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ISSN 2397-2769
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THE JOURNAL FOR INSTRUCTING PROFESSIONALS & EXPERT WITNESSES
FORENSIC SCIENCE ACCOUNTANCY- RICS - FINANCE PSYCHOLOGY Vol 1 Issue 26 - Winter 2018/19 - £5.00 €6.00
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ISSN 2397-2769
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THE JOURNAL FOR INSTRUCTING PROFESSIONALS & EXPERT WITNESSES
Welcome to the Expert Witness Journal
FORENSIC SCIENCE ACCOUNTANCY- RICS - FINANCE PSYCHOLOGY Vol 1 Issue 26 - Winter 2018/19 - £5.00 €6.00
Hello and welcome to the 26th edition of the Expert Witness Journal. Inside this issue we have a mixture of articles, we have informative articles on UK Forensic Science Strategy, Money Laundering, Crypto Currency and Confiscation Orders. Plus Digital Forensics and Selecting a Digital Forensics Expert Witness by Jason Bergerson and Alistair Ewing, Noise Nuisance and the Expert Witness by Dick Bowdler, Fire Investigation by James Holder and Psychological Injury, Cyber Crime and Data Breach Damages, by Hugh Koch. Once again we are proud to be working in conjunction with the Forensic Expo. The Forensic Expo is Europe’s largest gathering of forensic experts covering digital, forensic, laboratory, scene of crime and many more areas. The Expo takes place at Olympia London from March 5th to 6th. Please pop by our stand and say hello. Our next issue will feature a wide range of personal injury related topics including, MedCo review, scarring and rehabilitation, training, changes in the law, plus our usual 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, all the staff at Expert Witness would like to wish all our readers a happy and healthy new year.
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 Exper t 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 2019. Expert Witness Publishing Limited, Unit 1/06, Ivy Business Centre, Crown St, Failsworth, Manchester M35 9BG
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AI Will Free-up Solicitors, Report Says Artificial Intelligence (AI) will free up solicitors from lower-level work to carry out more complex tasks, a new report concludes. The Solicitors Regulation Authority (SRA) has published a paper which looks at innovations in technology affecting the legal service sector. The report shows that rapid developments in AI will mostly be focused on back-office functions, addressing out the less complex work.
Paul Philip, SRA Chief Executive, said: “There is no doubt that new technology has already improved the way legal services work. Latest surveys show that 30 percent of legal work is now delivered online and the business use of emails has speeded up many tasks. “Our report highlights the potential for technology to add further value in the workplace and we are looking further at how AI can enable the provision of high-quality legal services through the government Pioneer Fund award. Many firms are already exploring the possibilities and I would urge all law firms to consider how technology can help you and your business.”
This will allow solicitors to focus on more complex parts of a case or increase their capacity to engage with clients and potential clients. Using AI for legal services could also see firms reduce their costs as overheads for ‘virtual’ parts of a business are lower. And attitudes about using new technology will change as it becomes more commonplace.
Various reports have been published elsewhere on the attitudes of the profession towards the use of technology, and other areas of innovation, and the progress that is being made.
The paper also outlines the quality of legal work carried out by computers. While it is not 100 percent accurate in various tests, it has never proven any less accurate than work carried out by humans. In some cases, it is more so. However, while in one test it took real-life lawyers 92 minutes to complete a task, AI finished the job in 26 seconds.
EXPERT WITNESS JOURNAL
The SRA have dedicated pages for those looking to find new ways of working, with the aim of increasing access to justice, competition and choice for clients. The paper on technology and the SRA Innovate pages can be found by visiting their website.
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Contents
Some of the highlights of this issue Events and Training
page 5
Book Review Clinical Practice & the Law - A legal primer for clinicians.
page 7
My First Christmas in London by Dr Bashir Qureshi
page 8
The Treasury Report on Crypto-assets page 15 by Andrew Henderson, James Burnie, Zia Ullah & David Cook at Eversheds-Sutherland. Crypto Assets, Financial Crime & Forensic Accounting by Paul Doxey
page 18
Hidden Assets in Confiscation Proceedings by Rob Miller, director and co-founder of Inquesta.
page 21
Money Laundering by John Binns
page 23
Digital Forensics and Selecting a Digital Forensics Expert Witness by Jason Bergerson and Alistair Ewing
page 26
Forensics Europe Expo preview
page 32
UK Forensic Science Strategy, GSOH, Seeks Joined-up Thinking for LTR by Jo Millington
page 34
Atrociously Bad Interest Rate Decisions by Mr Peter Crowley
page 37
Noise Nuisance and the Expert Witness by Dick Bowdler, Noise Consultant
page 43
Fire Investigation - ‘Completing the Jigsaw’ by James Holder
page 47
Psychological Injury, Cyber Crime and Data Breach Damages by Hugh Koch
page 53
Dealing with Service Users Who Bite, Scratch or Spit Foreseeable Risk by Joanne Caffrey, Expert Witness & Specialist Training Provider Safer Custody
page 56
Results from the Times & Bond Solon Annual Expert Witness Survey 2018 by Mark Solon, Chairman of Wilmington Legal & founder of Bond Solon
page 59
In a Foreign Land - by Mr. Bernard J B K
Page 61
Darnley V Croydon Health Services NHS Trust Mr Mike Paynter - Emergency Nursing Expert Witness – Apex Health Associates
page 68
Ethics and the Expert Witness by Martin Burns RICS, Head of ADR Research and Development
page 72
Domo Arbitrato, Mr Roboto: Where and Under what Rules page 77 Will we be Arbitrating, Commercial Arbitration Claims in 2028 By Dorothy Murray (London) and James McKenzie (Hong Kong)King & Wood Mallesons Preparing For a Hot Tub - by Dr Chris Danbury
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Art Buyer Sues Christie’s for Failing to do its Homework The buyer of a Nazi-looted painting claims Christie’s auction house did not research the work’s provenance thoroughly enough before it sold it to him.
ments stored by the US National Archives and Records Administration. Christie’s maintains it performed all reasonable checks on the artwork and that only four lost art databases were available and routinely investigated prior to the sale of the Sisley in 2008. One of the databases used by Mondex did not become digitally available until approximately two years after the auction. Christie’s also reiterated its commitment to identifying stolen artworks.
French art dealer, Alain Dreyfus, argues that if the auction house had dug deeper into the archives it would have discovered that Alfred Sisley’s ‘Premier jour de printemps à Moret’ (‘First Day of Spring in Moret’ 1889) had belonged to a Jewish collector in Paris. Alfred Lindon, né Lindonbaum, hid the painting in a Chase Bank safe and fled Paris when Hitler invaded in 1940.
Lindon’s heirs agree with Dreyfus that Christie’s did not sufficiently research the painting’s provenance prior to the sale. They are negotiating the return of the painting with Dreyfus. Whether or not Dreyfus will secure his refund from Christie’s after launching legal proceedings remains to be seen but he is determined. “With Christie’s, it’s war,” he vowed.
According to art recovery company, Mondex Corporation, the work was confiscated by the Nazis and stored at the Jeu de Paume. At one stage, it found its way into the private collection of Nazi official Hermann Goering. Dreyfus, who has a gallery in Basel, bought the Sisley from Christie’s New York in 2008 for US$338,500 (£253,089). At the time, there was no indication from the auction house that the painting was spoliated. In light of Mondex Corporation’s investigation, Dreyfus is suing Christie’s for a refund of the purchase price together with 8% interest.
Head of Mondex, James Palmer, warned art buyers to learn from the Dreyfus case and insist auction houses indemnify them against purchasing works, which might form the subject of future ownership claims. “This would likely encourage auction houses to be far more accountable and therefore to stop selling stolen art”, Palmer explained.
Mondex argues that if the auction house consulted a directory of looted items published in France in 1947 it would have discovered that ‘First Day of Spring’ was among several paintings by Sisley stolen by the Nazis. Evidence of the theft is also recorded in docu-
This article was originally written by Rachel Feldman for Art Law & More, a dedicated art law blog by Boodle Hatfield LLP. Many thanks for permission to reprint.
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Events Date: 11 Mar 2019 Location: London Address: London, London, Venue tbc
Inspire MediLaw Inspire MediLaw’s medico-legal conferences cover a whole range of medical and legal issues relating to clinical negligence. Our Medico-Legal conferences focus on providing medical knowledge for legal professionals with presentations by leading medical experts, lively discussion and debate and the latest case studies. With an interesting balance between medical and legal speakers our APIL CPD accredited conferences will be of interest to both claimant and defendant practitioners.
Date: 15 Apr 2019 Location: Birmingham Address: tbc Phone: +44 (0)24 7686 8555 UK Training enquiries: +44 (0)24 7686 8584 Email: contactrics@rics.org
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Expert Witness Training for Medical Professionals 17 January 2019 Oxford Spires Hotel Inspire's Expert Witness training is designed specifically to guide and prepare medical professionals in the essentials of medico-legal practice. This two day CPD course explains the practicalities of setting up a medico-legal practice, what to expect from instructing parties, the legal procedural rules that govern expert witnesses, successful report writing, preparation of joint statements with opposing experts, meetings with counsel and giving evidence in court.
Expert Witness – Courtroom Skills Training Are you prepared to be an Expert Witness? If you are called as an expert witness, a courtroom can be an intimidating environment, for both lay and experienced witnesses. You may not have given evidence in court before as an expert witness. Even if you have, your courtroom experience may have left you uncomfortable at the prospect of doing it again. How can Courtroom Skills training help you? The Courtroom Skills training course prepares you for giving evidence as an expert witness or a professional witness. The course is an intensive, highly practical and experiential form of giving evidence training and can be adapted to meet your needs.
Consent in Practice 25 January 2019 Oxford Spires Hotel Inspire MediLaw’s comprehensive 'Consent in Practice' training course will provide medical professionals of all specialities with the essential knowledge, confidence and support needed to apply legal principles to your day-to-day practice.
Courtroom Skills training is delivered by Michael Williams, a practising barrister. You will benefit from his many years of experience in investigating offences and prosecuting or defending cases in courtrooms and tribunals. Our course is continually reviewed so you’ll always receive the most up-to-date guidance available.
Expert Witness Training for Medical Professionals 14 March 2019 Oxford Spires Hotel Inspire's Expert Witness training is designed specifically to guide and prepare medical professionals in the essentials of medico-legal practice. This two day CPD course explains the practicalities of setting up a medico-legal practice, what to expect from instructing parties, the legal procedural rules that govern expert witnesses, successful report writing, preparation of joint statements with opposing experts, meetings with counsel and giving evidence in court.
If you are a Healthcare professional or are in a related profession we have adapted this course especially for specialised area. Please click here for further information. What does Expert Witness Skills training cover? The day starts with removing the mystique which can surround courtroom processes. You’ll learn about the various roles of everyone involved as well as how to take the oath and deal with cross-examinations.
Inspire MediLaw, Merchant House 5 East St, Helen’s Street, Abingdon, OX14 5EG Phone: 01235 426870 Email: info@inspiremedilaw.co.uk Website: www.inspiremedilaw.co.uk
Other areas covered include: Understanding the adversarial process The practice and procedure of giving evidence Preparing to give evidence ‘Hot-tubbing’ of expert evidence The role and purpose of evidence-in-chief, cross-examination and re-examination Coping strategies The ‘Ten Golden Rules’
RICS Expert Witness Certificate Founded on the official RICS Professional Guidance, this blended learning programme will ensure you develop the core competencies needed to be an effective expert witness. Date: Mon 4 Feb 2019 - Fri 10 May 2019 Time: 09:00 AM - 05:00 PM Venue: Birmingham, Birmingham.
As defence lawyers often focus on decisions made by investigators and managers, the course also includes guidance on making decisions and recording the thinking behind them. You’ll end the course by
Date: 04 Mar 2019 Location: Edinburgh Address: RICS, 125 Princes Street, Edinburgh, EH2 4AD EXPERT WITNESS JOURNAL
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undergoing or observing a simulated cross-examination exercise so you’ll know what to expect in the courtroom.
Discussions between Experts This course will provide experts with a comprehensive overview of what these discussions entail, possible pitfalls and the implications if best practice is not followed.
Who should attend Expert Witness Skills training? The training will meet the needs of professional and expert witnesses who are to appear in courtrooms, tribunals or misconduct hearings. You’ll also benefit from the course if you are one of the following: Police, military or public sector investigator Police analyst Crime scene investigator Investigator Social worker Child care practitioner Human resources professionals
Concurrent Expert Evidence (Hot-Tubbing) An intensive one-day course, providing civil expert witnesses with the core skills and knowledge to give concurrent expert evidence in court. Masterclass in Report Writing This masterclass is designed for experts who have already undertaken the Excellence in Report Writing. The course acts as a useful refresher and is designed to enhance your report writing skills to an advanced level. Masterclass in Courtroom Skills The advanced masterclass is designed for expert witnesses who have already undertaken the Courtroom Skills. Experts should consider this course every 2-3 years to refresh and enhance their skills in giving evidence.
Courtroom Skills Training In House The Courtroom Skills training course can be delivered at an approved Sancus venue, or at your own premises for maximum convenience, for as little as £1,350 +vat (£1,450 +vat if within the M25 radius) for up to 12 delegates.
GDPR for Expert Witnesses Toolkit This toolkit will help you understand what the General Data Protection Regulations means to you as an expert witness and provide you with tools you are most likely to need to comply with the GDPR.
Contact us Unit 8G, Lockside Office Park, Lockside Road, Preston PR2 2YS Tel: 01772 282800 E-mail: enquiries@sancussolutions.co.ul. www.sancussolutions.co.uk/expert-witness-courtroom-skills-training/
To secure your place, either book online or call us on 020 7549 2549 or visit; www.bondsolon.com
Bond Solon Expert Witness Courses Excellence in Report Writing This course provides expert witnesses with the key skills to produce court compliant reports. Experts will learn how to produce quickly and consistently reports that are both court compliant and will withstand cross-examination. Courtroom Skills This one day course will provide expert witnesses with the core skills to effectively present opinion based evidence in court under cross-examination.
INFORMED, ASSURED, INSPIRED Inspire MediLaw is a provider of first class conferences, accredited training and CPD events in medicine and law. We provide knowledge for medical experts who need to understand the law and for lawyers who need to understand the medicine. Inspire MediLaw is passionate about bringing medical and legal professionals together to learn, shape best practice and share ideas.
Cross-Examination Day A follow on day to the Courtroom Skills Training, this course enables expert witnesses to refine and enhance their skills in presenting evidence in court.
Benefits of Inspire Expert Witness Training With a wealth of experience in the legal and healthcare sectors, we are uniquely placed to offer this RSM accredited expert witness training and follow up, carefully tailored to your medico-legal requirements.
Civil Law and Procedure This course provides civil court experts with a comprehensive understanding of their requirements of CPR Part 35, Practice Direction 35, the Protocol for the Instruction of Experts and practice direction on pre-action conduct.
This includes: v Interactive training sessions with experienced clinical negligence v professionals; v GMC and GDPR advice sessions; v Comprehensive course materials for easy future reference; v Marketing of your expertise to our network of lawyers; v Advice on presenting your CV; v Networking and speaking opportunities; v Ongoing coaching and mentoring by our experienced panel of lawyers and medical experts; v CPD accreditation.
Criminal Law and Procedure This course provides criminal court expert witnesses with a comprehensive understanding of their requirements under Part 33 of the Criminal Procedure Rules.
To find out more about Inspire MediLaw, upcoming conferences for expert witnesses, and other course dates for 2019 visit their website at www.inspiremedilaw.co.uk or contact Caren Scott or Vikki Forrester on 01235 426870 or email: info@inspiremedilaw.co.uk.
Family Law and Procedure This course provides family court expert witnesses with a comprehensive understanding of their requirements under Part 25 and 25A. EXPERT WITNESS JOURNAL
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Book Review Clinical Practice and the Law A legal primer for clinicians. Author G Eyre, published by Professional Solutions Publications. London. 2018. The book briefly and clearly explains long-standing and also more recent legal judgments such as Bolam, Bolitho, Montgomery, Thefaut and more recently Hassell. With each judgment, a doctors’ obligation to provide clear, logical patient-orientated advice has become more and more established. Whilst this might on the face of it make a doctor feel more insecure, in reality by understanding the simple principles outlined in this book, the doctor should become more immune to legal scrutiny.
I am privileged to be asked to review this book by the author, Giles Eyre. He has recently retired as a Barrister, having become a leading educator for doctors and others in becoming Expert Witnesses, based on a long and illustrious career in the field of personal injury and clinical negligence, The book is remarkably short – just 135 pages – and can be read within three or four hours. It is beautifully laid out with clear chapters each with a brief introduction followed by logically arranged headings and subheadings. Key points are highlighted in concise text boxes.
Another strength of this book is the repeated emphasis on how established good medical practice as defined by the GMC merely reflects the expectation of the law. Simply by following good medical practice much of the perceived threat of litigation will just fall away.
Reading this book would benefit all doctors both junior and senior. Why? Because the work of all doctors is inextricably linked with the law. Every time we meet a patient we have a Duty of Care. Every interaction with a patient (whether in person or in writing) might one day be scrutinised in a negligence claim. We have to interact with police enquiries and coroners’ inquests. Some of our patients have issues with mental capacity for which clear legal laws apply. We face issues of consent for transfusion and unconscious patients. General Data Protection Rules are the latest threat to our peace of mind.
Even though I have been in consultant practice for over 20 years and an Expert to the Court on medical negligence cases for several years, I found countless wise tips which I will integrate into my practice. These will include routinely recording my logic on every decision, making sure that informed consent is viewed entirely from the patient’s perspective, and writing to the patient in clear non-medical terms rather than to the GP in medical terms after a clinical consultation.
Many doctors probably feel threatened or even hostile to the legal profession. Perhaps the doctor fears unfair scrutiny of his work, more for the gain of the lawyer than the patient. This book goes a long way to dispelling this misconception. By reading the book, a doctor will understand the legal context of clinical practice. The book starts with an explanation of how lawyers and the Court examine evidence (be it oral or written) in a tidy, logical and forensic way. By understanding this, a doctor’s record keeping will inevitably improve and will provide a robust defence at a later date were his clinical practice to be questioned. Having read this book, there is no doubt that I will spend more time recording all key clinical findings, more fully explaining consent and to explain explicitly my clinical reasoning for any particular decision or recommendation.
This really is an excellent practical guide and I would recommend it wholeheartedly to all doctors. It is a gentle, easy read and yet so apposite to current practice. David Warwick Chair BOA Medicolegal Committee Consultant Hand Surgeon, University Hospitals Southampton davidwarwick@handsurgery.co.uk
The book also talks the reader through the process followed when things go wrong in clinical practice. Genuine mistakes rather than negligent errors are common; the obligation for Duty of Candour is emphasised - it does not mean an admission of negligence. If things go properly awry, then the Author explains how to engage with the potential clinical negligence process, Fitness to Practise assessment or disciplinary proceeding. EXPERT WITNESS JOURNAL
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My First Christmas in London; a White Experience with Cultural, Religious and Ethnic Surprises by Dr Bashir Qureshi MBBS, FRCGP, FRCPCH, AFOM-RCP, Hon FFSRH-RCOG, Hon FRSPH, Hon MAPHA-USA. Author of Transcultural Medicine, dealing with patients from different Cultures. Expert Witness in Cultural, Religious & Ethnic Issues in Litigation. • Charge nurses were merrier at Christmas. I was amused, bemused and confused. What a new white world. As a child, I learnt that angels were white, made of light.
My first Christmas in England, on 25 December 1964, was a white Christmas for me, in true sense. I was born in India, medically qualified in Pakistan. I started work in Whipps Cross Hospital, London, on 1st September 1964. On Xmas day, I saw for the first time that: • The ground, cars, trees, rose bushes and buildings were covered with snow.
• A Charge nurse, advised me on my first night of ward round on the Christmas eve “Doctor, write a laxative for each patient and the night nurse can choose to give it, without waking you up to write it.” Then he winked at me and said “If you keep their bowels open, they would keep their mouths shut!”.
• The patients, other doctors, the matron, nurses, some nuns who were nurses, paramedics, porters and all other staff including cleaners were white.
• I was taken aback as I knew that winking, by a male or a female, is a sexual gesture in the East! I was startled to see that a Charge nurse was winking at me; a strictly heterosexual soul. I learnt later on that “winking” is a benign friendly gesture in the West. No Easterner needs to worry. This was the beginning of my strong interest in pioneering new disciplines of “Transcultural Medicine” and “Transcultural Litigation”.
• There were some male nurses. This was new for me. A charge nurse was called “Mr Rowbottom." He was a cockney, born in east London within sounds of Bow bells. • Pearly kings and queens came to hospital, sang carols and danced. I saw western dancing for the first time. England was so peaceful, no war. Everyone looked happy and praised the Lord. I thought it was akin to what, I had been told, is in heaven.
Above, Dr Bashir summer 2018 Beolw, Dr Bashir Qureshi on 22.6.1964 - Arrived in London
• The ward sisters waited for a male consultant to cut a turkey and cake, for Christmas lunch. He wore a Father Christmas costume. The scene was magical. • On the Christmas day ward round, as a houseman, I was pushing a trolley, full of bottles of wines and spirits. The consultant poured every patient’s choice in a glass and the ward sister, with unusual smile, offered it to each patient, including the one with alcoholic cirrhosis, with a greeting “Merry Christmas & a Happy New Year.” • I joined nurses in carol singing, without opening my lips. I did not know carols and the singing tone, but I joined in. Since then, I am skilled in tactful team working. • Traditionally, some ward nurses, called “sisters” were very powerful under the Matron’s rule. They even influenced consultants in decision making. Ironically, I observed that one in three ward sisters were unkind to house doctors, especially to female doctors. However, their staff nurses were extremely nice. They were all nicer at Christmas time. Fortunately, I was alright, as I am cheerful, careful and tactful. EXPERT WITNESS JOURNAL
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That Christmas, I had thick black hair, a moustache turning upward, slim figure, and no sense of humour. I was a typical Easterner, but nurses thought that I was very handsome. As a result of my age and westernisation over last 54 years, I shall not need a comb this Christmas. I am not a slim guy anymore, but I have acquired a British sense of humour, including satire. I enjoy western music and dancing. I like helping people. Yesterday was history, tomorrow is mystery, I enjoy today. I hope to remain a jolly good Fellow for many Christmases to come. I wish readers a very merry Christmas 2018 and a happy new year 2019.
Dr Bashir Qureshi FRCGP, FRCPCH, Hon. FFRSH, RCOG, AFOM-RCP, MICGP, DCH, DHMSA, DPMSA, FRIPH, Hon.FRSH, Hon.MAPHA-USA
Expert Witness in Cultural, Religious & Ethnic Issues in Litigation. Expert Witness in GP Clinical Negligence. 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.
Dr Bashir Qureshi Email. drbashirqureshi@hotmail.com Web: www.drbashirqureshi.com
Languages spoken: English, Urdu, Hindi, Punjabi. Author of ‘TRANSCULTURAL MEDICINE’ Dealing with Patients from different Cultures, Religions & Ethnicities.
Contact: Tel: 0208 570 4008 Fax: 0208 570 4008 Mob: 07710 402 276 Email: drbashirqureshi@hotmail.com Web: www.drbashirqureshi.com 32 Legrace Avenue, Hounslow West, Middlesex TW4 7RS Above, Dr Bashir Qureshi on 25.6.1964 - Outside 10 Downing Street, London. All photgraphs courtesy of Dr Bashir .
Dr Ian Starke
Mr Kim Hakin
Consultant Physician in Stroke Medicine and Geriatric Medicine
FRCS, FRCOphth
MSc, MD, FRCP.
Mr Kim Hakin is a Consultant Ophthalmic Surgeon providing ophthalmic services (NHS & Private.) He undertakes medico legal work at; Optegra Eye Hospital Central London. 25 Queen Anne Street, London, W1G 9HT. The Nuffield Hospital, Taunton, TA2 6AN.
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.
Special interests include: cataract surgery, ocular trauma, eyelid & lacrimal surgery including cosmetic eyelid surgery, facial laser surgery.
He has provided expert examinations and reports for immigration and HM prison services. He is able to assess clients within or outside London.
Mr Hakin holds the Expert Witness Certificate from Bond Solon/Cardiff University, is a member of The Expert Witness Institute. Also formerly Expert Advisor to Nuffield Hospitals and Healthcare Commission, and regularly undertakes work for organisations such as the General Medical Council, Medical Defence Union, Medical Protection Society, NHS Resolution as well as many solicitors' firms and legal agencies.
Contact: University Hospital Lewisham Lewisham High Street, London SE13 6LH Tel: 0208 333 3379 Fax: 0208 333 3381 Email: ianstarke@nhs.net
Tel: 01823 250614 Mob 07887 651551 Email: kimhakin@aol.com, or kimhakin1@gmail.com Web: www.kimhakin.com All correspondence to Nuffield Health Taunton Hospital, Staplegrove Elm, Taunton TA2 6AN, or by email.
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Patient Satisfaction After Total Knee Replacement by Mr Nikhil Shah, Consultant Trauma and Orthopaedic Surgeon sistent pain even in a well-aligned and well-fixed joint. Complex regional pain syndrome can be an infrequent but important cause of post-operative pain which is quite difficult to treat.
Total knee replacements (TKR) performed for severe painful knee arthritis (figure 1) in well-selected patients are generally successful operations in improving the pain levels and mobility. However there remains a significant proportion of patients who are unhappy with the outcome of their new knee. Recent studies show that apart from claims for technical errors, there has also been a rise in claims for non-specific dissatisfaction.
Another common reason for dissatisfaction is stiffness, or failure to obtain the range of movement the patient expected. This can be due to technical problems or due to a condition called arthrofibrosis which leads to scar formation inside the knee replacement.
This percentage of patient dissatisfaction is approximately 20-25% (range 10-50%) in published literature. That means every 5th patient with TKR could potentially be dissatisfied or even bitterly disappointed with the outcome. The satisfaction levels are even lower in younger patients, who are coming up for knee replacements with increasing incidence. This may happen even if the surgery is deemed to be otherwise successful using objective parameters and is technically well-performed.
Dissatisfaction may lead to compromise of the doctor- patient relationship and can be a reason for litigation. It is important to carefully select patients and avoid total knee replacements with lower grades of arthritis as shown in many studies. It is important to appreciate the role of conservative management in early stages of arthritis or to consider other joint preserving options in the appropriate indications. Managing expectations and thorough counselling is vital. Patients must understand the goals and limitations of surgery. It is worth spending time to explain the importance of correcting modifiable risk factors such as smoking and high body mass index. A good preoperative patient education programme is also very helpful in preparing the patient for surgery. Preoperative counseling regarding the risks of incomplete pain relief could substantially reduce the number of unhappy patients and legal claims.
It is important to understand the reasons for dissatisfaction to try and minimize the number of unhappy patients. Patients expect pain relief, improved walking, return to work and sports, and improved feeling of well-being. However, studies show that many patients are overly optimistic and have unrealistic expectations of the expected outcomes after TKR. Patient satisfaction is difficult to define and even more difficult to measure. It encompasses unfulfilled expectations, incomplete pain relief, reduced movement, persistent limp, problems returning to work or to an active lifestyle, complications, and also their overall experience of the healthcare system under which they had the surgery.
Mr Nikhil Shah Consultant Trauma and Orthopaedic Surgeon Wrightington Hospital Figure 1.
It is recognised that physical as well as psychological factors (pre-existing depression, somatization dysfunction) both contribute to dissatisfaction. Health related factors such as multiple previous knee operations, medical comorbidities, and high BMI are associated with lower satisfaction. It is well-recognised that performing a total knee replacement for less severe grades of osteoarthritis in patients who are otherwise functioning quite well, is also linked to dissatisfaction. Persistent residual pain is one of the most common reason for dissatisfaction in clinical practice and also a common reason for litigation. A painful total knee replacement needs thorough evaluation to find out if there is a correctable cause such as infection, loosening of the components, instability, malalignment, or patellar maltracking. However there can be perEXPERT WITNESS JOURNAL
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A Special Unit set up to Freeze and Seize the Assets of Criminals Operating in Prisons has Claimed its first Success The Financial Investigations Unit froze the bank account of a convicted murderer at HMP Gartree containing almost £8,000 and, following an investigation, seized the assets. The prisoner was thought to be involved in unlawful activity within the prison.
Bank accounts on the outside world, used by inmates to pay for drugs, are usually identified through paper notes found in cells which contain account details, or on phones seized from prisoners with instructions to make transfers. Such transactions, which amount to money laundering, are targeted by the unit.
This seizure is a first for the unit, which was created last year as part of a wider effort to disrupt the organised crime in prisons which fuels drug use and violence.
In this case the unit identified a key bank account belonging to an offender, a convicted murderer, that had received a number of suspicious deposits.
The unit is made up of specially-trained prison service analysts and police financial investigators who use intelligence to identify bank accounts used for illicit transactions. They have the power to freeze bank accounts and make arrests.
The unit will continue to analyse intelligence and work quickly to act against offenders suspected of criminal activity. It is part of a wider effort to restore stability to the prison estate, including an additional £70 million investment in safety, security and decency. This will ensure prisons can be places of rehabilitation where offenders can turn their backs on crime for good.
Justice Secretary David Gauke said: Last year I announced a new specialist unit to seize the assets of prisoners who commit crime and fuel violence in jail, and I am pleased it has achieved its first success. This unit forms an important part of our wider strategy to tackle organised crime and restore stability to prisons so that offenders have the chance to turn their lives around.
The investment includes £16 million to improve conditions and £6 million on new security measures, such as airport-style security, improved searching techniques, and phone-blocking technology. To help identify, disrupt and disable gangs, £1m went towards the roll-out of a new digital tool which assesses information from various law enforcement databases to create a central ‘risk rating’ for each prisoner.
Organised criminals in prisons have been known to operate money laundering schemes to receive payment for illicit debts, often as a result of drug deals. Much of the activity takes place through single lowvalue transactions, making them difficult to find.
In addition to this, £14 million is being invested each year to stop criminal gangs smuggling drugs into prisons.
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. 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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The University of Law Selects Nottingham as the Home for its Tenth Campus and Tech Hub The UK’s longest-established specialist provider of legal education and training in the UK, The University of Law (ULaw), has announced plans to open a new campus in Nottingham. The campus, located at One Royal Standard Place, will officially open for teaching in September 2019. News of the tenth campus launch comes hot on the heels of the announcement two weeks ago that ULaw will open its ninth and first overseas campus, in Hong Kong also in September 2019.
• LPC full-time and part-time (day, evening and weekend including an option to add an MSc in Law, Business Management or LLM in Professional Legal Practice at no extra cost) • Postgraduate Diploma in Legal Technology (full-time) • MSc Legal Technology (full-time) • LLB Law two, three and four years (full-time) • LLB Law with Criminology three and four years (full-time) • LLB Law with Legal Innovation and Technology three and four years (full-time)
Ideally situated within Nottingham’s stunning One Royal Standard Place, ULaw’s latest campus will benefit from all the amenities available in the city centre. The central location of the campus also places it in the immediate vicinity of local firms and businesses, which is integral to ULaw’s core objective of building strong local connections throughout the city.
To celebrate the inaugural year in the City of Nottingham ULaw is also launching the ‘Nottingham Postgraduate Award’, available to all postgraduate students starting at the Nottingham Campus in September 2019. The £1,000 award will be offset against the course fee.
ULaw will bring its renowned courses, which have had consistent success nationwide, to Nottingham and the surrounding areas. On launching next year, ULaw will offer the Legal Practice Course (LPC), Graduate Diploma in Law (GDL) and MA Law. ULaw Nottingham will also be a tech hub with the launch of an LLB with Legal Innovation and Technology, as well as the MSc Legal Technology.
ULaw already has well established links to law firms in the city and will be building on these and forging new long-lasting relationships with many other local firms and businesses. It is this approach of creating a network of industry partners and connections that has formed the foundation of ULaw’s continued success and growth, allowing the University to design its courses based on real insight from employers on the skills that are most in-demand; ensuring graduates have a highly-desirable skillset upon qualifying.
For undergraduates, ULaw Nottingham will offer distinctive and unique LLB courses including a two-year accelerated LLB. With ULaw’s unique ‘Switch It Up’ offer, students are able to move from one ULaw campus to another, should they wish to experience life in more than one city or switch courses to ULaw. The University’s Business School, launched in 2016 with a view to providing innovative courses to equip students with real world business skills, will also offer a range of programmes in business and accounting at both undergraduate and postgraduate level at the new Nottingham campus, from 2020. Additionally, the campus will provide professional development courses to law firms and executive education more widely.
Victoria Garrad, Group HR Director at Gateley Plc, said: “We are proud to have partnered with The University of Law for more than eight years as part of our trainee programme and we strongly support the opening of their Nottingham campus. “Every year we take on a new cohort of trainees across all of our offices and currently our Nottingham and Leicester-based trainees have to travel to The University of Law’s Birmingham campus to complete their LPC and GDL courses. We have a strong presence in the East Midlands and it’s important that our trainees begin to develop their professional network in the area early on in their careers, as
While the portfolio is subject to change, the law courses currently planned to launch for September 2019, are: • GDL full-time and part-time • MA Law full-time and part-time EXPERT WITNESS JOURNAL
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well as focusing on their studies; therefore having access to a campus in Nottingham will be highly beneficial for our future East Midlands trainees.”
OGT Forensic Ltd Dr John Douse
Professor Andrea Nollent, Vice-Chancellor and CEO at The University of Law, said: “We are very excited to be launching what will be our tenth campus.
(BA, MA, D.Phil (Oxford), FRSC, FCSFS, F ChromSoc, MEWI, MIExpE)
Independent Forensic Expert Witness Services
“One of our unique strengths is the strong relationships we have forged with law firms. We have taken the time to get to know their businesses, their hopes and their ambitions – to really understand the toolkit they need their trainees to have for success now and in the future. Our courses are all designed with these training needs in mind.
OGT Forensic Ltd provides Forensic Chemistry expert witness services to solicitors and private companies, including provision of laboratory analysis, in the following fields: • TOXICOLOGY (Including Insulin, Alcohol and Ricin) • DRUGS (Including New Psychoactive Substances) • EXPLOSIVES (Including practical experience in IEDS) • INCENDIARIES (Including pyrotechnics and fireworks) • GUNSHOT RESIDUE (Including Organic Residue) • DNA TRACES (Including significance, transfer and QC) • FORENSIC CHEMISTRY (Including Chemical Weapons, Illegal Labs, Counterfeit drugs, Security Dyes, accelerants).
“We are constantly looking for ways to grow and innovate. This innovation will be showcased at our Nottingham campus, where we will launch unique courses covering topics beyond traditional law and business, such as technology and criminology. The way in which we deliver the courses is designed to cater to a diverse range of students too, with flexible learning, modular delivery, block learning and work-friendly teaching models all available.”
We have unrivalled expertise and in house experience,involving pioneering research, casework and court experience in these fields. Legal Aid work and enquiries from Solicitors, Companies and Private Individuals are welcome. Tel: 07766 286 001 E-mail: drjohndouse2@btinternet.com Web:www.forensic-expert.org OGT Forensic Ltd - PO Box 711, Taunton, Somerset TA4 4ZN
Dr Amandeep S Ranu Forensic Physician MBChB MRCGP DRCOG DCH DFFP DipOcc.Med DMJ MFFLM MEWI Cardiff University Bond Solon Expert Witness Certificate (Criminal Law)
Dr Amandeep Singh Ranu currently, holds the position of Senior Forensic Medical Examiner in independent practice providing services to the Metropolitan Police and other constabularies. He is a Registered Medical Practitioner with over 20 years working experience in the UK. His higher clinical forensic training and, working experience has afforded a relevant knowledge-base that renders him capable of expressing an opinion on the subject of injury interpretation. Dr Ranu undertakes work as an expert witness accepting instruction from the prosecution, defence and regulatory bodies in cases concerning the interpretation of injuries, in cases of assault, wounding from knife injuries and blunt force trauma. Expert interpretation includes consideration of ageing of bruising and evaluation of the consistency of injuries with the reported mechanism of injury, including consideration of the likelihood of self-inflicted injury. His expertise also covers the interpretation of injuries sustained by both complainants and detained suspects relevant to Sexual Offence case work in adults and children. Also the care of individuals suspected of involvement in terrorism related offences. Dr Ranu also regularly prepares expert medical reports for the immigration courts, after examining individuals alleging having been subjected to torture and other forms of ill treatment. He is well aware of assessment guidelines outlined in the Istanbul Protocol manual on effective investigation and document of torture and other cruel, inhuman or degrading treatment or punishment. Contact: Dr. Amandeep S Ranu Tel: 07951 048 626.- E mail: drranu.gmc@hotmail.co.uk Web: www.expertphysician.info - Area of work Nationwide
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Award-winning Tech Startup Cyan Forensics Raises Almost £1m in latest Funding Round • Edinburgh-based firm now backed by international investors • This follows UK government award for its cutting-edge work Scottish startup Cyan Forensics, which develops digital forensic technology to help law enforcement catch criminals faster, has closed a £900,000 investment round led by Mercia Fund Managers, bringing its total funding to nearly £1.5million since it was founded in 2016.
UK and start developing our business internationally, as well as exploring other opportunities for our technology in cyber security. The whole team is excited about the success we’re seeing in our first operational deployments and the opportunities in front of us to contribute to public safety.”
Edinburgh-based Cyan Forensics’ technology finds time-critical digital evidence in minutes instead of days, helping police in highly sensitive investigations such as child sexual exploitation and counterterrorism. The company is currently working with customers across law enforcement agencies which are seeing success using the technology operationally.
Paul Devlin, Investment Manager at Mercia, said: “We’re delighted to continue to support Cyan Forensics. This is the latest seed investment, having first backed the team as a spinout from Edinburgh Napier University, they are making excellent progress as they begin to scale up. We believe the business has the potential to make a real difference to the speed at which agencies are able to investigate highly sensitive crime using its innovative forensic technology. The customer base of government and law enforcement agencies is highly impressive and places the company in a great position for future growth.”
The company recently won an award from the UK government for its pioneering work, which recognised Cyan Forensics’ collaboration in delivering practical solutions to safeguard the nation. This latest funding round saw American private investor Don Macleod, a director of Broadcom and former CEO of National Semiconductor, join existing investors Mercia Fund Managers and The Scottish Investment Bank, which both provided funding following their initial investments.
Kerry Sharp, Director of the Scottish Investment Bank, said: “Scottish Enterprise has supported Cyan Forensics from an early stage and it is great to see the progress that has been achieved to develop and commercialise new technology in the area of digital forensics. This round of investment will provide the capital to start expansion internationally and into adjacent markets. We look forward to continuing to work with the company, both from an investment perspective and through our account management support, to deliver its long-term growth ambitions.”
Cyan Forensics, which operates in a market that is expected to grow at 15.9% CAGR, to $9.68billion by 2022, has achieved significant progress with its range of digital forensics products and now has a team of 10 highly skilled professionals, including former law enforcement and military professionals.
Picture above, Ian Stevenson, CEO Cyan Forensics (right) with Paul Devlin, Investment Manager, Mercia Fund Managers
Ian Stevenson, CEO of Cyan Forensics, said: “This latest round of investment will enable us to take full advantage of the market opportunities here in the EXPERT WITNESS JOURNAL
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The Treasury Report on Crypto-assets: The First Step Towards Crypto Regulation? by Andrew Henderson, James Burnie, Zia Ullah and David Cook at Eversheds-Sutherland. The UK's Treasury Select Committee released a report into crypto-assets on 19 September. The Committee’s key conclusion is that regulation of crypto-assets is necessary.
future regulatory environment. This shows links with the current regulatory concerns and is this useful for those in the sector seeking to navigate uncertainty. Regulatory change Regulatory change is the key theme of the Report: In addition to the generally positive tone about the development of an appropriate and proportionate regulatory environment for crypto-assets, the Committee recognise that “crypto-asset” is a preferable term to “crypto-currency” observing that “there are no so-called “cryptocurrencies” that serve all the functions of currency”
Striking a negative tone, it identifies the problems of volatile prices, hacking vulnerabilities, minimal consumer protection, and anonymity aiding money laundering, the fact that Blockchain is “currently slow, costly and energy-intensive” with the potential for data storage uses and the ambiguity of the UK Government and regulators' position is not sustainable. On a positive note, it recognises that, if the UK develops an appropriate and proportionate regulatory environment for crypto-assets and if future innovations in crypto-assets proved themselves as beneficial to society and industry, the UK could be well placed to become a global centre for this activity. Thus, in deciding its regulatory approach, Government should decide if growth should be encouraged.
They also note that since crypto-assets are not widely used as a means of payment, and the linkages to systemically-important firms and markets are negligible, the risk to financial stability arising from crypto-assets is low On a more cautious note, they focus on consumer detriment, the potential role of crypto-assets in money laundering and the inadequacy of self-regulation. This forms the basis for the need for regulation which, at a minimum, should address consumer protection and anti-money laundering
Although providing, at best, an early indication of the precise regulatory response to the issues identified in the Report and while perhaps overstating some of the risks, the Report does give some indication of a EXPERT WITNESS JOURNAL
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To protect investors against mistreatment, the FCA needs more power to control how crypto-exchanges and ICO issuers market their services, by bringing the activities they perform into the regulatory perimeter
to continue, or whether they are going to introduce regulation, consumers remain unprotected. The Committee strongly believes that regulation should be introduced. At a minimum, regulation should address consumer protection and Anti-Money Laundering.
The absence of regulation of crypto-asset exchanges - through which individuals convert crypto-assets into conventional currency - is particularly problematic
In deciding the regulatory approach, the Government and regulators should evaluate the risks of crypto-assets, and assess whether their growth should be encouraged. If growth is favoured, regulation could lead to positive outcomes for the crypto-asset market, including the move toward a more mature business model and increased liquidity. If the UK develops a proportionate regulatory environment for crypto-assets, the UK could be well placed to become a global centre for this activity.
As to money laundering: the FCA should be the relevant regulator for supervising anti-money laundering and the transposition of the Fifth Anti-Money Laundering Directive, which imposes duties on crypto-asset exchanges, is a priority Instead of designing a special regulatory regime, crypto-assets and associated activities should be regulated through extending the Regulated Activities Order and thus providing the FCA with the necessary legal powers to execute its duties of protecting consumers and maintaining market integrity
Currencies act as a medium of exchange, a store of value, or a unit of account. There are currently no cryptocurrencies that perform these functions. As cryptocurrencies are being used widely for speculation, well-functioning cryptocurrencies exist only as a theoretical concept. Accordingly, this Report uses the term 'crypto-assets' as it's more helpful and meaningful in describing Bitcoin and many other 'altcoins'.
Analysis Although a dry point, the preference for the term “crypto-asset” is a helpful clarification in framing, although not necessarily resolving, the issue of regulatory classification and legal nature of crypto-assets. This still leaves open the question of crypto-assets which function like securities and investments and which should already be subject to the existing regulatory regime, albeit that their precise classification, and hence treatment, remains unclear.
A prominent feature of crypto-assets is the volatility of their prices. For example, the price of a Bitcoin increased from $6,472 in November 2017 to $17,629 in December 2017, and fell to $7,208 in February 2018. Investors are exposed to large potential gains, but correspondingly a greater risk of loss. Accordingly, investors should be prepared to lose all their money.
The recognition of specific crypto-asset related activities, such as operating a crypto-asset exchanges, i.e. one where crypto-assets are exchanged into fiat currency or other assets, is also significant and indicates clearly where law-makers see “activity gaps” in the current regime.
Several crypto-asset exchanges, which are used to convert crypto-assets into conventional currency, have been hacked and customers' crypto-assets have been stolen. As there is no collective deposit insurance scheme to compensate investors in the event of a hack, the risk of hacking associated with crypto-assets may not be something that investors in conventional assets have experience of. Therefore, they may not be well placed to judge this risk. This constitutes further evidence that crypto-assets are particularly ill-suited to retail investors.
The report alludes to technical issues but does not develop them. Given its preliminary nature, this is unsurprising but the extended regime for regulating “new actors” is likely to have a heavy technology and operational risk focus with governance and oversight being focused on this. The recognition that an extension of the current financial regulatory regime rather than the creation of a special crypto regime, highlights the fact that crypto-assets are capable of being accommodated within the current regime. A lack of certainty both on scope of the current regime and, more importantly, regulatory power highlights the need for extension.
An additional risk that consumers may not be aware of is that some customers who have lost their passwords to a crypto-asset platform have been told by the firm that runs their account that their password cannot be restored. Thus, there is no recourse for customers who have lost their password, and they are locked out of their account permanently. This oftenunexpected outcome for investors is a stark contrast against how customers of banks, and other regulated financial services firms, are treated.
Summary of the Report and its Key Findings in more detail Crypto-assets, and most Initial Coin Offerings (ICO), are currently not within the scope of FCA regulation. Crypto-asset investors are currently afforded very little protection from the litany of risks, namely there are no formal mechanisms for consumer redress, nor compensation.
The advertisements of both ICO issuers and crypto-asset exchanges are not regulated by the FCA. One-sided adverts imply that the crypto-asset market will only go up, and that anyone can make a lot of money easily. The FCA’s consumer warnings are a feeble corrective to such misleading adverts. The regulator needs more power to control how cryptoasset exchanges and ICOs market their services
Self-regulating bodies in the crypto-asset industry, which set out codes of conduct and best practice for the industry, are wholly voluntary. Inevitably, there are firms that will ignore them. This is clearly insufficient. As the Government and regulators decide whether the current “Wild West” situation is allowed EXPERT WITNESS JOURNAL
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The advertisements of both ICO issuers and crypto-asset exchanges are not regulated by the FCA. One-sided adverts imply that the crypto-asset market will only go up, and that anyone can make a lot of money easily. The FCA’s consumer warnings are a feeble corrective to such misleading adverts. The regulator needs more power to control how cryptoasset exchanges and ICOs market their services.
payment systems. But the Committee does recognise that blockchain technology may have the potential to be a more efficient method of managing certain types of data in the long-term. How Eversheds can help Eversheds Sutherland was the only law firm to submit evidence to the Commons Select Committee, which gave rise to the report. Since advising on the first successful initial coin offering in the United Kingdom, we have been at the forefront of advising firms on crypto assets, blockchain and the FCA sandbox process. We take a flexible approach to providing advice, taking a cross-sectoral and practical approach tailored to the diverse needs of our clients.
Crypto-asset exchanges are not currently included in AML regulations. Owing to this, and their inherent anonymity, crypto-assets can facilitate the sale and purchase of illicit goods and services and can be used to launder the proceeds of crime. The Committee recognises that the EU's Fifth AML Directive, which will require crypto-asset exchanges to comply with AML regulations, is a step forward. However, the Government’s consultation on transposing the EU’s Fifth AML Directive into UK regulation is not expected to finish until the end of 2019. The Committee has urged the Government to prioritise and expedite the transposition.
For more information contact Andrew Henderson Partner +44 20 7919 0898 James Burnie Associate +44 20 7919 0879
Blockchain is an electronic ledger that records and verifies transactions made using crypto-assets. Moving away from its origins with Bitcoin, blockchain has more recently been described as a database that works as a decentralised way of storing large amounts of data. A fundamental drawback of decentralised blockchains is the slow, costly and energy-intensive verification process for transactions. This may ultimately limit the extent to which crypto-assets and blockchain can replace conventional money and
Zia Ullah Partner +44 161 831 8454 David Cook Senior Associate +44 161 831 8144 www.eversheds-sutherland.com
Contact Telephone: 0117 403 7799 Mobile: 07831 784006 Website: www.david-bunker.com Email: davidbunker@david-bunker.com Address: 66 Gloucester Road, Bristol BS7 8BH David Bunker is a member of the Academy of Experts and is an experienced mediator, arbitrator and a member of the President’s Appointments Scheme panel. He is appointed by the Institute of Chartered Accountants to deal with disputes referred to it. For over fifteen years David Bunker has been applying his expertise as a Chartered Accountant to the resolution of business disputes. This can take a number of different forms: Acting as an Arbitrator David is a Member of the Chartered Institute of Arbitrators and is experienced in acting as a single or joint Arbitrator in disputes between shareholders and business partners. Acting as an Expert Determiner David is a Member of the Academy of Experts and is called upon as an independent expert to report and determine the outcome of disputes arising out of accounting issues, such as the valuation of a business or the agreement of the proceeds on a business sale. Party Expert. David is experienced at acting as an expert for one party to a dispute, preparing reports for consideration within that dispute, and working with the appointed legal team. Mediator David has wide experience as commercial mediator working with parties in dispute.
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Crypto Assets, Financial Crime & Forensic Accounting In this article I explain how cryptocurrencies are used to launder illicit funds and how this affects the asset tracing work of forensic accountants. US authorities,1 the Silk Road site generated approximately $1.2 billion in sales revenue and $80 million in commissions – all of which was in bitcoin. Ulbricht was eventually caught and convicted, but only through old fashioned forensic investigation and not by breaking bitcoin’s security technology. However, his conviction was assured by another key feature of bitcoin, its tamper-resistant method of record-keeping – more on that later.
Forensic accountants use their expertise in finance, accounting and transaction processing systems to investigate fraud and other financial wrongdoing. Their work includes assisting clients on financial crime risks and controls, detection, investigation and litigation support, as well as asset recovery. Two aspects of this work are money laundering and asset tracing. Money laundering is the transformation of the proceeds of crime from their original form (such as cash) into new assets and locations to disguise their origin and make them appear legitimate. Typically, the assets may have been moved through a complex chain of entities, such as bank accounts, companies, trusts and special purpose vehicles. Often these will span multiple jurisdictions. All this is done to ensure the trail is as hard to follow as possible. What began as cash received through a UK Ponzi scheme might end up in mega yachts in Monaco, property in Spain and blue-chip investments in the London Stock Exchange. The money could be laundered via companies in Switzerland, bank accounts in Guernsey, trusts in the Cayman Islands and law firm client accounts in Gibraltar.
Russian interference in the 2016 US presidential election was alleged by the US authorities in July 2018. The investigation by Special Counsel Robert Mueller led to the indictment of 12 Russian intelligence officers for “hacking into the computers of US persons and entities involved in the 2016 US presidential election” and conspiring “to launder the equivalent of more than $95,000 through a web of transactions structured to capitalize on the perceived anonymity of cryptocurrencies such as bitcoin.”2 It is alleged that bitcoins were used by the defendants to evade scrutiny when purchasing servers, registering domain names and making other payments as part of their hacking activity. So what are cryptocurrencies, exactly? Cryptocurrencies, such as bitcoin, are “any publicly available electronic medium of exchange that features a distributed ledger and a decentralised system for exchanging value.”3 They are an exciting innovation that seem to offer certainty, security and transparency without government regulation or any central authority being involved. They are lauded by many as a true free-market innovation.
Asset tracing is the process of carefully uncovering the trail of an asset from origin to ultimate destination, documenting each step along the way, in a forensically sound manner that can stand up to court scrutiny. Cryptocurrencies such as bitcoin provide new opportunities for money launderers, through the partial anonymity they can provide and the lack of centralised supervision. Both these attributes are seen as key attractions by genuine and dishonest users alike. Two examples are the notorious case of Ross Ulbricht, the founder of Silk Road, which was the first dedicated black market on the dark web; and the more recent alleged activities of Russian intelligence operatives accused of seeking to interfere with the US presidential election in 2016.
Cryptocurrencies are actually a combination of four technologies: 1. Distributed ledgers: each participant can have a copy of the whole ledger (transaction record), which for bitcoin and many other cryptocurrency systems is structured in a “blockchain”. 2. Decentralised control: participants can deal directly with each other, not through a central authority or controlling entity like a bank.
Silk Road was created by Ross Ulbricht in 2011 as an online marketplace free from government oversight and interference. It provided anonymity through the Tor system, which helps internet users conceal their location and communications. Silk Road used bitcoin as the currency for all transactions. Bitcoins are held in online “wallets” whose ownership can be kept anonymous. Silk Road quickly became the main electronic bazaar for the buying and selling of black market goods, mainly drugs but also other illegal items such as stolen identity documents. According to the EXPERT WITNESS JOURNAL
3. Use of cryptography: to protect and authenticate transactions, balances and participants. 4. Automation: the ability to automate transactions programmatically, such as in smart contracts or by triggering the payment of interest on a bond once a specified event occurs. Cryptocurrencies are not regarded as true currency – they are not official money, which is called “fiat currency”. They are not legal tender and currently 18
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Criminals who make their money in the real economy, for example through investment fraud, will need to convert their proceeds into cryptocurrencies, which means finding a party willing to accept fiat currency in exchange. In practice - for transactions of any size - the payment of the real currency will need to pass through a financial institution such as a bank. If the financial institution has strong anti-money laundering controls then it will consider whether the source of the funds and the nature of the transaction seems suspicious and, if so, report it to the authorities. Similar considerations apply when cryptocurrency is converted back into fiat currency. This is one area on which forensic accountants can focus when trying to trace assets: regulated financial institutions are required to follow stringent “know your customer” rules, and their records can therefore be a useful source of information about the identity of the parties.
are not widely accepted across society. However, they can offer the following benefits: • Security • Speed • Low transaction costs, avoiding banks and intermediaries • Convenience • Relative anonymity • Decentralised dealings without any central oversight or monitoring One key aspect of a classic cryptocurrency such as bitcoin is the distributed blockchain ledger technology. What this means is that is every single transaction, since day one, by every party in the cryptocurrency system, is recorded in a ledger, which is a chain or sequence of transaction “blocks” called a “blockchain”. The net result of the history of all the transactions affecting a user’s wallet determines the closing balance on that wallet. Every user can have a copy of the whole ledger, and can therefore see all the transactions, though the identity of wallet holders may be unknown. This sharing of information about transactions across the whole system makes it very hard to falsify the records. Because everyone else has a full copy of the ledger, altering one’s own copy will have no effect: each new block of transactions is only finalised and accepted – and then shared with all the users – once it has been properly validated by a special class of users called “miners” using complex cryptographic techniques. The transparency of the ledger record helps make it very hard to tamper with.
