepted body of opinion that was used at the time the supposed negligence occurred. A good expert must always pay attention to the accepted body of opinion at the time of the event to adjudicate whether negligence has occurred by comparing the treatment facts with the then accepted treatment guidelines. In these time-lapse instances, it can be very important to choose an expert who was in practice during a similar timeframe. Likewise it is key that when selecting an expert witness for cases of the not too distant past, the expert in question must still be practicing and be up to speed with the now accepted body of opinion.

Emotion can manifest itself not just as a result of a prior relationship, but also due to ones own past experiences. Previous experiences may result in a positive/negative relationship with one viewpoint and for example, perhaps a feeling of sympathy towards the defendant. Bias has thus been created and neutrality towards the case lost.

Expert Witness Training It is also important to have continuity when choosing an expert and knowing that they have been through adequate training in the expert witness field and have enough experience in that field to write reports which are legible, easy to read and precise. It is essential to understand a basic knowledge of the legal system so as to help the court reach its opinion if required. It appears that accreditation from a recognised body is increasingly becoming a prerequiste of many instructing litigants.

Professor Paul Tipton is a Specialist in Prosthodontics and visiting Professor of Restorative and Cosmetic Dentistry at the City of London Dental School. He has provided post-graduate education to dentists via his training business, Tipton Training Ltd for over 25 years.

He is Clinical Director of T Clinic, where he practices Dentistry alongside other experts covering the length and breadth of the UK. He himself has be an expert witness for over 25 years and as such is well versed in both providing reports dealing with the highest complexities and helping identify negligence and causation through his screening service.

Understanding of the Literature Although there are very few cases in which an expert will physically end up in court, it is still paramount that they have the ability to communicate and present information well. A dentist may be correct in their opinion but unless they can fully explain and justify their opinion by reference to the relevant facts and dental/medical literature, then their opinion will be less convincing and thus will carry less weight. Therefore the ability to explain the relevant anatomy and physiology in layman’s terms to the court is crucial.

EXPERT WITNESS JOURNAL

To find out more about Professor Tipton, his screening service or other experts at T Clinic, please call us on 07786 327978 or email us at experts@tclinic.co.uk.

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phone: 07786 327978 email: exper ts@tclinic.co.uk web: www.tclinic.co.uk

T CLINIC Legal Experts with nationwide coverage

LOOKING FOR A DENTAL EXPERT WITNESS FOR A NEGLIGENCE CASE? Professor Tipton is a Specialist in Prosthodontics and Professor of Restorative and Cosmetic Dentistry and is one of the UK’s leading dental expert witnesses. Regularly featured in the top 20 most influential people in Dentistry in the UK (Dentistry Magazine), he and his team of Legal Experts at T Clinic have extensive experience dealing with a range of negligence and personal injury cases.

He has assembled a team of leading clinicians and expert witnesses who work at T Clinic nationally in all of the various fields of Dentistry – from leading Professors and Specialists to experienced private general practitioners.

We know how important it is to have the right expert for each case therefore we will assist you in choosing the most suitable expert prior to commencement.

All areas of Dentistry are covered including General Dentistry, NHS and Private, Cosmetic and Restorative Dentistry, Implantology, Oral Surgery, Orthodontics, Periodontics and Endodontics.

To secure the services of one of the legal experts at T Clinic, please call or email today.

T Clinic’s commitment to clients: • To deliver expert witness advice as leaders in the field of Dentistry in a timely, professional and concise manner.

• All clients’ appointments occur within two weeks of instruction with a further two weeks needed for each of T Clinic’s experts’ to produce their detailed report.

• To issue concise, accurate and clear reports to assist the courts with their decisions.

• To ensure communication is paramount throughout the process.

• We offer some of the best rates in the UK for dento-legal reports, often half the price of other experts.

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Chronic Post Surgical Pain

by Dr Nigel Kellow MB BS FRCA MBA - Consultant in Pain Medicine Surgery almost always involves some degree of cutting, burning, sawing, drilling or hammering of human tissue, either to fix a problem or to facilitate access into the body to get to it. This is inevitably going to hurt. Thankfully, modern anaesthesia permits surgery to be undertaken safely nowadays which could not have been contemplated in the past.

International Association for the Study of Pain (IASP). It is described here as:

“An unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage.”

Pain is entirely subjective. It is what the patient says it is and can neither be more, nor less. If the patient says something is painful, then it is painful. If the patient says it is the worst pain they can imagine, then we have no objective diagnostic tests to tell them that it isn’t.

There are things we can do to minimise the amount of pain patients experience in the early post-operative period, such as local anaesthetic nerve blocks and the use of adequate amounts of strong painkillers, but it would be a rare patient indeed who gets through a whole peri-operative surgical period without some surgical pain.

The problem of assessing pain This is one of the criticisms levelled at the visual analogue pain score (VAS), which is the standard method used to quantify pain. In its purest form a 10cm line is drawn on a piece of paper and a patient is asked to indicate a point, by drawing a line across it, to indicate the amount of pain they have, ranging from 0, being no pain at all, to 10, being the worst pain they can possibly imagine. For the same painful stimulus one person’s 10 could be another person’s 3 because multiple subjective emotional, personality and additional factors contribute to the VAS indicated by the patient.

But what is a “normal” level of pain? How long should it last? How should we manage it? When does post-surgical pain change from being expected to a problem? When it is recognised as a problem, is it the result of negligence or a recognised complication? Is there a clear binary distinction between negligence and a recognised complication?

Not surprisingly there aren’t simple answers to all of these questions but I hope you give you some idea of how you can get answers to some of them yourself, some of the time. However, chronic post-surgical pain (CPSP) is a significant problem in pain clinics with 22.5% of patients in one study citing surgery as the cause of their chronic pain.

This can present problems to the medical expert asked to assess a patient in pain. In the personal injury claim setting there is probably an issue of compensation. The term “secondary gain” is used to describe benefits people may get from not overcoming a problem. For example if, during the meeting and clinical examination with the expert, they are able to persuade the expert that they have more pain and disability than they really do, they may be able to extract higher financial compensation.

There are problems around the definition of CPSP. For example, while an early research paper suggested pain persisting 2 months after surgery should be classified as CPSP, patients after some specific kinds of surgery, such as spinal fusions, can be expected to have some pain for six months or longer. This is further complicated by the amount of pain patients may have had before surgery, how long they had had it, and importantly, the doses and duration of any painkillers they had been taking.

While we have to accept what a patient tells us their pain is, we don’t have to rely entirely on the VAS. Fortunately, there are other well-known scoring systems that we commonly use in clinical practice to assess patients’ ability to do simple tasks such as washing or dressing, or the impact pain may have on their lives.

But these aren’t fool proof either, so in practice, the examination of a patient in pain starts from the moment the expert first sees them as they call them from the waiting area into the consulting room.

There can also be some confusion over the specific symptoms a patient may be experiencing that taken together they call “pain.” This is a good point to introduce the definition of pain. Whilst it may seem obvious to you right now, it may not be in a few lines time.

Do they look as if they can sit comfortably in a chair?

How easily can they stand up or walk? Are there any walking aids? Do they make eye contact? Are there any non-verbal indicators suggestive of pain? Are there any signs suggestive of exaggeration? If possible the expert should watch them after the consulta-

What is the definition of pain?

The definition of pain that is in widespread accepted use by pain specialists around the world is that by the EXPERT WITNESS JOURNAL

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tion. This is a particularly important time, when they are normally relaxed and do not feel they are subject to examination. Can you see how they leave the clinic? Can you see them getting into a car?

Anaesthetists frequently use local anaesthetic techniques to make this period more comfortable – typically local anaesthetics injected around the major nerves that carry pain signals from the knee to the brain, or injections of local anaesthetics and strong opioid analgesics into the cerebrospinal fluid surrounding the spinal cord and nerve roots.

Patients with CPSP may not describe symptoms or use words we would normally associate with our concept of pain, but to them feelings of tingling, numbness or increased sensitivity can be painful.

Frequently patients describe a symptom as being something other than pain as either they or the doctor to whom they’re talking would normally understand, but they say that the sensations they feel are so unpleasant that they stop them from sleeping, concentrating or from having normal social interactions.

Their symptoms then, are consistent with the IASP definition of pain.

As soon as we do anything to the body we start to run the risk of procedural complications, and these attempts to alleviate early post-operative pain are no exception. Although uncommon there are risks associated with both of these procedures. The attempted injection of substances around large nerves can damage them if injected directly into them, because large nerves are collections of tens of thousands of nerve fibres held together by a membrane. Any kind of liquid injected into these nerves can damage them by increasing hydraulic pressure within them, reducing their blood supply below a critical level. It is also possible to damage these nerves through the action of inserting a needle into them, as most needles have a sharp cutting bevel, without which it would not be possible to pierce the skin. In order to reduce the incidence of damage to nerves by the bevelled cutting edge of a needle, skilled anaesthetists would frequently use a cutting needle to puncture the skin, and then a blunt needle to deliver the drugs around the target nerve.

How much pain, and for how long, is “normal”?

In terms of a “normal” level of pain there is no such thing, but for any operation, in any individual patient, or group of patients, a “normal distribution” – to use a statistical term – of the level and time course of pain exists in the post-operative period. To use an example of a knee replacement operation, these are notoriously painful operations that generally take several months to get over, and the early post-operative period can be very painful. A few patients get through a knee replacement without appearing to have much pain at all. These stand out as outliers. Most patients have severe pain in the first few days, which gradually and progressively reduces over the coming weeks, but a few patients are at the other end of the spectrum and have persistent pain in the knee for months or years after surgery.

If faced with a claim for a nerve injury related to attempted local anaesthetic blockade it would be important to consider in detail the conduct of the procedure. Similarly, sharp needles can cut the dura mater surrounding the spinal cord, allowing cerebrospinal fluid to leak out, resulting in what can be a

Ajit Ambekar MCh.Orth., FRCS(Eng), EWI

Consultant Orthopaedic Surgeon Cardiff University Law School Certificate as Medico-legal Expert

I am able to prepare expert witness reports and give evidence in court in my specialist areas of: • Orthopaedics and Bone and Joint Trauma • Muscle-tendons, peripheral nerves and soft-tissue injuries Extensive experience in management of fractures in adults and children (Exception: certain types of pelvic and cervical spine fractures.)

I will act for either claimant or defendant and also as a Single Joint Expert (Exception: ‘Breach of Duty’ Report in Clinical Negligence arena.)

As a Member of the Expert Witness Institute, London, my reports are in compliance of CPR 35, corresponding Practice Directions and the Civil Justice Council Protocol for Expert Witnesses.

As a Fellow of the American Academy of Orthopaedic Surgeons with Expert Witness Affirmation I am also able to provide percentage evaluation of Permanent Impairment, ‘DASH’ Score and the Judicial College Guidelines Category of Disability for international jurisdictions.

I am prepared to undertake reasonable travel if necessary.

T: 020 7467 8309 / 07922 607 948 E: aa@ortho-trauma.uk / ajit.ambekar@me.com 10 Harley Street, London W1G 9PF

EXPERT WITNESS JOURNAL

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Neuromas are a type of nerve injury, and while they can be straightforward to treat, nerve injuries in general are amongst the most common, and in many cases, hardest to treat, causes of CPSP. There are nerves throughout the body from the brain and spinal cord, in and around most organs, to every square millimetre of skin. Damage to any one of these can in lead to the creation of long term painful problems.

whopping headache if patients attempt to stand up.

This is known as a post-dural puncture headache (PDPH), and even with the pencil point needles that are most often used nowadays there can be an incidence of up to 1% even in skilled hands. This is a complication, but can it be the result of clinical negligence?

Patients undergoing knee replacement surgery are generally older and have degenerative spinal problems that distort the anatomy, making it harder for practitioners to find the necessary gap between vertebrae to insert a needle into the spine, increasing the risk of complications. But if one practitioner has a significantly higher incidence of PDPH or nerve injury after local anaesthetic blockade than another, so long as their patients and other circumstances are essentially similar, it may mean that one practitioner has more skilled hands than the other, but can this difference alone amount to negligence? Or do other factors have to be taken into consideration before such a judgment can be made?

Thoracotomies are operations inside the chest. They are normally undertaken through a skin incision that follows the line of the ribs, following which a retractor is inserted, which is wound open to push the ribs apart so the surgeon’s hands and instruments can get inside the chest cavity. They are a common cause of CPSP by two factors – mechanical disruption of the joints between the ribs and the spine at the back, or sternum and costal cartilages at the front, or by compression of intercostal nerves by surgical retractors.

Pain after hernia repairs The tragic incidence of chronic pain and other problems after vaginal mesh surgery has been widely recognised but in terms of numbers the incidence of CPSP after groin hernia repair surgery is probably greater, with up to 35% of the 75,000 patients a year who have groin surgery suffering from CPSP. In common with all cases of CPSP there can be one or more causes in each patient, so it would not be uncommon for an individual patient to have a combination of nerve injury and an autoimmune mesh reaction as the causes for their pain. Both can be difficult to treat.

The incidence of nerve injury after groin surgery may be higher than it should be, but it is not normally possible to anticipate before using mesh whether a patient will have a chronic sub-clinical autoimmune inflammatory reaction to it.

If the blocks have been successfully performed patients should be comfortable for the first 24 hours after surgery but when they wear off the pain can be severe. The surgical and nursing teams doing these operations know the amount of pain patients are generally likely to have at any given stage of their care pathway but there are inevitably some outliers.

Normally post-operative pain would be at its worst immediately after surgery when the patient is in the recovery area, but the use of strong intra-operative analgesics and the increasing use of local anaesthetic nerve blocks has meant that the worst pain typically starts several hours, or in some case a day or more, after surgery. This is normally controlled with analgesics of steadily decreasing potency until patients have been fully mobilised and can be safely discharges home on mild to moderate strength painkillers.

Pain after spinal surgery Perhaps the single greatest cost of CPSP to the NHS, or indeed any advanced health system, is persistent pain after spinal surgery. One in twenty-five patients undergoing spinal surgery can get an infection at the surgical site, which, even if successfully treated can cause tissue damage resulting in CPSP. Around one in every twenty patients undergoing lumbar spinal surgery develops new numbness or weakness from damage to a spinal nerve or from the formation of scar tissue around it. And up to one patient in every three continues to have pain after surgery or develop problems again within a few years of surgery.

Nerve injury is one of the most frequent causes of CPSP CPSP can be so common after certain types of surgery as to be almost expected. One such example is after limb amputations where the incidence of phantom limb pain (unpleasant sensations envisioned in part or all of the newly absent amputated limb), or stump pain (typically pain and increased sensitivity within the stump and frequently located at the end of a cut nerve) occur in varying degrees in up to 9 out of 10 patients.

The incidence and cost of treating CPSP after spinal surgery, as well as the incidence of complications after it, are so high that the main medical indemnity societies, the Medical Protection Society and the Medical Defence Union, decided in 2017 to end their cover for spinal surgeons. This withdrawal of cover extended to spinal surgeons only operating in the NHS, meaning they had to rely on NHS indemnity. Spinal surgeons operating privately had to either abandon

Fortunately, pain after amputations normally settles down over weeks or months, and if it persists one of the common causes of stump pain is a highly sensitive bulbous tip on the end of a cut nerve, known as a neuroma. Whilst falling under the definition of CPSP these can generally be sorted out quite easily with fairly simple treatments.