One weakness from the regulators’ point of view has been poor regulation of cryptocurrency exchanges – companies that buy and sell cryptocurrencies, providing the entry and exit points to customers. These have typically been exempt from anti-money laundering regulation. However, with the rise of cryptocurrencies and the associated money laundering risk this is changing. The EU’s 5th Anti-Money Laundering Directive, which came into force in July 2018, requires member states to introduce tighter rules, bringing regulation of cryptocurrencies and cryptocurrency exchanges in line with existing rules for fiat currency and banks. In December the UK government announced it will address the risks by going significantly beyond the requirements of the new directive, and will be consulting on this during 2019. Other governments around the world are taking similar action: for example, in 2018 the US Treasury Department’s Office of Foreign Assets Control issued guidance expressing how it believes transactions in digital currencies should be treated similarly to those in fiat currencies.
What are the financial crime risks? As already mentioned, cryptocurrencies can offer a degree of anonymity and the ability to move financial assets across jurisdictions without government oversight or regulation. A person can open a cryptocurrency wallet, which appears simply as a computer address on the system, without disclosing anything about his or her identity. As we saw with Silk Road, many illicit items can be bought and sold using cryptocurrency. It is often the preferred means of exchange for items such as stolen personal data, ransomware payments, drug dealing and other black market goods and services. It is also increasingly used to evade state sanctions that prohibit the use of official currencies, such as the US dollar. Several sanctioned countries have reportedly indicated that they are developing their own cryptocurrencies, including Iran, Russia, Myanmar and North Korea.
So how big a problem is cryptocurrency money laundering? The UK government’s 2015 and 2017 National Risk Assessment of Money Laundering and Terrorist Financing initially assessed the risks associated with cryptoassets to be relatively low.4 However, since then, money laundering with cryptoassets has been identified as a growing problem. Europol has estimated that £3-4 billion is laundered through cryptoassets each year in Europe, which is a relatively small proportion of total laundered funds, estimated at £100 billion.5 However, this seems set to rise.
However, while cryptocurrencies may provide a safe space for criminals to transact with each other, the range of legitimate assets that can be purchased with cryptocurrencies is still fairly limited. Ultimately, if they want to spend their ill-gotten gains on useful items, criminals will eventually need to get their assets out of cryptocurrencies and into the “real” economy. They also need to convert the proceeds of their crimes into the cryptocurrency in the first place. This highlights two key areas of vulnerability from the criminals’ perspective: the points of entry and exit.
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Naturally, criminals gravitate to exchanges in jurisdictions with the weakest anti-money laundering defences. While this means it is difficult to stamp out money laundering, it does result in illicit activity being pushed towards “rogue” jurisdictions. As a forensic accountant, seeing transactions pass through such jurisdictions raises red flags, which is useful since it can help narrow the focus of an investigation onto the areas where criminal activity is most likely.
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mistake by Ulbricht, that blew his anonymity, not a flaw in bitcoin.
What specific techniques can forensic accountants use to investigate cryptocurrency transactions? It is a common misconception that digital currency is untraceable and completely anonymous. While it may be true that wallets are stored as anonymous computer addresses within the technical cryptocurrency system, there are multiple ways it may be possible to link wallets to the parties that control them. These can include traditional forensic investigation techniques, such as transaction pattern analysis (for example matching property transfer records with transactions in the cryptocurrency ledger), or simply obtaining information from co-operating parties. More advanced techniques include analysis of internet traffic through particular servers and IP addresses.
The Federal Bureau of Investigation seized Ulbricht’s computer and discovered it contained hundreds of thousands of bitcoins, many of which had been received recently. During his trial Ulbricht claimed that the bitcoins were his, but he said they had nothing to do with Silk Road. Although he admitted he had originally set up the site, he claimed to have stopped running it long ago. However, since the anonymity of Ulbricht’s wallet had been breached, it was easy for the FBI to analyse the transactions through his wallet and demonstrate the provenance of his bitcoins. Since the bitcoin ledger – which is publicly available – is a full record of every transaction ever conducted, it was a simple exercise for the FBI to track Ulbricht’s bitcoins back to their source: Silk Road. He was convicted of money laundering, computer hacking and conspiracy to traffic narcotics. He was handed a double life sentence plus forty years without the possibility of parole.
In fact, cryptocurrencies can be the forensic accountant’s best friend, because literally every transaction is indelibly recorded in the blockchain. And for traditional cryptocurrencies like bitcoin, this is a freely-available public ledger. Every transaction is literally there for all to see and analyse. This allows forensic accountants to use graph technology and network theory to analyse the recorded transactions, aided by sophisticated graph database systems (in mathematics, a graph is a network of nodes, such as wallets, and links, such as transactions between wallets). These systems can be used to analyse hundreds of thousands of transactions between different wallets to identify patterns of activity, such as heavy traffic routes and clusters of activity, or the ultimate destination of apparently disparate individual transactions. Since all transactions are fully recorded, it can be possible to trace flows across numerous intermediate nodes in the network to their entry and exit points. From there the focus can move to the relevant cryptocurrency exchange, where the assets are converted between crypto and traditional assets, and then into regular bank accounts. As mentioned above, more traditional techniques can be employed to identify who controls each of the nodes.
References 1, Ulbricht indictment, 27 September 2013. 2, Indictment, US vs. Viktor Borisovich Netyksho, et al., 13 July 2018. 3, “Dear CEO letter” from the UK Financial Conduct Authority to chief executives of regulated institutions, 11 June 2018. 4, Cryptoassets Taskforce Final Report, October 2018. This is a report by a UK government-sponsored taskforce including HM Treasury, the Financial Conduct Authority and the Bank of England. 5, Ibid.
Article by Paul Doxey Paul is a Senior Consultant to the Forensic Services Practice of Charles River Associates +44-20-7959-1424 pdoxey@crai.com www.crai.com
Therefore, once the technology of cryptocurrencies is understood, the forensic accountant can use a range of traditional and new tools to crack open transaction secrets. And once anonymity has been breached the cryptocurrency ledger can become a treasure trove of complete and accurate information, all neatly tied in: something rarely possible in traditional forensic asset tracing.
. The views expressed herein are the views and opinions of the author and do not reflect or represent the views of Charles River Associates or any of the organizations with which the author is affiliated. CRA’s Forensic Services Practice – including our state-of-the art digital forensics, eDiscovery and cyber incident response lab – is certified under International Organization for Standardization (ISO) 27001:2013 requirements.
Postscript – how Ross Ulbricht was caught and convicted. Ulbricht’s anonymity was breached through an error he made that was spotted by Gary Alford, an Inland Revenue Service investigator working in his spare time. Alford had been working with the US Drug Enforcement Agency to find a way to bring down Silk Road. He noticed that Ulbricht had recently openly used the online nickname “altoid”. He recalled that this same pseudonym had previously been linked to the early days of Silk Road. Ulbricht’s use of the same name much later provided the lead that connected him to Silk Road. Thus, it was old fashioned forensic investigation techniques, and a EXPERT WITNESS JOURNAL
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Hidden Assets in Confiscation Proceedings by Rob Miller, an experienced forensic accountant who is a director and co-founder of Inquesta. Ordinarily, a defendant will deny that they have any hidden assets. The issue from a forensic accountant’s perspective is how does one prove a negative, bearing in mind that the onus is on the defendant to prove that, on the balance of probabilities, there are no hidden assets.
Many readers will share my view that the Proceeds of Crime Act is draconian. It has always been said that this law is not in force to punish convicted criminals, but to recover the proceeds of their crimes. So why is that very rarely the case?
In my view, the matter of hidden assets and tainted gifts is where a forensic accountant adds most value, and below are examples to show why this is the case.
Generally speaking, there are two elements to the aspect of confiscation under the Act.
Case study 1 D was convicted of VAT fraud to the tune of £175,000. The benefit in the Section 16 statement was £325,000. This included £150,000 of monies received into the defendant’s bank accounts, which the prosecution averred could not be accounted for.
These are: 1. The benefit 2. The available amount Both of these amounts are set out in a Section 16 statement of information, which is prepared by the prosecution in the case.
The defendant was unable to account for the cash deposits into his bank account.
The benefit is broken down into proceeds from specific criminal conduct, property transferred, property held and expenditure incurred after the relevant date.
Furthermore, £80,000 of cash was withdrawn by the defendant. The prosecution stated it was their belief that this cash had been hidden and was available for confiscation.
Under the law, the prosecution is essentially entitled to assume that any assets received or held by the defendant in the six years before they were charged represent proceeds of crime. This can lead to significant anomalies in the benefit calculation.
The defendant instructed that all of the withdrawn cash had been spent. However, he was unable to provide any documentary evidence in support of this. How, as an expert witness forensic accountant, do I go about helping such a defendant to support his instructions?
My colleagues and I at Inquesta see many cases where a defendant has been convicted of, for example, benefit fraud for a relatively insignificant sum. However, due to the way they run their finances, they face a general benefit figure which is many times higher than the benefit from their specific offences.
Defending an allegation of hidden assets is by far the most difficult part of a forensic accountant’s role in confiscation proceedings. However, there are a number of ways to look at it. Ultimately, the onus is on the defendant to prove that the proceeds of his crimes have been spent.
The good thing from a defendant’s perspective is that they can only be forced to pay what they can afford, which is normally the value of their assets at the date of the confiscation order.
The first step we always take is to try to reduce the benefit. If it can be reduced to lower than the available amount, this will automatically reduce the hidden assets figure.
This is known as the available amount. However, the available amount can, and often does, include tainted gifts and hidden assets.
If the benefit cannot be reduced, the next step is to consider the defendant’s lifestyle.
Tainted gifts are assets which have been transferred for little or no consideration.
Has he been living a lavish lifestyle? Have all of the normal living expenses been paid out of his bank accounts?
Hidden assets are those which are deemed by the prosecution to have been concealed by the defendant. In most instances it is cash, but we have seen many other examples of hidden assets, such as monies transferred to foreign jurisdictions and monies paid to family and friends. EXPERT WITNESS JOURNAL
If, for example, it is clear that there are normal living expenses which have not been met from his bank account, the obvious inference is that he has used cash to pay for these.
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We have often used, and with great success, the Office for National Statistics’ Living Costs And Food Survey to ascertain what that individual, on average, should be spending on living expenses. If this equates to less than the total living expenditure which has been paid from the bank accounts, it can be argued that at least part of the hidden assets has been used to fund this.
A forensic accountant (as opposed to a general practitioner accountant) has experience of working with lawyers, prosecuting financial investigators and the courts. This, combined with good knowledge of Proceeds of Crime legislation, means they can make a material difference to the outcome in confiscation matters.
If he was living an obviously lavish lifestyle above his means, and these expenses do not appear to have been paid from his bank accounts, it would be reasonable to argue that he has used the cash withdrawn to pay for this.
Forensic accountants are able to efficiently input and analyse high volumes of complex data and simplify the information to assist the court. In my experience, judges dislike complex, lengthy spreadsheets and typically do not give them the attention they require.
Case study 2 Defendant B was convicted of fraud involving significant sums of money from various employers.
I always say that the overriding job of a forensic accountant is to take complex information and simplify it into bite-sized, comprehensible chunks.
Most of the money – amounting to over £1m – was sent to a foreign jurisdiction, and the prosecution said this money was still available to B and was classified as a hidden asset in the confiscation proceedings.
Furthermore, as forensic accountants we have experience of giving evidence in court and negotiating with the prosecution team, with a view to agreeing a mutually-acceptable confiscation figure.
In evidence, B said she had sent the money abroad to start a haulage business which would fund her and her family’s lifestyle.
Rob Miller is an experienced forensic accountant who is a director and co-founder of Inquesta, which has offices in Manchester and Leeds. He is a member of the Institute of Chartered Accountants and The Academy of Experts.
B’s instructions were that this business made significant losses and that all the money had been dissipated. We were enlisted to consider B’s instructions and to identify whether any of the money was still available for confiscation. This case involved a significant amount of analysis. The case was not helped by the fact that the money had not been sent to the foreign jurisdiction by the usual means but to individuals who withdrew the cash there and used it to pay for all business expenses.
Rob has experience of a vast range of high-value and complex cases, including fraud investigations, criminal defence proceedings, commercial and contractual disputes, with a particular specialism in defending confiscation proceedings brought under the Proceeds of Crime Act.
We were provided with 15 boxes of financial documentation which were shipped over to us from the foreign country.
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Our team had to input and analyse every invoice and bank transaction, to recreate the accounts for this business and to assess whether the money had, indeed, been lost.
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The records were incomplete and we were dealing with a difficult client who was somewhat vague with her instructions, a situation which was not helped by the fact that she herself claimed to be an accountant. Notwithstanding this, we were able to show through our analysis of the paperwork that the business was genuine, had traded and, on the face of it, the vast majority if not all of the money had been spent and was no longer available. Thereafter, and following much discussion and negotiation, we were able to assist the defence in its dialogue with the prosecution and were able to agree a figure which was acceptable to all parties. The sum was a fraction of the original figure as assessed by the prosecution.
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Money Laundering The UK has one of the strictest and most complicated set of laws to combat money laundering and terrorist financing in the world. It criminalises a lot of behaviour that many people would not realise was criminalised, and places huge burdens on the private sector – particularly, but not just, the banking sector – to help detect and disrupt that behaviour. Despite all that, of course, money laundering remains a huge problem in this country, which remains an attractive destination for criminals around the world to put their assets. So what is going wrong? The Sources of the Law One misconception to deal with at the outset is that the source of our anti-money laundering (AML) laws is the European Union (EU). Though it is true that our membership of the EU has given us a duty to put its AML directives into domestic law, the substance of those laws ultimately comes from a different intergovernmental agency, the Financial Action Task Force (FATF), which has established a set of recommendations on AML and counter-terrorist financing (CTF) that are updated from time to time. Notably though, these recommendations are a baseline for member states to comply with and the UK has always gone further, ‘gold-plating’ the recommended rules to make them stronger than the international standards require.
The Principal Offences The interesting thing about those principal offences is that they criminalise much more behaviour than many people would realise. Insofar as the concept of money laundering has entered mainstream consciousness, most people would surely think of it as doing something with money (physical bank notes, funds in a bank account, or virtual currency perhaps) that is the proceeds of some serious crime, with the intention of disguising its criminal origin and making it look legitimate, or ‘clean’. But in legal terms the offences in POCA include doing literally anything – even just possessing – any property (so not just money, but for instance a painting, or a house) that represents the proceeds of any crime, no matter how trivial. The person doing it need not have any intention to disguise that fact, but would be guilty if they knew or even merely suspected it.
In domestic terms, the source of our AML and CTF laws is a pair of statutes – the Terrorism Act 2000 (TA) and the Proceeds of Crime Act 2002 (POCA) – and the rather cumbersomely named Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (the Regulations). Broadly speaking, these laws create a set of principal offences that apply to everyone, as well as an extra set of obligations that apply to the ‘regulated sector’ – including financial institutions, accountants and most lawyers – and include obligations to report suspicious activity to the National Crime Agency (NCA). EXPERT WITNESS JOURNAL
A couple of features serve to make the law even stricter. One is that the property need not completely represent the proceeds of crime, but can be a mix of ‘dirty’ and ‘clean’ property. The other is that it can include a ‘pecuniary advantage’, such as a saving of money from evading taxes. So, putting this all together, an example of a person committing a money laundering offence could be a wife who co-owns a house with her husband, where part of the deposit came from his income, on which he deliberately failed to pay tax. To be guilty of the offence, the 23
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wife would not have to do anything with the house, or even know about his tax evasion; it would be enough that she formed a suspicion (perhaps long after the purchase itself) that it had taken place.
What this means in practice is that a bank, for example, will typically ask various questions of its customers when they set up their account, as well as – to a greater or lesser extent, depending on the customer – keep a careful eye on what goes on in the account in case it needs to make a report about a possible offence by someone, and/or request consent to avoid committing one itself. To the customer who does business in Iran, say, or is the spouse or relative of a politician, the experience of seeing their banks close or freeze their accounts, usually without any explanation at all, is all too common. While of course there will be circumstances where this does disrupt criminal activity, it can also disrupt lawful activity where the bank’s suspicions are unfounded.
Unsurprisingly perhaps, the law is stricter still where it concerns terrorist property, which under the TA includes property that is used for the purposes of committing terrorist offences, or that belongs to a proscribed organisation. There the test is not subjective suspicion but ‘reasonable grounds to suspect’, so if for instance a friend asked you to run a bank account for a charity that was a front for a terrorist organisation, if the warning signs were there it would be no answer to say that you personally did not spot them.
The root of this problem is an understandably cautious approach from the bank, whose priority will naturally be to avoid committing an offence by failing to report such activity. (Conversely, if the bank honestly makes a report that turns out to be wrong, the law protects it from any claim by the customer for any damages caused.) The lack of explanation, similarly, comes from an imperative not to commit a separate offence of ‘tipping off ’ a customer that a report has been made about them, or that an investigation is ongoing.
The Consent Regime With laws framed this broadly, it is important to have a system to enable people who form suspicions about property to be able to report that fact, and obtain defences where appropriate. Both POCA and the TA include provisions that do just that, which are based on a concept of requesting consent to do acts which would otherwise amount to offences (referred to as the ‘consent regime’). So for instance, the suspicious wife in the above example would request consent to continue to possess the house (or, as the case may be, to sell it or let it out), while the naïve friend might request consent to return the charity’s funds to their original source.
Issues and Reforms The context of all of this of course is the government’s efforts to tackle financial crime and terrorist activity. The AML and CTF regimes do not exist in isolation, but serve to increase the prospects of such crimes being detected or prevented, and of relevant assets being seized and forfeited. To a great extent, the huge numbers of SARs that banks and others now submit to the NCA are very useful to these efforts, often providing the vital information that triggers or assists an investigation. But it is also true that, in a time of limited resources, the system has also become a victim of its own success, by generating such high volumes of reports that the NCA (by its own admission) struggles to process and prioritise them. Dealing with SARs, particularly consent requests, is very resourceintensive, and the Law Commission has been looking at reforms to the SARs regime to tackle that problem.
What this does in practice of course is give the authorities the opportunity to investigate any offences that may have taken place, and to use their various powers to freeze the property while they do it. Importantly, however, the law places time limits on that opportunity. Provided the person submits their request as soon as reasonably practicable, they can assume consent after an initial notice period of seven working days unless they receive a refusal within that period. Where there is a refusal, they can still assume consent after a further moratorium period of 31 calendar days; any freezing of property beyond that date will need some sort of court order. The Regulated Sector The regulated sector, meanwhile, has additional obligations under POCA and the TA to make Suspicious Activity Reports (SARs) where they have reasonable grounds to suspect offences of money laundering or terrorist financing. Under the Regulations, they are also obliged to conduct risk assessments on their own businesses, to apply Know Your Customer (KYC) and Customer Due Diligence (CDD) measures on their customers (and, where the customer is a company or a trust, their beneficial owners as well), and to conduct ongoing monitoring.
The issue of law enforcement having to prioritise the data in these reports raises another key point about the system. The broad nature of the offences under POCA in particular means that the vast majority of reports are likely to reflect relatively low-level suspicions about relatively low-level offences (or, indeed, where it’s not clear what offence, if any, has been committed). If we consider for instance the prospect of a bank detecting the proceeds of really high-value offences of corruption or fraud in its accounts, it might seem obvious that the people laundering the proceeds of such offences in the UK are relatively likely to know how the system works, and to be taking steps to ensure they have a convincing (if false) narrative and evidence to pass through it undetected. Alternatively, they may find ways of bypassing the system altogether, perhaps using informal payment methods, or alternative forms of property such as virtual currencies. So there is something of an arms race
These measures will include seeking information and documents about their identity and source of wealth generally, as well as the source of any particular funds involved in the transaction at hand. The nature of the obligations means that some customers will face stricter KYC and CDD measures than others, including for example where they come from or deal with a ‘high risk’ country, or where they are classed as a Politically Exposed Person (PEP). EXPERT WITNESS JOURNAL
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between the constant need to reform the system, and the efforts of criminals to work around it.
The bigger picture, and the reason why the laws in this area are not as effective as they might be, is one of needing to ensure the system has the resources it needs to operate effectively, a process to prioritise efforts to combat the most egregious crimes, and the ability to adapt to new forms and methods of criminality in the future. Few would argue that we are getting all these things right at the moment: law enforcement, particularly financial crime, remains far from the front of the queue in terms of government spending; the provisions of POCA and the TA (including, despite the efforts of the Law Commission, SARs and the consent regime) are likely to remain such that they throw too large a net over ‘suspicious activity’ to be manageable in the real world; and reforms to the regime have historically been slow.
Some Recent Changes With that in mind, the sheer volume of recent changes to the AML and CTF regimes, and various aspects of related laws, is understandable. It also means though that the complexity of the law in this area is forbidding, presenting a challenge even to the best-resourced compliance departments of the major banks, let alone smaller businesses and new entrants to the regulated sector. To provide a flavour, the following are just a few of the developments in the last two years: 1. A wholesale rewrite of the Regulations, with tighter obligations for the regulated sector, the establishment of a beneficial ownership register, new requirements for estate agents to do KYC and CDD on both sides of the transaction, and a redefinition of PEPs to include those within the European Economic Area (EEA) as well as outside it;
The difficulty of course with addressing these issues is very largely political. Any government will want to be seen as ‘tough on crime’, with organised fraudsters, corrupt (foreign) politicians and terrorist groups high up on the list of public enemies. But the time and resources to make changes are limited, and less likely to be spent on pragmatic or prosaic reforms that might make a real difference in practice, than on eyecatching initiatives that make good headlines and help to win votes. The challenge, perhaps, is to square that circle by ensuring that these issues, though undoubtedly complex, are properly understood by voters and policy-makers alike.
2. Various reforms to POCA, including the advent of Unexplained Wealth Orders (UWOs, which are designed to force non-EEA PEPs and others to explain the source of funds used to buy property), a mechanism to extend the moratorium period following a consent request, and leaner systems for freezing and forfeiting funds in bank accounts; 3. New obligations on the regulated sector to report breaches of targeted sanctions; 4. New offences of failing to prevent the facilitation of tax evasion (separate to the AML and CTF regimes, though often dealt with by the same compliance officers);
John Binns BCL Solicitors LLP, - 16 January 2019 Many thanks to John and BCL for this article www.bcl.com
5. A new body to oversee the supervisors of professional members of the regulated sector (such as accountants and lawyers); 6. A new (fifth) EU directive (which the UK has committed to enforcing next year), which among other things will broaden rights of access to the beneficial ownership register, and brings into the regulated sector some businesses that work with virtual currencies; and
Mr Tim White
7. A new legal mechanism for reforming the Regulations after the UK’s exit from the EU.
Chartered Chemist C Sci, C Chem, FRSC A specialist in risks arising from changes in water quality associated with the ownership or occupancy of premises.
The Scope for Reform Assuming it remains a member of FATF, the UK’s departure from the EU seems unlikely to prompt a wholesale rethink of AML and CTF laws. Indeed, for practical reasons as well as on principle (if only because the relevant businesses are so integrated with their EU counterparts), we are likely to implement not only the fifth directive, but also whatever directives follow it. That is not to say, however, that some of the details may not be the cause of debate, with the extent, timescales and cost of beneficial ownership registers likely to be the subject of discussion later in 2019. A separate debate, about potential new offences of failing to prevent money laundering (not a FATF or EU requirement, but an example of the UK’s ‘gold-plating’), has been on hold for some time, but may return before too long.
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Digital Forensics and Selecting a Digital Forensics Expert Witness by Jason Bergerson and Alistair Ewing What’s the difference between an Expert in Digital Technology and a Digital Forensics Expert?
accidental or intentional by those with malicious intent.
Technical knowledge is required by both, but that isn’t enough to perform successfully in these two very different types of professions. Often service users will select the wrong kind of skill set for a particular task and the recipient, thinking of making money or out of ignorance, will accept the responsibility. This can have disastrous consequences in the long term as an expert in digital technology is not trained sufficiently to work in the legal sphere.
• Analysis – during the investigation the forensic copy, not the original (except in triage), is to be searched. The search is done using specialist tools so as not to alter the evidence file. Verification of the evidence can be performed at any time by comparing the evidence file against the original HASH created during acquisition. The examiner at this point will determine what is to be searched for and then run recovery and search for those categories of items.
Digital forensics was born in the 1980s as computer forensics with the FBI’s magnetic media programme, and the UK quickly followed suit with their own version. Digital Forensics, like all of the forensic sciences, is the application of science in the legal context. The four basics tenets cover four areas:
• Presentation – the examiner, must clearly and accurately present their background, tools used, methods of verification, processes used for recovery, the findings and appendices containing the data to support the analysis.
• Acquisition - a collection of data in a court defensible way in order not to alter the integrity of the storage medium or source memory that will produce a defendable evidential copy by creating a data HASH value which can be verified throughout the forensic process.
The Sub-disciplines As computers moved away from being isolated units to being networked and more varieties of digital mediums were invented the term computer forensics changed to digital forensics to encompass an umbrella of branches all dealing with digital evidence. As an ever evolving field the types and names for the sub-disciplines are also continually evolving. Some of the current sub-disciplines are: • Audio Forensics – the collection, analysis and
• Preservation - evidence, be it a mobile device or a hard disk, must be preserved in a way that it is defensible in court. The process ensures against loss, contamination or deleterious change whether it is EXPERT WITNESS JOURNAL
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accordance with the requirements necessary to be qualified in a court of law.
• Audio Forensics – the collection, analysis and enhancement of any digital audio files. Poor quality audio can be ‘cleaned up’, transcribed, enhanced and analysed via spectrometry.
The Digital Forensic Expert A digital forensic expert, on the other hand, may not always have a system administrator background or indeed a lengthy background in computers. Many police officers start life as a ‘bobby on the beat’ and are side-lined to retrain as a digital forensic expert. Through additional discipline-specific training the technology background and associated credentials are received. The critical difference between the two professions is knowledge about the facts surrounding the data, not just the recovery of the data, evidence handling, investigation of the event and working towards presenting the findings within the law in an admissible manner.
• Digital Camera Forensics – captured images from a digital camera either from an SD card or internal memory. These can be acquired, recovered if deleted and analysed not only for their content but for metadata such as date/time and even location more recently. • Digital Video and Photo Forensics – as with Digital Camera Forensics, video and photos can be collected, reviewed and analysed for a case. • Games Console Forensics – a games console collects data such as logons, and a user may produce accounts which could be used as an alibi or to establish ownership.
Digital Forensic Expert versus Expert in Digital Technology Many people and professionals may have skills which enable them to operate at a level above the layperson. In fact, they may be a highly trained specialist within their area of technological expertise. This, however, doesn’t necessarily qualify them to be an expert in the eyes of the court. This can also happen if an expert, in a sub-domain of Digital Forensics, branches outside of their area of expertise.
• GPS Forensics – GPS in cars, ships and planes can yield information such as recently visited locations, favourite locations and other forensic artefacts which may determine the locations of the vehicle or device. • Incident Response – is the discipline of network forensics looking at logs, network security, hacking, intrusion detection, breach analysis, Trojan horses and other malware.
For example, a mobile phone forensic specialist may not have the ability to perform audio forensic analysis. As a result, this may expose the individual as well as the instructing law firm to litigation due to bad processes. It is typically seen in the industry that a corporation or a law firm employ a computer expert to carry out tasks as their rates are often cheaper than that of a digital forensic individual or organisation. The relative cost of hiring a forensic expert over a general expert in a case that can mushroom to multimillion pounds is minuscule. The difference between winning and losing a claim is more than just whether the instructed person can interpret the results. They also need to develop the proper chain of custody, understand and explain the tools used, offer the repeatability of results through the application of the scientific process, and have credibility in court through their ongoing training and certifications in the field.
• Media Device Forensics – thumb drives, iPods, SD memory card and everything in between can yield useful data or even be used to match up with activity on a computer. • Mobile/Cell Phone Forensics – phones are ubiquitous in modern culture and not only are they used for calls and texts but also used for emails, messaging, social media, productivity and even hacking. • Call Detail Record Forensics – Also referred to as Cell Tower Forensics relates to the communication towers that mobile devices utilise while in operation. These records can help to place devices within regions at certain times thus supporting, or refuting an individual’s alibi. • Social Media Forensics – social media both live and from the digital evidence can be harvested and presented for court.
For example, a novice may be able to run a tool they found on the web and conclude, because an item was recovered, that an individual is responsible. A forensic expert can contemplate all the minor nuances to rule out or include them in their conclusion. Asking and answering questions while reviewing the evidence such as: Was the computer hacked? Who else had access? How many user accounts were administered on the system? Did the item arrive on the device because on an autonomous action such as a virus? Due to the volatility of digital evidence a digital forensic expert should be involved as soon as it is recognised that digital evidence is to be part of the case.
The Expert in Digital Technology An expert in digital technology, or sometimes referred to as a computer expert, may be someone who has more than a rudimentary knowledge of a computer or high-level corporate system administrator that designs and implements large-scale operations in blue chip environments. They may manage archive systems, maintain mobile devices, configure an enterprise network environment, install video surveillance systems, or any number of highly specialised fields within the digital technology landscape. A computer expert may as well have skills in maintaining, installing and repairing computer systems including data recovery capabilities in case of failure or other data loss events. Regardless of the technical abilities, the area often found lacking is the ability to do so in EXPERT WITNESS JOURNAL
Comparison Scenario An excellent example is if you had a client accused of deleting data after a litigation hold has been placed, 27
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deleted. The item is able to be identified as a cleaning software, and logs indicate its use. ‘Zeroed out’ areas of the disk are identified and are seen as typical, not of regular use, but of wiping of the free space. The client list, which was pertinent to the matter, was discovered downloaded, and although deleted it was present in the restore files when an inadvertent backup was made of the system. Using the filename of the client list, the working copy was keyword searched, and it was discovered that the document was emailed out to their Gmail webmail account. The expert can now form the opinion based on forensic evidence that the data signifies intent to hide actions and steal company data using a personal email address. The original disk was preserved and secured as were the forensic copies along with all developed work product throughout the process.
and file destruction software has been discovered then eliminated by the suspect. The laptop is given to a computer expert within the company with good intentions but no training in forensics to perform the examination. The individual installs commercial file recovery software to the disk and recovers deleted files. When the report is produced it states that the computer had wiping software installed however the files couldn’t be opened. This was due to the software that was installed by the examiner overwriting the unallocated areas of the hard disk where the previously recoverable data resided. Additionally, during the seizure and examination, the examiner operates the machine, making more changes and leaves the device on the network, exposing it to the internet. This allowed the suspect to enter the device remotely through the network using a remote access software and wipe the entire disk. The neophyte examiner has no explanation of when, or if, wiping software existed. All that is left during trial is the examiner's word for the wrongdoing as the original evidence hasn’t been preserved.
Differences Both a technology expert and digital forensic expert may be able to recover data, but only the digital forensic expert would be able to produce a chain of custody, know how to handle the evidence and provide a resume outlining their experience and training in the specific field of digital legal interpretation in court. Technology experts do not have the need to understand the granular digital artefacts unwittingly produced by the system and a user during the operation of a device. They are trained in service, maintenance of a system or specific software function such as usage of QuickBooks for company accounts or Microsoft Office 365 for business applications.
In the same case using a forensically trained computer forensic examiner, the laptop was taken off the network. The laptop hard disk was removed and placed into a write blocked copying device in order to preserve the data on the disk. One original copy and one working copy of the disk was made to two separate encrypted drives for security and redundancy. The examination takes place on the working copy of the data. The expert is able to determine that ccleaner was installed on the system in the past and Side-by-Side Comparison Digital Forensics Expert
Technology Expert
The ability to copy data in a forensically sound manner
Ability to install and set up computers, software, network in a secure manner and maintain operation of the item
Data recovery from the deleted areas of a disk, SQL databases, file slack, backups & other areas
Restoration of data following a disaster from backups
Understand that the workings of digital threats such as trojans, backdoors, viruses and malware have on the original system
Removal of harmful malware from infected computers, not the effect or explanation of such programs
Interpretation of left behind software after removal by a lay user by looking at deleted items and other artefacts
Troubleshooting and repairing computer problems
Recovery and interpretation of internet and Software initiation and roll out for the client or employer web-connected apps & the ability to export these so as to report on them Granular level knowledge of operating systems Network setup in order for access to a server and/or especially Windows, Mac OS & Linux so as to be the internet able to examine recorded artefacts & understand how changes made are recorded in the OS Competent in the usage of a variety of different The ability to work with conventional file systems relating to formats such as Expert Witness, DD Images and Windows, Mac and Linux AD Logical Container Images for verification and production of a robust chain of custody. Competency in producing forensic images of entire digital media for the use of analysis
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Can make backups using Clonezilla or similar including files directories but not usually deleted data as well. The purpose is for recovery of lost office items and the continuation of the business 28
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Legal Expertise Digital Forensic Expert
Technology Expert
Ability to verify evidence and individual files
None
Production and maintenance of the chain of custody
None
Can manage eDiscovery projects and warrants
Only basic knowledge
Trial preparation skills
Not likely
Ability to testify in court
Can be used to testify but not as strong as a forensic expert Unlikely
Sticks to guidelines required in handling digital evidence
recovery, and search and reporting, then a ballpark figure of 10-20 hours would be a typical response. Mobile devices, cell tower data, in-vehicle systems, network access, and all of the rest will have their own cost and scope based on the expertise required and the level of effort necessary to perform the work. All of these factors should be discussed with the potential expert prior to any instruction or the expert gaining access to the evidence.
Selecting an Expert There is no international, or indeed a national body, that accredits a digital forensic examiner. In fact, because of the lack of knowledge of judges and legal professionals anyone with computer knowledge can call themselves an ‘expert’. It is common for someone to call themselves an examiner despite his or her lack of abilities. Additionally, an examiner may be proficient in one or two domains of Digital Forensics but not others, such as at cell site analysis but not mobile phone acquisition and forensics. It is essential to look for relevant skills to that particular discipline prior to instruction of an expert. When instructing look for forensic specific training and certification in the field. Common certifications are ACE (Access Data Certified Examiner), CCE (Certified Computer Examiner), CFIP (Certified Forensic Investigations Practitioner), EnCE (Encase Certified Examiner) and X-Pert (X-ways Forensics Certified Examiner) to name a few.
The Expert Report The culmination of the entire process is typically delivered via an expert report. The expert report should include but is not limited to: a cover page, table of contents, introduction, case outline, qualifications of the expert witness, evidence verification results, use of appendices, separation of facts from opinion and have the judicious use of appendices. The content must be presented in plain English and have various terminology explained correctly. Dependant on the case in the UK the report must comply with Civil Proceedings (CPR), Criminal Proceedings (CrPR) or Family Proceedings (FPR) in terms of the expert declaration signed by the examiner appended to the report.
If differing types of devices have been seized in a case, then it may be necessary to select experts according to the evidence that is available. If you have a mobile phone, a laptop and call detail records from the network it may be advisable to source a computer forensic expert, a mobile phone forensic expert and a cell site analyst all separately, if an individual doesn’t exist with all those skills.
Regardless of the analysis performed thus far, if the expert is unable to present the findings in a factual, but compelling way that outlines how their expert opinion indeed is the most likely scenario based on the evidence provided, then the exercise will have been for nothing. Following the report, the expert may also be required to provide testimony directly to the courts. If written word of the expert is clear and concise, then the oral presentation of the findings should also be understandable to the courts.
A service user must establish before hiring an individual: • Do they have training, experience and certifications in the field? • Does the examiner have experience in the type of case?
At the end of the day, it is the role of the Digital Forensic Expert to review the data available in such a way that it is preserved as evidence, analysed to determine the facts and presented with the expert’s opinion as to what those facts represent. Finding an expert, who is consultative in their process, to help walk you through the requirements of a Digital Forensic matter, is critical to your overall success.
• What is the cost of the process? Cost and scope are also something that the Digital Forensic Expert should be able to provide you with. While it isn’t possible to be exact in the level of effort a matter will take, there should be some estimates that can be provided based on their experience with similar matters. As an example, legally aided work is capped at £74.00 an hour in the UK, elsewhere it may vary. In the private sector, costs can range from £150.00-£400.00 an hour (or even higher) dependant on experience. If the matter includes services such as analysis of one laptop including copying, data EXPERT WITNESS JOURNAL
For more information for legal professionals regarding digital forensics the book ‘Daniel, Larry (2011). Digital Forensics for Legal Professionals: Understanding Digital Evidence From The Warrant To The Courtroom. USA: Syngress.’ is recommended. 29
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Authors Jason Bergerson has over twenty years of digital forensic experience with over 20 years at Kroll Ontrack. Jason has worked on cases involving fraud, IOC, murder terrorism, data recovery and more recently cyber-attacks involving ransomware. /www.linkedin.com/in/jason-bergerson-9513182/
Alistair Ewing has over eight years of experience in Digital Forensic Analysis, Data Recovery, Mobile Phone Forensics, Litigation Support, and has served as an Expert Witness in criminal and civil cases in the UK. Mr Ewing began performing digital forensics in 2011 and has had hundreds of hours of experience in this sector. Qualified as an expert witness for some years and vetted by Sweet and Maxwell he has presented evidence in tribunals, civil and criminal courts in the UK and been involved in corporate investigations, litigation support and collections. www.linkedin.com/in/computerforensicsexpertwitness/
Need an expert any discipline, any area call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk EXPERT WITNESS JOURNAL
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New Police Powers to Tackle Illegal Use of Drones New legislation will give police officers the power to land drones, search premises and seize drones and will require users to produce the proper documentation.
Important safety proposals being taken forward include better protection for our airports by significantly extending the area around airports and runways in which drones are banned from being flown. This builds on the government’s changes to the law last year which made it illegal to fly a drone above 400 feet or within 1 kilometre of an airport.
The government is moving forward with plans to give police new powers to tackle drones misuse and abuse, with the publication of their response to the drones consultation.
Aviation Minister, Liz Sugg said: “Drones have the potential to bring significant benefits and opportunities, but with the speed of technological advancement comes risk, and safety and security must be our top priorities.
Following over 5,000 responses to the consultation new legislation will give police officers the additional power to land drones and require users to produce the proper documentation. The police will have the power to search premises and seize drones - including electronic data stored within the device - where a serious offence has been committed and a warrant is secured.
That’s why we are giving the police powers to deal with those using drones irresponsibly. Along with additional safety enforcement of vital rules. Fines of up to £100 could be given for offences such as failing to comply with a police officer when instructed to land a drone, or not showing their registration to operate a drone.
The Home Office will also begin to test and evaluate the safe use of a range of counter-drone technology in the UK. This crucial technology will detect drones from flying around sensitive sites, including airports and prisons, and develop a range of options to respond to drones, helping to prevent a repeat of incidents such as that recently experienced at Gatwick.
Chartered Surveyors, Valuers and Expert Witness Tim Davies is a Chartered Building Surveyor, and the practice principle and founder of T R Davies Limited, (established in 1998). An established independent practice providing property related services throughout South Wales and Nationwide. Tim has over 30 years experience. Tim is a fully qualified Chartered Building Surveyor, a RICS Accredited Valuer and Expert Witness. Tim has the Cardiff University Bond Solon Certificate in both Civil and Criminal Expert Witness Practice. Tim is a registered property expert with the National Crime Agency, working with police and trading standards, principally dealing with rogue traders. His extensive experience and expertise covers; Expert Advisor/Expert Witness Work – Civil Expert Advisor/Expert Witness Work – Criminal Residential Surveys and Valuations Building Defect Pathology (defect analysis/investigation) Domestic Workmanship Standards Domestic Building Disputes and Quantification Surveyor Professional Negligence Building Related Insurance Claims Party Wall Matters Building Conservation/Period Buildings Structural Surveys Dilapidations Insurance Claims Landlord and Tenant issues Contact Details - Mr. Tim Davies Chartered Building Surveyor, Valuer and RICS Accredited Expert Witness BSc (Hons), MRICS, MAE, Cert EW (Civil and Criminal) Windsor House, 107 Talbot Road, Talbot Green CF72 8AE Tel: 01443 229576 Email: info@trdavies.co.uk - Website: www.trdavies.co.uk
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Forensics Europe Expo | 5-6 March 2019 | Olympia, London sics. Exhibitors include Access Data, Guidance Software, AXO Science SAS, Nippon Control Systems, foster+freeman, Faro Technologies, Anton Paar Ltd, MSAB, Magnet Forensics and Sensors & Software to name a few.
Introduction Forensics Europe Expo is the only event of its kind dedicated to forensic science and is the primary meeting place for thousands of forensics professionals each year. Following 6 successful cycles, the 7th edition will – for the first time – take place on the same show floor as Security & Counter Terror Expo at Olympia, London. As part of UK Security Week, Forensics Europe Expo will connect together the industry’s entire supply chain and provide an all-in-one platform to engage with the most qualified experts and specialists.
Free-to-attend educational forensic workshops Also taking place on the show floor will be a series of tutorial-style seminars and presentations from exhibiting companies. Make the most of this rare opportunity to learn from forensic experts about their successes, challenges and lessons learnt to improve your expertise and find out about latest project efficiencies and investigation skills to further progress your career.
Welcome to the most anticipated edition of FEE to date With an incredible speaker line up, dozens of free seminars, tonnes of innovation and an exhibition of the latest technology, Forensics Europe Expo 2019 is gearing up to be the must-attend event for today’s modern forensic professional.
Leading conference programme explores the global forensic landscape Increasing globalisation and the fact that crime is becoming more complex means that professionals from across the world need to come together to address these challenges first-hand. FEE provides a much needed forum to share latest thinking and experiences. This year, we are delighted to welcome leading experts and innovators from across law enforcement, industry and academia.
The forensic science landscape is undergoing a number of rapid changes and positive developments. The exhibition at FEE will bring together 70+ leading forensic suppliers whose capabilities range from accident investigation and fingerprint examination to data extraction and digital forenEXPERT WITNESS JOURNAL
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With so much to see and get involved with, Forensics Europe Expo has something for every forensics professional. Take your place alongside inspiring speakers, find out about the latest product launches, network with fellow innovators, and get involved in interactive seminars and hands-on demonstrations. Make sure you don’t miss the largest forensics event of the year.
Key 2019 speakers and topics include: Day 1 • Making Sense of Digital Forensic International Standards - Prof. Brian Cusack, Director Cyber Forensic Research Center, AUT University • Cutting us some Slack - Acquiring Data from Cloud Collaboration Tools - Joseph Pochron, President of Forensic Technology and Consulting, Transperfect
Register your free exhibition pass today at www.forensicseuropeexpo.com
• A Review of Digital Forensic Readiness of Industrial Internet of Things - Prof. Peter Sommer, Professor of Digital Forensics, Birmingham City University
All pictures from Foresnic Expo
• Vehicle Data Forensics On Unsupported Systems - Gareth Davies, Academic & Cyber Consultant, University of South Wales Day 2 • Quality standards in forensic science: a review of progress, learning and next steps - Dr Gillian Tully, Forensic Science Regulator, Arms Length Body of the Home Office • NABIS: A Ballistic Focal Point for the UK - Martin Parker, Chief Scientist, National Ballistic Intelligence Service • A Talk on the Wild Side: The challenges and opportunities for forensic science in global wildlife law enforcement - Dr Rob Ogden, Director, Trace Wildlife Forensics Institute and President, Society for Wildlife Forensic Science • Forensic science integration on complex major crime scenes - Dr Karl Harrison, Director & Lead Forensic Ecologist, Alecto Forensic Services
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UK Forensic Science Strategy, GSOH, Seeks Joined-up Thinking for LTR by Jo Millington BSc (Hons) MSc PGCert MIABPA MCSFS In 1953, Paul Kirk1 wrote ‘All criminal investigation is concerned either with people or with things. Only people commit crimes but they invariably do so through the medium of things. It is these things that constitute the broad field of physical evidence. To realise his maximum goal the investigator must understand a) what physical evidence is b) how to collect and preserve it and c) how to obtain from it the information that it carries and d) how to interpret the information obtained. Only a good understanding of investigators and scientists of their reciprocal functions can completely eliminate the barrier to the realization of the full benefits of a well-managed crime laboratory’.
those made to the previous Select Committee, convened in the aftermath of the closure of the Forensic Science Service. It has included discussions on standards and regulation, the forensic science research landscape, use of forensic science in the CJS, and digital forensics. It is crystallising the view on where the shortfalls lie: lack of investment, a fragmented approach to forensic investigation and building concern that the overarching ‘strategy’ behind it’s future development has been police-led with little or no discernible contribution from forensic science providers, or forensic scientists. The national strategy also suggests that it is relevant to forensic science, full stop, and yet it is weighted towards biometrics, fingerprints and digital investigations. You could argue that this simply reflects evidence in today’s crimes – I doubt you go anywhere without your mobile phone as much as you would be reluctant to leave your fingerprint behind, especially if you were up to no good. These areas are traditionally delivered ‘in-house’ by police forces and so perhaps it is inevitable that the strategy board would focus on their own strengths. The question is, are they doing so at the detriment of everything else?
Kirk then outlined how this could be achieved through the regulation, validation and accreditation of forensic science and demonstrated how each aspect is dependent on collaboration. Collaboration, communication and corroboration are pillars of forensic science, as well as lots of other things, another being impartiality. A robust and holistic strategy (big S) is therefore critical in driving forensic science in the right direction. Those who have worked in, or with, the forensic science industry in the UK will know that forensic science policy has evolved consistently over the years. This was most recently bookmarked with the publication of the government’s Strategy on Forensic Science2. Read in conjunction with the UK Forensic Science Regulator’s Codes of Practice and Conduct3, both strive to bring coherency to a challenged forensic science framework.
Stuart Kind’s book ‘Science Against Crime5’, which was published nearly 30 years on from Kirk, takes the reader on a similar journey through the evidence types that were typically dealt with in a forensic laboratory of the time. There is no entry for digital or cyber crime, no mobile phone tracking or social media profiling, but both authors talk extensively about the work of the forensic science laboratory and the potential of blood, toxicology, ballistics, glass and fibres in crime investigation.
The proposed strategy states that ‘a national approach to forensic science delivery, proposed and delivered by police forces, would aim to ensure greater consistency of service quality; resilient, reliable capability and with economies of scale’. Proposed and delivered by police forces.
If you search the Forensic Science Strategy document, each of these evidence types (blood, ballistics, toxicology, glass, fibres) generates 1 match, each. The term fibre highlighting that the document would be printed on paper containing 75% recycled fibre content. There are 70 matches to the word digital, 33 to DNA, 14 to fingerprints.
At the time of writing the House of Lords Science and Technology Committee inquiry into Forensic Science4 had attracted 96 written submissions from representatives across the Criminal Justice System (CJS) and had convened 16 sessions of oral evidence. The evidence is compelling and I would encourage all stakeholders in forensic science to read the transcripts. The inquiry has facilitated one of the most comprehensive and refreshingly open discussions on forensic science in recent times. The clarity and candour of the submissions are less sugar-coated than EXPERT WITNESS JOURNAL
If the aim is to define a national and cohesive strategy on forensic science it is imperative that all disciplines are considered and all parties are consulted, unless you can guarantee that the people involved have sufficient oversight and knowledge of the strengths and weaknesses of the whole process in order to be able to represent every part of it fairly. If it is intended that the strategy will simply sit alongside the forensic 34
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science laboratory, with investigators directing scientists to conduct tests on a case by case basis without inviting them to advise in the selection of those tests, in my view the relationship between the scientist and the investigator will inevitably degrade. Especially when there is increasing pressure to deliver results more quickly and for less money. Cost-efficiencies are not simply a function of picking the cheapest option. They can be achieved by using the right test for the job. If tests are selected on the basis of price but they do not have the ability to answer the question that is being asked, then it can introduce inefficiencies further down the line. This can include commissioning additional tests as the case approaches trial, which in itself can introduce risk.
The limitations of DNA are to some extent rooted in its success. The boom in DNA technology, which evolved in response to the requirement to be faster and cheaper, led to the development of a rich portfolio in specialist and more sensitive techniques. Tools are now available that can generate DNA profiles from minute traces of biological material, whether the DNA is related to the investigation or not. Scientists no longer need a detectable body fluid or an observable stain for analysis because the standard, everyday, techniques have the ability to develop information from speculative (invisible) samples; and if they fail, specialist tests can be applied to clean-up, concentrate and optimise the recovery of DNA from the most inhospitable of samples.
The faster/cheaper philosophy is epitomised in the Streamlined Forensic Reporting (SFR) process. This approach was introduced by the CPS to ‘reduce unnecessary costs, bureaucracy and delays in the criminal justice system’, and ‘to ensure that the key forensic evidence that the prosecution intend to rely on is presented in the shortest and clearest way so as to achieve early agreement on forensic issues and to identify contested issues’. It is implied that the SFR ‘report’ will outline the scientific evidence in such a way that the reader will understand the strengths and limitations of the scientific findings in context of their case. So does it?
If, or inevitably when, the resulting profile comprises a mixture of DNA, it might be possible to resolve it into the profiles of the individual contributors and/or simplify it using information that is specific to the case. This is called ‘conditioning’, disentangling the mixed profile on the basis of DNA information that is expected to be there, such as DNA from the donor of the sample. Where mixed profiles continue to be beyond the capacity of standard statistical programs, specialist probabilistic methods can be employed (e.g. likeLTD or STRMix) to de-convolute the most complex of mixtures (up to a point). Before the widespread introduction of these specialist approaches, scientists were permitted to provide a ‘subjective assessment’ of the mixed DNA results that standard methods could not resolve. This involved, essentially, counting the number of DNA components in a crime profile that matched components in an individual’s reference profile and conveying the extent of the match numerically or in the form of a verbal strength of support. This practice, which was only ever intended to be an interim measure, introduced a level of greyness in the evaluation of DNA findings that was difficult to standardise. ‘Qualitative evaluations’ are known to be susceptible to cognitive bias and have the potential to be prejudicial, but it was implied that the practice was sufficiently calibrated that it could provide a robust indicator in terms of whether or not an individual may have contributed DNA to a sample. In fact it was scientifically impossible to say one way or the other, simply because the opinion existed in an area that was beyond the scope of any quantitative or empirical data. This practice is no longer supported6 (or necessary) given the introduction of accredited specialist software.
As an example let’s consider the ‘DNA Stage 1 SFR’. This document will typically provide the reader with information about the author (sometimes this can be an ethereal department or unit), details of the case (such as location and dates) and a summary of the DNA result (the match generated between a crime sample and a named individual). It may also provide information that indicates if each of the profiles had been generated using the same DNA technology, or if the crime profile may have comprised a mixture of DNA, although this level of detail might not be readily apparent to the non-scientific reader. Having reviewed a number of police interviews, it is not unreasonable to consider that the defendant might be presented with the SFR and asked to offer an explanation as to how ‘their’ DNA came to be present at a crime scene. It’s probably like being asked for your pin number when you have been using contactless payments for the last few months. While your brain is working on recalling your pin number, perhaps you could also consider whether you could readily explain, if asked, where your DNA might be. We’re not talking about great lumps of DNA, we’re talking about invisible to the naked eye, bits of you that you may have left purposefully or unintentionally on things. It also relates to DNA that may have been further transferred by others, without your permission, which unfortunately is not something you can opt out of. In my opinion, the usefulness of DNA evidence in the context of an investigation is only fully realised once the individual results have been evaluated in light of the case circumstances. Yet cases continue to progress (even to trial) on the basis of the initial DNA match. EXPERT WITNESS JOURNAL
Subjective opinion hasn’t been completely outlawed, but when a non-numerical opinion is presented, for example in an intelligence report or as a holding position until the appropriate statistical assessment can be completed, it is imperative that the provisional nature of the evaluation is made clear. It is not an evidential opinion and it would be unwise to consider it as such. The restricted format of the SFR does not accommodate a freestyle presentation of the complexities of DNA mixture interpretation and in some cases an 35
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abbreviated form of witness statement might be issued. Abbreviated formats allow scientists to provide a summary of the evidence, whilst embellishing on the nature of the DNA result and its evaluation. It is shortened, typically, by removing details about the qualifications of the author, case and continuity information and technical detail. It is not unusual for reports of this type to focus on the make-up of the DNA result and any possible matches. They may include phrases to emphasise that they do not deal with a full interpretation of the findings and if this was required a full statement should be requested through the appropriate Forensic Submissions Unit. It is questionable whether these phrases are recognised as calls to action or if the consequence of not acting on them is fully appreciated. In practice these caveats are outlining that if a DNA result (for example) is likely to have a leading role in any investigation, a full interpretation must be requested. Interpretation of DNA is multi-faceted. It can involve an assessment of whether the DNA can be attributed to a particular body fluid. For example, if blood was tested, is there confidence that the DNA came from blood? It can also involve a consideration of what the DNA findings might mean in the context of the allegations that have been made. For example do the DNA findings help in determining how or when the DNA may have been deposited? This is an area of forensic thinking commonly referred to as ‘transfer and persistence’. Although and there are a number of research publications emerging on this topic, the data set is by no means complete.
Lords’ inquiry has highlighted the difficulties that many organisations are experiencing. The (often prohibitive) costs associated with applying for and reaching accreditation are a recurrent concern, even though there is a genuine appetite to achieve accreditation. On-going resource requirements to demonstrate and maintain standards should not be underestimated. These challenges apply as much to police forces as they do to the sole trader or larger forensic science providers, most notably in the accreditation of fingerprint examinations and digital forensics. Yet these disciplines are central to the Forensic Science Strategy in the UK, which police forces and their affiliated agencies are driving. It is becoming increasingly difficult for stakeholders to comply with the rules that they are setting and it begs the question, wouldn’t it be easier if we all worked together and pooled our resources?
It’s not acceptable (is it?) that the meaning of the scientific findings, a DNA result for example, could change significantly depending on when the evidence is introduced into the CJS. Whether it has been fully evaluated in context with the case circumstances (or not) or because the results have been conveyed in a particular type of report. SFRs and abbreviated reports might be popular because they are thought to accelerate the crime scene to court process, but if the findings on which the case is built can be neutralised once a full interpretation is conducted, it is arguable whether they are fit for purpose. If the findings were evaluated at the outset, it is possible that the investigation strategy, or efforts in building a charge, or in advising a client could be more effectively managed.