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their private practice or find alternative arrangements.

all of whom try every time they go onto the pitch, or into the operating room, to do the best they can.

It will come as no surprise to you that surgeons are not all created equal, and out of the recognition that surgeons differ in their levels of skill and experience grew niche insurance business offering indemnity to spinal surgeons on a personalised basis based on their specific work, experience and claims history. This has meant that some surgeons with a poor claims history have not been able to get cover and are therefore no longer able to operate privately. This is an example of the application of hard data to eliminate surgeons with a high complication rate from patient care.

While there may be individual mitigating factors in each case, taken as a whole, is it such a bad thing?

However, while they may have been excluded from operating on private patients they will still have NHS indemnity if they operate on patients in the NHS.

If, however, he was to pass the ball to his opponents or score an own goal, would that automatically make him reckless? Everything he does on the pitch is watched by hundreds of thousands, if not millions of people both in the stadium and on TV, so his every movement is subject to intense scrutiny. There are no CCTV cameras in operating theatres. Some have suggested there should be but there is no likelihood of that happening in the near future. So, if a patient develops CPSP after surgery it is often not possible for someone who wasn’t in the operating theatre at the time to confidently determine whether it was as the result of a complication that should be accepted, or negligence.

But what kind of complications should we consider acceptable, and at what incidence? Sometimes it is easy to tell if there is evidence of a surgeon or other doctor having knowingly done something reckless.

But if one spinal surgeon has a 5% incidence of CPSP due to nerve root injury or scar tissue formation, while another has a 15% incidence, that can take a long time to get noticed. The people most likely to notice something different in the way the two surgeons operate are the surgeon’s assistant in the operating theatre or the scrub nurse, but as we have identified CPSP cannot be diagnosed until the patient

Persistent back and leg pain after spinal surgery is so common that it has its own syndrome – FBSS, which is the abbreviation for Failed Back Surgery Syndrome. The financial costs of FBSS in terms of lost income, compensation and treatment are huge. In one US study researchers estimated the cost of FBSS, in 1990 prices, to be $18,883 per year.

When is chronic pain after surgery the result of negligence?

Surgery is not an exact science. Performing operations on the body; making holes in it; putting one’s hands inside another person’s body; permanently changing the anatomy of another human being in order to try to help them is inherently fraught with risks, so it is inevitable that complications will occur. If every factor is the same – same surgeon, same anaesthetist, same patient, and so on – with only the day of the week different, it has been shown that there is a higher chance of death in operations carried out on the later days of the week than on Mondays or Tuesdays.

Prof Charles M Court-Brown

Looking at the example above of the different incidence of complications between different surgeons doing the same operations, does that mean that the surgeons who can no longer get insurance cover to perform spinal surgery are inherently negligent?

Doctors all know who they would see for any particular problem, and conversely who they would avoid.

It’s the same in any profession, or indeed any walk of life. Some people are just better at some things than others.

Professor of Orthopaedic Trauma - MD, FRCS Ed (Orth)

Based on the frequency with which he has won the Ballon d’Or, which for people who are not familiar with football, is the award for the male footballer judged by journalists to have been the best footballer over the previous year, Christiano Ronaldo is currently the best footballer in the world, having won it four times in the last five years. Like some surgeons, he has a set of skills that cannot be matched by rivals,

He has written 9 books and over 160 papers on trauma and its treatment. He has extensive medico-legal experience and averages about 300 new instructions annually.

EXPERT WITNESS JOURNAL

Professor of Orthopaedic Trauma at the University of Edinburgh. He has a particular interest in the management of orthopaedic injuries, including both upper and lower limb injures and fractures of the pelvis, spine and neck (including whiplash injuries). He has extensive experience in the surgical management of all fractures and in the treatment of complications related to fractures.

He has considerable experience in emergency and trauma surgery and has extensive knowledge of the injuries caused by road traffic accidents, falls, trips, assaults and other hazards.

Contact: Prof C M Court-Brown Address: Craigesk House, Lothianbridge EH22 4TP, Tel: 0131 660 4227 - Email: ccb@courtbrown.com

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agnosis, as is sometimes the case, can never be fully relieved of their pain. Some of these patients may have lost their jobs or relationships before getting to a Pain Clinic. They need multi-disciplinary specialist care from medical consultants, pain psychologists, specialist nurses, physiotherapists and occupational therapists. They need optimisation of their medications, sometimes advanced pain therapy techniques such as neuromodulation, and many are helped by pain management programs.

has had it for two months or more, so it is only normally picked up at post-operative clinics.

Chronic pain after surgery is often the result of many factors Unless the outcome from surgery is as binary as life or death after paediatric cardiac surgery, it can be difficult for an expert to determine whether there has been clinical negligence or a complication that should be accepted.

The most important factor about CPSP, by a wide margin, is to refer on to specialist care as soon as it is suspected, in order to give the patient the best chance of a good outcome.

Cases resulting in permanent severe harm to a patient, where clinical negligence is suspected, are infrequently given the forensic microscopic analysis that is often needed to determine what actually went wrong. While attention is inevitably, and rightly, focussed on the surgeon, Contemporaneous environmental factors should also be taken into consideration. It would be wrong to excuse a surgeon if the scrub nurse had kept making errors, or if the ideal equipment had not been available, or if there was too much noise in the operating room so the surgeon was not able to keep concentration, but these factors should be borne in mind. It is of paramount importance that the surgeon be given the optimum conditions to ensure the highest likelihood of a good outcome and the lowest likelihood of a bad one, but as we have seen CPSP can occur as the result of an anaesthetic procedure. And if it arises as a long term consequence of infection it is rarely possible to identify the source.

Dr Nigel Kellow MB BS FRCA MBA Consultant in Pain Medicine The Wellington Hospital, London

Need an expert fast Call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk

Surgical site infection can occur as the result of bacteria from the patient’s own body become pathogenic in the wound, such as from organisms commonly found on the skin. When this occurs there could be many reasons for it. The skin wasn’t cleaned properly. The drapes became contaminated at some stage. Some bacteria entered the patient’s blood stream during intravenous cannulation before surgery. Bacteria were in advertently transferred by a member of the scrub team into the wound from an area of skin that had not been prepared. If infection does not come from the patient it could come from the surgical instruments, from a member of the scrub team, or indeed from anyone in the operating room.

Mr Nikhil Shah Consultant Trauma and Orthopaedic Surgeon FRCS(Tr & Orth), FRCS(Glasg), MCh(Orth), MS(Orth), DNB(Orth).

I provide medico legal reports in personal injury in various conditions - trips, slips, whiplash injury, hip surgery, complex pelvic acetabular fractures, long bone and articular fractures, ankle, lower limb injuries, hip/knee joint replacements, periprosthetic fractures, soft tissue injuries and LVI cases.

I also provide clinical negligence related reports in my specialist area of practice concerning hip and knee replacements, revision surgery, and trauma including pelvic-acetabular fractures.

The biggest problem with chronic post-surgical pain One of the commonest complaints of pain specialists when seeing patients with CPSP is that it can take too long for patients to be referred to a specialist Pain Clinic, which means that it takes too long for the referring consultant to recognise CPSP as a problem.

The longer a patient is in pain, the lower the likelihood of being able to rid the patient of it completely.

Due in part to persistence of the pathology that initiated, and exacerbated by structural changes within the spinal cord, it is frequently the case that patients who have been in pain for months or years before diEXPERT WITNESS JOURNAL

Instructions from claimant/defendant solicitors or single joint expert approximately (ratio 45:45:10). I provide the regional tertiary service in pelvic-acetabular fractures.

Contact: Nikhil Shah, c/o Consultantcare Ltd Jayne Bailey Riverside Centre, Alexandra Hospital Mill Lane, Cheadle, SK8 2PX Area of Work; Manchester, Cheshire and North West Tel: 0161 393 3059 Email: nikhil.shah@consultantcare.com Website: www.privatehealthcare.co.uk/privatespecialists/ find-a-doctor/knee-surgeons/nikhil-shah

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Damages for Wrongful Birth: How Far Does a Doctor’s Responsibility Do?

by Rosalind English Meadows v Khan [2017] EWHC 2990 (QB) (23 November 2017) – read judgment Can a mother who consults a doctor with a view to avoiding the birth of a child with one disability recover damages for the costs associated with another disability?

The claimant sought damages arising out of the wrongful birth of her son Adejuwon. She had become pregnant after being reassured that there was no risk of haemophilia. Her child was born with the condition, and it subsequently turned out that he suffered from autism as well. The costs of bringing up a child with haemophilia were estimated at £1,400,000. The additional costs of autism amounted to £9,000,000.

Her son was later diagnosed as also suffering from severe autism, the extent of which meant that he was unlikely to ever live independently or be in paid employment in the future.

His haemophilia did not cause his autism or nor did it make it any more likely that he would have autism.

On the other hand, his autism has made the management of the haemophilia much more difficult.

The facts The claimant, Mrs Meadows, has a nephew who was born with haemophilia. She wished to avoid having a child with haemophilia and so consulted her GP with a view to establishing whether she carried a copy of the faulty gene. Being an aunt of an affected male is an indicator of carrier status.

The parties agreed that Mrs Meadows was entitled to recover the additional costs arising out of her son’s haemophilia diagnosis, as well as general damages for prolongation of the pregnancy.

So the only issue for the Court was whether the claimant could also recover the additional costs associated with the son’s autism.

Blood tests were undertaken but could not confirm whether she was a carrier. Only genetic testing would have ascertained this properly.

Issues before the Court This was a “wrongful birth” claim. But for the negligent advice, the claimant would have terminated her pregnancy. Since the House of Lords decided in McFarlane v Tayside Health Board [2000] 2 AC 59 that public policy militated against claims for the costs of raising a healthy child, damages are only recoverable for the costs or raising a disabled child (Hardman v Amin [2001] P.N.L.R. 11). There does not have to be a link between the negligence and the disability.

In 2002 the Court of Appeal concluded that if negligence has led to the conception or continuation of the pregnancy, the claimant is entitled to damages for

Her GP advised her that her blood tests results were normal; she did not have haemophilia. She was therefore led to believe that any child she had would not have haemophilia. However, the tests did not tell her that she was not a carrier.

She subsequently had a child who was diagnosed with haemophilia. Only then was she referred for genetic testing. This revealed she was a carrier.

Had she been referred for testing prior to conceiving, she would have known she carried the mutation.

She therefore would have had foetal testing for haemophilia.

any disability arising from genetic causes or foreseeable events during pregnancy (such as rubella, spina bifida, or oxygen deprivation during pregnancy or childbirth) up until the child is born alive, and which are not novus actus interveniens. (Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266)

Such testing would have shown that the foetus was affected and she would have terminated the pregnancy.

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Is the doctor responsible for the injury which would not have happened if the mountaineer had been given correct information about his knee? The injury has not been caused by the doctor’s bad advice because it would have occurred even if the advice had been correct. Liability for this injury would “offend common sense”

Groom v Selby [2002] PIQR P18, concerned a child who contracted salmonella meningitis during delivery. The mother was able to claim damages for the costs of bringing up the brain-damaged child even though the only negligent act was the failed sterilisation leading to the pregnancy. In the instant case, there was no argument that Adejuwon’s autism was anything other than a natural and foreseeable consequence of his birth. There had not been a new intervening act or anything else that interrupted the natural chain of events from conception. Where the parties disagreed was on the question of assumption of responsibility; the scope of the duty of care and the extent to which it would be fair, just and reasonable to hold the defendant liable for the costs related to Adejuwon’s autism.

because it makes the doctor responsible for consequences which, though in general terms foreseeable, do not appear to have a sufficient causal connection with the subject matter of the duty.

It was agreed in the present case that the risk of autism was a risk that existed with every pregnancy.

The risk was not increased, nor were the chances of avoiding it lessened, by the failure to properly manage the risk of the claimant having a child with haemophilia. The defendant GP submitted that her duty extended to providing information in respect of just one disability and that it would not be right to say that she had assumed responsibility to protect from all the consequences of the claimant’s decision to proceed with the pregnancy.

Interestingly, the decision in McFarlane has been interpreted to mean that a parent may not recover for the cost of raising a normal, healthy child even if the very purpose of her wishing to avoid a pregnancy was her own disability; thus in Rees v Darlington Memorial Hospitals NHS Trust [2003] UKHL 52; [2004] 1 AC 309 the disabled mother was denied the costs of bringing up her child born as a result of the defendants’ failed sterilisation procedure.

The claimant on the other hand, relying on Parkinson, contended that the ‘kind of loss’ that may be recovered in wrongful birth cases extended to cover disabilities arising from the normal incidents of conception, intra-uterine development and birth. The purpose of the duty was to enable the mother to take steps to terminate an unwanted pregnancy. There was no rational distinction to be drawn between a woman who did not want any pregnancy and one who did not want a particular pregnancy. It was no less fair, just and reasonable to impose responsibility for all the disability-related consequences in this case than in Parkinson.

But the difficult question at the core of this case was whether the loss was within the scope of the doctor’s duty. In a property valuation case, South Australia Asset Management Corporation v York Montague [1997] AC 191, the House of Lords was asked to consider the extent of the liability of a valuer who provided a lender with a negligent overvaluation of property offered as security for a loan. Lord Hoffmann said It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless.

The Court’s Decision Yip J accepted the claimant’s arguments. In her concluding remarks, she observed that this was a matter of simple ‘but for’ causation.

Applying this principle, the defendant in the present case argued that the loss referable to Adejuwon’s autism was not the kind of loss in respect of which the defendant’s duty was owed. The defendant’s liability should be limited to the consequences of the haemophilia as that was the particular condition about which she was consulted.

Adejuwon would not have been born but for the defendant’s negligence. The claimant therefore would not have had a child with the combined problems of haemophilia and autism. Had she known she was a carrier, she would have undergone foetal testing and would then have terminated this particular pregnancy. The other risks associated with that pregnancy would no longer have existed.

The “mountaineer’s knee” problem In the SAAMCO case Lord Hoffmann conceptualised this issue as follows. A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee.

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This case was distinguishable from the hypothetical mountaineer in the sense that the autism was associated with the pregnancy (which would have been terminated on correct advice) whereas an avalanche was not associated with the mountaineer’s particular expedition (which would not have been undertaken on correct advice). In order to determine the focus of the defendant’s duty, said the judge, we have to ask what purpose was behind the service sought by the 77

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claimant. In this case, it was to provide her with the necessary information to allow her to terminate any pregnancy afflicted by haemophilia. The birth of Adejuwon resulted from a pregnancy which was afflicted by haemophilia. His autism was bad luck, Yip J points out, in the same way that the meningitis in Groom was bad luck. Nothing to do with the original advice sought, but a natural consequence of pregnancy and birth.

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Consultant Cardiologist

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Mr Khalid Mahmood is a Consultant Cardiologist and the clinical lead for cardiology at The Solihull Hospital in the West Midlands.

Dr Duncan S Dymond has been a consultant cardiologist at St Bartholomew's Hospital, now a part of Barts Health NHS Trust since 1987.

He has experience in Non Invasive and Invasive Cardiology including a lead role in the Transoesophageal Echocardiography service, supportive roles in stress Echocardiography, pacemaker clinics and cardiac CT service.