References
In order to deliver a rational and coherent national forensic science strategy the industry urgently needs investment. We also need to take a cooperative approach to education and communication so that all users understand the strengths and limitations of the evidence, in the form that they are likely to encounter it, at each stage of an investigation. My fear is that the current strategy will stifle forensic science in the UK. We need to build on the strong foundations of the past and nurture a multi-faceted service that has the ability to deliver scientific findings consistently and dependably in the future. We need, joined-up thinking.
1, Kirk, P. Crime Investigation: Physical Evidence and the Police Laboratory. 1953. Interscience, New York. 2, Forensic Science Strategy: A National Approach to Forensic Science Delivery in the Criminal Justice System. March 2016. 3, Forensic Science Regulator: Codes of Practice and Conduct. October 2017. Issue 4. 4, House of Lords inquiry: Forensic Science. 2018-2019. https://www.parliament.uk/forensic-science-lords-inquiry (accessed January 2019). 5, Kind, S. 1982. Science Against Crime. Marshall Cavendish Books Ltd, London. 6, Forensic Science Regulator: DNA Mixture Interpretation (FSR-G-222). 2018. Issue 2.
As a general rule my advice would be that unless the DNA findings have been specifically evaluated in light of the case circumstances, including the scenarios that have been presented by the Prosecution and Defence, their potential evidential significance should be considered as undefined. The Forensic Science Regulator has published a number of comprehensive documents on how forensic science should be delivered and communicated. The Codes of Practice and Conduct are a modern day equivalent of Kirk and Kind and I would encourage any users of forensic science to read the guides that are relevant to their area of expertise. It is clear that regulation and accreditation have a pivotal role in the delivery of a consistent service, but the EXPERT WITNESS JOURNAL
Many thanks to Jo Millington BSc (Hons) MSc PGCert MIABPA MCSFS Occupation: Forensic Scientist / Director Millington Hingley Ltd: Forensic Scientists Contact details: jo@millingtonhingley.co.uk Website: www.millingtonhingley.co.uk 36
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Atrociously Bad Interest Rate Decisions (#ABIRD) Imagine you took out a twenty-year term loan for £100,000 – interest only. Four years on, your lender calls you and says - sorry - we have made some mistakes in how we set up the loan. Your debt is not £100,000 but £70,000. How would you feel? Now, imagine that you rang up the bank, and asked the same question. Now, the bank says – because of the way you set up the loan, you now owe us £130,000. How would you feel? What if it was £160,000? Or over £200,000?
go up or down). With floating rate loans, the capital stays the same, but the interest you pay, and hence your cash flow, can vary. The most senior players in this debate are the Bank of England, and HM Treasury. The Bank believes that floating rates are best, and tries to help run the economy on this basis. HM Treasury think everyone should “hedge their interest risk”, and borrow at, or convert to, fixed rates.
This is the unfortunate position facing virtually all of the UK’s local authorities today. From the largest, with debts of hundred of millions, to the tiniest, who have borrowed less than the amount of a home loan, they are getting that same bad news over the phone. And it could get worse……
Fixed rate loans are valued using an interest rate “forward curve”, details of which are issued daily by the Bank of England. If that curve falls, the negative equity in fixed loans gets worse. It has been falling continuously since around 2009, with a big hit immediately after the Brexit vote. I publish regular comments regarding the changes in the curve on Twitter as @SchemeActuary .
What has happened? In essence, all of these councils have taken a bet. Then, they covered up the bet with impressive words. They talk of “hedging their interest rate risk”, “technical risk analysis”, and looking at experts’ forecasts. Many of them didn’t actually realise they were taking bets. However, the bad news is published annually by their lender, the Government. The losses for each council are shown clearly. As at 31 March 2018, NO council made a profit on their bets. ALL made losses, except those who didn’t bet – they, of course, ended up around even.
Apart from the issue of fixed or floating rates, there is the length of the loans. These seem to vary widely by council, without necessarily any regard to size. At this point, I lay down a few principles, which are open to discussion:
There are just over 1,500 councils in the UK England, Scotland and Wales. The lender (Public Works Loan Board) divides England into major and minor councils. So we have four sets of data.
1) RISK Borrowing is always risky – for both borrower and lender. Clearly, the lender can lose interest and/or capital if the borrower gets into trouble. Lenders impose covenants – restrictive requirements on borrowers, and, if these get broken, they can then impose unwelcome sanctions. Restrictive control from an outsider is always unwelcome. Accordingly, loans should be minimized in size, and paid off as soon as possible.
How much has the debt gone up, on average, for each group, in excess of what they borrowed? Starting with the worse ones: Wales Scotland England (Major) England (Minor)
61% 55% 44% 27%
2) PROACTIVITY Contrary to 1) it is sometimes desirable, or necessary, to borrow in order to achieve longer term financial or social aims, eg, developing a library/adult education facility. In these cases, different principles apply. You need access to funds, in order to create a wealth generating or otherwise beneficial structure.
This is fascinating. Why should Wales do so badly? The image of canny Scots is dealt a hammer blow. And size does not seem to help – England’s major counties are lagging behind the minor ones – the biggest gap (17%) of the lot. It would seem that the more money you’re managing, the worse decisions you make! Why should this be?
3) REALISM To reconcile 1) and 2), a degree of pragmatism is necessary. For example, most projects overrun on both time and budget. Accordingly, borrowing more, and for longer, makes sense. Within reason. Crossrail is an enormously involved project, involving digging large tunnels under highly developed real estate – yet it’s taken about only 12 years.* * Approved 2007 – Full delivery 2019?
First, there is controversy as to whether it is safer to borrow at fixed or floating interest rates. If you borrow at fixed rates, you are exposed to capital risk – your debt can go up or down (to put it another way, your loan has a sort of negative equity in it, which can EXPERT WITNESS JOURNAL
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Why does a semi rural council borrow money up to 2065 in order to, say, just build (or even buy!) a shopping centre? (Which, we may see, will rest unused, like a Liverpool PFI school, if shoppers keep swinging towards web based shopping?)
I produced a graph mapping size of loan against “unnecessary debt” factor – This factor was on average about plus 10% - 20% for smaller loans (most by number) – but as the size picks up, so does this ratio – and we are looking at plus about 50% for the largest band (with a few “total turkeys” standing out).
4) AWARENESS The too often given reason for borrowing longer is “because it’s cheaper” Well, yes it is. However, it’s cheaper for a reason – lower demand for longer-term borrowing. The market expects longer rates to fall (pessimism), and therefore lower rates are needed to tempt borrowers longer. The important thing to realize is that you’re not doing anything clever by borrowing longer.
There are some startling results – but before looking at the extremes, I have compared two I spotted which had almost identical borrowing. LB Wandsworth had £120 million borrowed as at 31 March 2018 – and LB Hounslow had £121.5 million. Almost identical. Not now, though – Wandsworth owes £124 million – up 3% - but Hounslow owes £157 million – up 27% Why? It’s the same lender!
5) DEMOCRACY Councils are reelected (or not) every four years – is it right to lock in successive administrations to the effects of borrowing decisions that extend up to ten times that period?
Before I even look, I’ll suggest the following: 1 Wandsworth’s debt is closer to maturity and/or
6) NATIONAL COMPARISONS Central Government (Gilt, or Gilt edged security) borrowing is virtually all fixed rate – and a mixture of short and long term. However, for historical reasons, the HM Treasury is restricted in how it borrows. Moreover, national governments can raise taxes if the cash flow from their borrowing becomes uncomfortable. The same governments can cap or pressurize down council tax – councils are therefore weaker in their ability to support their own debt risk.
2 Wandsworth borrowed more at floating rate (this doesn’t change value) and/or 3 Wandsworth borrowed later – earlier fixed rate loans typically have higher interest rates. Most interestingly, if Wandsworth had borrowed at floating rates, 1 and 3 wouldn’t have mattered - all loans would have changed by 0% - ie, not at all. Two questions, then, for Hounslow council taxpayers to ask: a) How hard did you consider the advantages of floating, as opposed to fixed, loans when you borrowed the money? and
7) “IT DOESN’T MATTER, ITS ONLY CAPITAL – THE LOSS WILL BE ZERO AT THE END OF THE LOAN TERM”. This is a common fallacy. Credit rating agencies will mark you down for bad debt decisions. The gilt “Treasury 4 ¼% 2036 “ rose in value from about 100 in 2006 to 150 just after the Brexit vote – a 50% rise in value. To effect quantitative easing, the Bank of England had to pay the THEN CURRENT price. If a government can’t fiddle the amount it has to pay, then neither can a council.
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b) Bearing in mind your performance compared to Wandsworth is pretty poor, will you now review future borrowing practices, especially floating rate loan opportunities?
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However, at only 29% loss, Hounslow can actually pat themselves on the back, as this is a lot better than the average – especially the average for larger councils!
an area where the amateurs do much better than the professionals! The treasurers would argue, no doubt, that interest rates would have gone up, and variable rates would have cost more. However, the bank lending forward curve has been falling almost continuously since the end of 2008, with some big discrete drops. This drives a reduction in base rate, as the Bank of England needs to acknowledge lower confidence in the economy.
The worse 1% group comprises 15 councils/bodies. The best raised its debt by 88% - the worst by 211%. The latter was a bit of a one-off – the next worst was a rise of 132%. Of the 15, the largest is a council name with a historical reputation for overspending – as far back as the 1980s. However, those historic spends went to support council taxpayers, not on financial speculation. Their current loss is £380 million. To make the point clear, that is £388 million of “dead money”. They borrowed £408 million but now owe £788 million. They are part of a group comprising nine larger English authorities, four Scottish ones, and two Welsh ones.
Variable rates are carefully managed by the Bank of England, for the benefit of both borrowers and the economy as a whole, which reviews national inflation and growth, every month. Fixed rates, on the other hand, are at the mercy of the $300 trillion swaps market, which dwarfs both the UK and US treasury bill /gilts markets (around $3 trillion and $30 trillion respectively). These are actively traded by very bright and dedicated traders, who are staring at screens all day to make their bank profits – and bonuses. As a Local Authority official, you have to ask – is your treasurer really likely to beat these guys – even with the occasional help of Capita?
Of the 1,546 councils, about 870 (about 56%) have borrowings under £200,000 – around the size of the average new domestic mortgage today. However, current domestic mortgage borrowers do not lock into 25-year fixed rates. From current statistics available, the average fix is under three years. It does however, seem that regulators are trying to push borrowers into longer term fixed – FCA’s mortgage rules since 2014 require a stress test using the Bank of England forward curve if the fix is less than five years. However, experience to date is that this would have been bad advice (see diagram below).
To avoid this risk, all you need to do is to stick to variable rates, or short-term fixes. (a 2 1/2 year fix is obviously just 10% of a 25 year mortgage). So how did this all come about? As an example, I have provided a link to an article in “Treasury Today” (which sounds like a reputable journal). This was the second item listed on Google when I searched “Treasury Interest Rate Hedging”. Dated May 2001,
The upshot of this is that most Council and Authority treasurers would have done better to have copied their non-financial council officials, and their decisions on their own mortgages! This seems to be
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it underlines the thinking used by most treasury managers over the past 18-odd years, at least.
adverse rate changes is cited, the fact that the swap contains its own equivalent of negative equity, which can work against you, is totally ignored. The combination of the subtle push and the exclusion of the capital risk lead me to the inevitable conclusion that the writer is actually a salesman, or employed by a selling organisation.
Entitled “The use of swaps to manage interest rate risk”, it can be found here: http://treasurytoday.com/2001/05/the-use-of-swapsto-manage-interest-rate-risk Trouble is, it is clearly weighted towards pushing borrowers towards fixed interest rates:
Unfortunately, the apparent “safety” of making fixed rate payments, and the strategic exclusion of any mention of capital gives the reader the impression that he or she is in some ways getting a “free ride”. However, many corporate loan covenants include a minimum capital requirement. Even if these are not explicit in the loan documentation, no lender is going to be happy if the borrower suddenly acquires an uncontrollable debt, which may increase substantially, and suddenly.
To quote an extract geared to answering the question “How to manage interest rate risk”. “ · Fix the interest rate.” Loans can be taken out at a fixed rather than a floating rate, thus protecting the company from the effects of any changes in interest rates. Similarly, interest rate swaps can be used to convert a floating to a fixed interest rate.”
I also confirmed with the Government lender – the Public Works Loan Board – that they do not “push” either variable or fixed rate borrowing – it is up to the council or body to make their own decision.
Note, fixing the interest rate is given as an example of “managing” risk. When an honest bank lends money for more than, say, two years, it will usually do so at floating rates, as this is likely to minimise the risk associated with the loan. Unless the company is contracyclical, fixed rates render the loan riskier, for reasons mentioned above.
Finally, I look at some of the borrowers who have the best records. “Silver Award” councils, which have switched their more recent borrowing to variable rate, comprise the following: • Lancashire County Council • South Derbyshire District Council • West Yorkshire Police and Crime Commissioner • North Lanarkshire Council
Accordingly, that honest bank would not want you to effect the swap, as illustrated in the diagram. It would see this as an up risking of the loan, and might want to increase your loan risk loading to take account of it. Bang goes your clever profit. From the banks point of view, you are now speculating in derivatives.
These councils had switched to variable rate borrowing as at 31 March 2018, as measured by their “latest” borrowing practices (just having a couple of variable rate loans on the books does not qualify).
Second, no-where in the article is stated the capital significance of the swap. While the possibility of
…and the single “Gold Award” council which was 100% in variable rate loans was Beckley and Stowood Parish Council, whose debt exceeded their borrowing at 31 March 2018 by a miniscule ½% - which can reasonably regarded as admin fees!!
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We will review the March 2019 positions (including the effects of “LOBOs”, and other bank provided lending) once these are obtained. Some councils are very shy about revealing full details of their borrowing! As borrowing at fixed rates is the equivalent on betting on a good Brexit, the results after 29 March 2019 should be very interesting!
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by Mr Peter Crowley Actuarial consultant - FIA MEWI BSc Windsor Actuarial is an independent firm of actuarial consultants with considerable expertise in corporate pensions. Established by Peter Crowley in 2005, their excellent actuarial and pensions consultancy is complemented by cutting-edge software and technical support.
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. 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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Liverpool Victoria v Khan, Sultan, Zafar & Ahmed by Dr Thomas Walford, Expert Evidence Founder and Chief Executive of Expert Evidence limited. He founded the group following over 25 years in dealing with client disputes within three major London banks. Thomas is an experienced expert witness and also a mediator and arbitrator. This case is unusual in that it arises out of the collapse of an earlier case. The original case involved a car accident between taxi driver Mudassar Iqbal and Nicky Versloot in December 2011. Nicky Versloot, driving a Toyota Rav struck the Vauxhall Zefira driven by Mr Iqbal. Mr Iqbal wished to bring an action for the damages to his car against Ms Versloot and consulted “On Time Claims” for help with his claim. His injuries were minor and he hadn’t intended to claim for them. His case was duly referred by Shafiq Sultan (at On Time Claims) to Mr Khan, a solicitor. Mr Khan then instructed Med-Admin Ltd, a medico-legal agency run by his aunt, to arrange a medical report. Dr Zafar, the appointed doctor, examined Mr Iqbal on 17th February 2012 and in his first report (dated 17 February 2012) Dr Zafar reported that Mr Iqbal “had mild pain and stiffness in the neck on the day of the accident. These resolved one week from the accident. These symptoms were due to whiplash.“
It is alleged that each defendant was guilty of conduct which interfered with the administration of justice i.e. contempt of court. It is a contempt of court to engage in any conduct which involves an interference with the administration of justice, either in a particular case or generally as a continuing process. Liverpool Victoria were given permission to bring committal proceedings against the four defendants listed above on 33 counts of contempt. Evidence was heard over seven days beginning 18 July 2018, with final submissions being heard on behalf of the parties on 26 July 2018. It emerged that, when the claimant interviewed Dr Zafar on 20 August 2013, he didn’t recall the report or being asked to amend it, and that the “one week pain” (i.e. the first) report was correct. However in a later statement he said he’d amended the report himself because the first report had only included acute symptoms. He said he’d amended the report on the basis of a letter from Mr Khan dated 22 February. Metadata (a summary data system) showed that the only copy of that letter, an electronic copy, was created on 28 August 2013. An email chain from 24 February 2012 had been disclosed from which it could be seen that Mr Khan told Dr Zafar that the driver was still experiencing pain, and requested that the report be amended as stated above. Mr Khan’s statement said that the driver was happy with the amended report. The driver, Mr Iqbar’s statement said that his pain had resolved within 3 days and that he hadn’t asked for any amendments. Although the Judge accepted that Dr Zafar’s report was not necessarily dishonest, she considered that he was reckless in allowing the revised report to be produced by his secretary and with no further clinical examination. He did not see or sign the revised report and had no such system to ensure that happened- he was so busy that he gave no thought as to whether the amendments were true or false, or clinically justified. He made no further enquiries about Mr Iqbal’s use of analgesics (which he wasn’t using at the time of the first report) and overlooked the fact that on original examination he’d considered him completely free of symptoms. At the very least Dr Zafar should have made further enquiry and that was his duty to the court. He was reckless, and accordingly he was held to be in contempt of court. He was given a suspended 6 month sentence. Mr Khan, the solicitor, was imprisoned for 12 months.
While evidence was collected and papers were being prepared for the trial by Mr Ahmed, a paralegal with Mr Khan’s firm, it emerged that there were two different medical reports, one alleging far more long term injuries than the other, and both were dated 17 February 2012. Both medical reports were accidentally included in the trial bundle when only the second report had been served on the defendant. As a result of this ambiguity the case collapsed in 2013, with the trial judge giving directions for an investigation into how the two reports had come into existence. Ms Versloot was insured by Liverpool Victoria who started to make investigations as to the reasons for the two differing medical reports. Liverpool Victoria alleged that in order to falsely boost the value of the claim (and thus to enable Mr Khan’s firm to be awarded a significant costs award) Mr Khan suggested, via Med-Admin, that the medical report should be revised. Mr Khan advised that Mr Iqbal had suffered ongoing moderate to severe back pain in his shoulders and neck, mild to moderate pain in his wrists, and pain in his lower back, with a likely recovery period of 6-8 months. The revised medical report included all those details and was also dated 17 February 2012.
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Expert Evidence prides itself on assisting throughout the legal process where required and is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.
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Noise Nuisance and the Expert Witness by Dick Bowdler, Noise Consultant - www.dickbowdler.co.uk I have been an acoustic and noise consultant for nearly 50 years. My first noise nuisance case was in the early 1980s. We were in the Court of Session in Edinburgh with all the parties represented by senior and junior counsel. The case was brought by a private citizen living next to the Edinburgh Military Tattoo at Edinburgh Castle seeking interdict to prevent the Tattoo being held1. The defender was the Lord Advocate of Scotland. Our senior counsel became a court of session judge a few years later. Although I had already given evidence in licensing hearings that often involved some assessment of nuisance, the Tattoo case (Webster v The Lord Advocate) was a steep learning curve. Since then I have been involved in many potential nuisance cases. Most of these never reach court either because the case is considered not strong enough or, more often, because a “deal” is reached.
to be a nuisance then the pursuer was entitled to some redress. In particular, my first lesson was that the role of experts is ancilliary in a nuisance case and they should not get too big for their boots – it is the court that decides what is a nuisance. Sometimes an expert’s evidence will dominate the case as they do in TV dramas but that is rare. As the Crown Court judge said in Roper2 “ . . . experts, do not decide the case. If it were as simple as that we would not need to have heard from anyone other than the two experts in this case”. Lord Stott, in Webster agreed that the role of the expert was merely to test whether the lay evidence could be relied upon. He said “So viewing it I have found in Bowdler's evidence, even if taken with the qualifications suggested by Mackenzie, ample confirmation of my conclusion that the evidence of the pursuer and her witnesses was not an exaggerated reaction of the hyper-sensitive but represented the honest impressions of a cross-section of reasonable people”.
Webster was a good one to start my experience in noise nuisance because it clearly laid down the principles behind a nuisance action and the role of the expert. I represented the pursuer in this case and got criticism from friends who thought that it was wrong to try to stop the Tattoo which was an internationally renowned event. But my role as an expert was not to try to stop the Tattoo but to furnish the court with technical evidence to assist a decision. If it was found EXPERT WITNESS JOURNAL
Readers will notice my use of the words “interdict” and “defender” instead of “injunction” and “defendant” or “pursuer” instead of “plaintiff ”. This is because most of my work as a skilled witness has been in Scotland. Yes, in Scotland we are properly called “skilled” witnesses though most people now talk about expert and I will stick to that. 43
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What I am discussing here is what is called “private nuisance” in England. Public nuisance is a different matter and does not exist in Scottish law.
prevent a village cricket club from striking balls into her garden. The appeal court, though finding it a nuisance, refused to grant an injunction because of the greater interest of the village inhabitants in enjoying their summer cricket; though it did award damages. In making the decision, Lord Denning said that the dictum that an Englishman’s home is his castle and is inviolate could not apply in that case. However, Lord Stott in his decision in the Scottish case of Webster said “Lord Denning's suggestion in Miller that an Englishman's home is no longer his castle cannot in my opinion apply to a Scotswoman's flat”. Anglo-Scottish rivalry is not confined to the sports field and politics!
What is Nuisance? Even after nearly 40 years of involvement with noise nuisance there are still points of law that can surprise. Much of the case law is old but there are still important decisions being made which set a precedent. We should start with what nuisance is generally. In Scotland the test for nuisance generally is slightly different from England and Wales. In Scotland the test is simply whether the noise is intolerable to a reasonable person. If the judge finds it is, then it is a nuisance.
What is Noise Nuisance To appreciate the evidence in noise nuisance cases it is worth saying something about the role of the expert witness generally. I don’t intend to dwell on this because, as experts themselves, readers will be familiar with what I say. The best description is perhaps “Expert witnesses however skilled or eminent can give no more than evidence. . . Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions so as to enable the Judge or jury to form their own independent judgement by the application of these criteria to the facts proved in evidence”9. Although as experts we are sometimes called “witnesses of opinion” it is not acceptable for the expert merely to give an opinion; that is the job of the court. It is the expert’s job to explain to the court the state of knowledge in such a way that the court can reach an opinion.
In England and Wales two judgements will serve to define the test. Lord Neuberger in the Supreme Court judgement in Coventry v Lawrence3 said nuisance is an action “which causes an interference with the claimant’s reasonable enjoyment of his land, or to use a slightly different formulation, which unduly interferes with the claimant’s enjoyment of his land. . . . what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society.” There is a more detailed discussion in the House of Lords decision on Hunter and others v Canary Wharf4 . In the recent case of R v Winvest Ltd5 and Another at Kirklees Magistrates Court the magistrate said “to be an actionable nuisance the noise would have to interfere to an unreasonable degree with the personal comfort of, or injure the health of, the reasonable persons use and enjoyment of their land – having regard to the ordinary comforts of human existence in the particular location. This is an infinitely variable test. Every case is fact specific”.
So, in a noise nuisance case the pursuer and other lay witnesses describe the sound they hear. They describe it in subjective terms and whilst they may say it is loud or very loud or that it wakes them at night, most of the description is of the character of the noise. It is humming, whistling, grinding, pulsating, clattering and so on. Like “a train passing” or “a helicopter hovering overhead”. They may say that the noise annoys them during the day or even frightens them or wakes them up at night. On the other hand the expert may measure the noise level. She may rate or otherwise assess the characteristics of the noise. There are standard ways of rating hums and whistles and impulsive noise such as hammering. So the expert may be able to put a numerical value on the noise and compare it with a standard that will say whether that number is likely to cause complaints or likely to be annoying. One expert may say that the lay witnesses’ description is entirely consistent with what would be expected when measured by one standard and another expert say that the description is not consistent by some other standard.
The test in the Republic of Ireland is similar to that in England. The Supreme Court, in the case of Hanrahan v Merck Sharp & Dohme 6 set out the following: "It is clear from the authorities on the law of nuisance that what an occupier of land is entitled to as against his neighbour is the comfortable and healthy enjoyment of the land to the degree that would be expected by an ordinary person whose requirements are objectively reasonable in all the particular circumstances. It is difficult to state the law more precisely than that." There is rarely much argument between lawyers as regards the basic definition of nuisance. It is the finer points of each case that make the difference. For example, can you come to a nuisance? If you move into a house next to a noisy factory and both the house and the factory have been there for more than 20 years without any complaints being made by the householder then you may have no right to claim the factory is a nuisance because your right is extinguished by prescription. On the other hand, if you buy a piece of land next to a shop that has been noisily making confectionery for more than 20 years and build a consulting room on it, as Dr Sturges did in 18797, then you may indeed have the right to claim it is a nuisance.
In a recent (ongoing) case of wind turbine noise10 the Sheriff found that the complaint arose not just because of the volume of noise, but also “the fact that it can continue at a significant, intrusive level for lengthy periods; the character of the noise, whether it takes the form of rhythmic, repetitive 'blade swish' or any of the other, apparently less well understood, forms of turbine noise; the unpredictable manner in which the volume and character of the noise emitted by the turbines can change, or the noise can cease altogether, only to resume again in an equally unpredictable manner”
The point I touched in my second paragraph – can the greater public interest in the defenders activities (in my case the international Edinburgh Tattoo) influence the decision on nuisance? In short, no, it cannot but it might affect the remedy. In the English case of Miller8 a neighbour applied for an injunction to EXPERT WITNESS JOURNAL
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The type of sound and its context is also important. In Webster there were three claims: first that the erection and dismantling of the stands totalling about four months (constructed each year with a specialist form of scaffolding) was a nuisance: second that the rehearsals with music (about eight over four days) were a nuisance: third that the Tattoo itself (about 20 performances) with music and explosions and gunfire was a nuisance. The pursuer won the first argument but lost the second and third. The erection and dismantling of the stands was judged a nuisance because of the duration and the character of the noise and in particular the banging of metal. The rehearsals were not a nuisance because of their relatively low number and the Tattoo itself was not a nuisance because the character of the noise was such that the pursuer “still stages parties at the flat to enable friends to enjoy the ‘nuisance’”. In any case, had the judge decided that the Tattoo performances themselves were a nuisance he would probably have ruled that the rights of the pursuer in this respect had extinguished by prescription because they had been going on in much the same way for more than 20 years. On the other hand, the erection of the stands was not subject to prescription because the method of erection had substantially changed in recent years to involve much more banging of metal.
a nuisance though it conceded that there will be occasions when the terms of a planning permission could be of some relevance in a nuisance case. So the development alleged to be a nuisance can be included as part of the character of the locality to the extent that it can be and is conducted so as not to be a nuisance. Statutory Nuisance Nuisance is a long-standing common-law principle that has been used for around 800 years. However, in 1974 the Control of Pollution Act introduced the concept of Statutory nuisance. This still continues in the same form but incorporated into the Environmental Protection Act 1990. In fact many of the cases that I mention are statutory nuisance cases. The test for Statutory nuisance is the same as that for common law nuisance but there are some differences in the procedures. The first is that action can be taken not only by the person aggrieved as in common law nuisance (in s82 of the Act) but by the local authority (s80). The local authority route is the most common way to deal with excessive noise. Local Authority action is nearly always instigated as the result of a result of a complaint. The Act gives the authority wide powers, in particular it can serve a noise abatement notice. Indeed, if it considers a statutory nuisance exists “the local authority shall serve a notice” under the Act (authors bold emphasis). In fact Council officers, usually environmental health officers, have unusual powers in statutory nuisance. They can serve a notice stating that a noise is a nuisance based on their own opinion, subject to possible appeal by the court.
There is another conundrum relating to noise nuisance was argued in Coventry all the way to the Supreme Court. That is the question of locality and in particular whether the grant of planning permission itself changes the locality. It has always been recognised that the nature of the locality is relevant – “it must be accepted that a certain amount of inconvenience, annoyance, disturbance and even damage must just be accepted as the price the pursuer pays for staying where he does in a city tenement”11. So what is not a nuisance in a city might be one in the country. In Coventry it was argued by the defendant that the stadium and motor racing track which was the subject of the nuisance claim should itself be taken into account in considering the locality. Lord Neuberger in the Supreme Court said “. . . in the present case, where the judge concluded that the activities at the Stadium and the Track were actually carried on in such a way as to constitute a nuisance, although they could be carried on so as not to cause a nuisance, the character of the locality should be assessed on the basis that (i) it includes the Stadium and the Track, and (ii) they could be used for speedway, stockcar, and banger racing and for motocross respectively, but (iii) only to an extent which would not cause a nuisance”.
In R v Windvest at Kirklees Magistrates Court, six environmental health officers had been to listen to a wind turbine at various times and five of them had considered it to be a nuisance. The defendants were unmoved by this and believed that without any noise measurements to show that the level of noise was above a certain threshold, they could not possibly be shown to be causing a nuisance. The judge disagreed. The subjective judgement of the neighbours and the six environmental health officers was sufficient. Interestingly, none of the six environmental health officers appeared to have been treated essentially as an expert witness but more like lay witnesses describing the noise though they did, in all but one case, express the opinion that it was a statutory nuisance. Having served a notice under the act, if that notice is breached “without reasonable excuse” the noise maker can be guilty of a criminal offence. Unlike an injunction in a common law nuisance case there is a defence of best practicable means against statutory nuisance. Best Practicable Means takes regard, amongst other things, to local conditions and circumstances, to the current state of technical knowledge and to the financial implications.
Further in Coventry the argument was put forward that the prior granting of planning permission to the defendant for the stadium and racing track deemed to be a noise nuisance had itself changed the locality. In the original case, the judge held that the actual use of the Stadium and the Track with planning permission could not be taken into account when assessing the character of the locality for the purpose of determining whether the activities constituted a nuisance. The court of appeal overturned this. The supreme Court said that it was wrong in principle that a planning authority should be able to deprive a propertyowner of a right to object to what would otherwise be EXPERT WITNESS JOURNAL
Specifying Abatement Measures In s82(2) of the Environmental Protection Act, if a sheriff finds there is a nuisance he or she is required to make an order to abate the nuisance. In common law nuisance the judge has to formulate the terms of an injunction. In either case there comes a point in 45
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any successful nuisance case, whether statutory or common law, that a form of words is required to tell the defendant what to do. One option is to tell them simply to “abate the nuisance�. In Webster that is more or less what happened. The terms of the interdict were worded to prevent the defenders making preparations for the Tattoo “in such manner as by reason of noise to create a nuisance�. The defenders returned to court to have this amended on the grounds that "in all cases . . . where interdict is granted by the court the terms of the interdict must be no wider than are necessary to curb the illegal act being complained of, and so precise and clear that the person interdicted is left in no doubt what he is forbidden to do"12. The Inner House of the Court of Session agreed and changed the interdict to “in such manner as by reason of metallic construction noise to create a nuisance� (authors bold emphasis).
interdict in Webster – this in effect leaves the question of compliance to the lay witness. Second, an order that translates the nuisance into quantifiable terms as in Roper where the judge set a specific noise limit that included character corrections. Epilogue The Edinburgh Tattoo is still running every year at the same place and has been since 1950. The interdict which was granted was delayed for six months which allowed that year’s Tattoo to take place. The method of erecting the stands was changed, in part as a result of the court case. References 1, Webster v The Lord Advocate. 1985 SC 173, 1985 SLT 361, [1985] ScotCS CSIH_1 2, Roper v Tussauds Theme Park. [2007] EWHC 624 (Admin) 3, Coventry and others (Respondents) v Lawrence and another (Appellants) [2014] UKSC 13. On appeal from [2012] EWCA Civ 26
It may be that the order will simply say that the noise must stop and the offending machinery is to be taken away. Then it is easy, but in most cases the aim is to achieve a reduction of noise so that the impact is abated to the point that it is no longer a nuisance. A case is judged on the subjective evidence of the lay witnesses but it might not be reasonable to have a form of words that allowed the complainant to decide whether the nuisance had been abated – much as the complainant would most likely think it a good idea. Generally one of two solutions can be adopted. First, a simple open order instructing the abatement of the nuisance, provided that the reasons for the nuisance are sufficiently defined so that “the person interdicted is left in no doubt what he is forbidden to do� such as the final
4, Hunter v Canary Wharf [1998] 1 WLR 434 House of Lords 5, R v Winvest and another 6, Hanrahan v. Merck Sharp & Dohme [1988] I.L.R.M. 629 7, Sturges v Bridgman [1879] 11 Ch D 852 8, Miller v. Jackson 1977 Q.B. 966 9, Davie v Magistrates of Edinburgh. 1953 SLT 54, 1953 SC 34 10, Milne v Stuartfield Windpower. Aberdeen Sheriff Court 2018. 11, Watt v Jamieson - 1954 SC 56 12, Murdoch v Murdoch 1973 SLT (Notes) 13
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Fire Investigation ‘Completing the Jigsaw’ by James Holder MSc, FIFireE, MCSFS, IAAI-CFI, CFEI. While standing in the blackened remains of a burntout room, unsurprisingly, the most commonly asked question of a fire investigator is where did the fire start and what caused it? What usually follows, after I have provided my answer, is something on the lines of ‘how do you know that, everything is charred and black?' The answer to where and how a fire started is crucial to determining the cause, origin and development of any fire. Reaching the correct cause and origin determination can sometimes be a relatively straightforward process at simple fire scenes, or it can be extremely protracted where the scene is complex, and the fire damage is more significant. My aim in writing this article, therefore, is to offer the reader an insight into the work of a fire investigator, and how we reach the conclusions that we do. My route to becoming a fire investigator began in 1998 when I joined the Fire Service as a firefighter. Within a year I had unfortunately attended my first fatal fire, and it was while watching the fire investigator who came onto the scene to determine the cause, that the fire investigation spark (no pun intended) within me was struck. I was fascinated by how the charred remains of what remained could decipher the fire's origin and cause. After 13 years of fighting
fires, I transferred into the fire investigation team, a small cohort of expertly trained and highly experienced fire investigators, where I have remained ever since. So where to begin with a fire scene investigation? Although every fire scene is different, the process in determining the cause is the same, and chiefly involves collecting as much ‘data’ as possible, and interpreting that data to develop and test hypotheses, before a final hypothesis is selected. Data comes in many forms and includes the account of any witnesses to the fire, closed-circuit television (CCTV) images and the analysis and interpretation of fire patterns at the fire scene, to name but a few. I like a fire investigation to collecting the pieces of a jigsaw puzzle. If all the pieces to the jigsaw can be found, then the picture becomes crystal clear. However, at the point that I am notified of my requirement to attend a fire scene, I have no pieces to the jigsaw, and my quest for those missing pieces begins. Obviously, the more pieces I can find then the clearer the picture becomes, and so, the investigation of a fire begins before I even leave my office. Any previous fires are clearly of interest to me, and any other intelligence relating to a particular address is recorded.
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building at high speed. When these activities are considered and combined with the fact that firefighters entering burning buildings in zero visibility, tasked to locate and rescue any occupants, as well as extinguish the fire and who are extremely task focused, it is not surprising that the preservation of evidence at a fire scene is somewhat challenging.
A point of note, however, worth emphasising at this juncture, is the issue of bias. It is imperative that investigators maintain an open mind and remain completely impartial. Establishing that a property had been subjected to three previous arson attacks does not preclude the fourth fire from being the result of an accident. Expectation bias can be a dangerous animal and fire investigators need to be acutely aware of the potential negative impact bias can have. Unwittingly trying to confirm what an investigator ‘expects' the fire cause to be, can be a dangerous road to go down. Instead, and by maintaining an open mind throughout, data collected that could potentially lead to bias is instead noted but assessed for its reliability and relevance.
It is imperative therefore that as a fire investigator, I identify those first responders and obtain their accounts in detail. What was the security of the building when you arrived? Where was the fire at its most severe? What extinguishing media and tactics did you employ? What doors and windows have you opened either during your search or to ventilate post-fire? Has any furniture been moved and if so, where to? What could you hear? Have you turned off any electrical appliances or isolated the services? The list of questions goes on, but ultimately the aim is clearly to elicit as much information as possible and thus collect more jigsaw pieces. Coming from an operational firefighting background certainly helps when questioning fire crews, having ‘been there and done it' so to speak.
Returning to the investigation in hand, further jigsaw pieces can be obtained before mobilising to the fire scene. These pieces (or data) might include confirmation of where an address is and the local topography, such as playing fields, railway lines etc.… that may provide unrestricted access to a site. Google can be a wonderful tool and a quick check of a company's website, if one exists, can be extremely useful in determining what processes occur at that site or its occupancy. Confirming the type of building or location that a fire has occurred also allows an investigator to gauge its construction and therefore begin to assess its likely reaction to the fire. The data collected before mobilising to the fire scene may have provided only one or two pieces of the jigsaw, but the picture is beginning to form nonetheless.
Data collection from witnesses then extends to any occupants of the affected property, neighbours, passers-by and any other person that could potentially provide any useful information. What were the actions of the person who was the last to leave the property? Do any occupants smoke? Are candles used? What is the method of heating the property? What were the electrical appliances present in the room when the fire started and were they plugged in? Where are the electrical sockets? Again, the list goes on, but witness information should be gathered as soon as possible after the event, for obvious reasons. It could be that what somebody didn’t see be equally as important. For example, a witness who can confirm that at a particular time there was no sign of any fire, or that a building was locked securely can be equally helpful.
Once at the scene, however, the collection of data can really begin. It is worthy of mention that fire, particularly when used at a crime scene, presents arguably a unique set of circumstances when it comes to evidence. In most cases, when a crime occurs, the longer the crime is in progress, the more evidence is produced. Evidence at a fire scene, on the other hand, diminishes as time passes because the fire destroys more and more of what evidence there was.
If we consider the fire on a timeline, the witness that takes us the furthest point back in time and closest to when the fire started is often the most useful. The difference between a reliable witness who recalls seeing flames issuing from multiple windows and one who confirms that flames were confined to just one window when they saw the fire is clear. By collating the information obtained from all available witnesses, interpreting its relevance and ensuring its reliability, hypotheses can begin to form having not yet even stepped foot into the building.
The actions of the first responders to any fire scene are therefore vital to the preservation of any remaining evidence. As a fire investigator, it is imperative that I obtain the accounts of these first responders regarding their actions and observations. Typically, a severe fire in a two-storey house confined to a bedroom, for example, would attract two fire appliances carrying around nine firefighters; if people are reported trapped inside, then a third appliance is usually sent. This results in up to six firefighters donned in breathing apparatus entering the property to undertake search and rescue activities. They will undoubtedly be equipped with firefighting water hoses to extinguish the fire and could, therefore, apply approximately 500 litres or more of water onto the fire at high pressure. Modern-day firefighting can also involve positively pressurising the building to force the smoke out of windows and other openings. This effectively means placing a large industrial fan close to the property's front door and blowing air into the EXPERT WITNESS JOURNAL
The checking of witness evidence for its reliability, however, cannot be over-emphasised. Witnesses can be deliberately untruthful, whether that be because they would implicate themselves in a crime or demonstrate that their negligence caused the fire, albeit accidentally. Further, people may inaccurately describe what they saw, whether that be because of excitement, upset or other emotions experienced by 48
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were and what they were doing when the fire occurred could be useful to know. A handrail could mean that the occupant is elderly. Are they in receipt of care and if so, when was the last visit from a carer before the fire? Littered cigarette ends not only indicate the presence of a smoker and a potential source of ignition, but also those cigarettes are disposed of carelessly. Finally, a skip containing builders waste could mean that a recent refurbishment of the property involved some sort of alteration to the electrical installation or a plumbing task that involved ‘hotworks’.
people who may well have not been exposed to such an incident before. The ‘ABC’ rule of thumb in fire investigation is to ‘assume nothing, believe nobody and check everything’, and remember that witnesses can be mistaken, or lie of course, and physical evidence does not. Footage captured by CCTV cameras is an obvious source of reliable data, and time invested in checking for cameras in the local vicinity is time well spent. I recall one case where CCTV footage obtained, although scant and which did not record the fire itself because it faced the wrong direction, did capture a passing vehicle that was later traced. Although the sole occupant of the passing car couldn’t recall seeing anything to assist the investigation themselves, the onboard dashboard camera fitted to their vehicle did. A bonus jigsaw piece to say the least!
‘Lifestyle indicators’ allow the fire investigator to build a picture of how the building and its occupants ‘usually’ behave and without yet having reached the room where the fire occurred, many pieces of the jigsaw can be collected. It is sometimes easy to become focused on the ‘burned bits' at a fire scene and neglect the wealth of information on offer. Once inside, consideration to lifestyle indicators continues. Is the property secure? If not, is any damage to doors and windows consistent with the actions of the first responding fire crews or is there evidence of a break-in before the fire? Is the property in order or unkempt? Are electrical appliances and extension leads being used appropriately? By what means do any occupants heat the property? Is there evidence of candles being used? Is there further evidence of smoking materials? And the list goes on.
Having spent what can be many hours speaking to witnesses, retrieving alerts from both fire and intruder alarm systems and identifying possible sources of CCTV, and of course, having recorded everything contemporaneously on paper, attention turns to the fire scene itself. Top of the priority list at this point, by a long way I might add, is scene safety. No fire investigation is worth getting injured, or worse, for and an assessment of the buildings structural integrity must be undertaken. In addition to the obvious risk of a severely fire damaged building collapsing, there are many other nasties to consider. Exposed electrical cables, holes in floors, broken glass and other sharps, chemical and biological hazards and the exposure to asbestos, for example, present an often-unpleasant environment in which to work in. Ensuring adequate control measures are in place before entering a fire scene is therefore vitally important.
By the time the investigator reaches the room of the fire’s origin, it is likely that several working hypotheses have been developed based on the information gathered up until that point. It is then a case of continually testing those hypotheses against new information obtained as the investigation continues. Once in the fire compartment, a survey of the burn patterns and the way that the contents of the room have reacted to the fire will enable the fire investigator to narrow down their area of interest and focus in on the fire’s origin.
Having deemed the risk to my safety to be adequately controlled, a survey of the scene can begin. It is usual practice for a fire investigator, certainly at a crime or fatal fire scene, to be accompanied by a Police Forensic Scene Investigator (FSI), perhaps more commonly known as a Scenes of Crime Officer (SOCO). They are responsible for retrieving any physical evidence and will routinely record the scene by way of digital photographs. Because of this, a fire scene investigation is very much a team effort that utilises the skills of both the fire investigator and the FSI.
To do this, a variety of methods are employed. The way that fire inside a compartment, such as a bedroom, develops is controlled by just two things; the amount of fuel available and the availability of an oxidiser, which in almost every fire is the oxygen in the air. A bonfire in the open is an example of a ‘fuel controlled' fire because it is the amount of fuel present that determines how large the fire gets and not any restriction on the amount of available oxygen. Although a fire inside a well-insulated room with closed doors and windows will initially be fuel controlled in its very early stages, it requires more oxygen as it develops. When the point is reached that the fire is consuming more oxygen than the amount of air being drawn into the room, it becomes a ventilation-controlled fire and limits its ability to develop. If, however, there is an adequate supply of air to the fire, and enough fuel, of course, it will develop to involve the entire contents of the fire, and it is at this point the fire is said to have ‘flashed over'.
When assessing a fire scene, there is often as much useful information to be had from areas remote from the fire compartment, as there is within in it. A great deal of information can be obtained about the occupancy of a building by spending some time surveying the surroundings and away from the room of origin. Children’s toys in a rear garden, a wallmounted handrail by a front doorstep, littered cigarette ends on a driveway or a skip containing builders waste are just a few examples of the information on offer, if one takes the time to look and take note of it. Toys could mean that children were present at the time of the fire. The answer to where any children EXPERT WITNESS JOURNAL
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It may be however that the source of ignition cannot be found, despite a thorough and proper excavation. A match thrown into a waste paper bin that then develops into a significant fire is not going to be found. It is important to remember therefore that the job of a fire investigator is to consider all potential ignition sources and work towards eliminating as many as possible. Although a single match dropped into a bin is not likely to be found after a fire, a thorough excavation may confidently exclude other sources of ignition such as electrical wiring, a candle carcass or a cigarette lighter.
If a fire is prevented from spreading beyond the item that first ignited, such as an armchair, for example, it is a relatively straightforward task to identify the origin of the fire. If, however, the fire has spread to involve the entire room and its contents, it becomes more a challenge to identify where the fire may have started. Despite this, by surveying the fire, heat and smoke damage inside a room it is possible to identify where the fire’s origin lies. By possessing a degree of scientific knowledge, particularly an understanding of fire dynamics, and by conforming to some basic laws of physics, such as that heat rises and radiation travels in straight lines, fire, heat and smoke patterns can be interpreted.
By then considering data previously obtained during the investigation, it may be that the other carelessly dropped matches in various places throughout the scene, remote from the bin, give real credence to a cause determination that a dropped match did indeed start the fire, although the actual match responsible was entirely consumed.
Because fire consumes the fuel that is involved, the longer the fire is burning in a particular place then, the greater the degree of damage, generally speaking. So, by assessing and comparing the depth of charring on wood, the degree of melting to plastics or arc damage on electrical cables, for example, the investigator can begin to home in on where the fire may have originated. Burn patterns on walls and ceilings can be clues to where the fire was at its most severe and the way soot has been deposited onto surfaces can indicate the ventilation effects in play at the time. Gypsum plasterboard contains moisture, and during a fire a process known as calcination causes the moisture to evaporate. Fire investigators take advantage of this process and survey the extent of calcination to assist in determining where the fire was at its most intense.
Hopefully, by this stage of an investigation, the investigator has collected many pieces of the jigsaw, and a clear picture is forming. Hypotheses will have been developed and tested, some then discarded and some maintained until hopefully enough data has been collected to select one final hypothesis. At this stage of the investigation, I will usually sit down, hopefully with a cup of tea, and retest my final hypothesis. Have I considered everything? Are there any sources of data that I have missed? Will my hypothesis withstand the test of scrutiny from my peers? Only when I am content that I have exhausted the fire scene of all available data will I leave and return to my office. Having then considered all of the information available to me, I will then produce my expert report in preparation for any court proceedings.
By continuing the process of fire pattern analysis, and thus collecting more data, the information obtained from any witnesses can be compared to the physical evidence encountered for both its consistency and reliability. Having hopefully identified where the origin of the fire is, the next task is to determine what the source of ignition was. Three critical questions must be precisely answered by any fire investigator to identify the circumstances that led to a fire. What was the item that was first ignited, what was the source of ignition competent enough to ignite that fuel and how was it that both the first item to be ignited and the source of ignition came together?
Further to this, however, is how fire investigation plays a pivotal role in fire prevention strategy, and why accurate fire cause determination is key to keeping our communities safer‌ after all, fires cannot be prevented, if how they start in the first place is not understood. And so, hopefully, this brief insight into the work of a fire investigator has achieved its aim, and given you, the reader, an awareness of how fire investigation is all about trying to, so to speak, complete the jigsaw!
Fire scene excavation is comparable to an archaeological dig. As a fire develops, debris collects on the floor and forms layers that constitute a timeline. Because the source of ignition is likely to be right at the heart of the point of origin, as the fire develops it becomes buried beneath a layer of fire debris. It is for this reason that a fire investigator will excavate comprehensively and systematically utilising small trowels, paint brushes, sieves and magnets, for example, to locate the sometimes-minute pieces of evidence that may be all that remains of the ignition source. It may be that all that’s left of a faulty electrical appliance are the metallic components that were originally within its plastic body. It may also be that the small metal disc at the base of a tea-light candle wick is all that survives an intense fire caused by the careless use of such a candle. EXPERT WITNESS JOURNAL
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National Operation to Retest Manipuliated Forensic Samples Continues Following a Randox Testing Services (RTS) report to Greater Manchester Police of alleged data manipulation within their laboratory processes, a team of experts identified that thousands of cases had been affected and a majornational retesting programme was commissioned. The National Police Chiefs’ Council (NPCC), working with the Forensic Services Regulator (FSR), the Crown Prosecution Service (CPS), the Home Office and the Association of Police and Crime Commissioners (APCC), has identified more than 10,500 cases across 42 force areas that may have been affected by manipulation.
we can assure the public that we have retested samples in every case where it is necessary and possible. “We’ve retested nearly 90 per cent of the highest priority cases. Of the cases retested three per cent have resulted in different outcome and a further four cases referred to the court of appeal – these are all road traffic cases.
The alleged manipulation came to light in January 2017 when RTS, during an internal investigation, uncovered irregularities and reported the details to Greater Manchester Police and the appropriate regulatory authorities. A criminal investigation was subsequently launched and as a result two men – a 47-year old and a 31-year-old – were arrested on suspicion of perverting the course of justice. They have been re-bailed until 10 January 2019. Six more people, two woman and four men, have also been interviewed and under caution, although all but one of those have since been eliminated from enquiries.
“Alongside the APCC and the Home Office, the NPCC are leading the work to bring other independent forensic testing suppliers into the supply chain to speed up the process. “We have requested that local forces and coroners review the relevancy of toxicology to each affected case, so we can concentrate our efforts where they are most needed. “This has succeeded in reducing the number of high priority cases, and has also led to around 2300 cases (approx. 22 per cent) being struck from the retesting process as they have been deemed unlikely to result in a change to the criminal justice outcome.
Of the 10,500 cases identified, nearly 4000 have been retested or submitted for retesting and 2300 cases have been struck from the retesting process as they have been deemed unlikely to result in a change to the criminal justice outcome.
“I expect this re-evaluation process to reduce the timescales for completing the retesting programme, but our conservative estimates are that all relevant road traffic cases will be complete by mid-2019, and all other cases where toxicology was pivotal will be done by December 2019.”
Of the highest priority cases, nearly 90 per cent (approx. 800) of cases have been retested, with the rest to be completed by April 2019. Of the 2700 cases which have been fully revisited, approximately three per cent (a minimum of 90) of outcomes were affected. All 90 are road traffic cases, of which 50 were discontinued by the CPS and 40 had a conviction overturned following the case being reopened under s.142 of the Magistrates Court Act, which gives Magistrates’ Courts a power to reopen cases to rectify mistakes.
Dr Elizabeth Soilleux Consultant Histopathologist MA, MB, BChir, PhD, FRCPath, European Board of Pathology, Cardiff University Bond Solon Expert Witness Certificate (Civil Law)
Practising consultant haematopathologist and autopsy pathologist in Cambridge. Cambridge University lecturer and fellow/director of studies in medicine, Churchill College, Cambridge.
Four additional road traffic cases have been taken to the Court of Appeal, with one case being overturned, one resulting in a reduced sentence, one appeal being unsuccessful and the fourth still to be decided.
Expertise in:
The NPCC has employed an independent expert to analyse the retest results, with more than 1000 cases already being closely examined to ensure the quality and accuracy of the retesting work.
Haematopathology - histopathological assessment of lymph nodes, bone marrow, thymus, spleen, lymphomas, leukaemias, myelomas, myelodysplastic syndrome, myeloproliferative disorders, benign conditions, including infections, molecular tests in haematopathology.
National Police Chiefs’ Council Lead for Forensics, Chief Constable James Vaughan, said:
Autopsy (post mortem) pathology.
“The integrity of forensic science is a fundamental part of our criminal justice system and we are working tirelessly to minimise the impact of this serious breach of standards.
Contact: Tel: 07798 643879 Email: expwitpathol@gmail.com Website: www.expertwitnesspathologist.co.uk
“Managing the process for retesting over 10,500 potentially affected cases has been a major national police operation. We will continue this process until EXPERT WITNESS JOURNAL
60 Cow Lane, Fulbourn, Cambridge, CB21 5HB
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Morrisons Found Liable For Staff Data Breach by Justin Govier, Partner at IBB Solicitors The Court of Appeal has upheld a High Court ruling finding supermarket chain Morrisons legally liable for a data leak caused by a former employee which affected around 100,000 members of staff.
Experts underline that there is “very little [companies] can do to guard against a similar situation,” since such acts may not be mere negligence but wilfully and maliciously planned to hurt the firm.
The case marks the first class action suit for a data breach in the UK and saw over 5,500 Morrisons staff seeking damages from their employer after auditor Andrew Skelton leaked their personal information, including salary and bank details, online and to newspapers.
Judges in the ruling admitted that finding employers vicariously liable for any data breaches caused by staff could result in firms being ordered to pay “potentially ruinous amounts” in compensation. However, they maintained that companies could protect themselves by “insur[ing] against losses caused by dishonest and malicious employees.”
Three senior judges concluded that Morrisons was “vicariously liable” for the offence, for which Mr. Skelton was jailed for eight years in 2015.
Retailer seeks further appeal to Supreme Court Employers are already advised to insure against their liability to pay damages for harm caused by employee negligence.
The food retailer could now be liable to pay compensation worth millions of pounds to its affected employees and has said that it will now apply for a further appeal to be heard in the Supreme Court. As the first ruling of its kind, the case is expected to set a significant precedent for companies across England and Wales. Employers may now be liable to pay vast sums to people affected by data breaches caused by individual staff negligence or overall failures of the corporation.
Under the doctrine of vicarious liability, employers are legally responsible for the acts and omissions of their staff, provided the staff member was acting in the course of employment. Beyond taking out insurance, companies should also take all steps as far as is reasonable to ensure that their systems and strategies to protect personal data are secure.
A legal representative for the claimants welcomed the verdict, stating: "The judgment is a wake-up call for business. People care about what happens to their personal information.”
Thorough processes should be in place for deleting personal data no longer needed, and those in a position to access sensitive information should be monitored closely. The bottom line in many cases however appears to be that companies will be held liable for the harm caused by employees wherever necessary to ensure that victims receive adequate compensation.
They maintained that it was only fair to “expect large corporations to take responsibility when things go wrong in their own business and cause harm to innocent victims.”
A spokesperson for Morrisons emphasised that the chain had “not been blamed by the courts for the way it protected colleagues’ data.”
Ruling could impact all UK employers Many lawyers have been quick to criticise the ruling as a dangerous precedent which opens the floodgates for companies to be forced to pay unforeseeable costs in compensation for data breaches beyond their control.