Mr Mahmood is proficient in permanent pacemaker insertion, cardiac catheter work, diagnostic catheterisation (left and right heart) and has experience in interventional cardiology.

He has been undertaking expert witness and medicolegal work for more than 5 years and has completed his Cardiff University Bond Solon expert Witness course.

Dr Dymond currently completes 1-2 medicolegal reports per week, for personal injury and medical negligence, with roughly a 60/40% split claimant/defendant.

He has also completed expert witness work for the General Medical Council, the Medical Defence Union and the Crown Prosecution Service as well as accepting private instructions directly for solicitors. He has also provided mediolegal opinions for cases in Singapore.

Mr Mahmood has clinical governance expertise as lead in quality control of transoesophageal echocardiography. He is involved in audit, informal appraisals with senior colleagues and attendance at grand rounds/MDT meetings.

T: 0207 079 4260 E: medicolegal@harleycardiology.co secretary@drduncandymond.com W: www.drduncandymond.com

Tel: 07795 460 224 Email: khalidmahmood99@hotmail.com Spire Parkway Hospital 1 Damson Parkway, Solihull, West Midlands B91 2PP

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110 Harley Street, London, W1G 7JG

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Rhinoplasty claim: Oliver Thorne successfully sues the same cosmetic surgeon for the fourth time Because of the serious nature of the problems highlighted in the report my client decided to obtain advice from another cosmetic surgery expert.

Unfortunately this confirmed her worst fears. The surgeon noted that she had “a typical appearance of over resection of the dorsal part of the nose with inverted V deformity … the tip is bulbous and the angle between [her] lip and columella is quite acute … there is also depression of each side of the nose. The columella is very wide and the scar is placed quite low in the wrong position. The alae are both asymmetrical in the flare and width”. The surgeon confirmed she would require a reversal rhinoplasty which would involve a cartilage graft to build up the dorsal part of the nose and to lengthen the tip to give a better appearance of an Indian nose.

Any medical practitioner can make a genuine mistake and find themselves facing a medical negligence claim. In the vast majority of cases these are one-off events. However, there are some surgeons who have an unenviable track record of legal claims against them. In this short case study of a client who underwent a rhinoplasty procedure the cosmetic surgeon in the firing line was someone I had already successfully sued three times previously.

My client, a self-employed dentist, attended an appointment at a cosmetic surgery clinic in London to discuss reconstruction surgery to her nose, known as a rhinoplasty procedure, or 'nose job'. She met the surgeon who was to perform the rhinoplasty. He noted that she wanted a “Cheryl Cole type nose”.

This account was disputed by our client who said the surgeon only suggested a minor change to her nose and it was this limited procedure that she agreed to.

She decided to seek legal advice from a lawyer specialising in cosmetic surgery cases. She therefore contacted me to ask about bringing a medical

Following the rhinoplasty operation my client was immediately unhappy with the outcome. She felt that the tip of her nose appeared large and bulbous.

When she raised her concerns with the clinic she was assured the appearance was down to swelling and she was advised to wait a year after the surgery to assess the final outcome.

Mr Tim Burge MB,ChB FRCS FRCS (Plast) Consultant Plastic Surgeon GMC: 2702249

However, my client remained unhappy with the results of her cosmetic surgery. She therefore obtained a second opinion from one of the country’s leading cosmetic surgeons. The expert noted that her concerns were “primarily related to the excess nasal tip with projection off the bridge on profile and scar visibility”. He also noted that the nasal bridge was slightly wide with an inverted V deformity and that the nasal tip was moderately wide with slight asymmetry and a stronger depression of the nostril sulcus on the right. The columella was relatively wide on a basal view and the surgical scar was moderately visible. There was moderate bowing protrusion of the columella base with what was described as excessive lateral show. The nasal tip was also said to be over projected and relatively rounded.

Burns Scars Hand trauma Breast surgery Facial injuries

Cosmetic surgery Adults and children Reconstruction Personal injury Clinical negligence

Mr Burge has been a Consultant Plastic Surgeon since 1996 and has a broad experience having worked in the Army, the NHS and the Private Sector. He has over 20 years of experience writing reports and receives about 200 instructions per year. He has been instructed by Claimants, Defendants, and as a Joint Expert. He is aware of the Part 35 requirements of an Expert Witness and has obtained Part 1 of the Certificate of Medical Reporting (Bond Solon). He has experience appearing in court as an expert witness. Appointments are available in Bristol, London, Cardiff and Birmingham. All reports are produced within agreed timescales, usually four weeks, which can be expedited.

Areas of work Bristol London Cardiff Birmingham Email: info@clifton-plastic-surgery.co.uk Tel: 0117 906 4217 / 07789 863115

She was understandably devasted to be told by the surgeon that she would need a cartilage graft from either the nasal septum or the rib to re-build the dorsum.

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negligence claim. I reviewed her medical notes and the expert reports on a free of charge basis. I took the view that she had a good legal case and agreed to deal with the claim on a No Win - No Fee basis.

Dr Gordon Williams Consultant Cardiologist MB BCh FRCP FACC

The claim was pursued on the grounds that the surgeon who performed the original rhinoplasty failed to obtain a clear understanding of the outcome our client was expecting and that he over resected the dorsum, creating an inverted V deformity. He also created obvious depressions, one either side of the nose, along with asymmetry of the alae and caused a bump in the nasal bridge. It was as a direct result of these problems that our client was required to undergo further surgery to her nose to remedy the surgeon’s errors and improve her nose both aesthetically and functionally.

Spire Leeds Hospital Jackson Avenue, Leeds LS8 1NT Tel: Fax: Mob:

0113 218 5943 0113 218 5987 07702 550 758

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

Following a fiercly contested legal battle the surgeon’s legal representatives eventually entered into settlement negotiations. As a result of these negotiations between the parties agreement was finally reached for an out of court compensation settlement of £50,000.00, plus legal costs.

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.

I hope I will not be called upon to deal with a fifth medical negligence claim against this particular surgeon, but if you have experienced problems with cosmetic surgery and would like to know where you stand legally you are welcome to call me for a free assessment. Ring us on freephone 0808 139 1592 or email me at info@cosmeticsurgerylaw.co.uk

Mr Amarjit Anand

Consultant Trauma & Orthopaedic Spinal Surgeon MBBS, BSc(Hons), MRCS(Eng), MSc, FRCS(Tr&Orth) Mr Anand is a Consultant Trauma & Orthopaedic Spinal Surgeon, based at Epsom & St Helier University Hospitals NHS Trustand at the South West London Elective Orthopaedic Centre (SWLEOC).

Mr Anand has prepared personal injury reports for the court since 2016. He is fully compliant with the CPR rules and has received training in the preparation of medico-legal reports.

He receives instructions from Defendants (50%) & Claimants (50%).

Areas of expertise include, • Mr Anand is a specialist in Spinal Surgery.

He manages all aspects of spinal injuries and disorders (neck, thoracic spine, low back pain) • All aspects of Orthopaedic trauma & musculoskeletal injuries.

• Mr Anand provides Personal Injury reports for solicitors & insurance companies.

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Creative Court UK – Exploring Public Legal Education through the Arts

by Dr. Rebekah Wood – Outreach Education Project Manager for the National Justice Museum.

A leader in public legal education, the National Justice Museum delivers stimulating learning programmes in real courtrooms across Nottingham, London and the North West, including at the Royal Courts of Justice in London, and the Greater Manchester Police Museum.

came together under one name: The National Justice Museum.

The Museum is now home to HM Prison Service Collection which is the only one in the UK that illustrates the major developments in the history of prisons. The nationally significant collection consists of 20,000 items, and includes more than 1,500 objects, including prisoner and staff costumes; the door of Oscar Wilde’s prison cell; the last working gallows from an English prison; over 1,200 archival documents; and nearly 7,000 photographs dating from the late 1800s to 2001.

With a strong focus on community engagement and empowerment, this article will demonstrate how creative approaches to PLE are being utilised at the Museum, and by its education teams. It will also highlight the creative ways that the public are encouraged to learn about the law through story-telling and creative outreach, focusing on the Museum’s latest outreach education project, Creative Court UK, funded by Arts Council England.

The collection is currently being digitised as part of an HLF funded project, Justice: Past, Present & Future, which will help to protect it for generations to come by creating a digital record of delicate and fragile items.

Overview of the National Justice Museum Education Known originally as the Galleries of Justice, the Museum is in the historic Shire Hall and County Gaol in Nottingham, and has successfully delivered formal public legal education sessions since it was first established in 1995. The success of its PLE programmes has been in part due to the impressive building itself which features two Victorian courtrooms, and the atmospheric gaol cells, many of which have been hollowed out of the sandstone cliff that the Shire Hall and Gaol are built on.

Education Outreach The Museum and Education teams are now looking to diversify the content of their exhibitions and education outreach by working with a range of creative partners. Recent projects have worked with internationally renowned arts organisations such as New Art Exchange on the ‘Get up, Stand up’ project, a multimedia tour of international civil rights. Other education outreach projects have also included ‘Virtual Justice’ which raised awareness of the effects of cybercrime including cyberbullying, hate crime, child sexual exploitation including sexting and consent and e-safety. ‘Justice 20/20’ explored young people’s understanding of current laws and encouraged a forward-thinking exploration of how the landscape of law will look in the future. We also run regular ‘Help a Child’ projects which raise funds for disadvantaged young people to engage in education sessions that focus on helping prevent and safeguard young people from involvement in crime, or becoming a victim of crime.

In 2002 the Museum’s education provision became known as the National Centre for Citizenship and the Law (NCCL) which designed ground-breaking legal educational programmes and was the recipient of numerous prestigious awards including the Gulbenkian Prize. The inspirational curriculum-linked educational sessions use authentic courtrooms, museum spaces, objects and archives to help pupils gain a practical understanding of the law and justice system.

In 2010 NCCL was expanded and began to deliver courtroom workshops to children and young people at the UK Supreme Courts and the Royal Courts of Justice in London, and went on to deliver at court rooms across the East Midlands, Manchester and the North West. Since this expansion, the Museum’s education teams have started working across the UK, and over the last five years have engaged with over 75,000 young people.

Outreach Education Syndicates - Creative Court UK The National Justice Museum developed ‘Education Syndicates’, a concept which promotes public organisations (hosts) joining together in either thematic or geographical groups (clusters) and having their education services delivered by a central organisation. In 2017 the Education Syndicates concept was adapted to deliver public legal education outreach directly into schools. This was done primarily to widen the outreach sessions offered, but also to overcome some

In April 2017, investment from the Heritage Lottery fund supported a significant redevelopment of the Museum’s Nottingham site. As part of this redevelopment the old Galleries of Justice and NCCL EXPERT WITNESS JOURNAL

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• The Jury Box – Exploring who has been allowed to sit on a jury historically and how this links to their rights and responsibilities as citizens in a democratic society.

of the physical barriers to learning that affect schools such as disability access, and economic factors that affect schools in more deprived areas.

The Creative Court UK project, funded through the Arts Council England’s Museum Resilience Fund has created an inclusive way for young people to engage with Public Legal Education. The project approaches PLE by creating an interactive learning space using an artist-designed ’pop-up courtroom’ and resources that are transportable to school locations.

The Creative Court UK project will be delivered in schools across Nottingham, London and the North West in early 2018 and aims to engage with over 1,000 young people nationally.

Future projects – National Portfolio Organisation In June 2017, it was announced that the National Justice Museum will become one of Arts Council England’s National Portfolio Organisations, receiving four years of funding and investment.

The project was designed to feed into the Arts Council’s ‘Creative Case’ for diversity by enabling people from diverse backgrounds to work alongside artists and heritage professionals as volunteer ‘Associates’.

An extensive training programme was developed as part of the project, with sessions run by project partners such as the Disability Co-Operative Network, Birmingham Museums Trust, Nottingham Contemporary, and Freshwater Theatre Company. The aim was to provide an essential overview of the way museum education can engage young people creatively.

Associates also had the opportunity to work with legal professionals and experts to gain a broader understanding of justice and the law.

The Museum will be creating several new creative roles, bringing in an Artistic Director, Co-Creation Curator and a range of storytellers and artists to engage the public through creative exhibitions and live performances. This will allow the Museum to create a more versatile, diverse and contemporary programme which will attract new and repeat visitors.

The Museum will broaden its offer through four cultural experiences to explore the themes of justice and the law, past and present: • Exhibitions: the visual, creative and intellectual output of the Museum’s storytelling

Designing the Creative Court The project was developed by artist Gina Mollett and resource creator Rebecca Goldsmith, with the help of a team of volunteer ‘Associates’. The initial concept for the ‘pop-courtroom’ was derived from observations of traditional courtrooms as geometric spaces where zones are allocated for different functions.

During a trial, these zones are governed by preagreed specific rules, in a similar way to how a sports pitch, such as a basketball court, has zone restrictions imposed during live play.

• Storytelling: an interactive way of engaging visitors and taking them on dramatic journeys of discovery • Commissioned artists: their responses to the stories created to provoke and engage visitors, stimulate their responses and provide more diverse perspectives • Co-creation activities: to engage and provide a platform to empower

The geometric design of the court space was likened to the Brutalist concrete playgrounds that emerged within social housing developments in the 1960s. This linked to the idea that children first learn about rules through early game-play and their ideas of fairness are tied in to how they understand their environment and the way that others interact with them, which can be seen clearly on any school playground.

Volunteering Opportunities for Legal Professionals The National Justice Museum regularly works with volunteer legal professionals to broaden the reach of the organisation and provide essential knowledge and expertise to its programmes of learning.

The Museum is currently looking to expand this group of legal volunteers across its learning sites in Nottingham, London and the North West to extend its work to more schools and universities. It would beneficial for young people to be able to ask questions about the legal profession to those who have first-hand knowledge of it.

In order to explore this idea in detail, the creative team chose to explore four key zones within the courtroom space: • The Dock – Where people stand to be judged, opening up ideas about bias, prejudice and exploring mutual tolerance and respect.

We are keen to work with students studying law, practicing professionals, or retirees.

• The Witness Box – A space where citizens have the responsibility to share their knowledge and to explore how their testimony relates to their individual liberties.

•The Lawyers Bench – Examining the different sides to an argument and how the rule of law is applied in the UK EXPERT WITNESS JOURNAL

For more information about becoming a Legal Volunteer or the work of the National Justice Museum please email volunteer@nationaljusticemuseum.org.uk. or visit our website www.nationaljusticemuseum.org.uk 82

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Book Review Clinical and legal disciplines: Two sides of the medico-legal coin Phillip and Elizabeth Taylor review ‘Legal Mind - Contemporary Issues in Psychological Injury and Law’ by Hugh Koch As the role of the expert witness is to provide evidence on which the court and the legal team can rely, it is the responsibility of said expert to acquire an understanding of the workings of the court (of course) and ideally, of the ‘legal mind.’

understanding psychological injury, focusing on diagnosis, treatment, prognosis and most importantly, translating clinical opinion into quantum.

This then is a book that can and does provide the expert witnesses with a formidable armoury of insight and information with which to arm themselves in court.

The title of this new publication from Expert Witness Publishing is therefore significant, although some lawyers have referred to it as ‘confusing’. What they may well mean is that the term may be interpreted, or construed in a number of ways – and all the better for that.