The spokesperson added that the retailer was “not aware that anybody suffered any direct financial loss” and believed it “should not be held responsible” for the criminal actions” of a former employee which “targeted at the company.”
One critic pointed out that the verdict “effectively achieved” Skelton’s “purpose of punishing Morrisons by making them liable for potentially millions…in compensation, through no fault of their own.”
Employment law advice for employers Find out how we can protect your business and your reputation from the acts and omissions of employees by calling us on 03456 381381.
Skelton deliberately leaked the data in act of revenge against the supermarket group after he was disciplined for operating an ecommerce business through the company’s mail room at its Bradford headquarters.
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Alternatively email your details to employment@ibblaw.co.uk. www.ibblaw.co.uk
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Psychological Injury, Cyber Crime and Data Breach Damages by Hugh Koch, Clinical Psychologist and Visiting Professor in Law & Psychology to Birmingham City University (BCU), Simon Midgley, Clinical Psychologist, Emma Riggs, Clinical Psychologist and Nkem Adeleye, Lecturer in Law (BCU) Data breaches concerning individuals and organisations are increasingly common highlighted by the growing emphasis on GDPR (General Data Protection Regulation) and organisational security measures. Despite best intentions and quality control of data disclosure, sensitive data breaches can have a variety of negative consequences (1). When a data breach occurs in an organisation, whether public or private, one compromising episode can adversely affect the best of reputations. Such damage to reputation and brand value as a result of a cyber security breach is an increasingly common occurrence. The digital world of immediate accessibility can lead to a company’s identity being adversely affected throughout its customer base, and result in a significant loss of customer trust, whether the ‘customer’ be an individual or another corporate entity. The consequent shut down in operations in order to rectify the data breach very easily results in significant loss of revenue. In the UK, between 40-45% of all businesses identified at least one cyber breach in the past 12 months (2) – it is clearly a priority for companies to learn how to keep data secure or face the consequences, one of which could be litigation. EXPERT WITNESS JOURNAL
Due to the highly sensitive nature of data breaches, individuals affected by a data breach may also be at risk of identity theft. Criminals can steal an identity and commit fraud in a victim’s name, using the exposed and released information. It can be used on the ‘cyber black market’ to file fraudulent tax returns, open new credit, make false purchases on existing credit accounts and obtain services including medical treatment (3, 4). Public bodies collect a significant amount of sensitive information about people that it provides services to/for. They have a duty to use and store this data responsibly. The Data Protection Act [2018] and Human Rights Act [1998] set out rules to protect the public and its personal data. Public bodies such as the NHS, Police, and Local Authorities are at risk of breaching these rules at times by storing inaccurate or out-of-data information, holding data longer than necessary, failing to make data secure from external hackers or by using data outside its stated purpose. Individual rights can be infringed when a public body commits any (5a) of these errors, and these can result in litigation.
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A breach can occur in numerous ways including hacking, lost laptops, iPads and iPhones, theft by an employee and error in data processing and transmission. It is incumbent on businesses to prevent data breaches and secure the personal information it handles but this does not always occur. Due to the myriad of potential breaches, the probability of a data breach increases over time and failure to promptly take action in the event of a breach can have significantly adverse results for any one individual and the organisation concerned (3).
• Panic Disorder. (DSM5 300.01) (F41.0) • Agoraphobia. (DSM5 300.22) (F40.00) • Generalised Anxiety Disorder. (DSM5 300.02) (F41.1) • Obsessive Compulsive Disorder. (DSM5 300.3) (F42) The finding of an appropriate diagnosis helps all parties understand logically how severe a psychological problem or ‘injury’ has been, and, secondly, whether it requires treatment to rectify. This can be reinforced by contemporaneous information from the GP records and reinforced by a clear descriptive narrative of how the index data breach has adversely affected the claimant. With regards to whether a data breach would meet the criteria of a life threatening event and its implication for PTSD, this is unlikely. However, the ‘knock on’ effect of a serious data breach could conceivably result in high levels of stress and subsequent adverse life events with serious implications.
Latest research indicates (5,6) that people are becoming stressed by the additional pressure to keep large amounts of information and passwords secure. There is a lack of trust in technology companies and organisations that hold information to keep that information safe. Least trusted was the Government and its many agencies. Most trusted were manufacturing, healthcare and education despite these industries all experiencing data breach problems recently.
Awards for Distress Increasingly case law has emerged, emphasising the interrelationships between privacy rights, Tort Law and data protection. Claims are being brought on more than one ground i.e. for the misuse of private information, and for breach of data protection obligations (7).
The Psychological effects of a Data Breach In most cases of cyber/data breach, there is some financial loss to the victim, a loss which gets greater when stolen data is sold on (6). However, a less understood effect is the psychological stress and trauma experienced by the individuals concerned. Typical psychological effects include: 1. Invasion of their privacy, feeling victimised 2. Feeling upset, depressed and guilty 3. Insomnia 4. Eating and sleeping difficulties 5. Social anxiety, avoidance, hypervigilance and disruption
Recent case law of relevance has included: a) TLT and others v. Secretary of State for the Home Department: The Court awarded a global sum of damages rather than separating out a damages award under district head of damages. b) Vidal-Hall and others v. Google Inc: This made it easier to bring claims for compensation for distress alone, and not only as an adjunct to some financial loss.
The stress of experiencing a data breach may result in other, well known adverse life events, such as needing to move house, move area, losing a job, relationship stress and separation, dislocation from friends and family, and difficulties with home purchase if I.D is compromised.
The type of data breach i.e. medical, financial or social will affect quantum. Differing effects on relationships both marital and social had significant effects on quantum. c) Burrell v. Clifford: The court held that the question of appropriate compensation was broad and should take into account circumstances such as: •. The nature of the information •. The nature, expert and purpose of the misuse •. The consequences of the misuse •. Whether the misuse caused the claimant financial loss •. Any aggravating factors
A number of diagnosable mental disorders or ‘psychological injuries’ can occur and be identified when interviewing claimants over 3-36 months after the data breach they have experienced. These include: • Adjustment Disorder with Anxiety and Depressed Mood. (DSM5 309.28) • Adjustment Disorder with Depressed Mood. (DSM5 309.0) (F43.22) • Adjustment Disorder with Anxiety. (DSM5 309.24) (F43.22) • Specific Phobia (Situational Type). (DSM5 309.29) (F40.248) • Post-Traumatic Stress Disorder. (DSM5 309.81) (F43.10)
d) Gulati: Emphasis may be put on high awards to celebrities but the Court of Appeal stated that there should be a reasonable relationship between the lack of damages awarded for distress in privacy claims and awards made for psychological injury in personal injury cases.
• Acute Stress Disorder. (DSM5 308.3) (F43.0)
In Gulati, the Court of Appeal also stated that damages should not be limited to damages for distress but recognised that an award of damages can
• Major Depressive Disorder. (296x)
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be made for infringement of the right itself – the misuse of private information, consistent with decisions of the European Court of Human Rights. This expands the reach of the law itself.
References 1. The scary side effects of a cyber breach (2018). www.vantiv.com 2. The damaging after effects of a data breach (2018). www.itgovernance.co.uk
Conclusion With greater awareness of GDPR, claims solely for distress against organisations who hold and control data will be given a firmer legislative basis (7) and become more common. The principles and methods for investigating psychological injuries consequent on data breaches are being developed (8), with each case being considered on its individual merits, and adjudicated with careful application of the Gulati principles and personal injury guidelines.
3. Data breach (2018) www.slk-law.com/practices 4. Data breach lawyers (2018) www.robinsonfirm.com 5. Cyber Crime victims left depressed and traumatised (2018) www.infosecurity-magazine.com 5a. Data breach issues (2018) www.irwinmitchell.com 6. Are data breaches stressing you out? (2018) www.kaspersky.com 7. Privacy and Data Protection Cases: Quantifying Damages for Distress (2018) www.brownejacobsen.com
Given that a claimant involved in a data breach claim is likely to be anxious and distressed, it is important that the claim is pursued and resolved as speedily as possible, ensuring the claimant finds the process convenient and accessible. Needless to say, the culture of this medico-legal process should, itself, be aligned with optimal information security and unbiased, fair and impartial witness reporting (9).
8. Koch HCH (2018) From Therapist’s Chair to Courtroom: Understanding Tort Law Psychology. LCB Publishing 9. Fair and impartial witness reporting (2018) www.premexservices.co.uk 10. Data breaches are stressful (2018) www.hayesconnor.co.uk
Cases
Helping the claimant obtain the best legal and medico-legal advice requires trust in the legal firm involved. Making a compensation claim for a data breach can be stressful. Recent rulings have paved the way for those affected by data breaches to claim damages for distress with or without actual financial loss being involved (10). The immediate future for these types of claim should allow greater recognition and support for individuals who have been placed in such invidious positions by data breaches.
PPCS
1. TLT and others v. Secretary of State for the Home Department (2016) EWHC 2217 (QB). 2. Vidal-Hall and others v. Google Inc. (2015) EWCA. CIV 311. 3. Burrell v. Clifford (2016) 294. 4. Gulati (2015) EWCA 1482.
Further details on this area of personal injury litigation can be obtained from Professor Hugh Koch.
PSYCHIATRIC & PSYCHOLOGICAL CONSULTANT SERVICES 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.
Psychiatric and Psychological Consultant Services (PPCS) is an independent clinic and registered provider with the Care Quality Commission for assessment and treatment in psychiatry and psychology.
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 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
PPCS has over 50 clinical staff including 20 Consultant Psychiatrists with specialisms in Adult, Child and Adolescent, Family, Personal Injury, PTSD, Neuropsychiatry, and Forensic, and over 30 Clinical and Counselling Psychologists, neuropsychologists and other specialist therapists. Staff have extensive experience in medico-legal assessments and reports. Our services also includes our Neurorehab Clinic, EMDR, psychotherapy, CBT to cover anxiety, depression, pain management, PTSD, phobic anxiety, substance misuse, sexual abuse & relationship problems, occupational stress, psychosomatic illness, chronic fatigue, bereavement & learning disability, discrimination at work, etc.
In addition, we also provide psychological therapy carried out by experienced therapists using up to date treatment techniques such as Cognitive Behavioural Therapy.
For Further information please visit: Website: http//www.ppcsltd.co.uk Telephone: Andy Welch Commercial Director 020 7935 0640 Email: info@ppcsltd.co.uk
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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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Dealing with Service Users Who Bite, Scratch or Spit Foreseeable Risk by Joanne Caffrey, Expert Witness & Specialist Training Provider Safer Custody, use of force and managing challenging behaviour in custody, education, care and mental health sectors 2012 British Excellence in Performance Winner 2018 Forensic & Expert Witness award Winner – outstanding legal services to safer custody As an Expert Witness I am engaged on approximately 2-3 new legal cases per month where either staff or service users are injured, or die, as a result of failures to manage foreseeable risk with challenging behaviours and failure to provide suitable and sufficient assessment and control measures to either eliminate, or reduce to a minimum, the likelihood of harm to staff or service users.
The phrase ‘Behaviour Plan’ should be replaced with the terminology of ‘Behaviour & Care Plan’ to ensure the care aspect is covered. Typically ‘care’ factors such as medical implications, are missed from the plans we review. All service providers need to think more about ‘Person Centred Care’ rather than generic management plans of 1 size fits all, as this can be considered a restrictive practice and discriminatory to a person’s legal entitlements and safety.
Service user in schools are children, in care settings the patient, and in custody settings the detainee/ prisoner.
The more complex or challenging a service user is, then you should expect to have more complex and lengthy assessments and training for dealing with the person.
The cases I work on tend to be from schools, prison or police custody or mental health units and are a mixture of either staff or service users being injured. This short paper is to highlight just some of the issues for all sectors to consider and discusses some of the myths and pitfalls which service providers fall into.
We also see that little mention is made of the risks to staff who have to deal with challenging service users. The staff members individual demographics of gender, age, underlying health conditions are all relevant as a methodology may be fine for one member of staff to implement but due to the personal demographics of another, it makes it an unsafe practice exposing both the staff and service user to foreseeable risk.
“All de-escalation and restraint training is the same, and we just need to show the tick in the box that staff have completed it” WRONG. All employers have a legal obligation to conduct their due diligence checks to ensure that any training commissioned, and provided to staff, is suitable and sufficient for the performance needs of the service. (Performance needs analysis). Standard packages are just that – ‘standard’ and are suitable for a standard service user, provided by a standard employee in that sector. However, what adaptations have been considered as relevant and suitably implemented to ensure the safe care of the service user? For example, a person with Downs Syndrome may have hyper- mobile joints, respiratory disorders and heart defects. What specialist adaptation, by a suitably qualified consultant/trainer has been implemented?
“What risk assessment?” A general risk assessment about slips, trips and falls is not suitable, or sufficient, to safeguard staff or service users. A common issue we are dealing with is that of service users who bite, scratch and/or spit. The bottom line is – STAFF DO NOT HAVE TO ACCEPT THAT IT’S THEIR JOB TO BE BITTEN, SCRATCHED and SPAT AT. A detailed assessment must be conducted to establish risk levels to the staff and the service user, as staff failing to act appropriately to such behaviour puts the service user at risk e.g. staff member slaps child/adult, interferes with the respiratory system and causes a respiratory arrest or dislocates the person’s jaw.
It’s not uncommon for us to be involved with staff working with adults or children with Downs Syndromes and discover that the ‘standard’ techniques they are using are actually placing the person at high risk of injury or death, and the staff have little or no idea of the risks. EXPERT WITNESS JOURNAL
The staff member being bitten or scratched etc has an increased risk of infection, sepsis, and mental health anxiety disorders. 56
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and just one part of your management plan to keep staff and clients safe.
Saliva is toxic in the eye. One risk is regarding managing blood-borne virus exposure which may be in the saliva, such as hepatitis, but also many people are unaware that saliva in the eye can cause blindness. In 2016 a 32-year-old care worker had to have a corneal transplant in her eye after a spitting incident at Low Moor Resource Centre in Bradford left her with only 20% vision in the eye. Her solicitors argued that Bradford District Care NHS Trust failed to risk assess the risk of spitting when dealing with this patient. The union rep stated “The Trust knew this service user had a tendency to spit and should have protected staff ”. She agreed a settlement of £110,000. The cost to have prevented this incident would have been much less.
“What actually is reasonably foreseeable?” It is reasonably foreseeable that all service provision sectors will at some time have clients / service users who are challenging or displaying unwanted behaviours. Therefore, it is reasonably expected that an employer should consider what level of conflict management training is necessary, reasonable and proportionate. If the likelihood of an incident occurring is rare then the decision may be to offer e learning solutions as the only method, and keep it under review. If the likelihood of occurrence is possible, but if it did happen the anticipated impact is considered low injury then a blended approach may be reasonable such as e learning and supplemented with some face to face training and consultancy.
A member of staff must be protected in such a circumstance under both Health & Safety at Work Act requirements and general safeguarding duties to the client.
If the likelihood is regular and the impact is injury, then a more proactive management approach would be considered reasonable. This may include blended learning and development of staff based upon performance needs and training needs analysis; thorough assessments of risk conducted by suitably trained personnel; detailed behaviour and care plans; detailed safer systems of work; detailed assessments of risk and PPE availability; enhanced training by suitably qualified companies; whole workplace awareness training, and post training assessments/ reviews.
Safe systems of work are essential to keep both staff and service users safe from physical and emotional harm. Failure to implement safe systems of work for client services could in itself be an abusive practice contravening safeguarding responsibilities. Additional training is required in addition to any general training PLUS what are you doing to work longer term on managing down the incidents of biting, spitting and scratching? Why is it happening? Is it a manifestation of unseen abuse which is occurring to the person?
“Surely it’s all common sense?” Any liability case (civil or criminal) looks at facts of law – not ‘common sense’. As what is common sense to one person may be ludicrous to another.
It is not acceptable to make up your own practices to reduce biting e.g. placing things in the mouth of the biter based on a staff member’s decision in conjunction with an appropriate adult. What needs to be remembered is that if the person had respiratory failure or died is the appropriate adult or staff member suitably ‘expert’ in that area of intervention to stand in a witness box for a manslaughter case and explain to the jury their expertise to diagnose the intervention method and explain all the underlying medical and legal implications of the decision?
The law is simple – any work-related task needs to be assessed for risk and its risk eliminated or managed down to the lowest level. Anything which is necessary, reasonable and proportionate should be considered and accurately assessed and documented before being discounted on the basis that there is no money available. Person centred care means considering thoroughly that the person’s unique health, education, and disability needs etc have been taken into consideration and that the best interests of the service user is the primary focus – not what is in the best interests of the business alone. This also means looking at the demographics of the staff providing the care so that decisions do not put them at unreasonable risk.
Plus, from a safeguarding perspective we need to be thinking about fabricated & induced illness and abuse by the appropriate adult, in addition to the fact they lack knowledge regarding the subject matter, and despite their best intentions may be putting the person at increased risk of harm. Many employers are unaware of the availability of bite/scratch sleeves and clothing which are available for staff to wear as PPE (Personal Protective Equipment). This clothing can prevent penetration and laceration of the skin in addition to safe systems of work and longer term analysis and management strategies. This clothing is British Standard and EU kite marked for safety of the client and staff members. An issue to consider is the price of a civil claim against your company by a staff member who is harmed when the risk was foreseeable, and a range of reasonable control measures were available. Bite/scratch clothing is PPE EXPERT WITNESS JOURNAL
“We are good communicators and we try to de-escalate them” In a 1 day course it is impossible to make staff competent at de-escalation for all situations. General de escalation skills courses are just that – general one size fits all and do not necessarily take into consideration the complex needs of the service user and the capabilities of the staff member. For example, occupations such as education or care tend to attract personality styles of people to talk about feelings with comments such as “how do you 57
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tohink they feel about what you just did?” BUT if the service user is in crisis they are unable to process such a large volume of words AND if they are an activist in crisis they may tend to respond more to factual comments such as “what happened?”. The first comment can be viewed as a judgemental attack and escalate the situation further. Comments such as “why is it always you?” are highly unlikely to calm someone down.
Challenging behaviour / unwanted behaviours is a work place activity and therefore must be assessed for the level of risk posed to employees, the service user themselves and any other person affected by it. These are basic principles of Health & Safety at Work Act & Regulations. Safer systems of work always exist, and individualisation of plans for both service user and staff is required to accurately manage risk.
If the service user then has mental ill health, educational needs or disabilities these all impact upon which communication style works best for them. Moving closer to the person in a caring manner could actually escalate the situation as the person may need more space around them.
Challenging & unwanted behaviours in all sectors is a complex speciality. Joanne Caffrey has specialised in this field for over 30 years and works at national levels and within coroner, civil and criminal court cases. Her expertise is sought throughout the UK and Ireland.
It is essential that any service user’s behaviour and care plan also covers the communication strategies based upon objective assessment and in conjunction with the service user. Typically, if communication is covered in the plans we review it’s common that the business dictates how the staff will communicate to the person, with little, or no, mutual prior agreement, and consultation, with the service user. This could therefore be detrimental to de-escalation and be a catalyst for escalation of unwanted behaviours and the implementation of physical restraints. This could be considered as abuse from the service provider.
Her CV and further information can be obtained by contacting TOTAL TRAIN via totaltrain@sky.com She is an appointed Director of the national company Freedom From Abuse and has received multiple awards for her work in this field, which include: • 2018 Forensic & Expert Witness Award – Outstanding legal services for safer custody • 2012 British Excellence in Performance Award • 2008 & 2009 National Training Awards for Professionalising Investigations for investigation of sexual and violence offences committed against vulnerable people.
Overall It is essential that all service providers work to minimise the injury to both staff and service users as a result of unwanted / challenging behaviours. Just because many work places have a right to use force, does not mean it is the right thing to do. The ‘best interest’ test is about the best interests of the client, not of the business, plus using any force can put staff at an increased risk of harm.
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Caveat: The information contained within this report is generic and not provided as legal advice. Specific advice relevant to your situation should be obtained.
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Mark Solon, Chairman of Wilmington Legal & founder of Bond Solon gives some of the results from the Times & Bond Solon Annual Expert Witness Survey 2018 This was from 1 October 2018 to 15 October 2018. 607 experts completed the survey making it one of the largest expert witness surveys conducted in the UK. The full results can be found at https://www.bondsolon.com/expert-witness/survey-report-2018/ Legal Aid continues to be a hot topic in the legal world, particularly as rates have been curtailed or even withdrawn. The government’s own statistics show spending on legal aid fell from £2.6bn in 20052006 to £1.5bn in 2015-2016. The sharpest decline came the year after Legal Aid, Sentencing and Punishment of Offenders (LASPO) came into force. (Source: Legal aid statistics: July to September 2017, (2017). [online] Available at: https://www.gov.uk/
surveyed do not think that many parts of their expert witness work could be done using AI reducing the need for full reports as it exists now. We shall see! There are many examples from history that show predicting the future is a very risky game. Many thought the motor car would never catch on and obviously horses would always be used as the prime mode of transport. The Ministry of Justice is spending more than £1 billion to modernise the courts and tribunal systems. In June 2018, Lord Chief Justice said in a speech: “The advantages of enabling hearings to take place using technology ought to be obvious. If parties and witnesses are able to appear via their computers, it will be easier for them to fit their court appearances around their lives.” (Source: The Age of Reform, (2018). [online] Available at: https://www.judiciary.uk/ wp-content/uploads/2018/06/speech-lcj-the- age-ofreform2.pdf) We asked: “In the light of ministers’ plans to extend digital hearings to more trials, do you think that this will lead to the decline, or the end, of expert witnesses?” Perhaps unenlightened self-interest showed that as in last year’s survey, most of the experts surveyed do not believe that the increased use of IT in courts will lead to the decline, or the end, of expert witnesses giving evidence.
There have been rumblings from barristers, even resulting in strikes. Expert witnesses are in a different position from barristers in that they have a day job and expert work is a secondary source of income. We asked: “Would you continue to work in legal aid cases if expert witness fees were further reduced?” 72% of the experts surveyed said they would stop doing legal aid work if expert witness fees were further reduced. If experts don’t take on legal aid work, there could be a significant effect on fairness in the system if those with money can employ the best legal teams and experts, compared to those who are legally aided. Another perhaps unintended and certainly unwelcome consequence of the cuts to legal aid is the increase in the number of litigants in person who cannot afford to pay for their own lawyers and are not entitled to legal aid. Litigants in person pose real problems for experts as they do not know the complex rules around experts and particularly how to instruct them properly.
Later in the survey we asked: “Do you think your professional body or regulator should be more stringent in removing experts from their approved lists who act as hired guns or are incompetent?” 75% of the experts surveyed consider that professional bodies should play a more active role in situations where experts are incompetent or behave as a hired gun. Professional bodies should do more to ensure that experts who are regulated by them are properly trained and approved. It is better that professional bodies perform this role than yet another independent body. The professional bodies already know who is on their books as qualified members and could create lists of suitable members who could act as expert witnesses. This would assist lawyers in finding suitable experts and provide a stick to remove non-complying experts.
Apart from BREXIT, flavour of the month for many is artificial intelligence (AI). AI refers to technology performing processes that require human intelligence. The AI revolution has now arrived in the legal sector. For instance, AI-based technological solutions have been developed to assist with the e-disclosure process. Lord Chief Justice says: “The ability of computers to analyse vast quantities of material to enable accurate predictions in many areas of human activity is one of the most exciting developments of the age.” (Source: Lord Chief Justice hails potential of big data and AI to reduce litigation and promote settlement, (2018). [online] Available at: https:// www.legalfutures.co.uk/latest-news/lord-chief- justice-hails-potential-big-data-ai-reduce- litigation-promote-settl
Almost by definition, expert witnesses must deal with difficult questions on subjects not familiar to a lay person. We asked: “As expert evidence becomes more complex and specialist, do you have concerns that courts may increasingly struggle to understand it?”
In the survey, we asked: “In the future, do you think many parts of your expert witness work could be done using Artificial Intelligence (AI) systems reducing the need for full reports?” 80% of the experts EXPERT WITNESS JOURNAL
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65% of experts consider that courts struggle to understand the evidence of experts as that evidence becomes more complex. As the primary role of an expert is to assist a court to understand an issue and so their explanation needs to be in clear language that a non-expert can understand and act upon. Experts should make sure that their reports are clear and fit for purpose.
Dawn Cragg M.B.E Expert Witness trained with Bond Solon and accredited with Cardiff University.2004 & updated continually
We also asked: “Over the last 12 months, have the number of your instructions gone up, gone down or stayed the same?” Nearly 50% of the experts surveyed indicated that the number of instructions received were at the same level whereas 37% said they had increased. As a follow up we asked: “In the last 12 months have you considered stopping your work as an expert witness?” 32% of the experts surveyed have considered stopping their work as an expert witness in the last 12 months. One of the main reasons mentioned by the experts is the expert’s fees. Since the Jackson reforms have introduced proportionality for costs, expert’s fees have been reduced. As mentioned earlier, one must remember that expert witness work is for most experts a secondary source of income. If the expert’s fees are too low, experts have to decide whether the case is worth their time. Also, since the judgment in Jones v Kaney, experts are now facing the risks of being sued in contract or negligence.
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Bond Solon The UK’s leading expert witness training company Telephone: 020 7549 2549 E-mail: info@bondsolon.com Website: www.bondsolon.com
Dr Linda Monaci Consultant Clinical Neuropsychologist Medico-legal assessments for suspected or known brain injury and/or brain dysfunction in Personal Injury and Medical Negligence claims • Acquired brain injury
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• Mental capacity assessments Medico-legal services: Instructions from Claimants, Defendants and as a Single Joint Expert. Appointments usually within 2 to 4 weeks, and reports produced in a further 2 to 4 weeks. Assessments can also be carried out in Italian. Dr Monaci has a good knowledge of the Swedish language and has experience of working through interpreters. Clinical services: neurorehabilitation services are also available Dr Monaci has completed the Cardiff University Bond Solon Expert Witness Certificates (Civil and Criminal Law). Contact: linda@monaciconsultancy.com for an initial enquiry. Main consulting rooms (nationwide locations): Several locations in the UK are available. Domiciliary visits can be arranged when clinically appropriate Ten Harley Street London W1G 9PF Tel. 020 8942 3148
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In a Foreign Land Expert witness: “A person whose level of specialized knowledge or skill in a particular field qualifies them to present their opinion about the facts of a case during legal proceedings.” (Oxford English Dictionary.) An expert witness called in criminal proceedings has a duty to the court to help it to achieve the overriding objective, defined in the Criminal Procedure Rules as “dealing with cases justly. This includes “acquitting the innocent and convicting the guilty; …The overriding objective acknowledges that the presumption of innocence and a robust adversarial process are essential features to our legal system.” They do so by giving opinion which is objective and unbiased, and within their area or areas of expertise as defined by themselves in their reports to the Courts and in their evidence in person at trials.
walking into a foreign land in which lawyers were asking for help to use the art and science of psychology to answer legal questions, but in which familiar words can have unfamiliar meanings and the basic assumptions about how human beings function can be quite different. It is an adversarial world in which the questions asked of a psychologist might not necessarily be those that a psychologist can or could answer and the answers given may be interpreted in different ways from those intended. What follows are therefore traveller’s notes. Looking back over the last two to three years’ cases, about half have been concerned with questions about learning disability, either pre-trial or pre-sentence. A further substantial group of cases concerned actual or alleged sexual offences. A small but interesting group of cases arose from charges of ‘failure to provide a sample’ when being investigated for drunk or drugged driving, the failure resulting from a range of phobic and anxiety symptoms. Amongst the other cases, assessments of dangerousness have presented particular problems. I see each as raising questions that need much wider discussion.
That apparent welcome to experts’ contributions is not unlimited. A trial judge may be asked to rule that an expert witness’ evidence is inadmissible. That is because expert evidence is only admissible if the court is satisfied that it would provide information which is likely to be outside a judge or jury’s experience and knowledge, and which would give them help that they need in arriving at their conclusions. It must also be given by a person who is qualified to do so and the evidence must be sufficiently reliable to be admitted. Expert witnesses are also required to confirm that they have acted in accordance with the code of practice or conduct for experts of their discipline.
The cases came to me because of my expertise as a clinical psychologist. There are forensic psychologists. According to the British Psychological Society: “Forensic psychology deals with the psychological aspects of legal processes, including applying theory to criminal investigations, understanding psychological problems associated with criminal behaviour, and the treatment of criminals.” But on the whole forensic psychologists work in prisons or with offenders, with expertise appropriate to those settings and populations. Few will have the breadth of clinical training and experience with the general population which, as a clinical psychologist, is the expertise that I am able to bring to cases.
In short, an expert witness’ value to the court is in their willingness to offer trustworthy expertise, not in their knowledge and experience of the criminal justice system, and they are not to take it personally if their contribution is not used or not usable. I qualified as a clinical psychologist in 1974 and I have been in practice continuously since then, in the NHS until 2002 and in my own company since then. I am also an accredited cognitive behavioural therapist. My early experiences as an expert witness were in relation to personal injury cases, before the expert witness agencies took over the relationship between solicitors and the experts they instructed. From a psychological point of view most cases were straight forward, requiring an assessment of the nature and severity of the person’s response to some traumatic incident. Occasionally I was instructed in clinical negligence and family cases but I had not anticipated the demand for reports on defendants in criminal cases. Although the Courts want and need expert opinions there is no system for ensuring that a requisite expert is available; it simply seems to be assumed that experts will be found if and when needed, a somewhat optimistic approach one might think. I therefore set about getting myself ‘up to speed’ on the expectations of expert witnesses in criminal cases and the procedures to be followed. Little did I realise that I was EXPERT WITNESS JOURNAL
The Mental Health Act defines "learning disability" as "a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning." In practice that translates into: significant impairment of intellectual functioning (conventionally IQ 70 or below; average IQ is 100); a history of impaired adaptive / social functioning (including the skills required for independent living); age of onset before adulthood. Instructions to assess whether a person has a learning disability may arise pre-plea, pre-trial or presentence. It has to be admitted that the assessments that can be undertaken, particularly when the defendant is on 61
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the range within which they are 95% certain to score.
remand and is assessed in the legal visits area of a prison, are briefer and more superficial than those that would be undertaken in the NHS. From a psychological perspective they are more of a screening test than a thorough assessment, but that is usually adequate for the purpose. IQ tests can be undertaken provided the defendant can concentrate under those circumstances. Assessments of lack of effort during testing are often not feasible. Unless there is an opportunity to meet the defendant’s partner or a family member outside the prison to gather information about the defendants to date, information from their medical record has to stand proxy for an assessment of their adaptive and social functioning and age of onset. In practice many defendants have had a history of special education but were not specifically identified as having a learning disability during their school days. Do defendants give honest accounts of their lives under those circumstances? If their solicitor and the psychologist prepare them for the assessment, in my experience they do. However it is very important to receive and read the prosecution papers and the defendant’s medical records before meeting them. I have found that deliberate attempts to give me false information can be detected but deliberate withholding of potentially prejudicial information is very difficult to detect.
Before a defendant is required to plead to the charges they face, a Court may need to decide whether a defendant is ‘under a disability’ i.e. whether he or she is "unfit" to plead, and will do so (with the advice of expert witnesses) by reference to the Pritchard criteria. Restated by a judge in more modern language, these pragmatic criteria require that in order to be fit to plead (and if pleading Not Guilty, stand trial) a defendant must be able to: comprehend the course of proceedings of the trial so as to make a proper defence; know that they might challenge any jurors to whom they may object; comprehend the evidence; and give proper instructions to their legal representatives. It is the last two criterion which tend to prompt the instruction of a psychologist. In 2016 the Law Commission published a review of ‘Fitness to Plead’ with recommendations which have not yet been implemented. In the meanwhile, few defendants demonstrably fail to meet those criteria so clearly that a Court will accept them as ‘unfit to plead’. One recent development that has enabled Courts to try people with learning and related disabilities has been the use of intermediaries with vulnerable defendants. Learning disability is not simply a matter of limited understanding; vocabulary, memory, ability to put thoughts into words, speed of processing information, all these are impaired by comparison with the average person. As I have seen for myself, by facilitating the communications between the Court and the defendant, intermediaries undoubtedly improve the efficiency and fairness of trials.
But the technology of assessment, so long as it is sufficient for the purpose, is less of a problem than relating the results to the legal questions. For example, some lawyers still like to use the concept of ‘mental age’ as a way of quantifying immaturity and lack of experience, although from psychologists’ point of view it is a metaphor not a measurement. The current approach is to compare the defendant’s scores with the scores of a group of people in the same age range. An individual may have scores that fall within a wide range from Extremely Low to Very Superior. Most people, however, perform within the Average range. Usually a percentile rank is also reported. This shows where the person's scores rank relative to the comparison group. For example, if the percentile rank is 45, it would mean that the person tested had scored higher than approximately 45 out of 100 other people his or her age.
Some instructions concerning people who may have learning disabilities have included the question, “in your opinion is he or she capable of forming the intention to have committed the alleged offence”? It is not feasible to address the relationship between learning disability and criminal responsibility in this article. Suffice to say that it is an issue where the conceptual gulf between the psychology implied by legal concepts and the psychology of psychological science is probably the greatest, and likely to become greater owing to the oncoming tsunami of findings from neuroscience research. Generally speaking, the presumption that the majority of defendants are sufficiently rational, socialised into society and mature enough to be aware of social norms, to be able to choose whether to observe them or not, and to have the capacity to control their own behaviour, works well enough most of the time. But research is showing that presumptions of consciousness, choice, and control do not apply in any straightforward way to an increasing range of people including those with learning disabilities. When it is recognised that ‘state of mind’ can no longer be taken to indicate a ‘guilty mind’, a reconceptualization of the basis for justice will be required.
Diagram below Distribution of IQ scores in the general population
During my career as a clinical psychologist the system of services for people with learning disabilities has radically changed with, it is said, the unintended consequence that the prison population now contains a
Scores are often reported with a Confidence Interval because people may score slightly higher or lower if tested again on a different day. The interval indicates EXPERT WITNESS JOURNAL
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terpret the evidence presented to them, both about the defendant’s behaviour and that of the victim. In many of the cases in which I have been involved the defendant has been advised to plead Guilty to a lesser charge in order to get the consequent benefit of the reduction in sentence and to avoid a moral spasm on the part of a jury hearing their case. As a consequence there is no trial. Change sentence to Even an offender who may have been innocent of the original charges will be placed on the sex offenders register, with significant impact on their life. The lack of a trialof the evidence has two further consequences. In the case of alleged rapes and sexual assaults, particularly historical allegations, the veracity of the memories on which the case is based is not examined. There has been a great deal of psychological research on memory in general and specifically on memories of traumatic events; whether the findings of that research would be of value to the prosecution or the defence would depend on the specifics of the case. The point is, as a consequence of the Guilty pleas, psychological knowledge which might be of considerable value to the courts is not being introduced into trials.
significantly higher proportion of people with learning disabilities. Further, there is a known paradox that NHS and social services are now so limited that arrest by the Police may be the quickest or even the only way that services can be prompted to consider a person’s needs. So requests to screen a defendant for learning disability inevitably raise the question, what is the purpose, what will this assessment add to legal process? Section 142 of the Criminal Justice Act 2003 specified that the purposes of sentencing are: “the punishment of offenders; the reduction of crime (including its reduction by deterrence); the reform and rehabilitation of offenders; the protection of the public; andthe making of reparation by offenders to persons affected by their offences.” Pre-sentence reports are sought primarily in relation to mitigation of sentence, although some raise the question of dangerousness. In my experience both are problematic. Sentences after problematic to read ‘Dangerousness has a specific meaning in law. However there are certainly offenders from whom the public need protection because of their idiosyncratic beliefs and their self-centred willingness to use horrendous forms of deception and violence to meet their own needs. But for many people, including many of those with learning disabilities, dangerousness is situational. For example, they are dangerous when they are being used by other people abusing their vulnerabilities, or when relying on drink or drugs to help them cope with their own deep-rooted problems, or when they take the line of least resistance when they simply don’t understand the situation they are in. For such people, their dangerous behaviour reflects the lack of external influncers to ensure that they understand the wider consequences of their behaviour. For such people , their dangerousness may be mitigated by welfare support and rehabilitation (which, it has to be admitted, is not always open to them.’ Whether a prison sentence really constitutes a defensible punishment is psychologically problematic. For those offenders whose capacity to live independently is limited, even a short prison sentence can undermine that independence by promoting dependence on the prison facilities and routine and even institutionalisation. It also exposes them to abuse and sometimes training in criminal behaviour by other prisoners. On the plus side, a number of those whom I have assessed have spoken warmly of the education in reading, writing and arithmetic they have received while in prison.
The typical procedure used by ‘paedophile hunters’ is based on deception and is as follows (I quote from darkjustice.co.uk, originally accessed on 30th May 2017). The aim of the organisation is to catch online predators who try to groom & meet up with minors following sexual grooming. They set up a fake profile of an under-age teenager (whom they term “a decoy”) complete with a convincing photograph on an on-line dating site and wait for messages. When they receive a message, they reply straight away and tell the contact that they are underage. They say that they always try to avoid sexually explicit conversations with contacts by claiming to act young and uneducated on the subject. They intend never to encourage sexual chat or sexual behaviour. So when the contact eventually proposes a meeting they suggest a place to meet where they know they can control what is going on. When the contact confirms that they will attend and the ‘hunting’ team spots them, the ‘hunters’ phone the police and report the crime. They confront the contact with cameras, and ask them about their actions and intentions. As soon as the contact is arrested the hunters go to the police station to make statements. If a contact proposes a meeting with the decoy but doesn’t show up for it, the hunters still hand their evidence to the police to be investigated. The ‘hunters’ say they have found that nearly everyone who proposes a meeting following what is described as ‘sexual grooming of a minor’ turns up. The meeting is the critical element in the procedure set up by the ‘paedophile hunters’ because arranging a meeting is taken to demonstrate the alleged paedophile’s intention to commit an offence. But even those who do not turn up are reported to the police because as soon as they arrange the meeting it is a criminal offence, whether they show up or not.
Turning to cases of alleged and / or admitted sexual offences in which I have been involved, some have prompted me to think that psychologists are not being used to best effect. The cases have included rape, recent and historical, actual and statutory, and an increasing number of cases resulting from the activities of so-called ‘paedophile hunters’. Allegations of sexual misconduct or violence often generate an emotional response in those who have to deal with them, and rightly so. And it is now well known that there is a concern about how juries will inEXPERT WITNESS JOURNAL
The ‘hunters’ have undoubtedly uncovered some dangerous offenders and no doubt they believe that 63
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difficulty breathing into the CAMIC machine owing to hyperventilation or a panicky tensing of the chest muscles. People are asked in those circumstances whether they have any medical condition which accounts for their difficulty in allowing blood to be taken but may say ‘no’ because they do not think of fear or a phobia as a medical condition. Some people even have difficulty providing a sample of urine because of an obsessive-compulsive disorder focused, for example, on cleanliness or the use of specific rituals. The result is a charge of ‘failure to provide’ and sometimes a request by the Defence to a psychologist for an opinion as whether the fear or phobia was so severe as to constitute ‘a reasonable excuse’ (as the law puts it). Sometimes the answer is in the defendant’s medical record. Sometimes it is necessary to elicit the fear directly in the consulting room. Either way, the problem might have been avoided by the use of the specialist skills of some doctors and nurses who have almost imperceptible ways of taking blood and other samples.
the end justifies their means. Nonetheless through the cases in which I have been involved I have noticed that the deceptions used are flawed. The dating sites have a rule that no one under the age of 18 is permitted to use the site. Someone using the site and coming across a profile of a 14 year old boy or girl therefore has to make sense of what is going on. For example, some report that people on dating sites sometimes play sexual games in which an adult pretends to be an under-age child; they assume that they are messaging just such a person. Others assume that they are messaging a genuine 14 year old and seek to find out what the youngster hopes to achieve by doing so. What most notice is that, unusually, their messages are always answered. For those men who are socially isolated, or socially incompetent, or who have an autism spectrum disorder, the continuity of contact is particularly welcome. But what do they have in common with a 14 year old girl that they can message about? Only sex and sexual relationship issues come to mind, so it seems. And if they go on to propose a meeting, contrary to their previous attempts to meet women, to their delight the answer is ‘yes’!
As an observer and occasional participant, travelling in the foreign land of the criminal justice system, what do I think clinical psychologists have to offer that would help Courts to meet ‘the over-riding objective’? Firstly, I disagree with those lawyers who think that psychologists’ evidence is inadmissible because it does not provide information which is likely to be outside a judge or jury’s experience and knowledge. The problem is that people do not know what they do not know; until more psychologists are called to give expert evidence, the criminal justice system cannot benefit from advances in psychological science.
But those are common sense issues. They only become relevant to this discussion when the case against the defendant places particular emphasis on statements made in messages which are being taken out of context. The context is a text consisting of a sequence of mobile phone messages, sometimes made over a period of many days or weeks. Psychologists and researchers in many other disciplines have developed thorough methods for analysing texts which are not routinely brought to bear on these exchanges of messages. However even a superficial analysis shows that what is going on is not as simple as the ‘paedophile hunters’ suggest. For example, the absence of refusal to respond to improper suggestions can come across as permission to continue, even as a willing acceptance that the conversation is going that way. And when the ‘hunter’ in the guise of a 14 year old girl re-initiates contact after a break in the interaction, it is perhaps not surprising that the contact perceives it as interest and evidence of some kind of relationship. In short, it has sometimes seemed to me that the ‘hunter’ has offered the defendant an opportunity to commit an offence which they would not otherwise have committed and then (perhaps inadvertently) induced them to do so. But that is not explored when there is no trial, owing to a Guilty plea.
Lawyers seek to infer intention from a defendant’s verbal and non-verbal behaviour. In order to identify and provide therapy for their client’s psychological problems, clinical psychologists have also needed to develop ways of drawing inferences. We call the process ‘formulation’. Information is gathered from a range of sources and integrated in a way which permits predictions to be made about the potential impact of therapeutic interventions. The following is one of a number of simplified summaries of the elements of a formulation.
On a different topic, a phobia is a disorder of fear characterized by a marked and excessive fear or anxiety that consistently occurs when exposed to one or more specific objects or situations (such as hypodermic needles or the sight of blood) and that is out of proportion to the actual danger. The phobic objects or situations are normally avoided or else endured with intense fear or anxiety. But can they still be avoided at a Police station after arrest on suspicion of driving when drunk and the person is required to provide a sample of blood for analysis? And other fear phenomena can emerge in that situation, such as EXPERT WITNESS JOURNAL
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to be fair and match the complexity of the situations they have to address.
The procedure should be just as valuable when the presenting problem is behaviour that constitutes an offence. Where it seems to differ from current practice in the criminal justice system is that it recognises the interactions between the person and their social environment rather than locating the origins of a person’s behaviour entirely within their own impulses and intentions. It is also different to the aims and outcome of ‘diagnosis’. Most diagnoses are based on a categorisation of the person’s signs and symptoms, not on the causes of the condition thereby diagnosed. Post traumatic stress disorder is an exception because the cause is known to be a traumatic incident. The Power Threat Meaning Framework published by Johnstone, Boyle and colleagues at the beginning of 2018 is a development out of research on responses to trauma. It summarises and integrates a great deal of evidence about the role of various kinds of power in people’s lives; the kinds of threat that misuses of power pose to us; and the ways we have learned as human beings to respond to threat. It also looks at how we make sense of those difficult experiences, and how messages from the wider society can increase our feelings of shame, self-blame, isolation, fear and guilt leading to psychological pathologies. The way in which the approach is used has been summarised as follows’ to ‘has been summarised by Johnstone and her colleagues as follows:
Finally, as I noted at the beginning of this article, the demand for psychological assessments originally came from defence solicitors, often at quite a late stage in the legal process. Assessments undertaken as a matter of routine at an earlier stage could be contributing to a more efficient use of Court time and custodial facilities. NHS Court Liaison and Diversion schemes may offer an organisational framework through which such assessments could be commissioned and potential defendants sign-posted through to clinical psychologists with the requisite skills and experience to undertake them. Reference: Johnstone, L. & Boyle, M. with Cromby, J., Dillon, J., Harper, D., Kinderman, P., Longden, E., Pilgrim, D. & Read, J. (2018). The Power Threat Meaning Framework: Towards the identification of patterns in emotional distress, unusual experiences and troubled or troubling behaviour, as an alternative to functional psychiatric diagnosis. Leicester: British Psychological Society. (Free download via the internet). Mr. Bernard J B Kat Chartered Health & Clinical Psychologist BA, MSc, CPsychol, FBPsS Mr Kat qualified as a clinical psychologist in 1974. He is registered as a health psychologist and as a cognitive behavioural psychotherapist. Mr Kat has been providing expert witness reports in the North East of England for Courts
Instead of working through a checklist of signs and symptoms in order to arrive at a diagnosis, ask your client: • ‘What has happened to you?’ (How is Power operating in your life?)
Tel: 0191 230 6461 - Mobile: 0788 799 8375 Email: b.kat@psynapse.co.uk Web: www.psynapse.co.uk
• ‘How did it affect you?’ (What kind of Threats does this pose?) • ‘What sense did you make of it?’ (What is the Meaning of these situations and experiences to you?) • ‘What did you have to do to survive?’ (What kinds of Threat Response are you using?) [Note: these responses can become the basis of pathology]
Psychological Expert Witness and Treatment Service Personal Injury - Clinical Negligence - Employment Tribunal
In addition, to help think about what skills and resources a defendant might have, and what it all means to them:
Dr. Aftab Laher BA (Hons.) MSc PhD C.Psychol. AFBPsS UKCP CSci.
• ‘What are your strengths?’ (What access to Power resources do you have?)
Consultant Chartered Clinical & Health Psychologist (BPS) Registered Practitioner Psychologist (HCPC) Accredited Cognitive-Behavioural Psychotherapist (BABCP)
• ‘What is your story?’ (How does all this fit together?)
Extensive training and experience in the psychological assessment and treatment of adults presenting with psychological injury in the context of accidents, clinical negligence and employment.
I have also thought that because the law and the Courts focus on an individual’s criminal responsibility, they seem to struggle with issues which fundamentally arise from interactions between people. I refer to issues such as duress, coercion, provocation, retaliation, deception and the whole range of issues arising from victims reacting to domestic, emotional and financial abuse. These are big topics and I have been involved in very few cases but I believe that it is important for Courts to know that the psychological study of the use and misuse of power and control is there to be drawn upon. Findings from that research may enable Courts to reach decisions which are seen
Clinical issues and conditions covered include adjustments disorders, PTSD, anxiety, phobias, depression, sexual abuse, body dysmorphic disorders, chronic pain, chronic illness/ disability and work-related well-being.
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Experience of giving expert evidence in court and tribunals. Trained as a Single Joint Expert. Quality of my court reports have been commended by judges and lawyers. Quick, efficient and sensitive service backed up by a commitment to high standards and ongoing professional training and supervision.
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What is the Problem with Amending an Expert Report? by Giles Eyre, recently retired barrister and an Associate Member of Chambers at 9 Gough Square, London the expert read, understand and comply with the Civil Procedure Rules and the Practice Direction but also the Guidance. Pursuant to these ‘rule books’ the report is required to include the substance of all material instructions, the expert’s qualifications (and in particular any with special significance to the case in hand) and the substance of all material facts and identify where they come from. In addition, where there is a range of opinion (which there frequently is) then the range must be given, if there are factual disputes then opinions need to be given on each factual scenario, the report needs a summary of conclusions and the expert must indicate that he or she has understood the expert’s duty to the court and complied with it. If this is a sequential report, then any rules as to sequential reporting must be complied with. 2
It has recently been reported that a survey of experts found that nearly a third of medical experts and a quarter of all experts overall felt under pressure to change their evidence by their instructing solicitors in a way that they saw as damaging their impartiality (Times, 8.11.18, www.bondsolon.com/media/16939 2/expert-witness-survey-report-2018.pdf). At the same time nearly two-thirds of experts thought that the courts struggled to understand their evidence. I suggest that these two reported perceptions of experts might well be connected. The Guidance for the Instruction of Experts in Civil Claims is clear about amending reports. Paragraph 65 states: ‘Experts should not be asked to amend, expand or alter any parts of reports in a manner which distorts their true opinion, but may be invited to do so to ensure accuracy, clarity, internal consistency, completeness and relevance to the issues. Although experts should generally follow the recommendations of solicitors with regard to the form of reports, they should form their own independent views on the opinions and contents of their reports and not include any suggestions that do not accord with their views.’
To be practical for the use of litigators and courts and tribunal alike, the report must be succinct, focused and analytical.3 It must identify the material facts, explain the reasoning process applied by the expert, and so deliver a conclusion that can be assessed by someone without the expert’s expertise and compared with any alternative conclusion reached by another similar expert.
It is likely therefore to be quite proper for a solicitor to request an expert to make amendments to ensure accuracy, clarity, internal consistency, completeness and relevance to the issues in the case. Experts should however form their own independent views as to the contents of their report. This latter provision is quite reasonable if, and only if, the expert has a full and proper understanding of the requirements of court expert report writing.
Finally the report must apply (and should be seen to apply) the legal tests relevant to the purpose for which the report is required. If it is to report on standard of care, then it must provide a conclusion applying the appropriate test for that, such as ‘the standard fell below the standard reasonably to be expected of a reasonably competent expert in that field’, if on quantum, the report must address the loss or injury caused by the breach of duty which would not have occurred but for the breach of duty, and must address the reasonableness of any proposed remedial action or treatment. And overlying all of this, the report must apply the appropriate standard of proof.
The problem facing lawyers in preparing their cases for court is that, unfortunately but not surprisingly, in the absence of adequate training and an independent certification system to ensure and identify properly trained and truly competent court experts, very many reports do not serve their purpose well.
The difficulty facing lawyers on a daily basis when they receive the expert’s draft report is that so many expert reports do not comply with these requirements. The requirements are onerous, as is the role of a court expert, but are there for a purpose, and yet very many reports fail to demonstrate a proper understanding of these requirements or the reasons for them.
The purpose of an expert report is of course to assist the court with matters within the expert’s area of expertise.1 To do that the expert must provide evidence in a report in a manner which its anticipated audience, of lawyers, judges etc, can understand in the absence of their having the expert’s expertise. Further the report must address the issues which the court has to address, which are likely to be very different from the issues the expert normally addresses in the expert’s ‘day job’ away from the role as a court expert.
Problems are caused for the lawyer by the different failures that occur in complying with these requirements, such as a failure to identify, from the mass of facts related (unnecessarily) in the report, which facts are material; or the unnecessary overloading of a report with non-relevant material such as extensively
The report must also comply with the requirements of the appropriate court or tribunal procedure rules. For example in the case of a civil claim, not only must EXPERT WITNESS JOURNAL
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citing the contents of witness statements which all parties to the litigation and the judge would prefer to read in the original and not have repeated by the expert; or the inclusion of a long list of entries in records or correspondence which, while they may ‘tell the story’, do not take the report any further, and make understanding the reasoning in the report that much more difficult; or the failure to explain the reasoning process by which the conclusion is reached, and the material facts on which it is based; or an inaccurate expression of the legal test relevant to the expert’s report; or the use of unexplained technical language or the presumption of greater knowledge or understanding on the part of the audience than is reasonable. Often confusion is caused where the structure of the report chosen by the expert, while adequate for providing a single opinion, is inadequate to deal with the situation where several opinions are required to be given.
Giles Eyre is a recently retired barrister and an Associate Member of Chambers at 9 Gough Square, London, having practised for many years in the field of injury claims and at the interface of law and medicine. He continues giving training and presenting workshops for experts on providing effective expert reports and evidence, and on medico-legal issues. He is co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd edition 2015), and author of Clinical Practice and the Law – a legal primer for clinicians (October 2018) both published and sold by Professional Solutions Publishing (www.prosols.uk.com), and regularly writes articles on these subjects. He blogs on issues relevant to court experts in civil claims – with particular but not exclusive relevance to medical experts - at www.medico-legalMinder.net.
Despite the temptation on the part of the lawyer sometimes simply to discard the report and the expert, neither the court’s approach to changing experts nor the economics of litigation make this the practical solution.
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It is hopefully now clearer to the reader why it is that experts are frequently asked to amend or change their reports to ensure accuracy, clarity, internal consistency, completeness and relevance to the issues. With a lesson in appropriate report writing skills most experts can understand why it is necessary to do that which is asked of them, but giving that lesson should not be the role of an instructing lawyer or barrister. Many experts feel uncomfortable in rewriting or restructuring their reports at the request of their instructing lawyers because of a lack of understanding of the requirements of report writing and a misunderstanding of their role as independently minded experts. For the same reason some take criticism of their reports as pressure to change their opinions where what the lawyer is much more likely to be seeking is a comprehensible, effective and compliant report.
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
This is not to ignore that due to the pressures on lawyers, financial and reputational, to win there are some who may be prepared to use pressure to assist them in that cause. But a properly trained expert who understands what the law requires should find it straightforward, when there is a request to amend a report, to distinguish between the appropriate and the inappropriate request. I doubt strongly that this survey is identifying the true incidence of such improper pressure.
Experience at The Central Criminal Court, providing reports and live evidence. Qualified as a Psychologist for over 27 years’ Former Head of Department Experienced within both the NHS & Local Government Experienced in working with offenders within the community
References 1, See for example CPR35.3 and PD35 2.2 in civil claims 2, Guidance para 63 in civil claims 3, Harman v East Kent Hospitals NHS Trust [2015] EWHC 1662
Contact: Mob: 07952 170 627 Email: info@grahamrogers.org.uk Web: www.grahamrogers.org.uk
Article by Giles Eyre 2019
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Domo Arbitrato, Mr Roboto: Where and Under what Rules Will we be Arbitrating, Commercial Arbitration Claims in 2028 By Dorothy Murray (London) and James McKenzie (Hong Kong) King & Wood Mallesons In 2028, 45% of international commercial arbitrations will be seated in Asia, 15% will be in Africa and 5% will be delocalised (“seat less”) with only 35% in traditional Western centres.
other institutions but with international commercial courts issuing widely enforceable judgments under the Hague Convention[2], and new forms and forums of dispute resolution. Rules and centres will compete to be the quickest to adopt innovative technologies, offer the most cost efficient result and to promote the latest expertise and specialisms in their arbitral panels.