We are not sure if this is the first time the ‘legal mind’ or mind-set has been analysed, examined and explored by a psychologist. But, whether or not this is the case, the book presents us with an intriguing and enlightening read for psychologists, expert witnesses and lawyers alike, as well as other interested readers.

Indeed, for expert witnesses in personal injury cases, the practical advice contained in this book makes it a worthwhile acquisition for the professional library.

As the author Hugh Koch will remind you, ‘lawyers, barristers and judges’ have in his words, “a different language or approach, based on law, logic, clarity of opinion, legal precedent, adding that ‘clinical’ and ‘legal’ disciplines are ‘two sides of the medico-legal coin’” adding in effect that traversing the concepts and practices between the two is “essential in this civil justice concept of personal injury case management.”

LEGAL MIND Contemporary Issues in Psychological Injury and Law by Hugh Koch ISBN: 978 1 90215 117 5

Author Hugh Koch, a chartered clinical psychologist, brings a considerable amount of experience and expertise to the production of this book, having worked as a psychologist with the NHS and subsequently, for example, in mental health services in Somerset and in medical services in Cheltenham, prior to setting up his unique medico-legal consultancy which is certainly worthy of note. Based in Cheltenham, it consists of forty psychologists and one orthopaedic surgeon, tasked variously with supplying the courts (in 105 towns and cities across the UK) with orthopaedic and psychological reports.

Available from Expert Witness for £18.00 including P & P. please email admin@expertwitness.co.uk

Small wonder that Hugh Koch does a most creditable job of guiding the reader through the often-intricate dynamics inherent in the inter-connection in courts of law, between the expert witness, the legal team and the judges. The almost certain result is that the reader derives an extra helping of self-confidence in court, which even for the experienced expert witness, can be on some occasions, rather daunting.

Fortunately for the busy reader, the book is logically organised in seven sections starting with ‘psychology and the law’ and moving on to evidential certainty, followed by three sections on the matter – and necessity – of understanding the experts, the lawyers and the author himself. There is a very useful chapter on EXPERT WITNESS JOURNAL

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Robust Protection of Journalistic Sources Remains a Basic Condition for Press Freedom

by Dr Dirk Voorhoof of the Human Rights Centre at the Faculty of Law and Criminology at Ghent University addresses a recent European court judgment.

In the judgment in the case Becker v. Norway the ECtHR showed once more its concern about the importance of the protection of journalistic sources for press freedom and investigative journalism in particular. The ECtHR emphasised that a journalist’s protection under article 10 cannot automatically be removed by virtue of a source’s own conduct, and that source protection applies also when a source’s identity is known. The judgment has been welcomed by the European Federation of Journalists (EFJ), as it is perceived “to strengthen the protection of journalistic sources as one of the basic conditions for media freedom”. The EFJ also calls on states “to adopt legislation with the purpose of implementing journalists’ right to protect their sources, following international standards” and strongly calls for a broad and effective protection of whistleblowers.

Article 125 of the Code of Criminal Procedure provides that: “The editor of a printed publication may refuse to answer questions concerning who is the author of an article or report in the publication or the source of any information contained in it. The same applies to questions concerning who is the source of other information that has been confided to the editor for use in his work. Other persons who have acquired knowledge of the author or the source through their work for the publishers, editors, press agency or printers in question have the same right as the editor.

When important social interests indicate that the information should be given and it is of substantial significance for the clarification of the case, the court may, however, on an overall evaluation order the witness to reveal the name. If the author or source has revealed matters that it was socially important to disclose, the witness may be ordered to reveal the name only when this is found to be particularly necessary.

When an answer is given, the court may decide that it shall only be given to the court and the parties at a sitting in camera and under an order to observe a duty of secrecy.

The law and the proceedings in Norway The case concerns a journalist, Cecilie Langum Becker, working for DN.no, a Norwegian internetbased newspaper. Ms Becker was ordered to give evidence in a criminal case brought against one of her sources, Mr X, who was accused for market manipulation. Mr X had confirmed to the police that he had been Ms Becker’s source for an article she had written about the Norwegian Oil Company’s (DNO) allegedly difficult financial situation. The price of DNO stock decreased by 4.1 % on the first trading day after the publication of Ms Becker’s article. Mr X was subsequently charged with using Ms Becker to manipulate the financial market. Ms Becker refused to testify against Mr X, and the courts therefore ordered her to testify about her contacts with him, finding that there was no source to protect as he had already come forward. They also considered that her evidence might significantly assist the courts in elucidating the case. Mr X was however convicted as charged before the final decision on Ms Becker’s duty to give evidence had been made. Relying on Article 125 of the Norwegian Code of Criminal Procedure and Article 10 ECHR, Ms Becker argued that she was under no obligation to give evidence and she refused at any stage of the proceedings to answer questions about possible contacts between her and Mr X and other sources.

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The provisions of this section can apply correspondingly to any director or employee of any broadcasting agency.”

On account of her refusal to comply, the High Court, in January 2012, ordered Ms Becker to pay a fine of 30,000 Norwegian kroner (NOK), approximately 3,700 euro (EUR) for an offence against the good order of court proceedings, failing which she would be liable to ten days’ imprisonment.

In March 2012 Ms Becker lodged an application with the ECtHR, alleging that she had been compelled to give evidence that would have enabled one or more journalistic sources to be identified, in violation of her right under Article 10 ECHR to receive and impart information. It took the ECtHR more than five years to decide on the case, but finally, with a unanimous vote, the fifth section of the ECtHR on 5 October 2017 found that Norway has violated Ms Becker’s right to protect her sources.

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“The Court has always subjected the safeguards for respect of freedom of expression in cases under Article 10 of the Convention to special scrutiny. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society, an interference cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.”

The Court’s judgment First of all, it is worth observing that the judgment of the ECtHR not only refers to relevant legal provisions and jurisprudence under Norwegian law and to Recommendation No. R (2000) 7 on the right of journalists not to disclose their sources of information, adopted by the Committee of Ministers of the Council of Europe on 8 March 2000. It also refers to other relevant international material such as the 8 September 2015 report to the UN General Assembly of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression.3 The ECtHR quotes from this report, in which it is stated (§ 40):

The court reminds that in Nagla v. Latvia5 it found that the fact that a source’s identity had been known to the investigating authorities prior to a search at the premises of a journalist, did not remove the journalist’s protection under Article 10 ECHR and it emphasises that a journalist’s protection under Article 10 cannot automatically be removed by virtue of a source’s own conduct. The ECtHR furthermore holds that protection afforded to journalists when it comes to their right to keep their sources confidential is “two-fold, relating not only to the journalist, but also and in particular to the source who volunteers to assist the press in informing the public about matters of public interest”, while in Voskuill v. The Netherlands6 the ECtHR found that the potential significance in criminal proceedings of the information sought from a journalist was insufficient under Article 10 as a reason to justify compelling him to disclose his source or sources. It also emphasised that a chilling effect will arise wherever journalists are seen to assist in the identification of anonymous sources.

“Revealing or coercing the revelation of the identity of a source creates disincentives for disclosure, dries up further sources to report a story accurately and damages an important tool of accountability. In the light of the importance attached to source confidentiality, any restrictions must be genuinely exceptional and subject to the highest standards, implemented by judicial authorities only. Such situations should be limited to investigations of the most serious crimes or the protection of the life of other individuals.”

As there was no discussion in the case at issue that there had been an “interference” with the journalist’s rights under Article 10 § 1 ECHR, as it was clear that the order to give evidence was “prescribed by law” and as it was undisputed that the order had been issued for the purpose of “the prevention of crime”, the ECtHR once more needed to focus on the question whether the inference was “necessary in a democratic society”.