Blockchain technology will not just have created new disputes but will have required and driven new methods of dispute resolution designed for a delocalised world and for millennial and postmillennial participants who by 2028 make up most of the business community and who have grown up dealing with all aspects of their lives remotely and with technology.
Why do we predict this? We summarise below some of the current trends we see in arbitral centres and rules and explore the drivers for these.
In terms of traditional seats, by 2028, we will have completed the first Asian quarter-century. Asian capital will have dominated, and will continue to dominate, global investment flows with the result being that more investments and therefore more disputes will involve Asian parties, likely to favour geographically closer and more familiar seats and arbitral institutions.
Sitting pretty: new, newer and nowhere seats The rise of Asian centres and why this trend is here to stay The authors break no new ground here by saying that Asian seats and arbitral centres are on the ascendancy. As Asia’s economies have grown and caught up (and in many cases, surpassed) those in the West, so too has the desire of their countries’ governments to secure a share of the international arbitration market. Since it began reporting in 2007, the Singapore International Arbitration Centre’s (“SIAC”) yearly new cases have increased fivefold from 86 cases in 2007 to 452 in 2017.[3] In 2017, the Hong Kong International Arbitration Centre (“HKIAC”) reported it had a total of 532 new cases (a 15.7% increase from 2016) and a 100% increase in the total value of the amounts in dispute (from HKD19.4 billion in 2016 to HKD39.3 billion).[4]
As to Africa, African parties are regular participants in international arbitrations today but, by 2028, the focus will have shifted. More African disputes will involve Asian, typically Chinese, parties driven in part by increased investment from the Belt and Road Initiative (“BRI”). This will lead to an inevitable uptick in the prominence of construction and infrastructure arbitrations in African as well as Asian seats such as Hong Kong and Singapore, which are often chosen as a “neutral” compromise seat. In the meantime, local African institutions will have gained some longawaited traction and will be more popular choices themselves for two key reasons: first, they will have a track record to draw on and second, at least some key African seats will have achieved greater political and economic stability and therefore be more attractive venues for international parties.
The two leading European arbitral centres (and the most preferred centres globally[5]), the London Centre for International Arbitration (“LCIA”) and the International Court of the International Chamber of Commerce (“ICC”) had 285 and 810 new cases respectively last year. The top two Asian centres therefore almost equalled the top two European centres in total new cases last year and (perhaps most remarkably) have managed to achieve this rise over a period of a mere few decades.[6] This rise in Asian centres is driven not just by these two leading international centres but other centres including both the stalwart (such as the China International Economic and Trade Arbitration Commission (“CIETAC”)[7] and the Japanese Commercial Arbitration Association) as well as the emerging (such as the recently rebranded Asian International Arbitration Centre in Kuala Lumpur, formerly the KLRCA). With the
The arbitral rules parties will choose from in 2028 will, in one sense, be increasingly homogenous, adopting all commonly recognised aspects of best practice. Rules will offer a menu of options to increase efficiency and reduce costs, with developments from the technological (such as online depositories, virtual hearing rooms and the like) to the procedural (such as expedited procedures and emergency arbitration mechanisms) becoming the norm. On the other hand, arbitral institutions will seek to differentiate themselves in a marketplace crowded not just with EXPERT WITNESS JOURNAL
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inexorable movement eastward of the world’s economic centre of gravity and the increased global economic connectivity of the region through projects such as the BRI, we predict the trend to continue. Asian seats and institutions will only continue their rise.
No seat is the new seat In terms of cryptocurrencies, parties wishing to invest and transact outside a fiat currency are typically unwilling to resolve their disputes within any national system of law (even though those courts may only be exercising a supervisory jurisdiction). In terms of smart contracts, much of their attraction and utility is their cost effectiveness, in terms of entry and automatic execution. The uncompromising mantra “the code is the law” may be somewhat discredited after the Ethereum fork[10], but the incident highlighted the need for effective yet flexible dispute resolution methods to be agreed in advance.
The rise (finally) of Africa Travelling optimistically, Africa is poised on the edge of economic changes that it will be able to seize over the next decade. There is an increasing call for the Africanisation of arbitration. The African Regional Centres for Arbitration were expressly set up to provide an alternative to traditional western centres, and since 2008, a number of new centres have opened their doors, including the Arbitration Foundation of South Africa, which adds to those already in existence in Cairo, Lagos, Kigali and Mauritius.[8] Whilst Cairo has long been a popular and respected venue, as other African centres mature, modernising their rules and demonstrating a more solid track record, they will become more attractive choices.
Despite the rise of international commercial courts and court judgments for disputes regarding more traditional subject matter, we predict that the greater neutrality of arbitration and its flexibility will prove more attractive to smart contract coders and users. While contracts will begin by selecting an arbitral seat in the traditional way, by 2028 we will also see completely delocalised decisions. Parties will see no need for any court to have supervisory jurisdiction or to have to enforce through the courts: concerns about enforcement of a delocalised decision made by an autonomous delocalised arbitral panel will be minimised by their auto-execution according to the code.
Chinese investors will make up an even greater proportion of counterparts to African investment and infrastructure projects in 2028 than they do today and will culturally understand the desire of African counter-parts to choose local centres (and in our experience may be willing to trade their common seat choices of Singapore or Hong Kong for other contractual benefits) and have no historical attachment to western centres.
Playing by (and with) the rules Arbitral institutions constantly face two related but conflicting pressures: to adopt all generally recognised best practices and to be different.
Further, we predict that at least some African countries will have made noteworthy progress in offering more secure environments for international parties, with better infrastructure, less local corruption and more arbitration friendly (or at least commercial arbitration friendly) laws. They will therefore be more common choices as an arbitral seat for contracting parties. We see the ability of blockchain technologies to assist this necessary economic development being felt most powerfully in the African continent.
The debate about efficiency and costs has been ongoing for much more than a decade and will still be a hot topic in 2028. By 2028, however, arbitral institutions will be facing ever increasing pressures in these areas, from each other, from completely new DR forums (see above as to blockchain) and also from the international commercial courts or ICCs (see the article “The Rise of the Courts” in the 10th edition of Crossing Borders) and increased adoption of the Hague Convention, which does for court judgments what the New York Convention does for arbitral awards, ensuring simple international recognition and enforcement.
While most commonly discussed use-cases for blockchain or distributed ledger technology are cryptocurrencies, these are not the ones that will have the widest impact. The adoption of blockchain by the oil and gas and natural resources sectors will dramatically reduce the potential for leakage, fraud and corruption, by allowing improving tracking and transparency in the chain of custody, verification of origin, verification of transactions and simplifying cross border payments. Origin tracking will also drive ethical, environmental and socially responsible extracted and produced commodities.[9] These developments will benefit the African continent more than any other, with its wealth of natural resources but sad history of exploitation and embezzlement. Wealthier, more secure jurisdictions, with better infrastructure and less corruption will (we predict) drive modernisations in, and attract users to, African international arbitration, similar to developments seen in Asia over the last few decades. EXPERT WITNESS JOURNAL
These ICCs are being set up as a response to Brexit (in Paris and the Netherlands, to offer English language common law dispute resolution outside of England and in Europe) and as a response to the BRI (with China setting up two new international commercial courts in Xi’an and Shenzhen, and with other countries along the old Silk Road seeking to offer alternatives themselves, such as Kazakhstan’s Astana International Financial Court). The new ICCs join the existing Singapore International Commercial Court, established in 2015. As for the Hague Convention, China signed in September 2017, joining the EU, Singapore, Mexico, the US and Ukraine and we have already seen the Chinese and US courts recognising each others’ judgments even outside the Convention framework, under the principle of mutual recognition[11]. By 2028, we see the courts, and therefore the international commercial courts, being 69
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a credible challenge to international arbitration, especially given the calls for transparency not just in investor-state disputes but also in the commercial sphere.[12]
and potentially reducing a common and undesirable problem in this sector: inconsistencies in the outcomes in upstream and downstream disputes. The SIAC Proposal on Cross-Institutional Consolidation will be widely recognised as addressing a real concern of parties about the expenses and risks in parallel proceedings at different institutions. We predict, however, that consolidation agreements and terms will still be under discussion by several working groups in 2028 (the devil being in the detail and arbitration practitioners loving committees). Joinder and consolidation within one institution’s purview or by party agreement will however become increasingly common.
Most widely used sets of international arbitration rules (or the arbitration law of their home juris diction) already contain many common features, namely: expedited procedures, emergency arbitrations, interim relief, joinder, consolidation, third party funding, transparency, ethical rules for counsel. The above table shows how such trends have spread. Rules will continue to reflect and adopt best practice, in line with each other and the ICCs. In terms of trends between now and 2028, we anticipate that to attract more Asian parties, more rules will expressly include med-arb protocols[13], allow for broader joinder and consolidation procedures and expressly deal with multilingual procedures. By 2028, disputes arising along the Belt and Road will be widespread and arbitration rules that accommodate for Chinese preferences and typical practices, will be popular choices.
More flexibility in adducing evidence and summary dismissal for the brave few We also see the need for greater flexibility in how factual, witness and expert evidence can be adduced and eventually presented at a hearing. This is a key bug bear for Chinese users (as well as their lawyers) where translating primary documentation and witness and expert written evidence remains a substantial additional cost to the arbitral process.
Med-Arb, joinder and consolidation Whilst med-arb is already an extremely popular and accepted practice in Mainland China, we predict this trend will follow Chinese investors along the BRI. SIAC and SIMC, for example, already have an established arb-med-arb protocol. CIETAC’s recent new arbitration rules for international investment disputes were expressly designed to fill the gap between Chinese and Western practices and were presented as combining the best features of modern international arbitral practice with those elements of Chinese arbitration law and practice seen as indispensable. These include med-arb procedures such as directed mediation and low fees.[14]
By 2028, some braver institutions will have adopted express summary dismissal provisions, but we see many institutions treading carefully here, conscious of the risk of challenges to awards and at enforcement on the basis that a party has not had the reasonable opportunity to present its case, and the risk of the process being used for unmeritorious applications as a further delaying tactic. We expect a spectrum of options ranging from the SIAC or SCC model of summary dismissal to softer touch provisions giving greater discretion to tribunals in terms of timetabling, and document only decisions. Specialist (robot?) arbitration panels To differentiate themselves from each other, and the international commercial courts, institutions will rely on their ability to adapt quickly to change and offer specialist arbitral expertise which the courts cannot. For example, the HKIAC already offers a specialist panel of financial services specialist arbitrators. We predict panels of arbitrators able to code.
The HKIAC Rules Committee is currently also considering the express inclusion of similar ADR provisions along with expanded provisions for joinder and single arbitration under multiple contracts. This is to be welcomed as BRI projects will be complex beasts frequently involving separate employer, contractor, subcontractor, guarantor and lender contracting mechanisms. The ability to more easily consolidate existing construction and infrastructure disputes or enjoin parties to them will be crucial to effective and efficient resolution of disputes EXPERT WITNESS JOURNAL
In 2028, arbitral institutions and centres will also compete to offer the latest technology, whether in terms of venue and services support (witness Maxwell Chambers’ “Smart Maxwell” initiative with robo-as70
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[4] http://www.hkiac.org/about-us/statistics.
sistants), or virtual reality (VR) and augmented reality (AR) for presentation of facts and exhibits (bringing remote witnesses, site visits, schematics and 3D presentation of complex data sets to the Tribunal). Faulty industrial components will be examined in virtual 3D in the hearing room, failed projects will be built and rebuilt in different counterfactuals by each side and damages models will be presented by AR. Institutions will also amend their rules to allow greater publication of anonymised data from past arbitration and awards, and parties and institutions will use AI to analyse this data.
[5] Please see our other article discussing the Queen Mary Survey: www.kwm.com/en/au/knowledge/insights/thequeen-mary-survey-our-crystal-ball-into-the-future20181119 [6] This is further evidenced in the Queen Mary University of London survey, in which Singapore and Hong Kong are the 2nd and 3rd most preferred seats in Asia and the 3rd and 4th most preferred seats globally. [7] Established in 1956 and with a caseload of 2183 cases in 2017, of which 485 were “foreign-related”. [8] Although with the termination of the LCIA-MIAC joint venture in July 2018, the MIAC will now compete as an international centre on a standalone basis.
New technologies and the “millennial” viewpoint will create an even greater need for streamlined quick resolution. New sets of rules for such disputes will provide for paper only arbitrations, with short timelines (expedited procedures will get even shorter) and for smaller value disputes to be resolved by algorithm with limited ability to appeal to a human arbitrator.
[9] Witness Everledger’s recording of conflict-free diamonds on the blockchain and certifications against child labour and modern slavery. [10] In short: a distributed autonomous blockchain venture capital fund, the DAO, was the subject to an arbitrage attack. It was intended to invest Ether (the Ethereum cryptocurrency) into projects on the Ethereum blockchain by majority vote of its investors. In mid-2016, it was not hacked, but rather its code was exploited in a way that many considered unethical such that one user gained control of Ether worth around USD 50m. The Ethereum community decided to hard-fork the Ethereum blockchain to unwind the offending transactions, which led to a schism: the original un-forked blockchain continues, with two active Ethereum blockchains each with its own cryptocurrency.
Robots will not just be used to provide legal advice (see the legal services provided through AI robots in the north-western Chinese province of Qinghai) or to determine straightforward traffic violations (the pilot in the eastern Chinese province of Jiangsu), but will also determine commercial cases. AI will have developed to allow reasoned decisions. Concerns by the current generation of arbitration users will not be felt by many of the users in 2028, used to smart contracts, AI and self-driving cars. The attraction of the quick judgment will outweigh any perceived downsides. As put in the inaugural May 2018 Law Society lecture on the ‘Future of Law’, by the Chancellor of the English High Court Sir Geoffrey Vos: “The millennial generation, which expect to be able to obtain everything they want in an instant on their mobile devices, will not make an exception for justice.”
[11] https://www.chinalawinsight.com/2017/09/articles/ global-network/china-signsthe-hague-choice-of-court-convention/. [12] See https://www.kwm.com/en/jp/knowledge/insights/ how-far-shouldtransparency-in-international-commercialarbitration-go-20180412. [13] As explained by the SIAC-SIMC: “Arb-Med-Arb is a process where a dispute is first referred to arbitration before mediation is attempted. If parties are able to settle their dispute through mediation, their mediated settlement may be recorded as a consent award. The consent award is generally accepted as an arbitral award, and, subject to any local legislation and/or requirements, is generally enforceable in approximately 150 countries under the New York Convention. If parties are unable to settle their dispute through mediation, they may continue with the arbitration proceedings.”
Further, as a greater proportion of disputes arise from economies with less to no history of a rule of law or of an independent judiciary and decision makers, more faith may be placed in “ROBOTribunal” than human decision makers.
[14] For more on CIETAC, see https://www.kwm.com/en/knowledge/insights/newcietacinvestment-arbitration-rules-english-chinese-treatydisputes-20171115.
Remember: you heard it here first. See you in 2028. References [1] Credit to Valentine Kerboull (London), Cassandra Ditzel (London) and Ray Chan (Hong Kong) for assisting the authors with their research.
Dorothy Murray Partner - London, (King & Wood Mallesons) T +44 20 7550 1521 - M +44 77 6457 7625
[2] The Hague Choice-of-Court Convention, formally the Convention of 30 June 2005 on Choice of Court Agreements is an international treaty reached within the Hague Conference on Private International Law. It was concluded in 2005 and entered into force on 1 October 2015. The aim of the Convention is to promote international trade and investment by encouraging judicial cooperation in the field of jurisdiction and recognition and enforcement of judgments. (The content of the Convention: https://www.hcch.net/en/instruments/conventions/full-text/?cid=98 )
Crossing Borders is KWM’s periodic review of developments in international arbitration across the world. Included in a special 10th edition, from which this article is taken, KWM explores what arbitrations will be like going into 2028 - where, how and by whom disputes will be decided. Many thanks to Dorothy and James for permission to reproduce this article which was correct as at October 2018.
[3] SIAC Annual Report 2017: http://www.siac.org.sg/images/stories/articles/annual_report/SIAC_Annual_Report_2017.pdf. EXPERT WITNESS JOURNAL
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Ethics and the Expert Witness “No legacy is so rich as honesty� William Shakespeare - All's Well that Ends Well" Someone can describe themselves as an expert if they possess knowledge and/or experience of a subject, over and above that of a layman. It may also be argued that being manifestly proficient in a subject area is all the qualification someone needs to be an expert witness in court or other proceedings.
There is no legal duty for an expert witness to have been trained in how to present evidence, or write a report, though an expert will invariably be required to confirm in their report that they understand, and comply with, their duty to the court. My employer, the Royal Institution of Chartered Surveyors (RICS), like other professional regulatory bodies, is responsible for ensuring its members act professionally and ethically. Our Royal Charter declares that RICS exists primarily to protect the public.
The reality is, however, that being an industry or market expert does not necessarily make someone a good expert witness. To be both a reliable expert witness, and avoid getting into all manner of difficulties, you must be good at some other things too.
Chartered surveyors who act as experts in court or other proceedings are performing in the public interest. They must not only comply with legal requirements for expert witnesses, but also a mandatory RICS Rules of Conduct, RICS professional statement on Conflicts of Interest and the International Ethics Standards*. RICS also publishes guidance and encourages its members to attain an RICS Expert Witness Certificate. All of this is intended to give confidence to instructing parties that they can depend on RICS experts to know how to discharge their duties to a high standard. A key message, which underpins RICS rules of conduct and the practice statement and guidance for expert witnesses, is that those who take on this crucial role must act ethically.
First up, you must have a firm grasp of the precise nature of your role and know, for example, that you are not an advocate for either party. You must maintain independence and remember that your primary duty is always to the court or tribunal. Your task is to help the court or tribunal understand your subject to the extent that it can reach an informed judgment on the substantive matter that is before it. You must not only be a credible subject-matter expert, you must fully understand and comply with procedural formalities that will inevitably be attached to the role of expert witness. In particular, you must understand, and be able to carry out, the role of expert witness in accordance with applicable rules and court directions. You should be capable of handling robust interrogation by lawyers, including those whose objective is to get you to accurately explain certain matters to the court, and those who will who seek to undermine your credibility and challenge your opinions. You may need to respond effectively to contrary opinions submitted by others who profess expertise in the same subject and withstand direct scrutiny from the judge or head of the tribunal.
Given that the overall membership of RICS Comprises upwards of 120,000 we receive remarkably few complaints about members who take on the role of expert witnesses. Some of the complaints that we do receive originate directly from the courts. Investigations sometimes reveal that relatively inexperienced practitioners have received initial instructions well within their comfort zone. At some point the client asks them to provide a report and, before they know it, the matter is before the courts and it is too late in their minds to back out.
It is essential that you can communicate information, and give answers to questions, effectively to people who do not have your high level of expertise and will not necessarily understand technical language associated with your subject. Your communication skills may need to cover both written and verbal.
Expert witnesses who are faced with situations where there is potential for moral or ethical dilemmas, should perhaps be encouraged to ask themselves three questions.
You should know how to dress for court and how to address the court. Even when you have acquired all the above qualities and qualifications. you will need to demonstrate the single most important trait required of an expert witness. You must always be ethical. EXPERT WITNESS JOURNAL
1.Is it illegal? This is an obvious question, but one must consider if a situation involves anything illegal. Has the expert, for example, been given access to information about a fraud or money laundering? 72
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ethical expert witness is a person who is openminded, honest and rational in everything they do. It seems an obvious thing to say, but an expert must never consciously mislead, whether by withholding or distorting information. An expert who fabricates, exaggerates or gets caught out in a deliberate lie just once is unlikely to ever be totally trusted thereafter.
2. Does it breach professional rules of conduct? While something may be prima facie legal it may yet be an invitation for the expert to act contrary to professional and ethical standards. (RICS members who act as expert witnesses must have regard to, and comply with, the relevant practice statement). Mandatory content in an organisation’s professional standards should, however, be concise and sparing. Ethical lines that are not to be crossed should be made clear, and rules should only be included if the organisation is genuinely able to regulate against them.
An expert who is a chartered surveyor, a lawyer or doctor, etc. must demonstrate ethical behaviours that are expected from someone who is a member of their relevant professional body. Poor conduct by an expert may not only create problems for the expert, it will often reflect on their peers. Judicial criticism of expert witnesses happens. When it does it inevitably throws a spotlight on the individual expert. It can also give rise to wider concerns about the behaviour of other professionals working in the same sector or industry.
3. Would the expert be happy for their actions to be made public? If an expert feels uncomfortable about the idea of something they say or do being published in the newspapers or on the internet, then they should consider why that is. It is likely the reason is that there is something fundamentally wrong about the action. Ethics are about who you are and what you do. They are not concerned with doing the right things at the right time. They are about doing the right things all the time, even when no one is watching. Expert witnesses should always be prepared for their actions to be scrutinised, and to be judged against cultural morals and values.
Martin Burns RICS, Head of ADR Research and Development 10 January 2018 * The International Ethics Standards, which RICS are part of the coalition (https://ies-coalition.org/).
Providing high standards of professional service and treating people with respect is always expected. An
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Boundary Disputes Rights of Way Boundary Agreements Determined Boundaries Title Clarification Title and Lease Plans Single Joint Expert Familiar with Civil Procedure Rules Part 35
Contact Name: Mr Daniel Schnurr FRICS Tel: 0117 924 4545 Mobile: 0781 809 8547 Email: boundaries@walkerladd.co.uk Website: www.walkerladd.co.uk Walker Ladd Surveyors Limited, 157 Redland Road, Bristol, BS6 6YE
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Mediation Training Programme A facilitative and evaluative approach to mediation in the built environment
To enrol today visit: w rics.org/mediation t +44 (0)2476 868 584
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The Time is Right for Commonhold Announce Law Commission The Law Commission today has proposed reforms that would support the expansion of commonhold as an alternative to leasehold.
• Make it easier to convert from leasehold to commonhold • Increase lender confidence in commonhold so as to increase the choice of mortgage lenders available for purchasers • Replace service charges set by a landlord with commonhold contributions which have to be approved by a majority of those paying them.
Commonhold was introduced in 2002 as a new way to own property. Commonhold allows a person to own a freehold flat and at the same time be a member of the company which owns and manages the shared areas and the structure of the building. The benefits of commonhold Commonhold offers significant benefits to homeowners compared to leasehold including: • Owners own their property outright, so their ownership won’t run out in the future – whereas leases expire and extending them can be costly • There is no landlord – instead, owners have a stake in the wider building and can make decisions about the shared areas together • There is no ground rent – owners will only pay what it costs to maintain the building and will control that expenditure • There is no risk of forfeiture in commonhold – in leasehold, if a leaseholder breaches the terms of the lease, the landlord can take back the property without paying anything to the leaseholder • Standard rules and regulations apply – which means owners know where they stand, and should also make conveyancing simpler and cheaper.
The need for change Commonhold ownership is commonly used around the world in countries such as the USA, Australia and across Europe. In England and Wales, commonhold has been available since 2002, but take-up has been poor; fewer than 20 commonhold developments have been built. There are several reasons why commonhold has not taken off. For example, the system has been criticised for lacking flexibility to cater for larger, more complex developments and for making it difficult for existing leaseholders to convert their lease into commonhold. Legal issues have also made many mortgage lenders reluctant to provide loans against commonhold properties. These are all issues that this consultation addresses. Recent dissatisfaction with the current leasehold system has led to pressure from the media and campaigners for reform, and demand for an alternative. Legal reform to reinvigorate commonhold is now required and is what our consultation looks to achieve. The government is also considering other non-legal options for reinvigorating commonhold and suggestions for how this could be achieved are included in the consultation paper. These include increasing consumer awareness, improving mortgage lending, or incentivising or compelling the use of commonhold instead of leasehold.
The Law Commission is proposing a range of legal reforms which will remove barriers to commonhold’s uptake. These reforms, which are now open for consultation, should kickstart commonhold as an alternative way of owning property which avoids the shortcomings of leasehold ownership. The reforms would: • Allow a commonhold development to include both residential units (incorporating different types of affordable housing such as shared ownership), as well as commercial units (such as restaurants and shops)
the hampden consultancy CONSULTING ENGINEERS - EXPERT WITNESS - MECHANICAL & ELECTRICAL SERVICES Since 1993 we have specialised in assisting clients in resolving technical and contractual problems with respect to mechanical & electrical engineering services that can (and often do!) occur on many construction projects, whether during the pre-contract or construction phases, or indeed post-contract. As such we have been retained either as expert advisers, party-appointed experts or as single joint experts in respect to disputes between building owners/end-users & their contractors or between contractors & their sub-contractors concerning technical and/or contractual aspects related to mechanical & electrical engineering services. We have also acted for clients in issues involving professional negligence of M&E consulting engineers.
Please call Bob Swayne EngTech AMIHEEM for an initial discussion without obligation on 01494 868 868 or 07768 497 005 or visit our website on www.thehampdenconsultancy.com for more details
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T: 0161 302 0577 E: medicolegal@sanctumhealthcare.co.uk W: www.sanctumhealthcare.co.uk
Sanctum Healthcare is a provider of bespoke care for mental health and wellbeing conditions for children, adolescents and adults, and a specialist in medico-legal advisory services. Our outpatient services, delivered by a multidisciplinary team of mental health and behavioural care specialists, are conveniently located in Cheshire and Manchester with home-based assessments also available. Springfield House, our adult inpatient residence, is an elegant Grade II Listed country house discretely located in a rural Lancashire setting offering treatment to just 12 patients at a time.
Our team of Clinicians have a wealth of experience in providing high-quality reports and standing successfully as expert witnesses. Our experts have received training from leading legal organisations; Bond Solon and Specialist Info.
Our medico-legal team of Consultant Psychiatrists and Psychologists specialise in providing a nationwide service delivering high quality, swift and comprehensive reports in the following areas: v Mental Capacity Assessment v Deprivation of Liberty Safeguards (DOLS) v Child, Adolescent and Family
We pride ourselves in building excellent working relationships with the legal professionals sourcing our services, and hold particular appeal for solicitors who do not use an agency to access medico-legal experts.
v Employment Law v Asylum and Immigration v Criminal Law v Forensic and Prison Psychology v Fitness to plead v Personality disorders v Sentence reports v Care Proceedings v Family disputes v Employment disputes v Personal Injury v Risk Assessment and Dangerousness v Addiction v Trauma
To discuss your requirements, contact a member of our Sanctum medico-legal team on 0161 302 0577 or email medicolegal@sanctumhealthcare.co.uk Or visit our website at: www.sanctumhealthcare.co.uk
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Darnley V Croydon Health Services NHS Trust Mr Mike Paynter Consultant Nurse - NHS Emergency Nursing Expert Witness – Apex Health Associates info@apexhealth.net was based on misleading information from the receptionist about the waiting time to see a clinician. The trial judge stated; ‘the provision of such misleading information by a receptionist as to the time within which medical assistance might be available was negligent.’
Mr Paynter is an Emergency Nurse Consultant and part of the Apex Health Associates expert nursing team. Apex Health Associates is a UK wide and international nursing expert practice owned and run by nurses. In this short paper, Mr Paynter looks at the recent ‘Darnley’ decision by the Supreme Court.
Supreme Court Justice Lord Lloyd-Jones acknowledged that emergency departments operate in very difficult circumstances and under colossal pressure. However, Lord Lloyd-Jones concluded that ‘it is not unreasonable to require receptionists to take reasonable care not to provide misleading information as to the likely availability of medical assistance. The provision of misleading information was negligent.’
In 2010 Mr Michael Darnley, aged 26 years was the victim of an assault, he had sustained a head injury, he was taken by a friend to the Emergency Department at Mayday Hospital. When Mr Darnley arrived at the reception desk and ‘booked in’ the receptionist advised him of an approximate 4 to 5-hour wait. Mr Darnley felt unwell and decided not to wait in the waiting room and took himself home. Mr Darnley’s decision to not wait was based on the alleged ‘misleading’ advice provided by the receptionist. Mr Darnley did not wait to see the assessing clinician.
This is believed to be the first case of negligence involving Emergency Department receptionists giving misleading information. It is not uncommon in many Emergency Departments and minor injury units for patients to selfpresent see a full waiting room or see the moving message board displaying the approximate waiting time and elect to leave. Likewise, it is not uncommon for patients to ‘book-in’ and then decide not to wait, many of these might leave prior to contact with a clinician. Traditionally these patients are recorded as ‘did not waits’. It has usually been considered that these patients are responsible for their own decisions. This ruling will understandably cause concern amongst NHS managers and lead clinicians in emergency care. It will no doubt cause an amount of anxiety with clerical and administration staff who are always the first point of contact.
A short time later he collapsed at home and an ambulance was called. On arrival back in the emergency department his level of consciousness was reduced and his GCS was 9 out of 15. A large extradural haematoma was identified. Mr Darnley underwent neurosurgical intervention but was left with permanent brain injury and a left hemiplegia. In 2015 proceedings were brought against the Croydon Health Services NHS Trust alleging a breach of duty on the part of the receptionists for giving incorrect and ‘misleading’ advice on the waiting time. The High Court Judge determined that the harm suffered was outside the scope of any duty of care or obligation owed by the receptionists. In addition, it was considered that as Mr Darnley had elected to not wait in the emergency department the causal connection had been broken. The claim of negligence against the Trust was rejected.
The solicitor for Mr Darnley has stated ‘that despite fears expressed by hospital trusts, this will not lead to a new layer of responsibility for clerical staff or a new layer of liability for the NHS. The reception area of an Emergency Department is the first point of contact between the public and the hospital. The decision does not mean that reception staff should accurately state the precise time a patient would be seen by medically qualified staff. They must take reasonable care not to provide misleading information about the availability of assistance.’
An appeal was made to the Supreme Court in June 2018. On10 October 2018 five Supreme Court justices overturned earlier judgements. It was judged that far from constituting a break in the chain of causation Mr Darnley’s decision to leave to emergency department was foreseeable and EXPERT WITNESS JOURNAL
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‘The standard of care required is that of an averagely competent and well informed person performing the function of a receptionist in a department providing emergency medical care.’
MR SAMEER SINGH Consultant Orthopaedic Surgeon
Receptionists in our Emergency Departments and minor injury units do an outstanding job in sometimes very challenging circumstances they supervise the waiting room and keep clinicians informed and updated.
MBBS, BSc, FRCS (Trauma and Orthopaedics)
As a result of this ruling it would be reasonable to expect them to have a closer relationship with clinical teams when waiting times become excessive clinicians need to be aware of supporting them.
Specialist interests – All aspects of Trauma (soft tissue and bone injuries), Upper Limb Disorders, Whiplash Injuries Medical Reporting Personal injury and Medical Negligence Expert
The waiting times should not be used as a subtle deterrent to encourage patients to go elsewhere, certainly not without contact with a health care professional.
Clinic locations in References Darnley (Appellant) -v- Croydon Health Services NHS Trust (Respondent)
The Manor Hospital, Church End, Biddenhamm Bedford MK40 4AW The Saxon Clinic, Chadwick Drive, Saxon Street Milton Keynes, Buckinghamshire MK6 5LR
On appeal from [2017] EWCA Civ 151. Judgement given on 10 October 2018
Tel: 01908 305127 Mob: 07968 013803 Email: orthopaedicexpert@gmail.com Web: www.orthopaedicexpertwitness.net 61 Church End, Biddenham, Bedford MK40 4AS
Dr Khalid Binymin Consultant Rheumatologist Hononary Lecturer at Liverpool University
Dr Gordon Williams Consultant Cardiologist
MBChB, FRCP, MSc
MB BCh FRCP FACC
Consultant Rheumatologist and lecturer. I have over 25 years experience as a doctor. I am the author of two published medical books and the rheumatology chapter of the masterclass book for the Royal College of Physicians. Appointed as the Royal College of Physicians Tutor, Honorary lecturer at Liverpool University.
Consultant Cardiologist at York Teaching Hospitals NHS Foundation Trust Medico-legal expertise in invasive and non-invasive investigations, diagnostic techniques, coronary artery disease, hypertension, heart failure, adult congenital heart disease and general cardiology
I ran various nationwide training courses. Research areas include; SLE, fibromyalgia, rheumatoid arthritis, Psoriatic arthritis, mechanical trauma and back pain. Medicolegal reports have been written for most legal firms in the north west region with great emphasis on punctuality and quality. Personal injury, ill health retirement and medical negligence is major area of work.
Aviation Medicine – Cardiological Adviser to the Civil Aviation Authority Preparing Expert reports since 1985
Contact Renacres Hall Hospital Renacres Lane, Halsall Nr. Ormskirk, L39 8SE Area of work: Nationwide
Spire Leeds Hospital Jackson Avenue, Leeds LS8 1NT Email: sandra.ellerbeck@spirehealthcare.com sandra@cardioreports.co.uk Tel: 0113 218 5943 Fax: 0113 218 5987 Mob: 07740 184203 or 07702 550 758
Tel: 01704 841133 Mobile: 07939 540 839 Fax:01704 842030 Email: kbinymin2012@yahoo.com or kbinymin@nhs.net
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The Servant of Two Masters: How can an Expert Witness Square the Circle of Serving Both his Client and the Court? by Peter Caillard Executive Director, HKA The appointing party needs him to advise it on the key issues pertinent to its case. It will be seeking accurate and reasoned opinion which may be used by its advocates to build its case, and will be hoping that the expert’s findings and expressed opinions will be favourable to its position.
Introduction Goldini’s classic 18th century tale entitled ‘The Servant of two Masters‘ tells the story of Truffaldino, a servant in 18th century Venice. Many of Truffaldino’s problems stemmed from his idea that he would seek the employ of two masters at the same time. He had reasoned that, if he had two masters, he could make twice as much money – so long as neither ever found out about the other!
So we immediately have a potential conflict of interests. If the expert is appointed and remunerated by one of the parties, surely this puts pressure on him to favour that party in his deliberations? After all, pleasing a client is fundamental to good business. Yet the court wants independent and impartial advice. So how can the expert square this circle?
Unlike Truffaldino, an expert witness appointed to give testimony in a dispute does not set out to deceive, but may nonetheless find himself attempting to serve the apparently conflicting requirements of his client and the court. Typically, he will be retained by one of the disputing parties, which pays his fees; whereas his duty is to the court, which does not. The danger is that in attempting to please both, he pleases neither, and fails in his obligations.
Rules and Protocols There are a number of rules and protocols which help steer the expert through his work: Civil Procedural Rules The Civil Procedural Rules (CPR) apply to all civil litigation in England and Wales. In particular, Part 35 provides guidance for the conduct of experts. Clause 35.3 makes clear that the expert’s overriding duty is to the court. It states that: “It is the duty of experts to help the court on matters within their expertise.”, and: “This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.”
This paper addresses this dilemma – if indeed it is such – and considers how experts should conduct their duties so as to avoid getting into difficulties. The Role and Duties of the Expert Witness An expert, if asked to investigate and opine upon a matter of dispute, will frequently find himself or herself in a position where they are preparing an expert report for a court or tribunal. When an independent expert presents evidence in such a forum, he or she has an overriding duty to that forum. However, the expert may well be engaged on behalf of one of the disputing parties, which no doubt will be hoping to receive a report which assists its case!
So the CPR makes clear where the expert’s loyalties must lie. The opinions expressed by experts must be independent and uninfluenced by the pressures of the litigation process. The expert should not seek to promote the arguments of his instructing party. It is often said that a test of independence is whether the expert would have reached the same conclusions had he received the same instructions from the opposing party.
The courts require the expert to provide it with knowledge and opinion that will help it address the complex issues of the case (including technical matters which it might not ordinarily understand), and thereby to reach a reasoned judgement. It needs the expert to be accurate and truthful, and to express his opinion without deference to the appointing party. Importantly, it does not wish the expert to act as an advocate.
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The Ikarian Reefer Judgement Sometimes referred to as the ‘Cresswell principles of Evidence’, a set of guidelines were issued following a shipping case, known as The Ikarian Reefer. This 79
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case involved a Panamanian vessel that ran aground and caught fire. The insurers alleged arson, and in this respect, they relied on expert evidence. Mr Justice Cresswell had significant difficulties with the testimony of some of the experts, and their understanding of their duties and responsibilities. The guidelines which he produced following the case have subsequently been widely accepted as standard good practice for instructed experts.
secondly, to assist the court, which does not possess the relevant skill and experience, in determining where the truth lies.” Mr Justice Garland’s comments are of interest because they recognise that, although the expert’s principal duty is to the court, it is not necessarily his or her only role in the matter. The appointed expert will not only have provided evidence to the court, but will have advised the party that appointed him. Indeed, that party’s decision to proceed may well have hinged on the opinions expressed by the expert.
Mr Justice Cresswell’s seven principles are summarised as follows:
With this recognition the expert need not be coy about his dual roles. Clearly he is not an advocate, but he is to use his skill, knowledge and expertise to provide interpretation. In the interests of all involved, fundamentally, the advice that he will give the court should be no different to that which he would provide to his client.
1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation; 2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise (see Polivitte Ltd -v- Commercial Union Assurance); An expert witness in the High Court should never assume the role of an advocate;
Share Content The courts require the expert to provide it with knowledge and opinion that will help it address the complex issues of the case, and thereby to reach a reasoned judgement. It needs the expert to be accurate and truthful, and to express his opinion without deference to the appointing party. Importantly, it does not wish the expert to act as an advocate.” Peter Caillard, Executive Director, HKA
3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion; 4. An expert witness should make it clear when a particular question or issue falls outside his expertise; 5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report;
Impartiality and Confidence Apart from technical competence, the two most important aspects for an expert are to demonstrate his impartiality, and to give the judge confidence in his evidence.
7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.1
Demonstrating impartiality is key. Advocacy is an easy trap for the expert to fall into. As is a lack of willingness to change an opinion. An instructed expert may be fully familiar with his client’s case, and have developed his opinions well before receiving the counterarguments of the other party. The expert may then consider that subsequent concession displays weakness, or possibly even a lack of competence. However, an expert’s willingness to recognise the strengths of the other party’s expert’s argument, and to incorporate it into his overall assessment, both assists the court in reaching a decision and strengthens his own standing. Courts do not like to see an expert failing to modify an opinion in the light of overwhelming evidence.
These rules have been quoted on a number of occasions since and stand as a basic code of good practice for experts today.
Apart from rules and principles, there are good reasons why an expert should strive to demonstrate his independence and maintain impartiality:
In the case of Polivitte Ltd v Commercial Union Assurance (mentioned under the 2nd principle above), Mr Justice Garland said:
1. A report that demonstrates neutrality will hold greater sway with the court. In turn, this increases the value and likely influence of the expert’s evidence;
“I have almost considered the role of an expert to be two-fold: first, to advance the case of the party calling him, so far as it can properly be advanced on the basis of information available to the expert in the professional exercise of his skill and experience; and
2. It will give the expert greater confidence under cross-examination. A balanced and well-reasoned report is much easier to defend than one which appears partisan;
6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court;
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3. If there are weaknesses in the client’s case, it is better that he is advised of these at the earliest opportunity;
Which, after all, is exactly what his client wanted in the first place! Conclusions Overall, the expert witness is not serving two masters, he is serving one, the court. And to the extent that he has a duty to the party that appointed him, that duty is best served in exactly the same way that he would best serve the court – the same report, the same conclusions and the same expressed opinion.
4. The evidence of an expert who has the appearance of a ‘hired gun’ is compromised, and will be of little value to the court – and hence of little help to your client’s interests. Judges and arbitrators are consistent in their comments about what they expect from an expert witness. Top of the list is the demonstration of independence. He should discuss both sides’ cases with equal vigour. He should not just dismiss the opinions of the other side on the basis of “in my experience” but state clearly the flaws in the opposing argument, or opine as to why such positions cannot be sustained. Whatever the view of the expert, judges want to see logic and learning behind the opinions expressed.
For poor Truffaldino it all turned out well in the end. His delicate deception worked for a while, but collapsed when letters addressed to one master were accidentally handed to the other. With his misdemeanours now exposed, he confessed his deception, both his masters forgave him, and they all lived happily ever afterwards! But the expert witness may not be so lucky, for to receive instructions he relies on his good reputation, and reputations are created and preserved by delivering quality products to the ultimate users of his services – the courts.
Cross-examination provides the opportunity for the expert to reinforce the message of independence by demonstrating his balanced and reasoned approach through the answering of questions. However, if any expert is not acting fully in accordance with such principles, it will quickly become evident and experienced judges and arbitrators will not fail to spot it! Nothing looks worse than an expert repeatedly being asked the same question by opposing counsel because he has failed to answer it. The judge must know that the expert is being open and honest. This will give him confidence in the expert’s testimony, and vastly increase the chances that he will rely upon it in reaching his judgement.
References 1. Factsheet 4: The ‘Cresswell’ Principles of Expert Evidence (JS Publications, 2009) This publication presents the views, thoughts or opinions of the author and not necessarily those of HKA. This publication is protected by copyright © 2018 HKA Global Ltd. Many thanks to HKA. for permission to reproduce this article www.hka.com
Medical & Legal Admin Services • Medical & Legal Admin Services (MLAS) is committed to providing high quality, maximum efficiency and the best medico legal expertise to both claimant and defendant solicitors. • We deliver the logistical support for some of the most accomplished medical experts in the UK. • We ensure that reports are of the highest quality and deadlines are always met. • If you are a solicitor or insurer and need to secure the services of a medico legal expert look no further. • We provide expertise in a variety of case types including but not restricted to; Persistent Pain, Spinal Injury, Oncology, Obstetric Emergencies, Gynaecology, Orthopaedics and Neurodegenerative Conditions. Services for Experts - We offer an excellent and comprehensive logistics service, that includes managing all communications, travel and diary meetings, administration, finance, marketing and promotion. Contact us to consolidate or grow your Medico Legal practice. Become a Mentor – We will work with Medico legal experts with a mature practice who can help to develop the next generation of medico legal experts, whilst still growing their own practice and increasing their own revenue. Email: enquiries@mlas.co.uk Telephone: 0114 2455423 Twitter:@MedLegAdmin Web: www.linkedin.com/company/mlas - Medical & Legal Admin Services: Registered address: Haywood House, Hydra Business Park, Nether Lane, Sheffield, S35 9ZX.
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Experts: To work with MLAS contact our office Business Relationship Manager Andrew Kwame: Telephone:07562 717854 Email: AndrewOsei-Kwame@mlas.co.uk Solicitors/Insurers: To give instruction please contact: Telephone: 0114 2455423 Email: enquiries@mlas.co.uk
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Preparing For a Hot Tub by Dr Chris Danbury MB BS M.Phil FRCP FRCA FFICM Hot-tubbing, the process of expert witnesses from the same discipline providing concurrent expert evidence (as set out in paragraph 11 of the CPR practice Direction 35), is becoming more widely used. Dr Chris Danbury, Consultant Intensive Care Physician has been instructed in cases reaching the High Court, Court of Protection, Coroner’s Court, Court of Appeal and Supreme Court. In this article he shares his experience of “hot-tubbing” and how expert witnesses can best prepare, and be prepared, for a judge-led joint examination.
Staying on topic The less structured and less formal setting of a judge-led joint examination can allow an expert witness to stray off topic. Legal counsel could usefully help experts prepare for hot-tubbing by reminding them of the scope of their evidence and that their duty is to the court and not as advocates for their instructing party. With increasing focus on the length (and cost) of trials, the ‘hot tub’ looks like it is here to stay. For expert witnesses this means that court room skills need to be extended to prepare them for questioning, and being questioned by, the other expert as well as communicating clearly and effectively with the judge. The first time in the ‘hot tub’ doesn’t need to get an expert witness hot under the collar with a little support and forewarning from their legal counsel.
Expecting the unexpected For many expert witnesses the courtroom is not a familiar environment. Any expert worth their salt will have attended training in courtroom skills, with the focus historically on giving their testimony confidently and clearly under cross-examination. It can then be daunting to arrive at court to be told that the judge has given direction for ‘concurrent expert evidence’ or a ‘hot tub’. On the face of it, it doesn’t change the preparation an expert witness should and would do, although a thorough knowledge of current reviews and meta-analysis on the specific topic in hand will stand an expert in good stead in a ‘hot tub’. For legal counsel any forewarning gives a first-timer the opportunity to read up about the process and how it should work (recognising that as a ‘judge-led’ approach, it will vary from individual to individual). Some judges have a history of ‘hot tubbing’ and legal counsel could usefully identify that to an expert who is preparing for court.
Dr Danbury can be instructed through Medicolegal Associates on a range of cases involving intensive and high dependency clinical care settings. Many thanks to Dr Danbury and Medicolegal Associates for permission to reproduce this article. www.medicolegal-associates.com
Striking the right balance When ‘hot tubbing’ works well it provokes intellectual debate between experts. It is a good way to explore complex issues and seek to find common ground in the areas where two experts are not in agreement. From an expert’s perspective, there is a balance to be struck between confidence in one’s own opinion and having an open mind and being flexible if the other expert makes a valid point. A mutual respect between experts is key to the success of the ‘hot tubbing’ format, so an expert witness should not be deferential to a colleague who may be seen to be more senior. A more junior expert should keep in mind that their view is still relevant, possibly more so if their clinical work is more extensive at the current time than their senior counterpart. Experts with experience, age and/or seniority on their side should not seek to undermine the other expert on that basis.
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Six Figure Sum Recovered for Young Lady after Delay in Diagnosis of Cancer at Lewisham Hospital Lauren instructed Mark Bowman to pursue a claim against Lewisham Hospital after she was concerned that they had delayed in diagnosing her with olfactory neuroblastoma, a rare form of cancer that develops in the nose.
that they had made any difference. It was not until after expert reports had been exchanged and our experts met with the Defendant's experts to discuss matters, that finally it was admitted that Lauren's life expectancy was reduced due to the substandard treatment provided. Even then, arguments persisted as to by how much Lauren's life expectancy had been reduced, and it took a mediation, only two months prior to trial, for the Defendants to make a substantial offer that properly compensated Lauren for her pain and suffering, the treatment she will now require and the losses that will be incurred due to her prognosis.
Lauren had been suffering with sinusitis, loss of taste, loss of smell and increasing headaches from 2013. She was referred by her GP to the ENT department at Lewisham Hospital. A CT scan was arranged and took place on 01 April 2014. The scan was reported on the very next day, and determined that Lauren was suffering from a polyp. In fact the scan was highly suspicious for malignancy, and Lauren should have been contacted ASAP for a follow up appointment and a biopsy within 14 days. As it was, Lauren was not seen for follow up until November 2014, and was told she should have surgery to remove the polyp. Surgery was commenced in December 2014, but during the operation it became clear to the surgeon that something was not right. A biopsy was taken and in January 2015 Lauren was given the devastating news that she suffering from cancer. In addition it became clear that this had been obvious since the previous April, when a diagnosis should have been made.
At the end of the case Lauren commented "I would like to say a big thank you to mark and his team for all their help and for the professional way they treated the whole situation. In particular I want to thank Mark for his caring and personal touch and the way his team cared and supported me through the whole case." Contact us For further information about delayed cancer diagnosis claims, please call Mark Bowman on 0207 861 4043 or email mark.bowman@fieldfisher.com. You can speak to our medical negligence solicitors on freephone 0800 358 3848 E-Mail them at personalinjury@fieldfisher.com
Initially the Defendant denied all liability but made an offer of ÂŁ5,000 to settle the claim. This was swiftly rejected. Following service of proceedings the Defendant admitted they had made mistakes but denied
Dr Duncan Dymond
Dr Joshua Adedokun
MD FRCP FACC FESC
FCARCSI, FRCA, FFPMRCA
Consultant Cardiologist
Chronic Pain Expert
Dr Duncan S Dymond has been a consultant cardiologist at St Bartholomew's Hospital, now a part of Barts Health NHS Trust since 1987.
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.
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.
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.
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.
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:
T: 0207 079 4260 E: medicolegal@harleycardiology.com secretary@drduncandymond.com W: www.drduncandymond.com
Tel: 01625 526 665 Email: expertpainreports@gmail.com Web: www.expertpainreports.co.uk Spire Manchester, 170 Barlow Moor Road, Manchester M20 2AF
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Accreditation for the Expert: A Good Idea or Not Such a Good Idea? by Alec Samuels Accreditation sounds to be a good idea. On his CV the expert can show his competence, assured by an institution of standing. The solicitor and the lay client instructing him can have confidence in him. He can be readily found, as he will appear in the appropriate directory. Anyone searching for an expert need not rely on self-advertisement but a reliable independent source.
may know an expert and recommend him, but the solicitor must bring an independent assessment to bear in light of the nature of the case.
The EU is working on the creation of a directory. The Expert Witness Institute EWI in conjunction with the Institute of Judicial Administration at University College London is working on a new accreditation scheme, led by EWI Governor Dr Sandy Mackay, an architecture and construction expert. The scheme is based on assessment, for the more experienced expert, not training for the less experienced expert. The assessment is looking for the knowledge and awareness and understanding of best practice, e.g. meeting the lay client, writing reports, knowledge of the GDPR, interplay at meetings, working with the lawyers, working with the other experts in the case, understanding the forensic court scene, giving evidence, handling cross-examination.
There have been several moves towards accreditation in recent years, with mixed success. It will be interesting to see whether current well-intentioned efforts to promote accreditation can succeed and prove their worth.
Many experts of standing positively refuse to be entered into directories, preferring to rely upon their reputation. They do not need to seek work, they are busy anyway, because they are known to be good; and they dislike self-advertisement.
Š Alec Samuels 2018
Need an expert fast call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk
Reservations However, many experts, solicitors, clients and others have reservations about accreditation and directories. The good expert learns by forensic experience, not yet another classroom experience. The assessment exercise inevitably takes considerable time, trouble and expense for all involved. The public are suspicious of directories; and directories can become stale, out of date. The CV of the expert should anyway fully and accurately show his qualifications and experience, without the need for accreditation. Most solicitors and clients choose their expert by reputation, or having instructed the expert previously, or having seen him perform, or by judicial comments in previous cases, or by his contributions to the specialist literature, or by recommendations from a reliable source. The duty of the solicitor, and the mark of a good solicitor, is to know the good expert, or to know how and where to find him, how initially to assess the expert before instructing him, how to establish a good working relationship, how to assess suitability for each stage of the process, how to gain the confidence of the expert, and the willingness of the expert to be instructed by that solicitor.
Mr Jack Lancer
Consultant Ear, Nose & Throat Surgeon MB, ChB, LRCP, MRCS, FRCS(Otol), DLO My areas of surgical expertise include all aspects of middle ear disease, especially stapedectomy and in facial plastic surgery especially rhinoplasty. I also deal with general adult and paediatric ENT problems. I have issued many medico-legal reports over a 25 year period, with the majority relating to cases of noise induced hearing loss, with the remainder dealing with personal injury and negligence claims within my area of expertise, but including all aspects of general ENT practice. Contact: Park Hill Hospital Thorne Road, Doncaster, DN2 5TH Tel: 01777 817 160 Email: jacklancer88@gmail.com Fax:01777 817 158
The client himself may be something of an expert, e.g. a builder or engineer familiar with the technical side of matters, and be technically useful. The client EXPERT WITNESS JOURNAL
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Litigation Privilege and Witness Statements – High Court Clarifies the Law If a witness adopts his witness statement while giving evidence in open court, then any litigation privilege attaching to that statement is lost. But does a witness statement lose privilege when it is served on the opposing party but never adopted in open court? What is the privileged status of a witness statement which is not adopted but is used in court? These were some of the questions recently considered by the High Court in Defender Ltd v HSBC Institutional Trust Services (Ireland) Ltd.1 In that case, Defender brought proceedings against HSBC alleging negligence in relation to its alleged role as a custodian of funds on its behalf. HSBC had also been previously sued in separate ‘closely connected’ proceedings by an unrelated party. Those earlier proceedings settled, but some of the HSBC witnesses who had been due to give evidence in the earlier proceedings were also now due to give evidence in the Defender proceedings.
hand completely and fairly to the other side in a witness statement (in the hope, perhaps, of settling), that litigants would lose a particular benefit of settling, namely avoiding a public airing of their dispute as set out in their witness statements. This benefit would be lost simply because they had not managed to settle their dispute before those statements had been served. There was a strong public interest in ensuring that every effort was made to settle cases so that court resources were not wasted, particularly in long running cases which would monopolise the court’s time to the detriment of other litigants.
Issue for the court Defender sought their previous witness statements as well as expert reports in order to see if there were inconsistencies between the statements of those HSBC witnesses in the current Defender proceedings when compared with the statements of the same witnesses in the earlier proceedings.
Therefore, there were good reasons for attaching privilege to witness statements until the very last minute ie until they had been adopted by the witness in evidence or put into the public arena. If they were ultimately not used in this way, the litigation privilege could survive past the conclusion of those proceedings but only if subsequent proceedings were ‘closely connected’ with the proceedings in which the documents were originally provided.
It was accepted that although litigation privilege will generally come to an end when a set of proceedings conclude, it can survive to apply in subsequent, ‘closely connected’ proceedings such as those here.
Pointing first to the fact that such witness statements lacked any evidential value, and noting that Order 63A was silent on the issue, Twomey J. concluded that there were a number of policy reasons why these witness statements should remain privileged.
The court then went on to consider the position where a witness statement had been served on the other side, not adopted by that witness in open court (as the case settled in advance of that witness giving evidence) but had been relied on in court when cross-examining another witness. Twomey J. held that the use of a verbatim extract and several summaries of various parts of a particular witness statement, without any caveat or restriction, in the cross examination of the plaintiff in the earlier proceedings amounted to a substantial reference to that witness statement. Thus, the ‘effective opening’ of that witness statement in court by HSBC (in the earlier proceedings), albeit that it was not adopted by the witness, meant that the witness statement was effectively ‘put into the public arena’ leading to a loss of privilege.