The ECtHR went on to consider that the possible effects of the order were of such a nature that the general principles developed with respect to orders of source disclosure were applicable to the case, and that Ms Becker’s refusal to disclose her source or sources did not at any point in time hinder the investigation of the case or the proceedings against Mr X. On the contrary, there was no indication that the Ms Becker’s refusal to give evidence attracted any concerns of the Norwegian courts with respect to the case or the evidence against Mr X. It also bore in mind that Ms Becker’s journalistic methods had never been called into question and she had not been accused of any illegal activity.

The ECtHR refers to its earlier case law in which it has developed the principles governing the protection of journalistic sources, such as in Goodwin v.

United Kingdom (§ 65): “Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of Contracting States and is affirmed in several international instruments on journalistic freedoms....

Without such protection, sources may be deterred from assisting the press informing the public on matters of public interest. As a result the vital publicwatchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest. “

Having regard to the importance of the protection of journalistic sources for press freedom, the ECtHR finds that the reasons adduced in favour of compelling Ms Becker to testify on her contract with Mr X, though relevant, we’re insufficient. Therefore the ECtHR is not convinced that the impugned order was justified by an “overriding requirement in the public interest” and, hence, necessary in a democratic society. The ECtHR accordingly concludes that there has been a violation of Article 10 ECHR. Comment Since 1996 (Goodwin v. United Kingdom)7, the ECtHR has found several types of violations of journalists’ sources protection as guaranteed under Arti-

Referring to its Grand Chamber judgment in Sanoma Uitgevers B.V. v. The Netherlands,4 it reiterates that: EXPERT WITNESS JOURNAL

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cle 10 ECHR (see the factsheet of the ECtHR)8 Luxembourg, Belgium, the Netherlands, the United Kingdom and France at multiple occasions have been found in breach with the right of journalists to have their sources protected, while also authorities in Latvia (Nagla v. Latvia) and Turkey (Gormus and others v. Turkey)9 have disrespected journalists’ rights by searching and investigating their sources. Although Norway has a positive reputation when it comes to protection of journalistic sources, as reflected e.g. in the 2015 Supreme Court judgment10 in the case of Rolfsen and Association of Norwegian Newspapers v.

Norwegian Prosecution Authority,11 this time, after long deliberation, the ECtHR found that the Norwegian authorities have acted in breach with Article 10 ECHR by compelling a journalist to reveal information about a source.

nally informed their superiors about potentially unlawful practices with their department or service. In its original French version of the judgment, the Court considered that it could accept “que les devoirs et les responsabilités qu’assument les journalistes qui exercent leur droit à la liberté d’expression puissent inclure le devoir de ne pas publier les renseignements que des fonctionnaires lanceurs d’alerte leur ont fournis, jusqu’à ce que ces fonctionnaires aient utilisé les procédures administratives internes prévues pour faire part de leurs préoccupations à leurs supérieurs ”.

This consideration however, formulated as a general principle that journalists should only publish information obtained from whistle-blowers that have first exhausted all internal procedures that are available to them, is very problematic. This approach also contrasts with earlier case law of the ECtHR in which the Court was of the opinion that a “journalist’s right not to reveal her or his sources could not be considered a mere privilege to be granted or taken away depending on the lawfulness or unlawfulness of their sources, but is part and parcel of the right to information, to be treated with the utmost caution” (Tillack v. Belgium,13 §128).

While the reasoning and outcome in Becker v. Norway is consistent with and builds upon the substantial case law of the ECtHR guaranteeing robust protection of journalistic sources, even if cases where the source has been identified, also a disclaimer needs to be formulated with regard some part of the reasoning of the ECtHR in this case.

The ECtHR observes that “the present case does not involve allegations of unlawful activity by the applicant, or criminal investigations of or proceedings against her, beyond those related to her refusal to give evidence on her contact with Mr X”. And in this context, it also notes that the Government has not questioned the journalistic methods employed by Ms Becker (§ 71.)

This kind of consideration however risks undermining the protection of journalistic sources. Indeed, as a matter of principle, sources should not loose protection because of the allegedly unlawful, unethical or questionable conduct of the journalist. Furthermore, in as far as the Court’s consideration refers to the fact that the Government has not questioned the journalistic methods used by the journalist in this case. It might imply that in cases where the Government does question or criticize the journalistic methods, there would no longer be a valid claim on the right of journalistic source protection. Also in cases where a journalist is charged or prosecuted for alleged unlawful acts, the right to protection of journalistic sources should remain to be guaranteed (Tillack v.

Belgium)12.

More attention is also to be given to what has been stated in the earlier mentioned 2015 report to the UN General Assembly of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, referring to the Belgian law of 7 April 2005 on protection of journalistic sources.

“National laws should ensure that protections apply strictly, with extremely limited exceptions. Under Belgian law, journalists and editorial staff may be compelled by a judge to disclose information sources only if they are of a nature to prevent crimes that pose a serious threat to the physical integrity of one or more persons, and upon a finding of the following two cumulative conditions: (a) the information is of crucial importance for preventing such crimes: and (b) the information cannot be obtained by any other means.

The same conditions apply to investigate measures, such as searches, seizures and telephone tapping, with respect to journalistic sources” (§40).

This article first appeared on the Strasbourg Observers Blog https://strasbourgobservers.com/2017/10/10/robustprotection-of-journalistic-sources-remains-a-basiccondition-for-press-freedom/

A recent judgment with regard to the protection of journalistic protection (Gormus and others v. Turkey) contains a worrying consideration of a similar kind.

The ECtHR acknowledged in Gormus and others v.

Turkey that the duties and responsibilities of journalists can include the duty not to publish information provided by whistle-blowers who have not first inter-

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and is reproduced here with the kind permission of the author Dirk Voorhoof, Legal Human Academy, Human Rights Centre, Ghent University www.legalhumanacademy.org

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8, Factsheet of the ECtHR http://www.echr.coe.int/Documents/FS_Journalistic_sources_ENG.pdf

References 1, CASE OF BECKER v. NORWAY - CASE OF https://hudoc.echr.coe.int/eng#{%22itemid%22:[%2 2001-177349%22]}

9, GĂśrmĂźs and others v. Turkey) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%2 2001-160255%22]}

2, European Federation of Journalists http://europeanjournalists.org/blog/2017/10/05/protection-of-sources-norwegian-journalist-won-instrasbourg/

10, 2015 Supreme Court judgment https://globalfreedomofexpression.columbia.edu/pu blications/dirk-voorhoof-award-speech-significantlegal-ruling-2015/

3, Report to the UN General Assembly of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression http://www.un.org/en/ga/search/view_doc.asp?symbol=A/70/361

11, Rolfsen and Association of Norwegian Newspapers v. Norwegian Prosecution Authority https://globalfreedomofexpression.columbia.edu/cas es/rolfsen-association-norwegian-editors-v-norwegian-prosecution-authority/

4, Sanoma Uitgevers B.V. v. the Netherlands https://hudoc.echr.coe.int/eng#{%22itemid%22:[%2 2001-100448%22]}

12, Tillack v. Belgium https://hudoc.echr.coe.int/eng#{%22itemid%22:[%2 2001-83527%22]}

5, Nagla v. Latvia https://hudoc.echr.coe.int/eng#{%22itemid%22:[%2 2001-122374%22]}

13, Telegraaf Media Nederland Landelijke Media B.V. and Others v. The Netherlands https://hudoc.echr.coe.int/eng#{%22itemid%22:[%2 2001-114439%22]}

6, Voskuil v. the Netherlands https://hudoc.echr.coe.int/eng#{%22itemid%22:[%2 2001-83413%22]} 7, Goodwin v. United Kingdom https://hudoc.echr.coe.int/eng#{%22itemid%22:[%2 2001-57974%22]}

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