He noted that often cases settled not only after witness statements had been served but after a hearing had commenced. It would be a disincentive to parties settling at this stage, if having revealed their
Comment This is an interesting and helpful judgment insofar as it addresses a specific aspect of the law of privilege not previously considered by the courts. However,
The issue for the court was whether HSBC witness statements from the earlier proceedings which were served on the other side in those proceedings but not adopted by the witnesses as their evidence in court (because the case settled), remained privileged, so as to be unavailable on discovery to Defender in the current ‘closely connected’ proceedings? Decision of the court
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the wider impact of the judgment may be tempered by the judgment in UCC v ESB2 where, as recognised by the court in this case, it was held that litigation privilege will only continue beyond the final determination of a particular set of proceedings to apply in subsequent proceedings if those later proceedings are ‘closely connected’ to those going before. This means that it may be only in a relatively narrow set of circumstances that this new decision of the High Court will come into play.
Dr Liam Parsonage Consultant Psychiatrist BA, MBBS, MRCPsych
Dr Liam Parsonage is a Consultant Psychiatrist specialising in Adult and Old Age Psychiatry. He has worked in the NHS as the Lead Consultant for community mental health services in Surrey.
References 1, [2018] IEHC 587. 2, [2014] 2 IR 525.
Dr Parsonage provides psychiatric evaluations of mental disorders, sleep disorders, and attention deficit disorder (ADHD). Mental Capacity Assessments, university performance and mitigating circumstances reports, psychiatric evaluations of the effects of abuse, neglect or trauma, post-traumatic stress disorder, and personal injury. He also provides psychiatric evaluations relating to occupational health matters including fitness to return to work and early retirement on medical grounds and, undertakes psychiatric evaluations regarding immigration matters
Many thanks to Seán Barton and Megan Hooper at McCann FitzGerald for permisison to reproduce this article. McCann FitzGerald offers expert, forward-thinking legal counsel to clients in Ireland and around the world www.mccannfitzgerald.com
Contact Name: Diane King Tel: 020 8920 5606 Email: liam.parsonage@nhs.net Alternate Email: Diane.king8@nhs.net Website: www.parsonagepsychiatry.com Address: Priory Hospital North London Grovelands House, The Bourne, London, N14 6RA
This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.
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Thinking of Going to Court? Skilled Witnesses Must Remain Independent by Sarah Phillips - Director at Anderson Strathern LLP Expert evidence from skilled witnesses can be crucial to the success or failure of a court case. Such witnesses certainly have to be well qualified in their specialist areas to advise the court. But recent court decisions on the instruction and use such experts show there are several important points that must be borne in mind for their evidence to be of real value to the court.
• Tell the other party to the case about any change in his opinion and, if appropriate, tell the court too, without delay • Provide copies of all photographs, plans, calculations and relevant documentation referred to in any report they have prepared to the other side at the same time as the report One area which has come under the spotlight is a contingency fee arrangement for a skilled witness. This can exist, although it’s not common. It’s where a skilled witness is paid for the work done only if the party who instructed them wins their case.
It’s common for skilled witnesses to be instructed in personal injury and medical negligence claims: doctors, surgeons and psychiatrists are often the only people who are properly qualified to advise the court about the cause of the injury, the impact of it and the future prognosis for the injured party. Other specialist experts will often help the court with questions of negligence in more technically complex cases involving health and safety or occupational health issues. Skilled witnesses can also be involved in a wide variety of cases, including in contract, financial and accounting and engineering disputes.
The Sheriff Appeal Court recently considered this. In the case of Armstrong & Others v ERS Syndicate Management Ltd, the court said it would consent to a ‘contingency fee arrangement’ between a party and a skilled witness only in very rare circumstances. This is because the contingency fee arrangement gives the skilled witness a financial interest in the outcome of the proceedings and, it could be said, this might colour their evidence and jeopardise their objectivity.
Importantly, skilled witnesses must not only be experts in their area. As part of fulfilling their duty to the court they must also remain impartial and independent and be fully advised on the detail of the case. If the circumstance of their instruction show they may not be, their evidence may be ‘inadmissible’ or deemed to have less weight, all of which could affect the outcome of the case.
Another recent decision of the Court of Session involving a skilled witness – Taylor v Dailly Health Centres - showed that those instructing experts must make them aware of any contradictory evidence that exists. The case highlighted that where expert witnesses need to work from the evidence provided by eye witnesses, it’s important that information is as complete, accurate and consistent as possible. There the court noted that the evidence of one of the expert witnesses was provided on a factual basis different to the one which the court found was established. Those thinking of using an expert witness should ensure that they can put forward one who can remain independent, impartial and knows the full details of the case. Failure to do so may lead to the evidence of skilled witness being deemed inadmissible or of lesser value, and, ultimately, to the loss of the case.
The obligations on skilled witnesses were clearly outlined in the 2016 Supreme Court case of Kennedy v Cordia: • Make sure that the evidence they give is not influenced by the fact that the issue is going to court • Provide independent assistance to the court by giving an objective and unbiased opinion in relation to matters which are within their expertise • Ensure they do not act as an advocate for either party – their job is to assist the court by speaking about facts, not the rights and wrongs of the case • Set out the material facts and assumptions which they have based their evidence upon
Sarah Phillips is a Director specialising in defender litigation at Anderson Strathern LLP
• Make it clear when they cannot answer a particular question because it is outside of their expertise • Make it clear that their opinion is provisional only if they do not have all the data they need in order to provide a definite opinion EXPERT WITNESS JOURNAL
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TCC Criticises "Partisan" Experts Again ► Experts who are not sufficiently independent do not find favour with the courts ► Experts and lawyers should take careful note of the principles governing expert evidence ► How to avoid serious transgressions of the rules on expert joint statements What's it about? In two recent cases, the TCC highlighted again the importance of expert impartiality and the necessity for experts and their instructing solicitors to adhere to the rules which govern expert evidence as set out in the Practice Direction to Part 35 and the TCC Guide.
statement. The Judge confirmed that the TCC Guide envisages that an expert may, if necessary, provide a copy of the draft joint statement to the solicitors, but that: ► the expert should not ask the solicitors for their general comments or suggestions on the content of the draft joint statement; and
In Imperial Chemical Industries Limited v Merit Merrell Technology Limited [2018] EWHC 1577 (TCC) the court considered quantum issues in relation to a dispute arising from a contract between Merit Merrell Technology Ltd ("MMT") and Imperial Chemical Industries Ltd ("ICI") for works at a paint manufacturing facility.
►
the solicitors should not make any comments or suggestions, save for in the very limited circumstances identified in the TCC Guide at paragraph 13.6.3 and the Practice Direction to Part 35 - where legal representatives are concerned that the experts' views as stated in the joint statement may have been infected by some material misunderstanding of law or fact and any such comments should be made to all experts involved.
Both parties’ experts approached the valuation of MMT’s final account differently. MMT’s expert valued the works in accordance with the Contract and taking the factual context with regard to various interim assessments reached between the parties, whilst ICI’s expert undertook the exercise based on actual cost, in most instances ignoring the interim assessments and agreements.
Why does it matter? An expert who is partisan or who breaks the rules governing expert evidence will not help his client in court. The comments in both cases highlight the importance of independence in expert evidence and are a helpful reminder: ► of the guidance set out in Practice Direction 35;
Justice Fraser, preferring the evidence of MMT, in his judgment, considered the independence of ICI's experts and noted that they were "not sufficiently independent of the party who has instructed them". He raised concerns that all four experts called by ICC were found "to have been lacking in independence" and hoped that this lack of independence would not become "part of a worrying trend in this respect".
►
that experts should consider all issues relevant to their report and should not identify versions of the facts to be preferred over others – this is the job of the courts;
►
that the principles that govern expert evidence must be carefully adhered to, both by the experts themselves and the legal advisers who instruct them;
In the case of BDW Trading Limited v Integral Geotechnique (Wales) Limited [2018] EWCH 1915 (TCC) (in which it was held that IGL had not failed to give proper advice in respect of asbestos risk) it became apparent during the trial that one of the experts for IGL had shared the first draft of the joint expert statement with his instructing solicitors for comments and made changes to the draft as a result of the solicitors' comments on the statement.
► that the duty of the expert is to the Court; and ►
that the utmost care should be taken when instructing experts so as not to compromise accuracy and independence. Many thanks to THOMAS HURST - Managing Associate SARAH WILSON - Associate www.addleshawgoddard.com © 2018 Addleshaw Goddard LLP. All rights reserved. Many thanks for permission to reproduce this article.
In deciding the case HHJ Stephen Davies issued valuable guidance on expert joint statements noting that there was a "serious transgression" by the expert witness in seeking solicitor's comments on a draft joint EXPERT WITNESS JOURNAL
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Welcome to the Expert Witness Journal Hello and welcome to the 26th edition of the Expert Witness Journal. Inside this issue we have a mixture of articles, we have informative articles on UK Forensic Science Strategy, Money Laundering, Crypto Currency and Confiscation Orders. Plus Digital Forensics and Selecting a Digital Forensics Expert Witness by Jason Bergerson and Alistair Ewing, Noise Nuisance and the Expert Witness by Dick Bowdler, Fire Investigation by James Holder and Psychological Injury, Cyber Crime and Data Breach Damages, by Hugh Koch. Once again we are proud to be working in conjunction with the Forensic Expo. The Forensic Expo is Europe’s largest gathering of forensic experts covering digital, forensic, laboratory, scene of crime and many more areas. The Expo takes place at Olympia London from March 5th to 6th. Please pop by our stand and say hello. Our next issue will feature a wide range of personal injury related topics including, MedCo review, scarring and rehabilitation, training, changes in the law, plus our usual 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, all the staff at Expert Witness would like to wish all our readers a happy and healthy new year.
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 Exper t 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 2019. Expert Witness Publishing Limited, Unit 1/06, Ivy Business Centre, Crown St, Failsworth, Manchester M35 9BG
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AI Will Free-up Solicitors, Report Says Artificial Intelligence (AI) will free up solicitors from lower-level work to carry out more complex tasks, a new report concludes. The Solicitors Regulation Authority (SRA) has published a paper which looks at innovations in technology affecting the legal service sector. The report shows that rapid developments in AI will mostly be focused on back-office functions, addressing out the less complex work.
Paul Philip, SRA Chief Executive, said: “There is no doubt that new technology has already improved the way legal services work. Latest surveys show that 30 percent of legal work is now delivered online and the business use of emails has speeded up many tasks. “Our report highlights the potential for technology to add further value in the workplace and we are looking further at how AI can enable the provision of high-quality legal services through the government Pioneer Fund award. Many firms are already exploring the possibilities and I would urge all law firms to consider how technology can help you and your business.”
This will allow solicitors to focus on more complex parts of a case or increase their capacity to engage with clients and potential clients. Using AI for legal services could also see firms reduce their costs as overheads for ‘virtual’ parts of a business are lower. And attitudes about using new technology will change as it becomes more commonplace.
Various reports have been published elsewhere on the attitudes of the profession towards the use of technology, and other areas of innovation, and the progress that is being made.
The paper also outlines the quality of legal work carried out by computers. While it is not 100 percent accurate in various tests, it has never proven any less accurate than work carried out by humans. In some cases, it is more so. However, while in one test it took real-life lawyers 92 minutes to complete a task, AI finished the job in 26 seconds.
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The SRA have dedicated pages for those looking to find new ways of working, with the aim of increasing access to justice, competition and choice for clients. The paper on technology and the SRA Innovate pages can be found by visiting their website.
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Contents
Some of the highlights of this issue Events and Training
page 5
Book Review Clinical Practice & the Law - A legal primer for clinicians.
page 7
My First Christmas in London by Dr Bashir Qureshi
page 8
The Treasury Report on Crypto-assets page 15 by Andrew Henderson, James Burnie, Zia Ullah & David Cook at Eversheds-Sutherland. Crypto Assets, Financial Crime & Forensic Accounting by Paul Doxey
page 18
Hidden Assets in Confiscation Proceedings by Rob Miller, director and co-founder of Inquesta.
page 21
Money Laundering by John Binns
page 23
Digital Forensics and Selecting a Digital Forensics Expert Witness by Jason Bergerson and Alistair Ewing
page 26
Forensics Europe Expo preview
page 32
UK Forensic Science Strategy, GSOH, Seeks Joined-up Thinking for LTR by Jo Millington
page 34
Atrociously Bad Interest Rate Decisions by Mr Peter Crowley
page 37
Noise Nuisance and the Expert Witness by Dick Bowdler, Noise Consultant
page 43
Fire Investigation - ‘Completing the Jigsaw’ by James Holder
page 47
Psychological Injury, Cyber Crime and Data Breach Damages by Hugh Koch
page 53
Dealing with Service Users Who Bite, Scratch or Spit Foreseeable Risk by Joanne Caffrey, Expert Witness & Specialist Training Provider Safer Custody
page 56
Results from the Times & Bond Solon Annual Expert Witness Survey 2018 by Mark Solon, Chairman of Wilmington Legal & founder of Bond Solon
page 59
In a Foreign Land - by Mr. Bernard J B K
Page 61
Darnley V Croydon Health Services NHS Trust Mr Mike Paynter - Emergency Nursing Expert Witness – Apex Health Associates
page 68
Ethics and the Expert Witness by Martin Burns RICS, Head of ADR Research and Development
page 72
Domo Arbitrato, Mr Roboto: Where and Under what Rules page 77 Will we be Arbitrating, Commercial Arbitration Claims in 2028 By Dorothy Murray (London) and James McKenzie (Hong Kong)King & Wood Mallesons Preparing For a Hot Tub - by Dr Chris Danbury
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Art Buyer Sues Christie’s for Failing to do its Homework The buyer of a Nazi-looted painting claims Christie’s auction house did not research the work’s provenance thoroughly enough before it sold it to him.
ments stored by the US National Archives and Records Administration. Christie’s maintains it performed all reasonable checks on the artwork and that only four lost art databases were available and routinely investigated prior to the sale of the Sisley in 2008. One of the databases used by Mondex did not become digitally available until approximately two years after the auction. Christie’s also reiterated its commitment to identifying stolen artworks.
French art dealer, Alain Dreyfus, argues that if the auction house had dug deeper into the archives it would have discovered that Alfred Sisley’s ‘Premier jour de printemps à Moret’ (‘First Day of Spring in Moret’ 1889) had belonged to a Jewish collector in Paris. Alfred Lindon, né Lindonbaum, hid the painting in a Chase Bank safe and fled Paris when Hitler invaded in 1940.
Lindon’s heirs agree with Dreyfus that Christie’s did not sufficiently research the painting’s provenance prior to the sale. They are negotiating the return of the painting with Dreyfus. Whether or not Dreyfus will secure his refund from Christie’s after launching legal proceedings remains to be seen but he is determined. “With Christie’s, it’s war,” he vowed.
According to art recovery company, Mondex Corporation, the work was confiscated by the Nazis and stored at the Jeu de Paume. At one stage, it found its way into the private collection of Nazi official Hermann Goering. Dreyfus, who has a gallery in Basel, bought the Sisley from Christie’s New York in 2008 for US$338,500 (£253,089). At the time, there was no indication from the auction house that the painting was spoliated. In light of Mondex Corporation’s investigation, Dreyfus is suing Christie’s for a refund of the purchase price together with 8% interest.
Head of Mondex, James Palmer, warned art buyers to learn from the Dreyfus case and insist auction houses indemnify them against purchasing works, which might form the subject of future ownership claims. “This would likely encourage auction houses to be far more accountable and therefore to stop selling stolen art”, Palmer explained.
Mondex argues that if the auction house consulted a directory of looted items published in France in 1947 it would have discovered that ‘First Day of Spring’ was among several paintings by Sisley stolen by the Nazis. Evidence of the theft is also recorded in docu-
This article was originally written by Rachel Feldman for Art Law & More, a dedicated art law blog by Boodle Hatfield LLP. Many thanks for permission to reprint.
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Courtroom Skills training is delivered by Michael Williams, a practising barrister. You will benefit from his many years of experience in investigating offences and prosecuting or defending cases in courtrooms and tribunals. Our course is continually reviewed so you’ll always receive the most up-to-date guidance available.
Expert Witness Training for Medical Professionals 14 March 2019 Oxford Spires Hotel Inspire's Expert Witness training is designed specifically to guide and prepare medical professionals in the essentials of medico-legal practice. This two day CPD course explains the practicalities of setting up a medico-legal practice, what to expect from instructing parties, the legal procedural rules that govern expert witnesses, successful report writing, preparation of joint statements with opposing experts, meetings with counsel and giving evidence in court.
If you are a Healthcare professional or are in a related profession we have adapted this course especially for specialised area. Please click here for further information. What does Expert Witness Skills training cover? The day starts with removing the mystique which can surround courtroom processes. You’ll learn about the various roles of everyone involved as well as how to take the oath and deal with cross-examinations.
Inspire MediLaw, Merchant House 5 East St, Helen’s Street, Abingdon, OX14 5EG Phone: 01235 426870 Email: info@inspiremedilaw.co.uk Website: www.inspiremedilaw.co.uk
Other areas covered include: Understanding the adversarial process The practice and procedure of giving evidence Preparing to give evidence ‘Hot-tubbing’ of expert evidence The role and purpose of evidence-in-chief, cross-examination and re-examination Coping strategies The ‘Ten Golden Rules’
RICS Expert Witness Certificate Founded on the official RICS Professional Guidance, this blended learning programme will ensure you develop the core competencies needed to be an effective expert witness. Date: Mon 4 Feb 2019 - Fri 10 May 2019 Time: 09:00 AM - 05:00 PM Venue: Birmingham, Birmingham.
As defence lawyers often focus on decisions made by investigators and managers, the course also includes guidance on making decisions and recording the thinking behind them. You’ll end the course by
Date: 04 Mar 2019 Location: Edinburgh Address: RICS, 125 Princes Street, Edinburgh, EH2 4AD EXPERT WITNESS JOURNAL
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undergoing or observing a simulated cross-examination exercise so you’ll know what to expect in the courtroom.
Discussions between Experts This course will provide experts with a comprehensive overview of what these discussions entail, possible pitfalls and the implications if best practice is not followed.
Who should attend Expert Witness Skills training? The training will meet the needs of professional and expert witnesses who are to appear in courtrooms, tribunals or misconduct hearings. You’ll also benefit from the course if you are one of the following: Police, military or public sector investigator Police analyst Crime scene investigator Investigator Social worker Child care practitioner Human resources professionals
Concurrent Expert Evidence (Hot-Tubbing) An intensive one-day course, providing civil expert witnesses with the core skills and knowledge to give concurrent expert evidence in court. Masterclass in Report Writing This masterclass is designed for experts who have already undertaken the Excellence in Report Writing. The course acts as a useful refresher and is designed to enhance your report writing skills to an advanced level. Masterclass in Courtroom Skills The advanced masterclass is designed for expert witnesses who have already undertaken the Courtroom Skills. Experts should consider this course every 2-3 years to refresh and enhance their skills in giving evidence.
Courtroom Skills Training In House The Courtroom Skills training course can be delivered at an approved Sancus venue, or at your own premises for maximum convenience, for as little as £1,350 +vat (£1,450 +vat if within the M25 radius) for up to 12 delegates.
GDPR for Expert Witnesses Toolkit This toolkit will help you understand what the General Data Protection Regulations means to you as an expert witness and provide you with tools you are most likely to need to comply with the GDPR.
Contact us Unit 8G, Lockside Office Park, Lockside Road, Preston PR2 2YS Tel: 01772 282800 E-mail: enquiries@sancussolutions.co.ul. www.sancussolutions.co.uk/expert-witness-courtroom-skills-training/
To secure your place, either book online or call us on 020 7549 2549 or visit; www.bondsolon.com
Bond Solon Expert Witness Courses Excellence in Report Writing This course provides expert witnesses with the key skills to produce court compliant reports. Experts will learn how to produce quickly and consistently reports that are both court compliant and will withstand cross-examination. Courtroom Skills This one day course will provide expert witnesses with the core skills to effectively present opinion based evidence in court under cross-examination.
INFORMED, ASSURED, INSPIRED Inspire MediLaw is a provider of first class conferences, accredited training and CPD events in medicine and law. We provide knowledge for medical experts who need to understand the law and for lawyers who need to understand the medicine. Inspire MediLaw is passionate about bringing medical and legal professionals together to learn, shape best practice and share ideas.
Cross-Examination Day A follow on day to the Courtroom Skills Training, this course enables expert witnesses to refine and enhance their skills in presenting evidence in court.
Benefits of Inspire Expert Witness Training With a wealth of experience in the legal and healthcare sectors, we are uniquely placed to offer this RSM accredited expert witness training and follow up, carefully tailored to your medico-legal requirements.
Civil Law and Procedure This course provides civil court experts with a comprehensive understanding of their requirements of CPR Part 35, Practice Direction 35, the Protocol for the Instruction of Experts and practice direction on pre-action conduct.
This includes: v Interactive training sessions with experienced clinical negligence v professionals; v GMC and GDPR advice sessions; v Comprehensive course materials for easy future reference; v Marketing of your expertise to our network of lawyers; v Advice on presenting your CV; v Networking and speaking opportunities; v Ongoing coaching and mentoring by our experienced panel of lawyers and medical experts; v CPD accreditation.
Criminal Law and Procedure This course provides criminal court expert witnesses with a comprehensive understanding of their requirements under Part 33 of the Criminal Procedure Rules.
To find out more about Inspire MediLaw, upcoming conferences for expert witnesses, and other course dates for 2019 visit their website at www.inspiremedilaw.co.uk or contact Caren Scott or Vikki Forrester on 01235 426870 or email: info@inspiremedilaw.co.uk.
Family Law and Procedure This course provides family court expert witnesses with a comprehensive understanding of their requirements under Part 25 and 25A. EXPERT WITNESS JOURNAL
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Book Review Clinical Practice and the Law A legal primer for clinicians. Author G Eyre, published by Professional Solutions Publications. London. 2018. The book briefly and clearly explains long-standing and also more recent legal judgments such as Bolam, Bolitho, Montgomery, Thefaut and more recently Hassell. With each judgment, a doctors’ obligation to provide clear, logical patient-orientated advice has become more and more established. Whilst this might on the face of it make a doctor feel more insecure, in reality by understanding the simple principles outlined in this book, the doctor should become more immune to legal scrutiny.
I am privileged to be asked to review this book by the author, Giles Eyre. He has recently retired as a Barrister, having become a leading educator for doctors and others in becoming Expert Witnesses, based on a long and illustrious career in the field of personal injury and clinical negligence, The book is remarkably short – just 135 pages – and can be read within three or four hours. It is beautifully laid out with clear chapters each with a brief introduction followed by logically arranged headings and subheadings. Key points are highlighted in concise text boxes.
Another strength of this book is the repeated emphasis on how established good medical practice as defined by the GMC merely reflects the expectation of the law. Simply by following good medical practice much of the perceived threat of litigation will just fall away.
Reading this book would benefit all doctors both junior and senior. Why? Because the work of all doctors is inextricably linked with the law. Every time we meet a patient we have a Duty of Care. Every interaction with a patient (whether in person or in writing) might one day be scrutinised in a negligence claim. We have to interact with police enquiries and coroners’ inquests. Some of our patients have issues with mental capacity for which clear legal laws apply. We face issues of consent for transfusion and unconscious patients. General Data Protection Rules are the latest threat to our peace of mind.
Even though I have been in consultant practice for over 20 years and an Expert to the Court on medical negligence cases for several years, I found countless wise tips which I will integrate into my practice. These will include routinely recording my logic on every decision, making sure that informed consent is viewed entirely from the patient’s perspective, and writing to the patient in clear non-medical terms rather than to the GP in medical terms after a clinical consultation.
Many doctors probably feel threatened or even hostile to the legal profession. Perhaps the doctor fears unfair scrutiny of his work, more for the gain of the lawyer than the patient. This book goes a long way to dispelling this misconception. By reading the book, a doctor will understand the legal context of clinical practice. The book starts with an explanation of how lawyers and the Court examine evidence (be it oral or written) in a tidy, logical and forensic way. By understanding this, a doctor’s record keeping will inevitably improve and will provide a robust defence at a later date were his clinical practice to be questioned. Having read this book, there is no doubt that I will spend more time recording all key clinical findings, more fully explaining consent and to explain explicitly my clinical reasoning for any particular decision or recommendation.
This really is an excellent practical guide and I would recommend it wholeheartedly to all doctors. It is a gentle, easy read and yet so apposite to current practice. David Warwick Chair BOA Medicolegal Committee Consultant Hand Surgeon, University Hospitals Southampton davidwarwick@handsurgery.co.uk
The book also talks the reader through the process followed when things go wrong in clinical practice. Genuine mistakes rather than negligent errors are common; the obligation for Duty of Candour is emphasised - it does not mean an admission of negligence. If things go properly awry, then the Author explains how to engage with the potential clinical negligence process, Fitness to Practise assessment or disciplinary proceeding. EXPERT WITNESS JOURNAL
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My First Christmas in London; a White Experience with Cultural, Religious and Ethnic Surprises by Dr Bashir Qureshi MBBS, FRCGP, FRCPCH, AFOM-RCP, Hon FFSRH-RCOG, Hon FRSPH, Hon MAPHA-USA. Author of Transcultural Medicine, dealing with patients from different Cultures. Expert Witness in Cultural, Religious & Ethnic Issues in Litigation. • Charge nurses were merrier at Christmas. I was amused, bemused and confused. What a new white world. As a child, I learnt that angels were white, made of light.
My first Christmas in England, on 25 December 1964, was a white Christmas for me, in true sense. I was born in India, medically qualified in Pakistan. I started work in Whipps Cross Hospital, London, on 1st September 1964. On Xmas day, I saw for the first time that: • The ground, cars, trees, rose bushes and buildings were covered with snow.
• A Charge nurse, advised me on my first night of ward round on the Christmas eve “Doctor, write a laxative for each patient and the night nurse can choose to give it, without waking you up to write it.” Then he winked at me and said “If you keep their bowels open, they would keep their mouths shut!”.
• The patients, other doctors, the matron, nurses, some nuns who were nurses, paramedics, porters and all other staff including cleaners were white.
• I was taken aback as I knew that winking, by a male or a female, is a sexual gesture in the East! I was startled to see that a Charge nurse was winking at me; a strictly heterosexual soul. I learnt later on that “winking” is a benign friendly gesture in the West. No Easterner needs to worry. This was the beginning of my strong interest in pioneering new disciplines of “Transcultural Medicine” and “Transcultural Litigation”.
• There were some male nurses. This was new for me. A charge nurse was called “Mr Rowbottom." He was a cockney, born in east London within sounds of Bow bells. • Pearly kings and queens came to hospital, sang carols and danced. I saw western dancing for the first time. England was so peaceful, no war. Everyone looked happy and praised the Lord. I thought it was akin to what, I had been told, is in heaven.
Above, Dr Bashir summer 2018 Beolw, Dr Bashir Qureshi on 22.6.1964 - Arrived in London
• The ward sisters waited for a male consultant to cut a turkey and cake, for Christmas lunch. He wore a Father Christmas costume. The scene was magical. • On the Christmas day ward round, as a houseman, I was pushing a trolley, full of bottles of wines and spirits. The consultant poured every patient’s choice in a glass and the ward sister, with unusual smile, offered it to each patient, including the one with alcoholic cirrhosis, with a greeting “Merry Christmas & a Happy New Year.” • I joined nurses in carol singing, without opening my lips. I did not know carols and the singing tone, but I joined in. Since then, I am skilled in tactful team working. • Traditionally, some ward nurses, called “sisters” were very powerful under the Matron’s rule. They even influenced consultants in decision making. Ironically, I observed that one in three ward sisters were unkind to house doctors, especially to female doctors. However, their staff nurses were extremely nice. They were all nicer at Christmas time. Fortunately, I was alright, as I am cheerful, careful and tactful. EXPERT WITNESS JOURNAL
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That Christmas, I had thick black hair, a moustache turning upward, slim figure, and no sense of humour. I was a typical Easterner, but nurses thought that I was very handsome. As a result of my age and westernisation over last 54 years, I shall not need a comb this Christmas. I am not a slim guy anymore, but I have acquired a British sense of humour, including satire. I enjoy western music and dancing. I like helping people. Yesterday was history, tomorrow is mystery, I enjoy today. I hope to remain a jolly good Fellow for many Christmases to come. I wish readers a very merry Christmas 2018 and a happy new year 2019.
Dr Bashir Qureshi FRCGP, FRCPCH, Hon. FFRSH, RCOG, AFOM-RCP, MICGP, DCH, DHMSA, DPMSA, FRIPH, Hon.FRSH, Hon.MAPHA-USA
Expert Witness in Cultural, Religious & Ethnic Issues in Litigation. Expert Witness in GP Clinical Negligence. 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.
Dr Bashir Qureshi Email. drbashirqureshi@hotmail.com Web: www.drbashirqureshi.com
Languages spoken: English, Urdu, Hindi, Punjabi. Author of ‘TRANSCULTURAL MEDICINE’ Dealing with Patients from different Cultures, Religions & Ethnicities.
Contact: Tel: 0208 570 4008 Fax: 0208 570 4008 Mob: 07710 402 276 Email: drbashirqureshi@hotmail.com Web: www.drbashirqureshi.com 32 Legrace Avenue, Hounslow West, Middlesex TW4 7RS Above, Dr Bashir Qureshi on 25.6.1964 - Outside 10 Downing Street, London. All photgraphs courtesy of Dr Bashir .
Dr Ian Starke
Mr Kim Hakin
Consultant Physician in Stroke Medicine and Geriatric Medicine
FRCS, FRCOphth
MSc, MD, FRCP.
Mr Kim Hakin is a Consultant Ophthalmic Surgeon providing ophthalmic services (NHS & Private.) He undertakes medico legal work at; Optegra Eye Hospital Central London. 25 Queen Anne Street, London, W1G 9HT. The Nuffield Hospital, Taunton, TA2 6AN.
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.
Special interests include: cataract surgery, ocular trauma, eyelid & lacrimal surgery including cosmetic eyelid surgery, facial laser surgery.
He has provided expert examinations and reports for immigration and HM prison services. He is able to assess clients within or outside London.
Mr Hakin holds the Expert Witness Certificate from Bond Solon/Cardiff University, is a member of The Expert Witness Institute. Also formerly Expert Advisor to Nuffield Hospitals and Healthcare Commission, and regularly undertakes work for organisations such as the General Medical Council, Medical Defence Union, Medical Protection Society, NHS Resolution as well as many solicitors' firms and legal agencies.
Contact: University Hospital Lewisham Lewisham High Street, London SE13 6LH Tel: 0208 333 3379 Fax: 0208 333 3381 Email: ianstarke@nhs.net
Tel: 01823 250614 Mob 07887 651551 Email: kimhakin@aol.com, or kimhakin1@gmail.com Web: www.kimhakin.com All correspondence to Nuffield Health Taunton Hospital, Staplegrove Elm, Taunton TA2 6AN, or by email.
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Patient Satisfaction After Total Knee Replacement by Mr Nikhil Shah, Consultant Trauma and Orthopaedic Surgeon sistent pain even in a well-aligned and well-fixed joint. Complex regional pain syndrome can be an infrequent but important cause of post-operative pain which is quite difficult to treat.
Total knee replacements (TKR) performed for severe painful knee arthritis (figure 1) in well-selected patients are generally successful operations in improving the pain levels and mobility. However there remains a significant proportion of patients who are unhappy with the outcome of their new knee. Recent studies show that apart from claims for technical errors, there has also been a rise in claims for non-specific dissatisfaction.
Another common reason for dissatisfaction is stiffness, or failure to obtain the range of movement the patient expected. This can be due to technical problems or due to a condition called arthrofibrosis which leads to scar formation inside the knee replacement.
This percentage of patient dissatisfaction is approximately 20-25% (range 10-50%) in published literature. That means every 5th patient with TKR could potentially be dissatisfied or even bitterly disappointed with the outcome. The satisfaction levels are even lower in younger patients, who are coming up for knee replacements with increasing incidence. This may happen even if the surgery is deemed to be otherwise successful using objective parameters and is technically well-performed.
Dissatisfaction may lead to compromise of the doctor- patient relationship and can be a reason for litigation. It is important to carefully select patients and avoid total knee replacements with lower grades of arthritis as shown in many studies. It is important to appreciate the role of conservative management in early stages of arthritis or to consider other joint preserving options in the appropriate indications. Managing expectations and thorough counselling is vital. Patients must understand the goals and limitations of surgery. It is worth spending time to explain the importance of correcting modifiable risk factors such as smoking and high body mass index. A good preoperative patient education programme is also very helpful in preparing the patient for surgery. Preoperative counseling regarding the risks of incomplete pain relief could substantially reduce the number of unhappy patients and legal claims.
It is important to understand the reasons for dissatisfaction to try and minimize the number of unhappy patients. Patients expect pain relief, improved walking, return to work and sports, and improved feeling of well-being. However, studies show that many patients are overly optimistic and have unrealistic expectations of the expected outcomes after TKR. Patient satisfaction is difficult to define and even more difficult to measure. It encompasses unfulfilled expectations, incomplete pain relief, reduced movement, persistent limp, problems returning to work or to an active lifestyle, complications, and also their overall experience of the healthcare system under which they had the surgery.
Mr Nikhil Shah Consultant Trauma and Orthopaedic Surgeon Wrightington Hospital Figure 1.
It is recognised that physical as well as psychological factors (pre-existing depression, somatization dysfunction) both contribute to dissatisfaction. Health related factors such as multiple previous knee operations, medical comorbidities, and high BMI are associated with lower satisfaction. It is well-recognised that performing a total knee replacement for less severe grades of osteoarthritis in patients who are otherwise functioning quite well, is also linked to dissatisfaction. Persistent residual pain is one of the most common reason for dissatisfaction in clinical practice and also a common reason for litigation. A painful total knee replacement needs thorough evaluation to find out if there is a correctable cause such as infection, loosening of the components, instability, malalignment, or patellar maltracking. However there can be perEXPERT WITNESS JOURNAL
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A Special Unit set up to Freeze and Seize the Assets of Criminals Operating in Prisons has Claimed its first Success The Financial Investigations Unit froze the bank account of a convicted murderer at HMP Gartree containing almost £8,000 and, following an investigation, seized the assets. The prisoner was thought to be involved in unlawful activity within the prison.
Bank accounts on the outside world, used by inmates to pay for drugs, are usually identified through paper notes found in cells which contain account details, or on phones seized from prisoners with instructions to make transfers. Such transactions, which amount to money laundering, are targeted by the unit.
This seizure is a first for the unit, which was created last year as part of a wider effort to disrupt the organised crime in prisons which fuels drug use and violence.
In this case the unit identified a key bank account belonging to an offender, a convicted murderer, that had received a number of suspicious deposits.
The unit is made up of specially-trained prison service analysts and police financial investigators who use intelligence to identify bank accounts used for illicit transactions. They have the power to freeze bank accounts and make arrests.
The unit will continue to analyse intelligence and work quickly to act against offenders suspected of criminal activity. It is part of a wider effort to restore stability to the prison estate, including an additional £70 million investment in safety, security and decency. This will ensure prisons can be places of rehabilitation where offenders can turn their backs on crime for good.
Justice Secretary David Gauke said: Last year I announced a new specialist unit to seize the assets of prisoners who commit crime and fuel violence in jail, and I am pleased it has achieved its first success. This unit forms an important part of our wider strategy to tackle organised crime and restore stability to prisons so that offenders have the chance to turn their lives around.
The investment includes £16 million to improve conditions and £6 million on new security measures, such as airport-style security, improved searching techniques, and phone-blocking technology. To help identify, disrupt and disable gangs, £1m went towards the roll-out of a new digital tool which assesses information from various law enforcement databases to create a central ‘risk rating’ for each prisoner.
Organised criminals in prisons have been known to operate money laundering schemes to receive payment for illicit debts, often as a result of drug deals. Much of the activity takes place through single lowvalue transactions, making them difficult to find.
In addition to this, £14 million is being invested each year to stop criminal gangs smuggling drugs into prisons.
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. 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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The University of Law Selects Nottingham as the Home for its Tenth Campus and Tech Hub The UK’s longest-established specialist provider of legal education and training in the UK, The University of Law (ULaw), has announced plans to open a new campus in Nottingham. The campus, located at One Royal Standard Place, will officially open for teaching in September 2019. News of the tenth campus launch comes hot on the heels of the announcement two weeks ago that ULaw will open its ninth and first overseas campus, in Hong Kong also in September 2019.
• LPC full-time and part-time (day, evening and weekend including an option to add an MSc in Law, Business Management or LLM in Professional Legal Practice at no extra cost) • Postgraduate Diploma in Legal Technology (full-time) • MSc Legal Technology (full-time) • LLB Law two, three and four years (full-time) • LLB Law with Criminology three and four years (full-time) • LLB Law with Legal Innovation and Technology three and four years (full-time)
Ideally situated within Nottingham’s stunning One Royal Standard Place, ULaw’s latest campus will benefit from all the amenities available in the city centre. The central location of the campus also places it in the immediate vicinity of local firms and businesses, which is integral to ULaw’s core objective of building strong local connections throughout the city.
To celebrate the inaugural year in the City of Nottingham ULaw is also launching the ‘Nottingham Postgraduate Award’, available to all postgraduate students starting at the Nottingham Campus in September 2019. The £1,000 award will be offset against the course fee.
ULaw will bring its renowned courses, which have had consistent success nationwide, to Nottingham and the surrounding areas. On launching next year, ULaw will offer the Legal Practice Course (LPC), Graduate Diploma in Law (GDL) and MA Law. ULaw Nottingham will also be a tech hub with the launch of an LLB with Legal Innovation and Technology, as well as the MSc Legal Technology.
ULaw already has well established links to law firms in the city and will be building on these and forging new long-lasting relationships with many other local firms and businesses. It is this approach of creating a network of industry partners and connections that has formed the foundation of ULaw’s continued success and growth, allowing the University to design its courses based on real insight from employers on the skills that are most in-demand; ensuring graduates have a highly-desirable skillset upon qualifying.
For undergraduates, ULaw Nottingham will offer distinctive and unique LLB courses including a two-year accelerated LLB. With ULaw’s unique ‘Switch It Up’ offer, students are able to move from one ULaw campus to another, should they wish to experience life in more than one city or switch courses to ULaw. The University’s Business School, launched in 2016 with a view to providing innovative courses to equip students with real world business skills, will also offer a range of programmes in business and accounting at both undergraduate and postgraduate level at the new Nottingham campus, from 2020. Additionally, the campus will provide professional development courses to law firms and executive education more widely.
Victoria Garrad, Group HR Director at Gateley Plc, said: “We are proud to have partnered with The University of Law for more than eight years as part of our trainee programme and we strongly support the opening of their Nottingham campus. “Every year we take on a new cohort of trainees across all of our offices and currently our Nottingham and Leicester-based trainees have to travel to The University of Law’s Birmingham campus to complete their LPC and GDL courses. We have a strong presence in the East Midlands and it’s important that our trainees begin to develop their professional network in the area early on in their careers, as
While the portfolio is subject to change, the law courses currently planned to launch for September 2019, are: • GDL full-time and part-time • MA Law full-time and part-time EXPERT WITNESS JOURNAL
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well as focusing on their studies; therefore having access to a campus in Nottingham will be highly beneficial for our future East Midlands trainees.”
OGT Forensic Ltd Dr John Douse
Professor Andrea Nollent, Vice-Chancellor and CEO at The University of Law, said: “We are very excited to be launching what will be our tenth campus.
(BA, MA, D.Phil (Oxford), FRSC, FCSFS, F ChromSoc, MEWI, MIExpE)
Independent Forensic Expert Witness Services
“One of our unique strengths is the strong relationships we have forged with law firms. We have taken the time to get to know their businesses, their hopes and their ambitions – to really understand the toolkit they need their trainees to have for success now and in the future. Our courses are all designed with these training needs in mind.
OGT Forensic Ltd provides Forensic Chemistry expert witness services to solicitors and private companies, including provision of laboratory analysis, in the following fields: • TOXICOLOGY (Including Insulin, Alcohol and Ricin) • DRUGS (Including New Psychoactive Substances) • EXPLOSIVES (Including practical experience in IEDS) • INCENDIARIES (Including pyrotechnics and fireworks) • GUNSHOT RESIDUE (Including Organic Residue) • DNA TRACES (Including significance, transfer and QC) • FORENSIC CHEMISTRY (Including Chemical Weapons, Illegal Labs, Counterfeit drugs, Security Dyes, accelerants).
“We are constantly looking for ways to grow and innovate. This innovation will be showcased at our Nottingham campus, where we will launch unique courses covering topics beyond traditional law and business, such as technology and criminology. The way in which we deliver the courses is designed to cater to a diverse range of students too, with flexible learning, modular delivery, block learning and work-friendly teaching models all available.”
We have unrivalled expertise and in house experience,involving pioneering research, casework and court experience in these fields. Legal Aid work and enquiries from Solicitors, Companies and Private Individuals are welcome. Tel: 07766 286 001 E-mail: drjohndouse2@btinternet.com Web:www.forensic-expert.org OGT Forensic Ltd - PO Box 711, Taunton, Somerset TA4 4ZN
Dr Amandeep S Ranu Forensic Physician MBChB MRCGP DRCOG DCH DFFP DipOcc.Med DMJ MFFLM MEWI Cardiff University Bond Solon Expert Witness Certificate (Criminal Law)
Dr Amandeep Singh Ranu currently, holds the position of Senior Forensic Medical Examiner in independent practice providing services to the Metropolitan Police and other constabularies. He is a Registered Medical Practitioner with over 20 years working experience in the UK. His higher clinical forensic training and, working experience has afforded a relevant knowledge-base that renders him capable of expressing an opinion on the subject of injury interpretation. Dr Ranu undertakes work as an expert witness accepting instruction from the prosecution, defence and regulatory bodies in cases concerning the interpretation of injuries, in cases of assault, wounding from knife injuries and blunt force trauma. Expert interpretation includes consideration of ageing of bruising and evaluation of the consistency of injuries with the reported mechanism of injury, including consideration of the likelihood of self-inflicted injury. His expertise also covers the interpretation of injuries sustained by both complainants and detained suspects relevant to Sexual Offence case work in adults and children. Also the care of individuals suspected of involvement in terrorism related offences. Dr Ranu also regularly prepares expert medical reports for the immigration courts, after examining individuals alleging having been subjected to torture and other forms of ill treatment. He is well aware of assessment guidelines outlined in the Istanbul Protocol manual on effective investigation and document of torture and other cruel, inhuman or degrading treatment or punishment. Contact: Dr. Amandeep S Ranu Tel: 07951 048 626.- E mail: drranu.gmc@hotmail.co.uk Web: www.expertphysician.info - Area of work Nationwide
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Award-winning Tech Startup Cyan Forensics Raises Almost £1m in latest Funding Round • Edinburgh-based firm now backed by international investors • This follows UK government award for its cutting-edge work Scottish startup Cyan Forensics, which develops digital forensic technology to help law enforcement catch criminals faster, has closed a £900,000 investment round led by Mercia Fund Managers, bringing its total funding to nearly £1.5million since it was founded in 2016.
UK and start developing our business internationally, as well as exploring other opportunities for our technology in cyber security. The whole team is excited about the success we’re seeing in our first operational deployments and the opportunities in front of us to contribute to public safety.”
Edinburgh-based Cyan Forensics’ technology finds time-critical digital evidence in minutes instead of days, helping police in highly sensitive investigations such as child sexual exploitation and counterterrorism. The company is currently working with customers across law enforcement agencies which are seeing success using the technology operationally.
Paul Devlin, Investment Manager at Mercia, said: “We’re delighted to continue to support Cyan Forensics. This is the latest seed investment, having first backed the team as a spinout from Edinburgh Napier University, they are making excellent progress as they begin to scale up. We believe the business has the potential to make a real difference to the speed at which agencies are able to investigate highly sensitive crime using its innovative forensic technology. The customer base of government and law enforcement agencies is highly impressive and places the company in a great position for future growth.”
The company recently won an award from the UK government for its pioneering work, which recognised Cyan Forensics’ collaboration in delivering practical solutions to safeguard the nation. This latest funding round saw American private investor Don Macleod, a director of Broadcom and former CEO of National Semiconductor, join existing investors Mercia Fund Managers and The Scottish Investment Bank, which both provided funding following their initial investments.
Kerry Sharp, Director of the Scottish Investment Bank, said: “Scottish Enterprise has supported Cyan Forensics from an early stage and it is great to see the progress that has been achieved to develop and commercialise new technology in the area of digital forensics. This round of investment will provide the capital to start expansion internationally and into adjacent markets. We look forward to continuing to work with the company, both from an investment perspective and through our account management support, to deliver its long-term growth ambitions.”
Cyan Forensics, which operates in a market that is expected to grow at 15.9% CAGR, to $9.68billion by 2022, has achieved significant progress with its range of digital forensics products and now has a team of 10 highly skilled professionals, including former law enforcement and military professionals.
Picture above, Ian Stevenson, CEO Cyan Forensics (right) with Paul Devlin, Investment Manager, Mercia Fund Managers
Ian Stevenson, CEO of Cyan Forensics, said: “This latest round of investment will enable us to take full advantage of the market opportunities here in the EXPERT WITNESS JOURNAL
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The Treasury Report on Crypto-assets: The First Step Towards Crypto Regulation? by Andrew Henderson, James Burnie, Zia Ullah and David Cook at Eversheds-Sutherland. The UK's Treasury Select Committee released a report into crypto-assets on 19 September. The Committee’s key conclusion is that regulation of crypto-assets is necessary.
future regulatory environment. This shows links with the current regulatory concerns and is this useful for those in the sector seeking to navigate uncertainty. Regulatory change Regulatory change is the key theme of the Report: In addition to the generally positive tone about the development of an appropriate and proportionate regulatory environment for crypto-assets, the Committee recognise that “crypto-asset” is a preferable term to “crypto-currency” observing that “there are no so-called “cryptocurrencies” that serve all the functions of currency”
Striking a negative tone, it identifies the problems of volatile prices, hacking vulnerabilities, minimal consumer protection, and anonymity aiding money laundering, the fact that Blockchain is “currently slow, costly and energy-intensive” with the potential for data storage uses and the ambiguity of the UK Government and regulators' position is not sustainable. On a positive note, it recognises that, if the UK develops an appropriate and proportionate regulatory environment for crypto-assets and if future innovations in crypto-assets proved themselves as beneficial to society and industry, the UK could be well placed to become a global centre for this activity. Thus, in deciding its regulatory approach, Government should decide if growth should be encouraged.
They also note that since crypto-assets are not widely used as a means of payment, and the linkages to systemically-important firms and markets are negligible, the risk to financial stability arising from crypto-assets is low On a more cautious note, they focus on consumer detriment, the potential role of crypto-assets in money laundering and the inadequacy of self-regulation. This forms the basis for the need for regulation which, at a minimum, should address consumer protection and anti-money laundering
Although providing, at best, an early indication of the precise regulatory response to the issues identified in the Report and while perhaps overstating some of the risks, the Report does give some indication of a EXPERT WITNESS JOURNAL
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To protect investors against mistreatment, the FCA needs more power to control how crypto-exchanges and ICO issuers market their services, by bringing the activities they perform into the regulatory perimeter
to continue, or whether they are going to introduce regulation, consumers remain unprotected. The Committee strongly believes that regulation should be introduced. At a minimum, regulation should address consumer protection and Anti-Money Laundering.
The absence of regulation of crypto-asset exchanges - through which individuals convert crypto-assets into conventional currency - is particularly problematic
In deciding the regulatory approach, the Government and regulators should evaluate the risks of crypto-assets, and assess whether their growth should be encouraged. If growth is favoured, regulation could lead to positive outcomes for the crypto-asset market, including the move toward a more mature business model and increased liquidity. If the UK develops a proportionate regulatory environment for crypto-assets, the UK could be well placed to become a global centre for this activity.
As to money laundering: the FCA should be the relevant regulator for supervising anti-money laundering and the transposition of the Fifth Anti-Money Laundering Directive, which imposes duties on crypto-asset exchanges, is a priority Instead of designing a special regulatory regime, crypto-assets and associated activities should be regulated through extending the Regulated Activities Order and thus providing the FCA with the necessary legal powers to execute its duties of protecting consumers and maintaining market integrity
Currencies act as a medium of exchange, a store of value, or a unit of account. There are currently no cryptocurrencies that perform these functions. As cryptocurrencies are being used widely for speculation, well-functioning cryptocurrencies exist only as a theoretical concept. Accordingly, this Report uses the term 'crypto-assets' as it's more helpful and meaningful in describing Bitcoin and many other 'altcoins'.
Analysis Although a dry point, the preference for the term “crypto-asset” is a helpful clarification in framing, although not necessarily resolving, the issue of regulatory classification and legal nature of crypto-assets. This still leaves open the question of crypto-assets which function like securities and investments and which should already be subject to the existing regulatory regime, albeit that their precise classification, and hence treatment, remains unclear.
A prominent feature of crypto-assets is the volatility of their prices. For example, the price of a Bitcoin increased from $6,472 in November 2017 to $17,629 in December 2017, and fell to $7,208 in February 2018. Investors are exposed to large potential gains, but correspondingly a greater risk of loss. Accordingly, investors should be prepared to lose all their money.
The recognition of specific crypto-asset related activities, such as operating a crypto-asset exchanges, i.e. one where crypto-assets are exchanged into fiat currency or other assets, is also significant and indicates clearly where law-makers see “activity gaps” in the current regime.
Several crypto-asset exchanges, which are used to convert crypto-assets into conventional currency, have been hacked and customers' crypto-assets have been stolen. As there is no collective deposit insurance scheme to compensate investors in the event of a hack, the risk of hacking associated with crypto-assets may not be something that investors in conventional assets have experience of. Therefore, they may not be well placed to judge this risk. This constitutes further evidence that crypto-assets are particularly ill-suited to retail investors.
The report alludes to technical issues but does not develop them. Given its preliminary nature, this is unsurprising but the extended regime for regulating “new actors” is likely to have a heavy technology and operational risk focus with governance and oversight being focused on this. The recognition that an extension of the current financial regulatory regime rather than the creation of a special crypto regime, highlights the fact that crypto-assets are capable of being accommodated within the current regime. A lack of certainty both on scope of the current regime and, more importantly, regulatory power highlights the need for extension.
An additional risk that consumers may not be aware of is that some customers who have lost their passwords to a crypto-asset platform have been told by the firm that runs their account that their password cannot be restored. Thus, there is no recourse for customers who have lost their password, and they are locked out of their account permanently. This oftenunexpected outcome for investors is a stark contrast against how customers of banks, and other regulated financial services firms, are treated.
Summary of the Report and its Key Findings in more detail Crypto-assets, and most Initial Coin Offerings (ICO), are currently not within the scope of FCA regulation. Crypto-asset investors are currently afforded very little protection from the litany of risks, namely there are no formal mechanisms for consumer redress, nor compensation.
The advertisements of both ICO issuers and crypto-asset exchanges are not regulated by the FCA. One-sided adverts imply that the crypto-asset market will only go up, and that anyone can make a lot of money easily. The FCA’s consumer warnings are a feeble corrective to such misleading adverts. The regulator needs more power to control how cryptoasset exchanges and ICOs market their services
Self-regulating bodies in the crypto-asset industry, which set out codes of conduct and best practice for the industry, are wholly voluntary. Inevitably, there are firms that will ignore them. This is clearly insufficient. As the Government and regulators decide whether the current “Wild West” situation is allowed EXPERT WITNESS JOURNAL
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The advertisements of both ICO issuers and crypto-asset exchanges are not regulated by the FCA. One-sided adverts imply that the crypto-asset market will only go up, and that anyone can make a lot of money easily. The FCA’s consumer warnings are a feeble corrective to such misleading adverts. The regulator needs more power to control how cryptoasset exchanges and ICOs market their services.
payment systems. But the Committee does recognise that blockchain technology may have the potential to be a more efficient method of managing certain types of data in the long-term. How Eversheds can help Eversheds Sutherland was the only law firm to submit evidence to the Commons Select Committee, which gave rise to the report. Since advising on the first successful initial coin offering in the United Kingdom, we have been at the forefront of advising firms on crypto assets, blockchain and the FCA sandbox process. We take a flexible approach to providing advice, taking a cross-sectoral and practical approach tailored to the diverse needs of our clients.
Crypto-asset exchanges are not currently included in AML regulations. Owing to this, and their inherent anonymity, crypto-assets can facilitate the sale and purchase of illicit goods and services and can be used to launder the proceeds of crime. The Committee recognises that the EU's Fifth AML Directive, which will require crypto-asset exchanges to comply with AML regulations, is a step forward. However, the Government’s consultation on transposing the EU’s Fifth AML Directive into UK regulation is not expected to finish until the end of 2019. The Committee has urged the Government to prioritise and expedite the transposition.
For more information contact Andrew Henderson Partner +44 20 7919 0898 James Burnie Associate +44 20 7919 0879
Blockchain is an electronic ledger that records and verifies transactions made using crypto-assets. Moving away from its origins with Bitcoin, blockchain has more recently been described as a database that works as a decentralised way of storing large amounts of data. A fundamental drawback of decentralised blockchains is the slow, costly and energy-intensive verification process for transactions. This may ultimately limit the extent to which crypto-assets and blockchain can replace conventional money and
Zia Ullah Partner +44 161 831 8454 David Cook Senior Associate +44 161 831 8144 www.eversheds-sutherland.com
Contact Telephone: 0117 403 7799 Mobile: 07831 784006 Website: www.david-bunker.com Email: davidbunker@david-bunker.com Address: 66 Gloucester Road, Bristol BS7 8BH David Bunker is a member of the Academy of Experts and is an experienced mediator, arbitrator and a member of the President’s Appointments Scheme panel. He is appointed by the Institute of Chartered Accountants to deal with disputes referred to it. For over fifteen years David Bunker has been applying his expertise as a Chartered Accountant to the resolution of business disputes. This can take a number of different forms: Acting as an Arbitrator David is a Member of the Chartered Institute of Arbitrators and is experienced in acting as a single or joint Arbitrator in disputes between shareholders and business partners. Acting as an Expert Determiner David is a Member of the Academy of Experts and is called upon as an independent expert to report and determine the outcome of disputes arising out of accounting issues, such as the valuation of a business or the agreement of the proceeds on a business sale. Party Expert. David is experienced at acting as an expert for one party to a dispute, preparing reports for consideration within that dispute, and working with the appointed legal team. Mediator David has wide experience as commercial mediator working with parties in dispute.
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Crypto Assets, Financial Crime & Forensic Accounting In this article I explain how cryptocurrencies are used to launder illicit funds and how this affects the asset tracing work of forensic accountants. US authorities,1 the Silk Road site generated approximately $1.2 billion in sales revenue and $80 million in commissions – all of which was in bitcoin. Ulbricht was eventually caught and convicted, but only through old fashioned forensic investigation and not by breaking bitcoin’s security technology. However, his conviction was assured by another key feature of bitcoin, its tamper-resistant method of record-keeping – more on that later.
Forensic accountants use their expertise in finance, accounting and transaction processing systems to investigate fraud and other financial wrongdoing. Their work includes assisting clients on financial crime risks and controls, detection, investigation and litigation support, as well as asset recovery. Two aspects of this work are money laundering and asset tracing. Money laundering is the transformation of the proceeds of crime from their original form (such as cash) into new assets and locations to disguise their origin and make them appear legitimate. Typically, the assets may have been moved through a complex chain of entities, such as bank accounts, companies, trusts and special purpose vehicles. Often these will span multiple jurisdictions. All this is done to ensure the trail is as hard to follow as possible. What began as cash received through a UK Ponzi scheme might end up in mega yachts in Monaco, property in Spain and blue-chip investments in the London Stock Exchange. The money could be laundered via companies in Switzerland, bank accounts in Guernsey, trusts in the Cayman Islands and law firm client accounts in Gibraltar.
Russian interference in the 2016 US presidential election was alleged by the US authorities in July 2018. The investigation by Special Counsel Robert Mueller led to the indictment of 12 Russian intelligence officers for “hacking into the computers of US persons and entities involved in the 2016 US presidential election” and conspiring “to launder the equivalent of more than $95,000 through a web of transactions structured to capitalize on the perceived anonymity of cryptocurrencies such as bitcoin.”2 It is alleged that bitcoins were used by the defendants to evade scrutiny when purchasing servers, registering domain names and making other payments as part of their hacking activity. So what are cryptocurrencies, exactly? Cryptocurrencies, such as bitcoin, are “any publicly available electronic medium of exchange that features a distributed ledger and a decentralised system for exchanging value.”3 They are an exciting innovation that seem to offer certainty, security and transparency without government regulation or any central authority being involved. They are lauded by many as a true free-market innovation.
Asset tracing is the process of carefully uncovering the trail of an asset from origin to ultimate destination, documenting each step along the way, in a forensically sound manner that can stand up to court scrutiny. Cryptocurrencies such as bitcoin provide new opportunities for money launderers, through the partial anonymity they can provide and the lack of centralised supervision. Both these attributes are seen as key attractions by genuine and dishonest users alike. Two examples are the notorious case of Ross Ulbricht, the founder of Silk Road, which was the first dedicated black market on the dark web; and the more recent alleged activities of Russian intelligence operatives accused of seeking to interfere with the US presidential election in 2016.
Cryptocurrencies are actually a combination of four technologies: 1. Distributed ledgers: each participant can have a copy of the whole ledger (transaction record), which for bitcoin and many other cryptocurrency systems is structured in a “blockchain”. 2. Decentralised control: participants can deal directly with each other, not through a central authority or controlling entity like a bank.
Silk Road was created by Ross Ulbricht in 2011 as an online marketplace free from government oversight and interference. It provided anonymity through the Tor system, which helps internet users conceal their location and communications. Silk Road used bitcoin as the currency for all transactions. Bitcoins are held in online “wallets” whose ownership can be kept anonymous. Silk Road quickly became the main electronic bazaar for the buying and selling of black market goods, mainly drugs but also other illegal items such as stolen identity documents. According to the EXPERT WITNESS JOURNAL
3. Use of cryptography: to protect and authenticate transactions, balances and participants. 4. Automation: the ability to automate transactions programmatically, such as in smart contracts or by triggering the payment of interest on a bond once a specified event occurs. Cryptocurrencies are not regarded as true currency – they are not official money, which is called “fiat currency”. They are not legal tender and currently 18
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Criminals who make their money in the real economy, for example through investment fraud, will need to convert their proceeds into cryptocurrencies, which means finding a party willing to accept fiat currency in exchange. In practice - for transactions of any size - the payment of the real currency will need to pass through a financial institution such as a bank. If the financial institution has strong anti-money laundering controls then it will consider whether the source of the funds and the nature of the transaction seems suspicious and, if so, report it to the authorities. Similar considerations apply when cryptocurrency is converted back into fiat currency. This is one area on which forensic accountants can focus when trying to trace assets: regulated financial institutions are required to follow stringent “know your customer” rules, and their records can therefore be a useful source of information about the identity of the parties.
are not widely accepted across society. However, they can offer the following benefits: • Security • Speed • Low transaction costs, avoiding banks and intermediaries • Convenience • Relative anonymity • Decentralised dealings without any central oversight or monitoring One key aspect of a classic cryptocurrency such as bitcoin is the distributed blockchain ledger technology. What this means is that is every single transaction, since day one, by every party in the cryptocurrency system, is recorded in a ledger, which is a chain or sequence of transaction “blocks” called a “blockchain”. The net result of the history of all the transactions affecting a user’s wallet determines the closing balance on that wallet. Every user can have a copy of the whole ledger, and can therefore see all the transactions, though the identity of wallet holders may be unknown. This sharing of information about transactions across the whole system makes it very hard to falsify the records. Because everyone else has a full copy of the ledger, altering one’s own copy will have no effect: each new block of transactions is only finalised and accepted – and then shared with all the users – once it has been properly validated by a special class of users called “miners” using complex cryptographic techniques. The transparency of the ledger record helps make it very hard to tamper with.
One weakness from the regulators’ point of view has been poor regulation of cryptocurrency exchanges – companies that buy and sell cryptocurrencies, providing the entry and exit points to customers. These have typically been exempt from anti-money laundering regulation. However, with the rise of cryptocurrencies and the associated money laundering risk this is changing. The EU’s 5th Anti-Money Laundering Directive, which came into force in July 2018, requires member states to introduce tighter rules, bringing regulation of cryptocurrencies and cryptocurrency exchanges in line with existing rules for fiat currency and banks. In December the UK government announced it will address the risks by going significantly beyond the requirements of the new directive, and will be consulting on this during 2019. Other governments around the world are taking similar action: for example, in 2018 the US Treasury Department’s Office of Foreign Assets Control issued guidance expressing how it believes transactions in digital currencies should be treated similarly to those in fiat currencies.
What are the financial crime risks? As already mentioned, cryptocurrencies can offer a degree of anonymity and the ability to move financial assets across jurisdictions without government oversight or regulation. A person can open a cryptocurrency wallet, which appears simply as a computer address on the system, without disclosing anything about his or her identity. As we saw with Silk Road, many illicit items can be bought and sold using cryptocurrency. It is often the preferred means of exchange for items such as stolen personal data, ransomware payments, drug dealing and other black market goods and services. It is also increasingly used to evade state sanctions that prohibit the use of official currencies, such as the US dollar. Several sanctioned countries have reportedly indicated that they are developing their own cryptocurrencies, including Iran, Russia, Myanmar and North Korea.
So how big a problem is cryptocurrency money laundering? The UK government’s 2015 and 2017 National Risk Assessment of Money Laundering and Terrorist Financing initially assessed the risks associated with cryptoassets to be relatively low.4 However, since then, money laundering with cryptoassets has been identified as a growing problem. Europol has estimated that £3-4 billion is laundered through cryptoassets each year in Europe, which is a relatively small proportion of total laundered funds, estimated at £100 billion.5 However, this seems set to rise.
However, while cryptocurrencies may provide a safe space for criminals to transact with each other, the range of legitimate assets that can be purchased with cryptocurrencies is still fairly limited. Ultimately, if they want to spend their ill-gotten gains on useful items, criminals will eventually need to get their assets out of cryptocurrencies and into the “real” economy. They also need to convert the proceeds of their crimes into the cryptocurrency in the first place. This highlights two key areas of vulnerability from the criminals’ perspective: the points of entry and exit.
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Naturally, criminals gravitate to exchanges in jurisdictions with the weakest anti-money laundering defences. While this means it is difficult to stamp out money laundering, it does result in illicit activity being pushed towards “rogue” jurisdictions. As a forensic accountant, seeing transactions pass through such jurisdictions raises red flags, which is useful since it can help narrow the focus of an investigation onto the areas where criminal activity is most likely.
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mistake by Ulbricht, that blew his anonymity, not a flaw in bitcoin.
What specific techniques can forensic accountants use to investigate cryptocurrency transactions? It is a common misconception that digital currency is untraceable and completely anonymous. While it may be true that wallets are stored as anonymous computer addresses within the technical cryptocurrency system, there are multiple ways it may be possible to link wallets to the parties that control them. These can include traditional forensic investigation techniques, such as transaction pattern analysis (for example matching property transfer records with transactions in the cryptocurrency ledger), or simply obtaining information from co-operating parties. More advanced techniques include analysis of internet traffic through particular servers and IP addresses.
The Federal Bureau of Investigation seized Ulbricht’s computer and discovered it contained hundreds of thousands of bitcoins, many of which had been received recently. During his trial Ulbricht claimed that the bitcoins were his, but he said they had nothing to do with Silk Road. Although he admitted he had originally set up the site, he claimed to have stopped running it long ago. However, since the anonymity of Ulbricht’s wallet had been breached, it was easy for the FBI to analyse the transactions through his wallet and demonstrate the provenance of his bitcoins. Since the bitcoin ledger – which is publicly available – is a full record of every transaction ever conducted, it was a simple exercise for the FBI to track Ulbricht’s bitcoins back to their source: Silk Road. He was convicted of money laundering, computer hacking and conspiracy to traffic narcotics. He was handed a double life sentence plus forty years without the possibility of parole.
In fact, cryptocurrencies can be the forensic accountant’s best friend, because literally every transaction is indelibly recorded in the blockchain. And for traditional cryptocurrencies like bitcoin, this is a freely-available public ledger. Every transaction is literally there for all to see and analyse. This allows forensic accountants to use graph technology and network theory to analyse the recorded transactions, aided by sophisticated graph database systems (in mathematics, a graph is a network of nodes, such as wallets, and links, such as transactions between wallets). These systems can be used to analyse hundreds of thousands of transactions between different wallets to identify patterns of activity, such as heavy traffic routes and clusters of activity, or the ultimate destination of apparently disparate individual transactions. Since all transactions are fully recorded, it can be possible to trace flows across numerous intermediate nodes in the network to their entry and exit points. From there the focus can move to the relevant cryptocurrency exchange, where the assets are converted between crypto and traditional assets, and then into regular bank accounts. As mentioned above, more traditional techniques can be employed to identify who controls each of the nodes.
References 1, Ulbricht indictment, 27 September 2013. 2, Indictment, US vs. Viktor Borisovich Netyksho, et al., 13 July 2018. 3, “Dear CEO letter” from the UK Financial Conduct Authority to chief executives of regulated institutions, 11 June 2018. 4, Cryptoassets Taskforce Final Report, October 2018. This is a report by a UK government-sponsored taskforce including HM Treasury, the Financial Conduct Authority and the Bank of England. 5, Ibid.
Article by Paul Doxey Paul is a Senior Consultant to the Forensic Services Practice of Charles River Associates +44-20-7959-1424 pdoxey@crai.com www.crai.com
Therefore, once the technology of cryptocurrencies is understood, the forensic accountant can use a range of traditional and new tools to crack open transaction secrets. And once anonymity has been breached the cryptocurrency ledger can become a treasure trove of complete and accurate information, all neatly tied in: something rarely possible in traditional forensic asset tracing.
. The views expressed herein are the views and opinions of the author and do not reflect or represent the views of Charles River Associates or any of the organizations with which the author is affiliated. CRA’s Forensic Services Practice – including our state-of-the art digital forensics, eDiscovery and cyber incident response lab – is certified under International Organization for Standardization (ISO) 27001:2013 requirements.
Postscript – how Ross Ulbricht was caught and convicted. Ulbricht’s anonymity was breached through an error he made that was spotted by Gary Alford, an Inland Revenue Service investigator working in his spare time. Alford had been working with the US Drug Enforcement Agency to find a way to bring down Silk Road. He noticed that Ulbricht had recently openly used the online nickname “altoid”. He recalled that this same pseudonym had previously been linked to the early days of Silk Road. Ulbricht’s use of the same name much later provided the lead that connected him to Silk Road. Thus, it was old fashioned forensic investigation techniques, and a EXPERT WITNESS JOURNAL
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Hidden Assets in Confiscation Proceedings by Rob Miller, an experienced forensic accountant who is a director and co-founder of Inquesta. Ordinarily, a defendant will deny that they have any hidden assets. The issue from a forensic accountant’s perspective is how does one prove a negative, bearing in mind that the onus is on the defendant to prove that, on the balance of probabilities, there are no hidden assets.
Many readers will share my view that the Proceeds of Crime Act is draconian. It has always been said that this law is not in force to punish convicted criminals, but to recover the proceeds of their crimes. So why is that very rarely the case?
In my view, the matter of hidden assets and tainted gifts is where a forensic accountant adds most value, and below are examples to show why this is the case.
Generally speaking, there are two elements to the aspect of confiscation under the Act.
Case study 1 D was convicted of VAT fraud to the tune of £175,000. The benefit in the Section 16 statement was £325,000. This included £150,000 of monies received into the defendant’s bank accounts, which the prosecution averred could not be accounted for.
These are: 1. The benefit 2. The available amount Both of these amounts are set out in a Section 16 statement of information, which is prepared by the prosecution in the case.
The defendant was unable to account for the cash deposits into his bank account.
The benefit is broken down into proceeds from specific criminal conduct, property transferred, property held and expenditure incurred after the relevant date.
Furthermore, £80,000 of cash was withdrawn by the defendant. The prosecution stated it was their belief that this cash had been hidden and was available for confiscation.
Under the law, the prosecution is essentially entitled to assume that any assets received or held by the defendant in the six years before they were charged represent proceeds of crime. This can lead to significant anomalies in the benefit calculation.
The defendant instructed that all of the withdrawn cash had been spent. However, he was unable to provide any documentary evidence in support of this. How, as an expert witness forensic accountant, do I go about helping such a defendant to support his instructions?
My colleagues and I at Inquesta see many cases where a defendant has been convicted of, for example, benefit fraud for a relatively insignificant sum. However, due to the way they run their finances, they face a general benefit figure which is many times higher than the benefit from their specific offences.
Defending an allegation of hidden assets is by far the most difficult part of a forensic accountant’s role in confiscation proceedings. However, there are a number of ways to look at it. Ultimately, the onus is on the defendant to prove that the proceeds of his crimes have been spent.
The good thing from a defendant’s perspective is that they can only be forced to pay what they can afford, which is normally the value of their assets at the date of the confiscation order.
The first step we always take is to try to reduce the benefit. If it can be reduced to lower than the available amount, this will automatically reduce the hidden assets figure.
This is known as the available amount. However, the available amount can, and often does, include tainted gifts and hidden assets.
If the benefit cannot be reduced, the next step is to consider the defendant’s lifestyle.
Tainted gifts are assets which have been transferred for little or no consideration.
Has he been living a lavish lifestyle? Have all of the normal living expenses been paid out of his bank accounts?
Hidden assets are those which are deemed by the prosecution to have been concealed by the defendant. In most instances it is cash, but we have seen many other examples of hidden assets, such as monies transferred to foreign jurisdictions and monies paid to family and friends. EXPERT WITNESS JOURNAL
If, for example, it is clear that there are normal living expenses which have not been met from his bank account, the obvious inference is that he has used cash to pay for these.
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We have often used, and with great success, the Office for National Statistics’ Living Costs And Food Survey to ascertain what that individual, on average, should be spending on living expenses. If this equates to less than the total living expenditure which has been paid from the bank accounts, it can be argued that at least part of the hidden assets has been used to fund this.
A forensic accountant (as opposed to a general practitioner accountant) has experience of working with lawyers, prosecuting financial investigators and the courts. This, combined with good knowledge of Proceeds of Crime legislation, means they can make a material difference to the outcome in confiscation matters.
If he was living an obviously lavish lifestyle above his means, and these expenses do not appear to have been paid from his bank accounts, it would be reasonable to argue that he has used the cash withdrawn to pay for this.
Forensic accountants are able to efficiently input and analyse high volumes of complex data and simplify the information to assist the court. In my experience, judges dislike complex, lengthy spreadsheets and typically do not give them the attention they require.
Case study 2 Defendant B was convicted of fraud involving significant sums of money from various employers.
I always say that the overriding job of a forensic accountant is to take complex information and simplify it into bite-sized, comprehensible chunks.
Most of the money – amounting to over £1m – was sent to a foreign jurisdiction, and the prosecution said this money was still available to B and was classified as a hidden asset in the confiscation proceedings.
Furthermore, as forensic accountants we have experience of giving evidence in court and negotiating with the prosecution team, with a view to agreeing a mutually-acceptable confiscation figure.
In evidence, B said she had sent the money abroad to start a haulage business which would fund her and her family’s lifestyle.
Rob Miller is an experienced forensic accountant who is a director and co-founder of Inquesta, which has offices in Manchester and Leeds. He is a member of the Institute of Chartered Accountants and The Academy of Experts.
B’s instructions were that this business made significant losses and that all the money had been dissipated. We were enlisted to consider B’s instructions and to identify whether any of the money was still available for confiscation. This case involved a significant amount of analysis. The case was not helped by the fact that the money had not been sent to the foreign jurisdiction by the usual means but to individuals who withdrew the cash there and used it to pay for all business expenses.
Rob has experience of a vast range of high-value and complex cases, including fraud investigations, criminal defence proceedings, commercial and contractual disputes, with a particular specialism in defending confiscation proceedings brought under the Proceeds of Crime Act.
We were provided with 15 boxes of financial documentation which were shipped over to us from the foreign country.
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Our team had to input and analyse every invoice and bank transaction, to recreate the accounts for this business and to assess whether the money had, indeed, been lost.
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The records were incomplete and we were dealing with a difficult client who was somewhat vague with her instructions, a situation which was not helped by the fact that she herself claimed to be an accountant. Notwithstanding this, we were able to show through our analysis of the paperwork that the business was genuine, had traded and, on the face of it, the vast majority if not all of the money had been spent and was no longer available. Thereafter, and following much discussion and negotiation, we were able to assist the defence in its dialogue with the prosecution and were able to agree a figure which was acceptable to all parties. The sum was a fraction of the original figure as assessed by the prosecution.
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In my view, in complex cases such as those outlined above, where the prosecution’s figures are high and documentation is incomplete, the instruction of a forensic accounting expert is imperative. EXPERT WITNESS JOURNAL
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Money Laundering The UK has one of the strictest and most complicated set of laws to combat money laundering and terrorist financing in the world. It criminalises a lot of behaviour that many people would not realise was criminalised, and places huge burdens on the private sector – particularly, but not just, the banking sector – to help detect and disrupt that behaviour. Despite all that, of course, money laundering remains a huge problem in this country, which remains an attractive destination for criminals around the world to put their assets. So what is going wrong? The Sources of the Law One misconception to deal with at the outset is that the source of our anti-money laundering (AML) laws is the European Union (EU). Though it is true that our membership of the EU has given us a duty to put its AML directives into domestic law, the substance of those laws ultimately comes from a different intergovernmental agency, the Financial Action Task Force (FATF), which has established a set of recommendations on AML and counter-terrorist financing (CTF) that are updated from time to time. Notably though, these recommendations are a baseline for member states to comply with and the UK has always gone further, ‘gold-plating’ the recommended rules to make them stronger than the international standards require.
The Principal Offences The interesting thing about those principal offences is that they criminalise much more behaviour than many people would realise. Insofar as the concept of money laundering has entered mainstream consciousness, most people would surely think of it as doing something with money (physical bank notes, funds in a bank account, or virtual currency perhaps) that is the proceeds of some serious crime, with the intention of disguising its criminal origin and making it look legitimate, or ‘clean’. But in legal terms the offences in POCA include doing literally anything – even just possessing – any property (so not just money, but for instance a painting, or a house) that represents the proceeds of any crime, no matter how trivial. The person doing it need not have any intention to disguise that fact, but would be guilty if they knew or even merely suspected it.
In domestic terms, the source of our AML and CTF laws is a pair of statutes – the Terrorism Act 2000 (TA) and the Proceeds of Crime Act 2002 (POCA) – and the rather cumbersomely named Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (the Regulations). Broadly speaking, these laws create a set of principal offences that apply to everyone, as well as an extra set of obligations that apply to the ‘regulated sector’ – including financial institutions, accountants and most lawyers – and include obligations to report suspicious activity to the National Crime Agency (NCA). EXPERT WITNESS JOURNAL
A couple of features serve to make the law even stricter. One is that the property need not completely represent the proceeds of crime, but can be a mix of ‘dirty’ and ‘clean’ property. The other is that it can include a ‘pecuniary advantage’, such as a saving of money from evading taxes. So, putting this all together, an example of a person committing a money laundering offence could be a wife who co-owns a house with her husband, where part of the deposit came from his income, on which he deliberately failed to pay tax. To be guilty of the offence, the 23
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wife would not have to do anything with the house, or even know about his tax evasion; it would be enough that she formed a suspicion (perhaps long after the purchase itself) that it had taken place.
What this means in practice is that a bank, for example, will typically ask various questions of its customers when they set up their account, as well as – to a greater or lesser extent, depending on the customer – keep a careful eye on what goes on in the account in case it needs to make a report about a possible offence by someone, and/or request consent to avoid committing one itself. To the customer who does business in Iran, say, or is the spouse or relative of a politician, the experience of seeing their banks close or freeze their accounts, usually without any explanation at all, is all too common. While of course there will be circumstances where this does disrupt criminal activity, it can also disrupt lawful activity where the bank’s suspicions are unfounded.
Unsurprisingly perhaps, the law is stricter still where it concerns terrorist property, which under the TA includes property that is used for the purposes of committing terrorist offences, or that belongs to a proscribed organisation. There the test is not subjective suspicion but ‘reasonable grounds to suspect’, so if for instance a friend asked you to run a bank account for a charity that was a front for a terrorist organisation, if the warning signs were there it would be no answer to say that you personally did not spot them.
The root of this problem is an understandably cautious approach from the bank, whose priority will naturally be to avoid committing an offence by failing to report such activity. (Conversely, if the bank honestly makes a report that turns out to be wrong, the law protects it from any claim by the customer for any damages caused.) The lack of explanation, similarly, comes from an imperative not to commit a separate offence of ‘tipping off ’ a customer that a report has been made about them, or that an investigation is ongoing.
The Consent Regime With laws framed this broadly, it is important to have a system to enable people who form suspicions about property to be able to report that fact, and obtain defences where appropriate. Both POCA and the TA include provisions that do just that, which are based on a concept of requesting consent to do acts which would otherwise amount to offences (referred to as the ‘consent regime’). So for instance, the suspicious wife in the above example would request consent to continue to possess the house (or, as the case may be, to sell it or let it out), while the naïve friend might request consent to return the charity’s funds to their original source.
Issues and Reforms The context of all of this of course is the government’s efforts to tackle financial crime and terrorist activity. The AML and CTF regimes do not exist in isolation, but serve to increase the prospects of such crimes being detected or prevented, and of relevant assets being seized and forfeited. To a great extent, the huge numbers of SARs that banks and others now submit to the NCA are very useful to these efforts, often providing the vital information that triggers or assists an investigation. But it is also true that, in a time of limited resources, the system has also become a victim of its own success, by generating such high volumes of reports that the NCA (by its own admission) struggles to process and prioritise them. Dealing with SARs, particularly consent requests, is very resourceintensive, and the Law Commission has been looking at reforms to the SARs regime to tackle that problem.
What this does in practice of course is give the authorities the opportunity to investigate any offences that may have taken place, and to use their various powers to freeze the property while they do it. Importantly, however, the law places time limits on that opportunity. Provided the person submits their request as soon as reasonably practicable, they can assume consent after an initial notice period of seven working days unless they receive a refusal within that period. Where there is a refusal, they can still assume consent after a further moratorium period of 31 calendar days; any freezing of property beyond that date will need some sort of court order. The Regulated Sector The regulated sector, meanwhile, has additional obligations under POCA and the TA to make Suspicious Activity Reports (SARs) where they have reasonable grounds to suspect offences of money laundering or terrorist financing. Under the Regulations, they are also obliged to conduct risk assessments on their own businesses, to apply Know Your Customer (KYC) and Customer Due Diligence (CDD) measures on their customers (and, where the customer is a company or a trust, their beneficial owners as well), and to conduct ongoing monitoring.
The issue of law enforcement having to prioritise the data in these reports raises another key point about the system. The broad nature of the offences under POCA in particular means that the vast majority of reports are likely to reflect relatively low-level suspicions about relatively low-level offences (or, indeed, where it’s not clear what offence, if any, has been committed). If we consider for instance the prospect of a bank detecting the proceeds of really high-value offences of corruption or fraud in its accounts, it might seem obvious that the people laundering the proceeds of such offences in the UK are relatively likely to know how the system works, and to be taking steps to ensure they have a convincing (if false) narrative and evidence to pass through it undetected. Alternatively, they may find ways of bypassing the system altogether, perhaps using informal payment methods, or alternative forms of property such as virtual currencies. So there is something of an arms race
These measures will include seeking information and documents about their identity and source of wealth generally, as well as the source of any particular funds involved in the transaction at hand. The nature of the obligations means that some customers will face stricter KYC and CDD measures than others, including for example where they come from or deal with a ‘high risk’ country, or where they are classed as a Politically Exposed Person (PEP). EXPERT WITNESS JOURNAL
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between the constant need to reform the system, and the efforts of criminals to work around it.
The bigger picture, and the reason why the laws in this area are not as effective as they might be, is one of needing to ensure the system has the resources it needs to operate effectively, a process to prioritise efforts to combat the most egregious crimes, and the ability to adapt to new forms and methods of criminality in the future. Few would argue that we are getting all these things right at the moment: law enforcement, particularly financial crime, remains far from the front of the queue in terms of government spending; the provisions of POCA and the TA (including, despite the efforts of the Law Commission, SARs and the consent regime) are likely to remain such that they throw too large a net over ‘suspicious activity’ to be manageable in the real world; and reforms to the regime have historically been slow.
Some Recent Changes With that in mind, the sheer volume of recent changes to the AML and CTF regimes, and various aspects of related laws, is understandable. It also means though that the complexity of the law in this area is forbidding, presenting a challenge even to the best-resourced compliance departments of the major banks, let alone smaller businesses and new entrants to the regulated sector. To provide a flavour, the following are just a few of the developments in the last two years: 1. A wholesale rewrite of the Regulations, with tighter obligations for the regulated sector, the establishment of a beneficial ownership register, new requirements for estate agents to do KYC and CDD on both sides of the transaction, and a redefinition of PEPs to include those within the European Economic Area (EEA) as well as outside it;
The difficulty of course with addressing these issues is very largely political. Any government will want to be seen as ‘tough on crime’, with organised fraudsters, corrupt (foreign) politicians and terrorist groups high up on the list of public enemies. But the time and resources to make changes are limited, and less likely to be spent on pragmatic or prosaic reforms that might make a real difference in practice, than on eyecatching initiatives that make good headlines and help to win votes. The challenge, perhaps, is to square that circle by ensuring that these issues, though undoubtedly complex, are properly understood by voters and policy-makers alike.
2. Various reforms to POCA, including the advent of Unexplained Wealth Orders (UWOs, which are designed to force non-EEA PEPs and others to explain the source of funds used to buy property), a mechanism to extend the moratorium period following a consent request, and leaner systems for freezing and forfeiting funds in bank accounts; 3. New obligations on the regulated sector to report breaches of targeted sanctions; 4. New offences of failing to prevent the facilitation of tax evasion (separate to the AML and CTF regimes, though often dealt with by the same compliance officers);
John Binns BCL Solicitors LLP, - 16 January 2019 Many thanks to John and BCL for this article www.bcl.com
5. A new body to oversee the supervisors of professional members of the regulated sector (such as accountants and lawyers); 6. A new (fifth) EU directive (which the UK has committed to enforcing next year), which among other things will broaden rights of access to the beneficial ownership register, and brings into the regulated sector some businesses that work with virtual currencies; and
Mr Tim White
7. A new legal mechanism for reforming the Regulations after the UK’s exit from the EU.
Chartered Chemist C Sci, C Chem, FRSC A specialist in risks arising from changes in water quality associated with the ownership or occupancy of premises.
The Scope for Reform Assuming it remains a member of FATF, the UK’s departure from the EU seems unlikely to prompt a wholesale rethink of AML and CTF laws. Indeed, for practical reasons as well as on principle (if only because the relevant businesses are so integrated with their EU counterparts), we are likely to implement not only the fifth directive, but also whatever directives follow it. That is not to say, however, that some of the details may not be the cause of debate, with the extent, timescales and cost of beneficial ownership registers likely to be the subject of discussion later in 2019. A separate debate, about potential new offences of failing to prevent money laundering (not a FATF or EU requirement, but an example of the UK’s ‘gold-plating’), has been on hold for some time, but may return before too long.
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Key areas of work: Disinfection management, Corrosion investigation, Biofilm control. Materials impact on stored water (including bottled water). Microbiological control of water quality including Legionella & Pseudomonas aeruginosa. Specialist water treatment provision, for example revers osmosis plant requirements for dialysis support. Waste water issues such as discharge compliance an impacts on water courses. Chemical fate and behaviour relative to water quality issues, for example accidental poisoning and environmental impacts. Personal injury investigation relative to chemical exposure, liquid waste and drinking water quality Contaminated land impacts on water resources. Private water supply management and compliance assessment. Closed system water quality management, for example heating and chiller plant. Albion House, 13 John Street Stratford upon Avon, Warwickshire CV37 6UB Area of work: Nationwide & Global
Tel: 0800 083 4610 or +44 (0)121 288 2386 Mobile: 07740 988 108 Email: tim.white@marquisandlord.com - Web: www.marquisandlord.com
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Digital Forensics and Selecting a Digital Forensics Expert Witness by Jason Bergerson and Alistair Ewing What’s the difference between an Expert in Digital Technology and a Digital Forensics Expert?
accidental or intentional by those with malicious intent.
Technical knowledge is required by both, but that isn’t enough to perform successfully in these two very different types of professions. Often service users will select the wrong kind of skill set for a particular task and the recipient, thinking of making money or out of ignorance, will accept the responsibility. This can have disastrous consequences in the long term as an expert in digital technology is not trained sufficiently to work in the legal sphere.
• Analysis – during the investigation the forensic copy, not the original (except in triage), is to be searched. The search is done using specialist tools so as not to alter the evidence file. Verification of the evidence can be performed at any time by comparing the evidence file against the original HASH created during acquisition. The examiner at this point will determine what is to be searched for and then run recovery and search for those categories of items.
Digital forensics was born in the 1980s as computer forensics with the FBI’s magnetic media programme, and the UK quickly followed suit with their own version. Digital Forensics, like all of the forensic sciences, is the application of science in the legal context. The four basics tenets cover four areas:
• Presentation – the examiner, must clearly and accurately present their background, tools used, methods of verification, processes used for recovery, the findings and appendices containing the data to support the analysis.
• Acquisition - a collection of data in a court defensible way in order not to alter the integrity of the storage medium or source memory that will produce a defendable evidential copy by creating a data HASH value which can be verified throughout the forensic process.
The Sub-disciplines As computers moved away from being isolated units to being networked and more varieties of digital mediums were invented the term computer forensics changed to digital forensics to encompass an umbrella of branches all dealing with digital evidence. As an ever evolving field the types and names for the sub-disciplines are also continually evolving. Some of the current sub-disciplines are: • Audio Forensics – the collection, analysis and
• Preservation - evidence, be it a mobile device or a hard disk, must be preserved in a way that it is defensible in court. The process ensures against loss, contamination or deleterious change whether it is EXPERT WITNESS JOURNAL
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accordance with the requirements necessary to be qualified in a court of law.
• Audio Forensics – the collection, analysis and enhancement of any digital audio files. Poor quality audio can be ‘cleaned up’, transcribed, enhanced and analysed via spectrometry.
The Digital Forensic Expert A digital forensic expert, on the other hand, may not always have a system administrator background or indeed a lengthy background in computers. Many police officers start life as a ‘bobby on the beat’ and are side-lined to retrain as a digital forensic expert. Through additional discipline-specific training the technology background and associated credentials are received. The critical difference between the two professions is knowledge about the facts surrounding the data, not just the recovery of the data, evidence handling, investigation of the event and working towards presenting the findings within the law in an admissible manner.
• Digital Camera Forensics – captured images from a digital camera either from an SD card or internal memory. These can be acquired, recovered if deleted and analysed not only for their content but for metadata such as date/time and even location more recently. • Digital Video and Photo Forensics – as with Digital Camera Forensics, video and photos can be collected, reviewed and analysed for a case. • Games Console Forensics – a games console collects data such as logons, and a user may produce accounts which could be used as an alibi or to establish ownership.
Digital Forensic Expert versus Expert in Digital Technology Many people and professionals may have skills which enable them to operate at a level above the layperson. In fact, they may be a highly trained specialist within their area of technological expertise. This, however, doesn’t necessarily qualify them to be an expert in the eyes of the court. This can also happen if an expert, in a sub-domain of Digital Forensics, branches outside of their area of expertise.
• GPS Forensics – GPS in cars, ships and planes can yield information such as recently visited locations, favourite locations and other forensic artefacts which may determine the locations of the vehicle or device. • Incident Response – is the discipline of network forensics looking at logs, network security, hacking, intrusion detection, breach analysis, Trojan horses and other malware.
For example, a mobile phone forensic specialist may not have the ability to perform audio forensic analysis. As a result, this may expose the individual as well as the instructing law firm to litigation due to bad processes. It is typically seen in the industry that a corporation or a law firm employ a computer expert to carry out tasks as their rates are often cheaper than that of a digital forensic individual or organisation. The relative cost of hiring a forensic expert over a general expert in a case that can mushroom to multimillion pounds is minuscule. The difference between winning and losing a claim is more than just whether the instructed person can interpret the results. They also need to develop the proper chain of custody, understand and explain the tools used, offer the repeatability of results through the application of the scientific process, and have credibility in court through their ongoing training and certifications in the field.
• Media Device Forensics – thumb drives, iPods, SD memory card and everything in between can yield useful data or even be used to match up with activity on a computer. • Mobile/Cell Phone Forensics – phones are ubiquitous in modern culture and not only are they used for calls and texts but also used for emails, messaging, social media, productivity and even hacking. • Call Detail Record Forensics – Also referred to as Cell Tower Forensics relates to the communication towers that mobile devices utilise while in operation. These records can help to place devices within regions at certain times thus supporting, or refuting an individual’s alibi. • Social Media Forensics – social media both live and from the digital evidence can be harvested and presented for court.
For example, a novice may be able to run a tool they found on the web and conclude, because an item was recovered, that an individual is responsible. A forensic expert can contemplate all the minor nuances to rule out or include them in their conclusion. Asking and answering questions while reviewing the evidence such as: Was the computer hacked? Who else had access? How many user accounts were administered on the system? Did the item arrive on the device because on an autonomous action such as a virus? Due to the volatility of digital evidence a digital forensic expert should be involved as soon as it is recognised that digital evidence is to be part of the case.
The Expert in Digital Technology An expert in digital technology, or sometimes referred to as a computer expert, may be someone who has more than a rudimentary knowledge of a computer or high-level corporate system administrator that designs and implements large-scale operations in blue chip environments. They may manage archive systems, maintain mobile devices, configure an enterprise network environment, install video surveillance systems, or any number of highly specialised fields within the digital technology landscape. A computer expert may as well have skills in maintaining, installing and repairing computer systems including data recovery capabilities in case of failure or other data loss events. Regardless of the technical abilities, the area often found lacking is the ability to do so in EXPERT WITNESS JOURNAL
Comparison Scenario An excellent example is if you had a client accused of deleting data after a litigation hold has been placed, 27
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deleted. The item is able to be identified as a cleaning software, and logs indicate its use. ‘Zeroed out’ areas of the disk are identified and are seen as typical, not of regular use, but of wiping of the free space. The client list, which was pertinent to the matter, was discovered downloaded, and although deleted it was present in the restore files when an inadvertent backup was made of the system. Using the filename of the client list, the working copy was keyword searched, and it was discovered that the document was emailed out to their Gmail webmail account. The expert can now form the opinion based on forensic evidence that the data signifies intent to hide actions and steal company data using a personal email address. The original disk was preserved and secured as were the forensic copies along with all developed work product throughout the process.
and file destruction software has been discovered then eliminated by the suspect. The laptop is given to a computer expert within the company with good intentions but no training in forensics to perform the examination. The individual installs commercial file recovery software to the disk and recovers deleted files. When the report is produced it states that the computer had wiping software installed however the files couldn’t be opened. This was due to the software that was installed by the examiner overwriting the unallocated areas of the hard disk where the previously recoverable data resided. Additionally, during the seizure and examination, the examiner operates the machine, making more changes and leaves the device on the network, exposing it to the internet. This allowed the suspect to enter the device remotely through the network using a remote access software and wipe the entire disk. The neophyte examiner has no explanation of when, or if, wiping software existed. All that is left during trial is the examiner's word for the wrongdoing as the original evidence hasn’t been preserved.
Differences Both a technology expert and digital forensic expert may be able to recover data, but only the digital forensic expert would be able to produce a chain of custody, know how to handle the evidence and provide a resume outlining their experience and training in the specific field of digital legal interpretation in court. Technology experts do not have the need to understand the granular digital artefacts unwittingly produced by the system and a user during the operation of a device. They are trained in service, maintenance of a system or specific software function such as usage of QuickBooks for company accounts or Microsoft Office 365 for business applications.
In the same case using a forensically trained computer forensic examiner, the laptop was taken off the network. The laptop hard disk was removed and placed into a write blocked copying device in order to preserve the data on the disk. One original copy and one working copy of the disk was made to two separate encrypted drives for security and redundancy. The examination takes place on the working copy of the data. The expert is able to determine that ccleaner was installed on the system in the past and Side-by-Side Comparison Digital Forensics Expert
Technology Expert
The ability to copy data in a forensically sound manner
Ability to install and set up computers, software, network in a secure manner and maintain operation of the item
Data recovery from the deleted areas of a disk, SQL databases, file slack, backups & other areas
Restoration of data following a disaster from backups
Understand that the workings of digital threats such as trojans, backdoors, viruses and malware have on the original system
Removal of harmful malware from infected computers, not the effect or explanation of such programs
Interpretation of left behind software after removal by a lay user by looking at deleted items and other artefacts
Troubleshooting and repairing computer problems
Recovery and interpretation of internet and Software initiation and roll out for the client or employer web-connected apps & the ability to export these so as to report on them Granular level knowledge of operating systems Network setup in order for access to a server and/or especially Windows, Mac OS & Linux so as to be the internet able to examine recorded artefacts & understand how changes made are recorded in the OS Competent in the usage of a variety of different The ability to work with conventional file systems relating to formats such as Expert Witness, DD Images and Windows, Mac and Linux AD Logical Container Images for verification and production of a robust chain of custody. Competency in producing forensic images of entire digital media for the use of analysis
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Can make backups using Clonezilla or similar including files directories but not usually deleted data as well. The purpose is for recovery of lost office items and the continuation of the business 28
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Legal Expertise Digital Forensic Expert
Technology Expert
Ability to verify evidence and individual files
None
Production and maintenance of the chain of custody
None
Can manage eDiscovery projects and warrants
Only basic knowledge
Trial preparation skills
Not likely
Ability to testify in court
Can be used to testify but not as strong as a forensic expert Unlikely
Sticks to guidelines required in handling digital evidence
recovery, and search and reporting, then a ballpark figure of 10-20 hours would be a typical response. Mobile devices, cell tower data, in-vehicle systems, network access, and all of the rest will have their own cost and scope based on the expertise required and the level of effort necessary to perform the work. All of these factors should be discussed with the potential expert prior to any instruction or the expert gaining access to the evidence.
Selecting an Expert There is no international, or indeed a national body, that accredits a digital forensic examiner. In fact, because of the lack of knowledge of judges and legal professionals anyone with computer knowledge can call themselves an ‘expert’. It is common for someone to call themselves an examiner despite his or her lack of abilities. Additionally, an examiner may be proficient in one or two domains of Digital Forensics but not others, such as at cell site analysis but not mobile phone acquisition and forensics. It is essential to look for relevant skills to that particular discipline prior to instruction of an expert. When instructing look for forensic specific training and certification in the field. Common certifications are ACE (Access Data Certified Examiner), CCE (Certified Computer Examiner), CFIP (Certified Forensic Investigations Practitioner), EnCE (Encase Certified Examiner) and X-Pert (X-ways Forensics Certified Examiner) to name a few.
The Expert Report The culmination of the entire process is typically delivered via an expert report. The expert report should include but is not limited to: a cover page, table of contents, introduction, case outline, qualifications of the expert witness, evidence verification results, use of appendices, separation of facts from opinion and have the judicious use of appendices. The content must be presented in plain English and have various terminology explained correctly. Dependant on the case in the UK the report must comply with Civil Proceedings (CPR), Criminal Proceedings (CrPR) or Family Proceedings (FPR) in terms of the expert declaration signed by the examiner appended to the report.
If differing types of devices have been seized in a case, then it may be necessary to select experts according to the evidence that is available. If you have a mobile phone, a laptop and call detail records from the network it may be advisable to source a computer forensic expert, a mobile phone forensic expert and a cell site analyst all separately, if an individual doesn’t exist with all those skills.
Regardless of the analysis performed thus far, if the expert is unable to present the findings in a factual, but compelling way that outlines how their expert opinion indeed is the most likely scenario based on the evidence provided, then the exercise will have been for nothing. Following the report, the expert may also be required to provide testimony directly to the courts. If written word of the expert is clear and concise, then the oral presentation of the findings should also be understandable to the courts.
A service user must establish before hiring an individual: • Do they have training, experience and certifications in the field? • Does the examiner have experience in the type of case?
At the end of the day, it is the role of the Digital Forensic Expert to review the data available in such a way that it is preserved as evidence, analysed to determine the facts and presented with the expert’s opinion as to what those facts represent. Finding an expert, who is consultative in their process, to help walk you through the requirements of a Digital Forensic matter, is critical to your overall success.
• What is the cost of the process? Cost and scope are also something that the Digital Forensic Expert should be able to provide you with. While it isn’t possible to be exact in the level of effort a matter will take, there should be some estimates that can be provided based on their experience with similar matters. As an example, legally aided work is capped at £74.00 an hour in the UK, elsewhere it may vary. In the private sector, costs can range from £150.00-£400.00 an hour (or even higher) dependant on experience. If the matter includes services such as analysis of one laptop including copying, data EXPERT WITNESS JOURNAL
For more information for legal professionals regarding digital forensics the book ‘Daniel, Larry (2011). Digital Forensics for Legal Professionals: Understanding Digital Evidence From The Warrant To The Courtroom. USA: Syngress.’ is recommended. 29
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Authors Jason Bergerson has over twenty years of digital forensic experience with over 20 years at Kroll Ontrack. Jason has worked on cases involving fraud, IOC, murder terrorism, data recovery and more recently cyber-attacks involving ransomware. /www.linkedin.com/in/jason-bergerson-9513182/
Alistair Ewing has over eight years of experience in Digital Forensic Analysis, Data Recovery, Mobile Phone Forensics, Litigation Support, and has served as an Expert Witness in criminal and civil cases in the UK. Mr Ewing began performing digital forensics in 2011 and has had hundreds of hours of experience in this sector. Qualified as an expert witness for some years and vetted by Sweet and Maxwell he has presented evidence in tribunals, civil and criminal courts in the UK and been involved in corporate investigations, litigation support and collections. www.linkedin.com/in/computerforensicsexpertwitness/
Need an expert any discipline, any area call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk EXPERT WITNESS JOURNAL
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New Police Powers to Tackle Illegal Use of Drones New legislation will give police officers the power to land drones, search premises and seize drones and will require users to produce the proper documentation.
Important safety proposals being taken forward include better protection for our airports by significantly extending the area around airports and runways in which drones are banned from being flown. This builds on the government’s changes to the law last year which made it illegal to fly a drone above 400 feet or within 1 kilometre of an airport.
The government is moving forward with plans to give police new powers to tackle drones misuse and abuse, with the publication of their response to the drones consultation.
Aviation Minister, Liz Sugg said: “Drones have the potential to bring significant benefits and opportunities, but with the speed of technological advancement comes risk, and safety and security must be our top priorities.
Following over 5,000 responses to the consultation new legislation will give police officers the additional power to land drones and require users to produce the proper documentation. The police will have the power to search premises and seize drones - including electronic data stored within the device - where a serious offence has been committed and a warrant is secured.
That’s why we are giving the police powers to deal with those using drones irresponsibly. Along with additional safety enforcement of vital rules. Fines of up to £100 could be given for offences such as failing to comply with a police officer when instructed to land a drone, or not showing their registration to operate a drone.
The Home Office will also begin to test and evaluate the safe use of a range of counter-drone technology in the UK. This crucial technology will detect drones from flying around sensitive sites, including airports and prisons, and develop a range of options to respond to drones, helping to prevent a repeat of incidents such as that recently experienced at Gatwick.
Chartered Surveyors, Valuers and Expert Witness Tim Davies is a Chartered Building Surveyor, and the practice principle and founder of T R Davies Limited, (established in 1998). An established independent practice providing property related services throughout South Wales and Nationwide. Tim has over 30 years experience. Tim is a fully qualified Chartered Building Surveyor, a RICS Accredited Valuer and Expert Witness. Tim has the Cardiff University Bond Solon Certificate in both Civil and Criminal Expert Witness Practice. Tim is a registered property expert with the National Crime Agency, working with police and trading standards, principally dealing with rogue traders. His extensive experience and expertise covers; Expert Advisor/Expert Witness Work – Civil Expert Advisor/Expert Witness Work – Criminal Residential Surveys and Valuations Building Defect Pathology (defect analysis/investigation) Domestic Workmanship Standards Domestic Building Disputes and Quantification Surveyor Professional Negligence Building Related Insurance Claims Party Wall Matters Building Conservation/Period Buildings Structural Surveys Dilapidations Insurance Claims Landlord and Tenant issues Contact Details - Mr. Tim Davies Chartered Building Surveyor, Valuer and RICS Accredited Expert Witness BSc (Hons), MRICS, MAE, Cert EW (Civil and Criminal) Windsor House, 107 Talbot Road, Talbot Green CF72 8AE Tel: 01443 229576 Email: info@trdavies.co.uk - Website: www.trdavies.co.uk
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Forensics Europe Expo | 5-6 March 2019 | Olympia, London sics. Exhibitors include Access Data, Guidance Software, AXO Science SAS, Nippon Control Systems, foster+freeman, Faro Technologies, Anton Paar Ltd, MSAB, Magnet Forensics and Sensors & Software to name a few.
Introduction Forensics Europe Expo is the only event of its kind dedicated to forensic science and is the primary meeting place for thousands of forensics professionals each year. Following 6 successful cycles, the 7th edition will – for the first time – take place on the same show floor as Security & Counter Terror Expo at Olympia, London. As part of UK Security Week, Forensics Europe Expo will connect together the industry’s entire supply chain and provide an all-in-one platform to engage with the most qualified experts and specialists.
Free-to-attend educational forensic workshops Also taking place on the show floor will be a series of tutorial-style seminars and presentations from exhibiting companies. Make the most of this rare opportunity to learn from forensic experts about their successes, challenges and lessons learnt to improve your expertise and find out about latest project efficiencies and investigation skills to further progress your career.
Welcome to the most anticipated edition of FEE to date With an incredible speaker line up, dozens of free seminars, tonnes of innovation and an exhibition of the latest technology, Forensics Europe Expo 2019 is gearing up to be the must-attend event for today’s modern forensic professional.
Leading conference programme explores the global forensic landscape Increasing globalisation and the fact that crime is becoming more complex means that professionals from across the world need to come together to address these challenges first-hand. FEE provides a much needed forum to share latest thinking and experiences. This year, we are delighted to welcome leading experts and innovators from across law enforcement, industry and academia.
The forensic science landscape is undergoing a number of rapid changes and positive developments. The exhibition at FEE will bring together 70+ leading forensic suppliers whose capabilities range from accident investigation and fingerprint examination to data extraction and digital forenEXPERT WITNESS JOURNAL
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With so much to see and get involved with, Forensics Europe Expo has something for every forensics professional. Take your place alongside inspiring speakers, find out about the latest product launches, network with fellow innovators, and get involved in interactive seminars and hands-on demonstrations. Make sure you don’t miss the largest forensics event of the year.
Key 2019 speakers and topics include: Day 1 • Making Sense of Digital Forensic International Standards - Prof. Brian Cusack, Director Cyber Forensic Research Center, AUT University • Cutting us some Slack - Acquiring Data from Cloud Collaboration Tools - Joseph Pochron, President of Forensic Technology and Consulting, Transperfect
Register your free exhibition pass today at www.forensicseuropeexpo.com
• A Review of Digital Forensic Readiness of Industrial Internet of Things - Prof. Peter Sommer, Professor of Digital Forensics, Birmingham City University
All pictures from Foresnic Expo
• Vehicle Data Forensics On Unsupported Systems - Gareth Davies, Academic & Cyber Consultant, University of South Wales Day 2 • Quality standards in forensic science: a review of progress, learning and next steps - Dr Gillian Tully, Forensic Science Regulator, Arms Length Body of the Home Office • NABIS: A Ballistic Focal Point for the UK - Martin Parker, Chief Scientist, National Ballistic Intelligence Service • A Talk on the Wild Side: The challenges and opportunities for forensic science in global wildlife law enforcement - Dr Rob Ogden, Director, Trace Wildlife Forensics Institute and President, Society for Wildlife Forensic Science • Forensic science integration on complex major crime scenes - Dr Karl Harrison, Director & Lead Forensic Ecologist, Alecto Forensic Services
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UK Forensic Science Strategy, GSOH, Seeks Joined-up Thinking for LTR by Jo Millington BSc (Hons) MSc PGCert MIABPA MCSFS In 1953, Paul Kirk1 wrote ‘All criminal investigation is concerned either with people or with things. Only people commit crimes but they invariably do so through the medium of things. It is these things that constitute the broad field of physical evidence. To realise his maximum goal the investigator must understand a) what physical evidence is b) how to collect and preserve it and c) how to obtain from it the information that it carries and d) how to interpret the information obtained. Only a good understanding of investigators and scientists of their reciprocal functions can completely eliminate the barrier to the realization of the full benefits of a well-managed crime laboratory’.
those made to the previous Select Committee, convened in the aftermath of the closure of the Forensic Science Service. It has included discussions on standards and regulation, the forensic science research landscape, use of forensic science in the CJS, and digital forensics. It is crystallising the view on where the shortfalls lie: lack of investment, a fragmented approach to forensic investigation and building concern that the overarching ‘strategy’ behind it’s future development has been police-led with little or no discernible contribution from forensic science providers, or forensic scientists. The national strategy also suggests that it is relevant to forensic science, full stop, and yet it is weighted towards biometrics, fingerprints and digital investigations. You could argue that this simply reflects evidence in today’s crimes – I doubt you go anywhere without your mobile phone as much as you would be reluctant to leave your fingerprint behind, especially if you were up to no good. These areas are traditionally delivered ‘in-house’ by police forces and so perhaps it is inevitable that the strategy board would focus on their own strengths. The question is, are they doing so at the detriment of everything else?
Kirk then outlined how this could be achieved through the regulation, validation and accreditation of forensic science and demonstrated how each aspect is dependent on collaboration. Collaboration, communication and corroboration are pillars of forensic science, as well as lots of other things, another being impartiality. A robust and holistic strategy (big S) is therefore critical in driving forensic science in the right direction. Those who have worked in, or with, the forensic science industry in the UK will know that forensic science policy has evolved consistently over the years. This was most recently bookmarked with the publication of the government’s Strategy on Forensic Science2. Read in conjunction with the UK Forensic Science Regulator’s Codes of Practice and Conduct3, both strive to bring coherency to a challenged forensic science framework.
Stuart Kind’s book ‘Science Against Crime5’, which was published nearly 30 years on from Kirk, takes the reader on a similar journey through the evidence types that were typically dealt with in a forensic laboratory of the time. There is no entry for digital or cyber crime, no mobile phone tracking or social media profiling, but both authors talk extensively about the work of the forensic science laboratory and the potential of blood, toxicology, ballistics, glass and fibres in crime investigation.
The proposed strategy states that ‘a national approach to forensic science delivery, proposed and delivered by police forces, would aim to ensure greater consistency of service quality; resilient, reliable capability and with economies of scale’. Proposed and delivered by police forces.
If you search the Forensic Science Strategy document, each of these evidence types (blood, ballistics, toxicology, glass, fibres) generates 1 match, each. The term fibre highlighting that the document would be printed on paper containing 75% recycled fibre content. There are 70 matches to the word digital, 33 to DNA, 14 to fingerprints.
At the time of writing the House of Lords Science and Technology Committee inquiry into Forensic Science4 had attracted 96 written submissions from representatives across the Criminal Justice System (CJS) and had convened 16 sessions of oral evidence. The evidence is compelling and I would encourage all stakeholders in forensic science to read the transcripts. The inquiry has facilitated one of the most comprehensive and refreshingly open discussions on forensic science in recent times. The clarity and candour of the submissions are less sugar-coated than EXPERT WITNESS JOURNAL
If the aim is to define a national and cohesive strategy on forensic science it is imperative that all disciplines are considered and all parties are consulted, unless you can guarantee that the people involved have sufficient oversight and knowledge of the strengths and weaknesses of the whole process in order to be able to represent every part of it fairly. If it is intended that the strategy will simply sit alongside the forensic 34
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science laboratory, with investigators directing scientists to conduct tests on a case by case basis without inviting them to advise in the selection of those tests, in my view the relationship between the scientist and the investigator will inevitably degrade. Especially when there is increasing pressure to deliver results more quickly and for less money. Cost-efficiencies are not simply a function of picking the cheapest option. They can be achieved by using the right test for the job. If tests are selected on the basis of price but they do not have the ability to answer the question that is being asked, then it can introduce inefficiencies further down the line. This can include commissioning additional tests as the case approaches trial, which in itself can introduce risk.
The limitations of DNA are to some extent rooted in its success. The boom in DNA technology, which evolved in response to the requirement to be faster and cheaper, led to the development of a rich portfolio in specialist and more sensitive techniques. Tools are now available that can generate DNA profiles from minute traces of biological material, whether the DNA is related to the investigation or not. Scientists no longer need a detectable body fluid or an observable stain for analysis because the standard, everyday, techniques have the ability to develop information from speculative (invisible) samples; and if they fail, specialist tests can be applied to clean-up, concentrate and optimise the recovery of DNA from the most inhospitable of samples.
The faster/cheaper philosophy is epitomised in the Streamlined Forensic Reporting (SFR) process. This approach was introduced by the CPS to ‘reduce unnecessary costs, bureaucracy and delays in the criminal justice system’, and ‘to ensure that the key forensic evidence that the prosecution intend to rely on is presented in the shortest and clearest way so as to achieve early agreement on forensic issues and to identify contested issues’. It is implied that the SFR ‘report’ will outline the scientific evidence in such a way that the reader will understand the strengths and limitations of the scientific findings in context of their case. So does it?
If, or inevitably when, the resulting profile comprises a mixture of DNA, it might be possible to resolve it into the profiles of the individual contributors and/or simplify it using information that is specific to the case. This is called ‘conditioning’, disentangling the mixed profile on the basis of DNA information that is expected to be there, such as DNA from the donor of the sample. Where mixed profiles continue to be beyond the capacity of standard statistical programs, specialist probabilistic methods can be employed (e.g. likeLTD or STRMix) to de-convolute the most complex of mixtures (up to a point). Before the widespread introduction of these specialist approaches, scientists were permitted to provide a ‘subjective assessment’ of the mixed DNA results that standard methods could not resolve. This involved, essentially, counting the number of DNA components in a crime profile that matched components in an individual’s reference profile and conveying the extent of the match numerically or in the form of a verbal strength of support. This practice, which was only ever intended to be an interim measure, introduced a level of greyness in the evaluation of DNA findings that was difficult to standardise. ‘Qualitative evaluations’ are known to be susceptible to cognitive bias and have the potential to be prejudicial, but it was implied that the practice was sufficiently calibrated that it could provide a robust indicator in terms of whether or not an individual may have contributed DNA to a sample. In fact it was scientifically impossible to say one way or the other, simply because the opinion existed in an area that was beyond the scope of any quantitative or empirical data. This practice is no longer supported6 (or necessary) given the introduction of accredited specialist software.
As an example let’s consider the ‘DNA Stage 1 SFR’. This document will typically provide the reader with information about the author (sometimes this can be an ethereal department or unit), details of the case (such as location and dates) and a summary of the DNA result (the match generated between a crime sample and a named individual). It may also provide information that indicates if each of the profiles had been generated using the same DNA technology, or if the crime profile may have comprised a mixture of DNA, although this level of detail might not be readily apparent to the non-scientific reader. Having reviewed a number of police interviews, it is not unreasonable to consider that the defendant might be presented with the SFR and asked to offer an explanation as to how ‘their’ DNA came to be present at a crime scene. It’s probably like being asked for your pin number when you have been using contactless payments for the last few months. While your brain is working on recalling your pin number, perhaps you could also consider whether you could readily explain, if asked, where your DNA might be. We’re not talking about great lumps of DNA, we’re talking about invisible to the naked eye, bits of you that you may have left purposefully or unintentionally on things. It also relates to DNA that may have been further transferred by others, without your permission, which unfortunately is not something you can opt out of. In my opinion, the usefulness of DNA evidence in the context of an investigation is only fully realised once the individual results have been evaluated in light of the case circumstances. Yet cases continue to progress (even to trial) on the basis of the initial DNA match. EXPERT WITNESS JOURNAL
Subjective opinion hasn’t been completely outlawed, but when a non-numerical opinion is presented, for example in an intelligence report or as a holding position until the appropriate statistical assessment can be completed, it is imperative that the provisional nature of the evaluation is made clear. It is not an evidential opinion and it would be unwise to consider it as such. The restricted format of the SFR does not accommodate a freestyle presentation of the complexities of DNA mixture interpretation and in some cases an 35
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abbreviated form of witness statement might be issued. Abbreviated formats allow scientists to provide a summary of the evidence, whilst embellishing on the nature of the DNA result and its evaluation. It is shortened, typically, by removing details about the qualifications of the author, case and continuity information and technical detail. It is not unusual for reports of this type to focus on the make-up of the DNA result and any possible matches. They may include phrases to emphasise that they do not deal with a full interpretation of the findings and if this was required a full statement should be requested through the appropriate Forensic Submissions Unit. It is questionable whether these phrases are recognised as calls to action or if the consequence of not acting on them is fully appreciated. In practice these caveats are outlining that if a DNA result (for example) is likely to have a leading role in any investigation, a full interpretation must be requested. Interpretation of DNA is multi-faceted. It can involve an assessment of whether the DNA can be attributed to a particular body fluid. For example, if blood was tested, is there confidence that the DNA came from blood? It can also involve a consideration of what the DNA findings might mean in the context of the allegations that have been made. For example do the DNA findings help in determining how or when the DNA may have been deposited? This is an area of forensic thinking commonly referred to as ‘transfer and persistence’. Although and there are a number of research publications emerging on this topic, the data set is by no means complete.
Lords’ inquiry has highlighted the difficulties that many organisations are experiencing. The (often prohibitive) costs associated with applying for and reaching accreditation are a recurrent concern, even though there is a genuine appetite to achieve accreditation. On-going resource requirements to demonstrate and maintain standards should not be underestimated. These challenges apply as much to police forces as they do to the sole trader or larger forensic science providers, most notably in the accreditation of fingerprint examinations and digital forensics. Yet these disciplines are central to the Forensic Science Strategy in the UK, which police forces and their affiliated agencies are driving. It is becoming increasingly difficult for stakeholders to comply with the rules that they are setting and it begs the question, wouldn’t it be easier if we all worked together and pooled our resources?
It’s not acceptable (is it?) that the meaning of the scientific findings, a DNA result for example, could change significantly depending on when the evidence is introduced into the CJS. Whether it has been fully evaluated in context with the case circumstances (or not) or because the results have been conveyed in a particular type of report. SFRs and abbreviated reports might be popular because they are thought to accelerate the crime scene to court process, but if the findings on which the case is built can be neutralised once a full interpretation is conducted, it is arguable whether they are fit for purpose. If the findings were evaluated at the outset, it is possible that the investigation strategy, or efforts in building a charge, or in advising a client could be more effectively managed.
References
In order to deliver a rational and coherent national forensic science strategy the industry urgently needs investment. We also need to take a cooperative approach to education and communication so that all users understand the strengths and limitations of the evidence, in the form that they are likely to encounter it, at each stage of an investigation. My fear is that the current strategy will stifle forensic science in the UK. We need to build on the strong foundations of the past and nurture a multi-faceted service that has the ability to deliver scientific findings consistently and dependably in the future. We need, joined-up thinking.
1, Kirk, P. Crime Investigation: Physical Evidence and the Police Laboratory. 1953. Interscience, New York. 2, Forensic Science Strategy: A National Approach to Forensic Science Delivery in the Criminal Justice System. March 2016. 3, Forensic Science Regulator: Codes of Practice and Conduct. October 2017. Issue 4. 4, House of Lords inquiry: Forensic Science. 2018-2019. https://www.parliament.uk/forensic-science-lords-inquiry (accessed January 2019). 5, Kind, S. 1982. Science Against Crime. Marshall Cavendish Books Ltd, London. 6, Forensic Science Regulator: DNA Mixture Interpretation (FSR-G-222). 2018. Issue 2.
As a general rule my advice would be that unless the DNA findings have been specifically evaluated in light of the case circumstances, including the scenarios that have been presented by the Prosecution and Defence, their potential evidential significance should be considered as undefined. The Forensic Science Regulator has published a number of comprehensive documents on how forensic science should be delivered and communicated. The Codes of Practice and Conduct are a modern day equivalent of Kirk and Kind and I would encourage any users of forensic science to read the guides that are relevant to their area of expertise. It is clear that regulation and accreditation have a pivotal role in the delivery of a consistent service, but the EXPERT WITNESS JOURNAL
Many thanks to Jo Millington BSc (Hons) MSc PGCert MIABPA MCSFS Occupation: Forensic Scientist / Director Millington Hingley Ltd: Forensic Scientists Contact details: jo@millingtonhingley.co.uk Website: www.millingtonhingley.co.uk 36
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Atrociously Bad Interest Rate Decisions (#ABIRD) Imagine you took out a twenty-year term loan for £100,000 – interest only. Four years on, your lender calls you and says - sorry - we have made some mistakes in how we set up the loan. Your debt is not £100,000 but £70,000. How would you feel? Now, imagine that you rang up the bank, and asked the same question. Now, the bank says – because of the way you set up the loan, you now owe us £130,000. How would you feel? What if it was £160,000? Or over £200,000?
go up or down). With floating rate loans, the capital stays the same, but the interest you pay, and hence your cash flow, can vary. The most senior players in this debate are the Bank of England, and HM Treasury. The Bank believes that floating rates are best, and tries to help run the economy on this basis. HM Treasury think everyone should “hedge their interest risk”, and borrow at, or convert to, fixed rates.
This is the unfortunate position facing virtually all of the UK’s local authorities today. From the largest, with debts of hundred of millions, to the tiniest, who have borrowed less than the amount of a home loan, they are getting that same bad news over the phone. And it could get worse……
Fixed rate loans are valued using an interest rate “forward curve”, details of which are issued daily by the Bank of England. If that curve falls, the negative equity in fixed loans gets worse. It has been falling continuously since around 2009, with a big hit immediately after the Brexit vote. I publish regular comments regarding the changes in the curve on Twitter as @SchemeActuary .
What has happened? In essence, all of these councils have taken a bet. Then, they covered up the bet with impressive words. They talk of “hedging their interest rate risk”, “technical risk analysis”, and looking at experts’ forecasts. Many of them didn’t actually realise they were taking bets. However, the bad news is published annually by their lender, the Government. The losses for each council are shown clearly. As at 31 March 2018, NO council made a profit on their bets. ALL made losses, except those who didn’t bet – they, of course, ended up around even.
Apart from the issue of fixed or floating rates, there is the length of the loans. These seem to vary widely by council, without necessarily any regard to size. At this point, I lay down a few principles, which are open to discussion:
There are just over 1,500 councils in the UK England, Scotland and Wales. The lender (Public Works Loan Board) divides England into major and minor councils. So we have four sets of data.
1) RISK Borrowing is always risky – for both borrower and lender. Clearly, the lender can lose interest and/or capital if the borrower gets into trouble. Lenders impose covenants – restrictive requirements on borrowers, and, if these get broken, they can then impose unwelcome sanctions. Restrictive control from an outsider is always unwelcome. Accordingly, loans should be minimized in size, and paid off as soon as possible.
How much has the debt gone up, on average, for each group, in excess of what they borrowed? Starting with the worse ones: Wales Scotland England (Major) England (Minor)
61% 55% 44% 27%
2) PROACTIVITY Contrary to 1) it is sometimes desirable, or necessary, to borrow in order to achieve longer term financial or social aims, eg, developing a library/adult education facility. In these cases, different principles apply. You need access to funds, in order to create a wealth generating or otherwise beneficial structure.
This is fascinating. Why should Wales do so badly? The image of canny Scots is dealt a hammer blow. And size does not seem to help – England’s major counties are lagging behind the minor ones – the biggest gap (17%) of the lot. It would seem that the more money you’re managing, the worse decisions you make! Why should this be?
3) REALISM To reconcile 1) and 2), a degree of pragmatism is necessary. For example, most projects overrun on both time and budget. Accordingly, borrowing more, and for longer, makes sense. Within reason. Crossrail is an enormously involved project, involving digging large tunnels under highly developed real estate – yet it’s taken about only 12 years.* * Approved 2007 – Full delivery 2019?
First, there is controversy as to whether it is safer to borrow at fixed or floating interest rates. If you borrow at fixed rates, you are exposed to capital risk – your debt can go up or down (to put it another way, your loan has a sort of negative equity in it, which can EXPERT WITNESS JOURNAL
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Why does a semi rural council borrow money up to 2065 in order to, say, just build (or even buy!) a shopping centre? (Which, we may see, will rest unused, like a Liverpool PFI school, if shoppers keep swinging towards web based shopping?)
I produced a graph mapping size of loan against “unnecessary debt” factor – This factor was on average about plus 10% - 20% for smaller loans (most by number) – but as the size picks up, so does this ratio – and we are looking at plus about 50% for the largest band (with a few “total turkeys” standing out).
4) AWARENESS The too often given reason for borrowing longer is “because it’s cheaper” Well, yes it is. However, it’s cheaper for a reason – lower demand for longer-term borrowing. The market expects longer rates to fall (pessimism), and therefore lower rates are needed to tempt borrowers longer. The important thing to realize is that you’re not doing anything clever by borrowing longer.
There are some startling results – but before looking at the extremes, I have compared two I spotted which had almost identical borrowing. LB Wandsworth had £120 million borrowed as at 31 March 2018 – and LB Hounslow had £121.5 million. Almost identical. Not now, though – Wandsworth owes £124 million – up 3% - but Hounslow owes £157 million – up 27% Why? It’s the same lender!
5) DEMOCRACY Councils are reelected (or not) every four years – is it right to lock in successive administrations to the effects of borrowing decisions that extend up to ten times that period?
Before I even look, I’ll suggest the following: 1 Wandsworth’s debt is closer to maturity and/or
6) NATIONAL COMPARISONS Central Government (Gilt, or Gilt edged security) borrowing is virtually all fixed rate – and a mixture of short and long term. However, for historical reasons, the HM Treasury is restricted in how it borrows. Moreover, national governments can raise taxes if the cash flow from their borrowing becomes uncomfortable. The same governments can cap or pressurize down council tax – councils are therefore weaker in their ability to support their own debt risk.
2 Wandsworth borrowed more at floating rate (this doesn’t change value) and/or 3 Wandsworth borrowed later – earlier fixed rate loans typically have higher interest rates. Most interestingly, if Wandsworth had borrowed at floating rates, 1 and 3 wouldn’t have mattered - all loans would have changed by 0% - ie, not at all. Two questions, then, for Hounslow council taxpayers to ask: a) How hard did you consider the advantages of floating, as opposed to fixed, loans when you borrowed the money? and
7) “IT DOESN’T MATTER, ITS ONLY CAPITAL – THE LOSS WILL BE ZERO AT THE END OF THE LOAN TERM”. This is a common fallacy. Credit rating agencies will mark you down for bad debt decisions. The gilt “Treasury 4 ¼% 2036 “ rose in value from about 100 in 2006 to 150 just after the Brexit vote – a 50% rise in value. To effect quantitative easing, the Bank of England had to pay the THEN CURRENT price. If a government can’t fiddle the amount it has to pay, then neither can a council.
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b) Bearing in mind your performance compared to Wandsworth is pretty poor, will you now review future borrowing practices, especially floating rate loan opportunities?
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However, at only 29% loss, Hounslow can actually pat themselves on the back, as this is a lot better than the average – especially the average for larger councils!
an area where the amateurs do much better than the professionals! The treasurers would argue, no doubt, that interest rates would have gone up, and variable rates would have cost more. However, the bank lending forward curve has been falling almost continuously since the end of 2008, with some big discrete drops. This drives a reduction in base rate, as the Bank of England needs to acknowledge lower confidence in the economy.
The worse 1% group comprises 15 councils/bodies. The best raised its debt by 88% - the worst by 211%. The latter was a bit of a one-off – the next worst was a rise of 132%. Of the 15, the largest is a council name with a historical reputation for overspending – as far back as the 1980s. However, those historic spends went to support council taxpayers, not on financial speculation. Their current loss is £380 million. To make the point clear, that is £388 million of “dead money”. They borrowed £408 million but now owe £788 million. They are part of a group comprising nine larger English authorities, four Scottish ones, and two Welsh ones.
Variable rates are carefully managed by the Bank of England, for the benefit of both borrowers and the economy as a whole, which reviews national inflation and growth, every month. Fixed rates, on the other hand, are at the mercy of the $300 trillion swaps market, which dwarfs both the UK and US treasury bill /gilts markets (around $3 trillion and $30 trillion respectively). These are actively traded by very bright and dedicated traders, who are staring at screens all day to make their bank profits – and bonuses. As a Local Authority official, you have to ask – is your treasurer really likely to beat these guys – even with the occasional help of Capita?
Of the 1,546 councils, about 870 (about 56%) have borrowings under £200,000 – around the size of the average new domestic mortgage today. However, current domestic mortgage borrowers do not lock into 25-year fixed rates. From current statistics available, the average fix is under three years. It does however, seem that regulators are trying to push borrowers into longer term fixed – FCA’s mortgage rules since 2014 require a stress test using the Bank of England forward curve if the fix is less than five years. However, experience to date is that this would have been bad advice (see diagram below).
To avoid this risk, all you need to do is to stick to variable rates, or short-term fixes. (a 2 1/2 year fix is obviously just 10% of a 25 year mortgage). So how did this all come about? As an example, I have provided a link to an article in “Treasury Today” (which sounds like a reputable journal). This was the second item listed on Google when I searched “Treasury Interest Rate Hedging”. Dated May 2001,
The upshot of this is that most Council and Authority treasurers would have done better to have copied their non-financial council officials, and their decisions on their own mortgages! This seems to be
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it underlines the thinking used by most treasury managers over the past 18-odd years, at least.
adverse rate changes is cited, the fact that the swap contains its own equivalent of negative equity, which can work against you, is totally ignored. The combination of the subtle push and the exclusion of the capital risk lead me to the inevitable conclusion that the writer is actually a salesman, or employed by a selling organisation.
Entitled “The use of swaps to manage interest rate risk”, it can be found here: http://treasurytoday.com/2001/05/the-use-of-swapsto-manage-interest-rate-risk Trouble is, it is clearly weighted towards pushing borrowers towards fixed interest rates:
Unfortunately, the apparent “safety” of making fixed rate payments, and the strategic exclusion of any mention of capital gives the reader the impression that he or she is in some ways getting a “free ride”. However, many corporate loan covenants include a minimum capital requirement. Even if these are not explicit in the loan documentation, no lender is going to be happy if the borrower suddenly acquires an uncontrollable debt, which may increase substantially, and suddenly.
To quote an extract geared to answering the question “How to manage interest rate risk”. “ · Fix the interest rate.” Loans can be taken out at a fixed rather than a floating rate, thus protecting the company from the effects of any changes in interest rates. Similarly, interest rate swaps can be used to convert a floating to a fixed interest rate.”
I also confirmed with the Government lender – the Public Works Loan Board – that they do not “push” either variable or fixed rate borrowing – it is up to the council or body to make their own decision.
Note, fixing the interest rate is given as an example of “managing” risk. When an honest bank lends money for more than, say, two years, it will usually do so at floating rates, as this is likely to minimise the risk associated with the loan. Unless the company is contracyclical, fixed rates render the loan riskier, for reasons mentioned above.
Finally, I look at some of the borrowers who have the best records. “Silver Award” councils, which have switched their more recent borrowing to variable rate, comprise the following: • Lancashire County Council • South Derbyshire District Council • West Yorkshire Police and Crime Commissioner • North Lanarkshire Council
Accordingly, that honest bank would not want you to effect the swap, as illustrated in the diagram. It would see this as an up risking of the loan, and might want to increase your loan risk loading to take account of it. Bang goes your clever profit. From the banks point of view, you are now speculating in derivatives.
These councils had switched to variable rate borrowing as at 31 March 2018, as measured by their “latest” borrowing practices (just having a couple of variable rate loans on the books does not qualify).
Second, no-where in the article is stated the capital significance of the swap. While the possibility of
…and the single “Gold Award” council which was 100% in variable rate loans was Beckley and Stowood Parish Council, whose debt exceeded their borrowing at 31 March 2018 by a miniscule ½% - which can reasonably regarded as admin fees!!
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 cuttingedge software and technical support. We are an owner-managed business.
We will review the March 2019 positions (including the effects of “LOBOs”, and other bank provided lending) once these are obtained. Some councils are very shy about revealing full details of their borrowing! As borrowing at fixed rates is the equivalent on betting on a good Brexit, the results after 29 March 2019 should be very interesting!
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. The level of personal commitment from us could not be higher. Our clients include interest rate swap victims of all sizes, trustees and sponsors of pension schemes, financial advisers, solicitors and individuals.
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by Mr Peter Crowley Actuarial consultant - FIA MEWI BSc Windsor Actuarial is an independent firm of actuarial consultants with considerable expertise in corporate pensions. Established by Peter Crowley in 2005, their excellent actuarial and pensions consultancy is complemented by cutting-edge software and technical support.
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. 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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Liverpool Victoria v Khan, Sultan, Zafar & Ahmed by Dr Thomas Walford, Expert Evidence Founder and Chief Executive of Expert Evidence limited. He founded the group following over 25 years in dealing with client disputes within three major London banks. Thomas is an experienced expert witness and also a mediator and arbitrator. This case is unusual in that it arises out of the collapse of an earlier case. The original case involved a car accident between taxi driver Mudassar Iqbal and Nicky Versloot in December 2011. Nicky Versloot, driving a Toyota Rav struck the Vauxhall Zefira driven by Mr Iqbal. Mr Iqbal wished to bring an action for the damages to his car against Ms Versloot and consulted “On Time Claims” for help with his claim. His injuries were minor and he hadn’t intended to claim for them. His case was duly referred by Shafiq Sultan (at On Time Claims) to Mr Khan, a solicitor. Mr Khan then instructed Med-Admin Ltd, a medico-legal agency run by his aunt, to arrange a medical report. Dr Zafar, the appointed doctor, examined Mr Iqbal on 17th February 2012 and in his first report (dated 17 February 2012) Dr Zafar reported that Mr Iqbal “had mild pain and stiffness in the neck on the day of the accident. These resolved one week from the accident. These symptoms were due to whiplash.“
It is alleged that each defendant was guilty of conduct which interfered with the administration of justice i.e. contempt of court. It is a contempt of court to engage in any conduct which involves an interference with the administration of justice, either in a particular case or generally as a continuing process. Liverpool Victoria were given permission to bring committal proceedings against the four defendants listed above on 33 counts of contempt. Evidence was heard over seven days beginning 18 July 2018, with final submissions being heard on behalf of the parties on 26 July 2018. It emerged that, when the claimant interviewed Dr Zafar on 20 August 2013, he didn’t recall the report or being asked to amend it, and that the “one week pain” (i.e. the first) report was correct. However in a later statement he said he’d amended the report himself because the first report had only included acute symptoms. He said he’d amended the report on the basis of a letter from Mr Khan dated 22 February. Metadata (a summary data system) showed that the only copy of that letter, an electronic copy, was created on 28 August 2013. An email chain from 24 February 2012 had been disclosed from which it could be seen that Mr Khan told Dr Zafar that the driver was still experiencing pain, and requested that the report be amended as stated above. Mr Khan’s statement said that the driver was happy with the amended report. The driver, Mr Iqbar’s statement said that his pain had resolved within 3 days and that he hadn’t asked for any amendments. Although the Judge accepted that Dr Zafar’s report was not necessarily dishonest, she considered that he was reckless in allowing the revised report to be produced by his secretary and with no further clinical examination. He did not see or sign the revised report and had no such system to ensure that happened- he was so busy that he gave no thought as to whether the amendments were true or false, or clinically justified. He made no further enquiries about Mr Iqbal’s use of analgesics (which he wasn’t using at the time of the first report) and overlooked the fact that on original examination he’d considered him completely free of symptoms. At the very least Dr Zafar should have made further enquiry and that was his duty to the court. He was reckless, and accordingly he was held to be in contempt of court. He was given a suspended 6 month sentence. Mr Khan, the solicitor, was imprisoned for 12 months.
While evidence was collected and papers were being prepared for the trial by Mr Ahmed, a paralegal with Mr Khan’s firm, it emerged that there were two different medical reports, one alleging far more long term injuries than the other, and both were dated 17 February 2012. Both medical reports were accidentally included in the trial bundle when only the second report had been served on the defendant. As a result of this ambiguity the case collapsed in 2013, with the trial judge giving directions for an investigation into how the two reports had come into existence. Ms Versloot was insured by Liverpool Victoria who started to make investigations as to the reasons for the two differing medical reports. Liverpool Victoria alleged that in order to falsely boost the value of the claim (and thus to enable Mr Khan’s firm to be awarded a significant costs award) Mr Khan suggested, via Med-Admin, that the medical report should be revised. Mr Khan advised that Mr Iqbal had suffered ongoing moderate to severe back pain in his shoulders and neck, mild to moderate pain in his wrists, and pain in his lower back, with a likely recovery period of 6-8 months. The revised medical report included all those details and was also dated 17 February 2012.
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Noise Nuisance and the Expert Witness by Dick Bowdler, Noise Consultant - www.dickbowdler.co.uk to be a nuisance then the pursuer was entitled to some redress.
I have been an acoustic and noise consultant for nearly 50 years. My first noise nuisance case was in the early 1980s. We were in the Court of Session in Edinburgh with all the parties represented by senior and junior counsel. The case was brought by a private citizen living next to the Edinburgh Military Tattoo at Edinburgh Castle seeking interdict to prevent the Tattoo being held1. The defender was the Lord Advocate of Scotland. Our senior counsel became a court of session judge a few years later. Although I had already given evidence in licensing hearings that often involved some assessment of nuisance, the Tattoo case (Webster v The Lord Advocate) was a steep learning curve. Since then I have been involved in many potential nuisance cases. Most of these never reach court either because the case is considered not strong enough or, more often, because a “deal” is reached.
In particular, my first lesson was that the role of experts is ancilliary in a nuisance case and they should not get too big for their boots – it is the court that decides what is a nuisance. Sometimes an expert’s evidence will dominate the case as they do in TV dramas but that is rare. As the Crown Court judge said in Roper2 “ . . . experts, do not decide the case. If it were as simple as that we would not need to have heard from anyone other than the two experts in this case”. Lord Stott, in Webster agreed that the role of the expert was merely to test whether the lay evidence could be relied upon. He said “So viewing it I have found in Bowdler's evidence, even if taken with the qualifications suggested by Mackenzie, ample confirmation of my conclusion that the evidence of the pursuer and her witnesses was not an exaggerated reaction of the hyper-sensitive but represented the honest impressions of a cross-section of reasonable people”.
Webster was a good one to start my experience in noise nuisance because it clearly laid down the principles behind a nuisance action and the role of the expert. I represented the pursuer in this case and got criticism from friends who thought that it was wrong to try to stop the Tattoo which was an internationally renowned event. But my role as an expert was not to try to stop the Tattoo but to furnish the court with technical evidence to assist a decision. If it was found EXPERT WITNESS JOURNAL
Readers will notice my use of the words “interdict” and “defender” instead of “injunction” and “defendant” or “pursuer” instead of “plaintiff ”. This is because most of my work as a skilled witness has been in Scotland. Yes, in Scotland we are properly called “skilled” witnesses though most people now talk about expert and I will stick to that. 43
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What I am discussing here is what is called “private nuisance” in England. Public nuisance is a different matter and does not exist in Scottish law.
prevent a village cricket club from striking balls into her garden. The appeal court, though finding it a nuisance, refused to grant an injunction because of the greater interest of the village inhabitants in enjoying their summer cricket; though it did award damages. In making the decision, Lord Denning said that the dictum that an Englishman’s home is his castle and is inviolate could not apply in that case. However, Lord Stott in his decision in the Scottish case of Webster said “Lord Denning's suggestion in Miller that an Englishman's home is no longer his castle cannot in my opinion apply to a Scotswoman's flat”. Anglo-Scottish rivalry is not confined to the sports field and politics!
What is Nuisance? Even after nearly 40 years of involvement with noise nuisance there are still points of law that can surprise. Much of the case law is old but there are still important decisions being made which set a precedent. We should start with what nuisance is generally. In Scotland the test for nuisance generally is slightly different from England and Wales. In Scotland the test is simply whether the noise is intolerable to a reasonable person. If the judge finds it is, then it is a nuisance.
What is Noise Nuisance To appreciate the evidence in noise nuisance cases it is worth saying something about the role of the expert witness generally. I don’t intend to dwell on this because, as experts themselves, readers will be familiar with what I say. The best description is perhaps “Expert witnesses however skilled or eminent can give no more than evidence. . . Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions so as to enable the Judge or jury to form their own independent judgement by the application of these criteria to the facts proved in evidence”9. Although as experts we are sometimes called “witnesses of opinion” it is not acceptable for the expert merely to give an opinion; that is the job of the court. It is the expert’s job to explain to the court the state of knowledge in such a way that the court can reach an opinion.
In England and Wales two judgements will serve to define the test. Lord Neuberger in the Supreme Court judgement in Coventry v Lawrence3 said nuisance is an action “which causes an interference with the claimant’s reasonable enjoyment of his land, or to use a slightly different formulation, which unduly interferes with the claimant’s enjoyment of his land. . . . what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society.” There is a more detailed discussion in the House of Lords decision on Hunter and others v Canary Wharf4 . In the recent case of R v Winvest Ltd5 and Another at Kirklees Magistrates Court the magistrate said “to be an actionable nuisance the noise would have to interfere to an unreasonable degree with the personal comfort of, or injure the health of, the reasonable persons use and enjoyment of their land – having regard to the ordinary comforts of human existence in the particular location. This is an infinitely variable test. Every case is fact specific”.
So, in a noise nuisance case the pursuer and other lay witnesses describe the sound they hear. They describe it in subjective terms and whilst they may say it is loud or very loud or that it wakes them at night, most of the description is of the character of the noise. It is humming, whistling, grinding, pulsating, clattering and so on. Like “a train passing” or “a helicopter hovering overhead”. They may say that the noise annoys them during the day or even frightens them or wakes them up at night. On the other hand the expert may measure the noise level. She may rate or otherwise assess the characteristics of the noise. There are standard ways of rating hums and whistles and impulsive noise such as hammering. So the expert may be able to put a numerical value on the noise and compare it with a standard that will say whether that number is likely to cause complaints or likely to be annoying. One expert may say that the lay witnesses’ description is entirely consistent with what would be expected when measured by one standard and another expert say that the description is not consistent by some other standard.
The test in the Republic of Ireland is similar to that in England. The Supreme Court, in the case of Hanrahan v Merck Sharp & Dohme 6 set out the following: "It is clear from the authorities on the law of nuisance that what an occupier of land is entitled to as against his neighbour is the comfortable and healthy enjoyment of the land to the degree that would be expected by an ordinary person whose requirements are objectively reasonable in all the particular circumstances. It is difficult to state the law more precisely than that." There is rarely much argument between lawyers as regards the basic definition of nuisance. It is the finer points of each case that make the difference. For example, can you come to a nuisance? If you move into a house next to a noisy factory and both the house and the factory have been there for more than 20 years without any complaints being made by the householder then you may have no right to claim the factory is a nuisance because your right is extinguished by prescription. On the other hand, if you buy a piece of land next to a shop that has been noisily making confectionery for more than 20 years and build a consulting room on it, as Dr Sturges did in 18797, then you may indeed have the right to claim it is a nuisance.
In a recent (ongoing) case of wind turbine noise10 the Sheriff found that the complaint arose not just because of the volume of noise, but also “the fact that it can continue at a significant, intrusive level for lengthy periods; the character of the noise, whether it takes the form of rhythmic, repetitive 'blade swish' or any of the other, apparently less well understood, forms of turbine noise; the unpredictable manner in which the volume and character of the noise emitted by the turbines can change, or the noise can cease altogether, only to resume again in an equally unpredictable manner”
The point I touched in my second paragraph – can the greater public interest in the defenders activities (in my case the international Edinburgh Tattoo) influence the decision on nuisance? In short, no, it cannot but it might affect the remedy. In the English case of Miller8 a neighbour applied for an injunction to EXPERT WITNESS JOURNAL
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a nuisance though it conceded that there will be occasions when the terms of a planning permission could be of some relevance in a nuisance case.
The type of sound and its context is also important. In Webster there were three claims: first that the erection and dismantling of the stands totalling about four months (constructed each year with a specialist form of scaffolding) was a nuisance: second that the rehearsals with music (about eight over four days) were a nuisance: third that the Tattoo itself (about 20 performances) with music and explosions and gunfire was a nuisance. The pursuer won the first argument but lost the second and third. The erection and dismantling of the stands was judged a nuisance because of the duration and the character of the noise and in particular the banging of metal. The rehearsals were not a nuisance because of their relatively low number and the Tattoo itself was not a nuisance because the character of the noise was such that the pursuer “still stages parties at the flat to enable friends to enjoy the ‘nuisance’”. In any case, had the judge decided that the Tattoo performances themselves were a nuisance he would probably have ruled that the rights of the pursuer in this respect had extinguished by prescription because they had been going on in much the same way for more than 20 years. On the other hand, the erection of the stands was not subject to prescription because the method of erection had substantially changed in recent years to involve much more banging of metal.
So the development alleged to be a nuisance can be included as part of the character of the locality to the extent that it can be and is conducted so as not to be a nuisance. Statutory Nuisance Nuisance is a long-standing common-law principle that has been used for around 800 years. However, in 1974 the Control of Pollution Act introduced the concept of Statutory nuisance. This still continues in the same form but incorporated into the Environmental Protection Act 1990. In fact many of the cases that I mention are statutory nuisance cases. The test for Statutory nuisance is the same as that for common law nuisance but there are some differences in the procedures. The first is that action can be taken not only by the person aggrieved as in common law nuisance (in s82 of the Act) but by the local authority (s80). The local authority route is the most common way to deal with excessive noise. Local Authority action is nearly always instigated as the result of a result of a complaint. The Act gives the authority wide powers, in particular it can serve a noise abatement notice. Indeed, if it considers a statutory nuisance exists “the local authority shall serve a notice” under the Act (authors bold emphasis). In fact Council officers, usually environmental health officers, have unusual powers in statutory nuisance. They can serve a notice stating that a noise is a nuisance based on their own opinion, subject to possible appeal by the court.
There is another conundrum relating to noise nuisance was argued in Coventry all the way to the Supreme Court. That is the question of locality and in particular whether the grant of planning permission itself changes the locality. It has always been recognised that the nature of the locality is relevant – “it must be accepted that a certain amount of inconvenience, annoyance, disturbance and even damage must just be accepted as the price the pursuer pays for staying where he does in a city tenement”11. So what is not a nuisance in a city might be one in the country. In Coventry it was argued by the defendant that the stadium and motor racing track which was the subject of the nuisance claim should itself be taken into account in considering the locality. Lord Neuberger in the Supreme Court said “. . . in the present case, where the judge concluded that the activities at the Stadium and the Track were actually carried on in such a way as to constitute a nuisance, although they could be carried on so as not to cause a nuisance, the character of the locality should be assessed on the basis that (i) it includes the Stadium and the Track, and (ii) they could be used for speedway, stockcar, and banger racing and for motocross respectively, but (iii) only to an extent which would not cause a nuisance”.
In R v Windvest at Kirklees Magistrates Court, six environmental health officers had been to listen to a wind turbine at various times and five of them had considered it to be a nuisance. The defendants were unmoved by this and believed that without any noise measurements to show that the level of noise was above a certain threshold, they could not possibly be shown to be causing a nuisance. The judge disagreed. The subjective judgement of the neighbours and the six environmental health officers was sufficient. Interestingly, none of the six environmental health officers appeared to have been treated essentially as an expert witness but more like lay witnesses describing the noise though they did, in all but one case, express the opinion that it was a statutory nuisance. Having served a notice under the act, if that notice is breached “without reasonable excuse” the noise maker can be guilty of a criminal offence. Unlike an injunction in a common law nuisance case there is a defence of best practicable means against statutory nuisance. Best Practicable Means takes regard, amongst other things, to local conditions and circumstances, to the current state of technical knowledge and to the financial implications.
Further in Coventry the argument was put forward that the prior granting of planning permission to the defendant for the stadium and racing track deemed to be a noise nuisance had itself changed the locality. In the original case, the judge held that the actual use of the Stadium and the Track with planning permission could not be taken into account when assessing the character of the locality for the purpose of determining whether the activities constituted a nuisance. The court of appeal overturned this. The supreme Court said that it was wrong in principle that a planning authority should be able to deprive a propertyowner of a right to object to what would otherwise be EXPERT WITNESS JOURNAL
Specifying Abatement Measures In s82(2) of the Environmental Protection Act, if a sheriff finds there is a nuisance he or she is required to make an order to abate the nuisance. In common law nuisance the judge has to formulate the terms of an injunction. In either case there comes a point in 45
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any successful nuisance case, whether statutory or common law, that a form of words is required to tell the defendant what to do. One option is to tell them simply to “abate the nuisance”. In Webster that is more or less what happened. The terms of the interdict were worded to prevent the defenders making preparations for the Tattoo “in such manner as by reason of noise to create a nuisance”. The defenders returned to court to have this amended on the grounds that "in all cases . . . where interdict is granted by the court the terms of the interdict must be no wider than are necessary to curb the illegal act being complained of, and so precise and clear that the person interdicted is left in no doubt what he is forbidden to do"12. The Inner House of the Court of Session agreed and changed the interdict to “in such manner as by reason of metallic construction noise to create a nuisance” (authors bold emphasis).
interdict in Webster – this in effect leaves the question of compliance to the lay witness. Second, an order that translates the nuisance into quantifiable terms as in Roper where the judge set a specific noise limit that included character corrections. Epilogue The Edinburgh Tattoo is still running every year at the same place and has been since 1950. The interdict which was granted was delayed for six months which allowed that year’s Tattoo to take place. The method of erecting the stands was changed, in part as a result of the court case. References 1, Webster v The Lord Advocate. 1985 SC 173, 1985 SLT 361, [1985] ScotCS CSIH_1 2, Roper v Tussauds Theme Park. [2007] EWHC 624 (Admin) 3, Coventry and others (Respondents) v Lawrence and another (Appellants) [2014] UKSC 13. On appeal from [2012] EWCA Civ 26
It may be that the order will simply say that the noise must stop and the offending machinery is to be taken away. Then it is easy, but in most cases the aim is to achieve a reduction of noise so that the impact is abated to the point that it is no longer a nuisance. A case is judged on the subjective evidence of the lay witnesses but it might not be reasonable to have a form of words that allowed the complainant to decide whether the nuisance had been abated – much as the complainant would most likely think it a good idea. Generally one of two solutions can be adopted. First, a simple open order instructing the abatement of the nuisance, provided that the reasons for the nuisance are sufficiently defined so that “the person interdicted is left in no doubt what he is forbidden to do” such as the final
4, Hunter v Canary Wharf [1998] 1 WLR 434 House of Lords 5, R v Winvest and another 6, Hanrahan v. Merck Sharp & Dohme [1988] I.L.R.M. 629 7, Sturges v Bridgman [1879] 11 Ch D 852 8, Miller v. Jackson 1977 Q.B. 966 9, Davie v Magistrates of Edinburgh. 1953 SLT 54, 1953 SC 34 10, Milne v Stuartfield Windpower. Aberdeen Sheriff Court 2018. 11, Watt v Jamieson - 1954 SC 56 12, Murdoch v Murdoch 1973 SLT (Notes) 13
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Fire Investigation ‘Completing the Jigsaw’ by James Holder MSc, FIFireE, MCSFS, IAAI-CFI, CFEI. While standing in the blackened remains of a burntout room, unsurprisingly, the most commonly asked question of a fire investigator is where did the fire start and what caused it? What usually follows, after I have provided my answer, is something on the lines of ‘how do you know that, everything is charred and black?' The answer to where and how a fire started is crucial to determining the cause, origin and development of any fire. Reaching the correct cause and origin determination can sometimes be a relatively straightforward process at simple fire scenes, or it can be extremely protracted where the scene is complex, and the fire damage is more significant. My aim in writing this article, therefore, is to offer the reader an insight into the work of a fire investigator, and how we reach the conclusions that we do. My route to becoming a fire investigator began in 1998 when I joined the Fire Service as a firefighter. Within a year I had unfortunately attended my first fatal fire, and it was while watching the fire investigator who came onto the scene to determine the cause, that the fire investigation spark (no pun intended) within me was struck. I was fascinated by how the charred remains of what remained could decipher the fire's origin and cause. After 13 years of fighting
fires, I transferred into the fire investigation team, a small cohort of expertly trained and highly experienced fire investigators, where I have remained ever since. So where to begin with a fire scene investigation? Although every fire scene is different, the process in determining the cause is the same, and chiefly involves collecting as much ‘data’ as possible, and interpreting that data to develop and test hypotheses, before a final hypothesis is selected. Data comes in many forms and includes the account of any witnesses to the fire, closed-circuit television (CCTV) images and the analysis and interpretation of fire patterns at the fire scene, to name but a few. I like a fire investigation to collecting the pieces of a jigsaw puzzle. If all the pieces to the jigsaw can be found, then the picture becomes crystal clear. However, at the point that I am notified of my requirement to attend a fire scene, I have no pieces to the jigsaw, and my quest for those missing pieces begins. Obviously, the more pieces I can find then the clearer the picture becomes, and so, the investigation of a fire begins before I even leave my office. Any previous fires are clearly of interest to me, and any other intelligence relating to a particular address is recorded.
building at high speed. When these activities are considered and combined with the fact that firefighters entering burning buildings in zero visibility, tasked to locate and rescue any occupants, as well as extinguish the fire and who are extremely task focused, it is not surprising that the preservation of evidence at a fire scene is somewhat challenging.
A point of note, however, worth emphasising at this juncture, is the issue of bias. It is imperative that investigators maintain an open mind and remain completely impartial. Establishing that a property had been subjected to three previous arson attacks does not preclude the fourth fire from being the result of an accident. Expectation bias can be a dangerous animal and fire investigators need to be acutely aware of the potential negative impact bias can have. Unwittingly trying to confirm what an investigator ‘expects' the fire cause to be, can be a dangerous road to go down. Instead, and by maintaining an open mind throughout, data collected that could potentially lead to bias is instead noted but assessed for its reliability and relevance.
It is imperative therefore that as a fire investigator, I identify those first responders and obtain their accounts in detail. What was the security of the building when you arrived? Where was the fire at its most severe? What extinguishing media and tactics did you employ? What doors and windows have you opened either during your search or to ventilate post-fire? Has any furniture been moved and if so, where to? What could you hear? Have you turned off any electrical appliances or isolated the services? The list of questions goes on, but ultimately the aim is clearly to elicit as much information as possible and thus collect more jigsaw pieces. Coming from an operational firefighting background certainly helps when questioning fire crews, having ‘been there and done it' so to speak.
Returning to the investigation in hand, further jigsaw pieces can be obtained before mobilising to the fire scene. These pieces (or data) might include confirmation of where an address is and the local topography, such as playing fields, railway lines etc.… that may provide unrestricted access to a site. Google can be a wonderful tool and a quick check of a company's website, if one exists, can be extremely useful in determining what processes occur at that site or its occupancy. Confirming the type of building or location that a fire has occurred also allows an investigator to gauge its construction and therefore begin to assess its likely reaction to the fire. The data collected before mobilising to the fire scene may have provided only one or two pieces of the jigsaw, but the picture is beginning to form nonetheless.
Data collection from witnesses then extends to any occupants of the affected property, neighbours, passers-by and any other person that could potentially provide any useful information. What were the actions of the person who was the last to leave the property? Do any occupants smoke? Are candles used? What is the method of heating the property? What were the electrical appliances present in the room when the fire started and were they plugged in? Where are the electrical sockets? Again, the list goes on, but witness information should be gathered as soon as possible after the event, for obvious reasons. It could be that what somebody didn’t see be equally as important. For example, a witness who can confirm that at a particular time there was no sign of any fire, or that a building was locked securely can be equally helpful.
Once at the scene, however, the collection of data can really begin. It is worthy of mention that fire, particularly when used at a crime scene, presents arguably a unique set of circumstances when it comes to evidence. In most cases, when a crime occurs, the longer the crime is in progress, the more evidence is produced. Evidence at a fire scene, on the other hand, diminishes as time passes because the fire destroys more and more of what evidence there was.
If we consider the fire on a timeline, the witness that takes us the furthest point back in time and closest to when the fire started is often the most useful. The difference between a reliable witness who recalls seeing flames issuing from multiple windows and one who confirms that flames were confined to just one window when they saw the fire is clear. By collating the information obtained from all available witnesses, interpreting its relevance and ensuring its reliability, hypotheses can begin to form having not yet even stepped foot into the building.
The actions of the first responders to any fire scene are therefore vital to the preservation of any remaining evidence. As a fire investigator, it is imperative that I obtain the accounts of these first responders regarding their actions and observations. Typically, a severe fire in a two-storey house confined to a bedroom, for example, would attract two fire appliances carrying around nine firefighters; if people are reported trapped inside, then a third appliance is usually sent. This results in up to six firefighters donned in breathing apparatus entering the property to undertake search and rescue activities. They will undoubtedly be equipped with firefighting water hoses to extinguish the fire and could, therefore, apply approximately 500 litres or more of water onto the fire at high pressure. Modern-day firefighting can also involve positively pressurising the building to force the smoke out of windows and other openings. This effectively means placing a large industrial fan close to the property's front door and blowing air into the EXPERT WITNESS JOURNAL
The checking of witness evidence for its reliability, however, cannot be over-emphasised. Witnesses can be deliberately untruthful, whether that be because they would implicate themselves in a crime or demonstrate that their negligence caused the fire, albeit accidentally. Further, people may inaccurately describe what they saw, whether that be because of excitement, upset or other emotions experienced by 48
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were and what they were doing when the fire occurred could be useful to know. A handrail could mean that the occupant is elderly. Are they in receipt of care and if so, when was the last visit from a carer before the fire? Littered cigarette ends not only indicate the presence of a smoker and a potential source of ignition, but also those cigarettes are disposed of carelessly. Finally, a skip containing builders waste could mean that a recent refurbishment of the property involved some sort of alteration to the electrical installation or a plumbing task that involved ‘hotworks’.
people who may well have not been exposed to such an incident before. The ‘ABC’ rule of thumb in fire investigation is to ‘assume nothing, believe nobody and check everything’, and remember that witnesses can be mistaken, or lie of course, and physical evidence does not. Footage captured by CCTV cameras is an obvious source of reliable data, and time invested in checking for cameras in the local vicinity is time well spent. I recall one case where CCTV footage obtained, although scant and which did not record the fire itself because it faced the wrong direction, did capture a passing vehicle that was later traced. Although the sole occupant of the passing car couldn’t recall seeing anything to assist the investigation themselves, the onboard dashboard camera fitted to their vehicle did. A bonus jigsaw piece to say the least!
‘Lifestyle indicators’ allow the fire investigator to build a picture of how the building and its occupants ‘usually’ behave and without yet having reached the room where the fire occurred, many pieces of the jigsaw can be collected. It is sometimes easy to become focused on the ‘burned bits' at a fire scene and neglect the wealth of information on offer. Once inside, consideration to lifestyle indicators continues. Is the property secure? If not, is any damage to doors and windows consistent with the actions of the first responding fire crews or is there evidence of a break-in before the fire? Is the property in order or unkempt? Are electrical appliances and extension leads being used appropriately? By what means do any occupants heat the property? Is there evidence of candles being used? Is there further evidence of smoking materials? And the list goes on.
Having spent what can be many hours speaking to witnesses, retrieving alerts from both fire and intruder alarm systems and identifying possible sources of CCTV, and of course, having recorded everything contemporaneously on paper, attention turns to the fire scene itself. Top of the priority list at this point, by a long way I might add, is scene safety. No fire investigation is worth getting injured, or worse, for and an assessment of the buildings structural integrity must be undertaken. In addition to the obvious risk of a severely fire damaged building collapsing, there are many other nasties to consider. Exposed electrical cables, holes in floors, broken glass and other sharps, chemical and biological hazards and the exposure to asbestos, for example, present an often-unpleasant environment in which to work in. Ensuring adequate control measures are in place before entering a fire scene is therefore vitally important.
By the time the investigator reaches the room of the fire’s origin, it is likely that several working hypotheses have been developed based on the information gathered up until that point. It is then a case of continually testing those hypotheses against new information obtained as the investigation continues. Once in the fire compartment, a survey of the burn patterns and the way that the contents of the room have reacted to the fire will enable the fire investigator to narrow down their area of interest and focus in on the fire’s origin.
Having deemed the risk to my safety to be adequately controlled, a survey of the scene can begin. It is usual practice for a fire investigator, certainly at a crime or fatal fire scene, to be accompanied by a Police Forensic Scene Investigator (FSI), perhaps more commonly known as a Scenes of Crime Officer (SOCO). They are responsible for retrieving any physical evidence and will routinely record the scene by way of digital photographs. Because of this, a fire scene investigation is very much a team effort that utilises the skills of both the fire investigator and the FSI.
To do this, a variety of methods are employed. The way that fire inside a compartment, such as a bedroom, develops is controlled by just two things; the amount of fuel available and the availability of an oxidiser, which in almost every fire is the oxygen in the air. A bonfire in the open is an example of a ‘fuel controlled' fire because it is the amount of fuel present that determines how large the fire gets and not any restriction on the amount of available oxygen. Although a fire inside a well-insulated room with closed doors and windows will initially be fuel controlled in its very early stages, it requires more oxygen as it develops. When the point is reached that the fire is consuming more oxygen than the amount of air being drawn into the room, it becomes a ventilation-controlled fire and limits its ability to develop. If, however, there is an adequate supply of air to the fire, and enough fuel, of course, it will develop to involve the entire contents of the fire, and it is at this point the fire is said to have ‘flashed over'.
When assessing a fire scene, there is often as much useful information to be had from areas remote from the fire compartment, as there is within in it. A great deal of information can be obtained about the occupancy of a building by spending some time surveying the surroundings and away from the room of origin. Children’s toys in a rear garden, a wallmounted handrail by a front doorstep, littered cigarette ends on a driveway or a skip containing builders waste are just a few examples of the information on offer, if one takes the time to look and take note of it. Toys could mean that children were present at the time of the fire. The answer to where any children EXPERT WITNESS JOURNAL
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It may be however that the source of ignition cannot be found, despite a thorough and proper excavation. A match thrown into a waste paper bin that then develops into a significant fire is not going to be found. It is important to remember therefore that the job of a fire investigator is to consider all potential ignition sources and work towards eliminating as many as possible. Although a single match dropped into a bin is not likely to be found after a fire, a thorough excavation may confidently exclude other sources of ignition such as electrical wiring, a candle carcass or a cigarette lighter.
If a fire is prevented from spreading beyond the item that first ignited, such as an armchair, for example, it is a relatively straightforward task to identify the origin of the fire. If, however, the fire has spread to involve the entire room and its contents, it becomes more a challenge to identify where the fire may have started. Despite this, by surveying the fire, heat and smoke damage inside a room it is possible to identify where the fire’s origin lies. By possessing a degree of scientific knowledge, particularly an understanding of fire dynamics, and by conforming to some basic laws of physics, such as that heat rises and radiation travels in straight lines, fire, heat and smoke patterns can be interpreted.
By then considering data previously obtained during the investigation, it may be that the other carelessly dropped matches in various places throughout the scene, remote from the bin, give real credence to a cause determination that a dropped match did indeed start the fire, although the actual match responsible was entirely consumed.
Because fire consumes the fuel that is involved, the longer the fire is burning in a particular place then, the greater the degree of damage, generally speaking. So, by assessing and comparing the depth of charring on wood, the degree of melting to plastics or arc damage on electrical cables, for example, the investigator can begin to home in on where the fire may have originated. Burn patterns on walls and ceilings can be clues to where the fire was at its most severe and the way soot has been deposited onto surfaces can indicate the ventilation effects in play at the time. Gypsum plasterboard contains moisture, and during a fire a process known as calcination causes the moisture to evaporate. Fire investigators take advantage of this process and survey the extent of calcination to assist in determining where the fire was at its most intense.
Hopefully, by this stage of an investigation, the investigator has collected many pieces of the jigsaw, and a clear picture is forming. Hypotheses will have been developed and tested, some then discarded and some maintained until hopefully enough data has been collected to select one final hypothesis. At this stage of the investigation, I will usually sit down, hopefully with a cup of tea, and retest my final hypothesis. Have I considered everything? Are there any sources of data that I have missed? Will my hypothesis withstand the test of scrutiny from my peers? Only when I am content that I have exhausted the fire scene of all available data will I leave and return to my office. Having then considered all of the information available to me, I will then produce my expert report in preparation for any court proceedings.
By continuing the process of fire pattern analysis, and thus collecting more data, the information obtained from any witnesses can be compared to the physical evidence encountered for both its consistency and reliability. Having hopefully identified where the origin of the fire is, the next task is to determine what the source of ignition was. Three critical questions must be precisely answered by any fire investigator to identify the circumstances that led to a fire. What was the item that was first ignited, what was the source of ignition competent enough to ignite that fuel and how was it that both the first item to be ignited and the source of ignition came together?
Further to this, however, is how fire investigation plays a pivotal role in fire prevention strategy, and why accurate fire cause determination is key to keeping our communities safer‌ after all, fires cannot be prevented, if how they start in the first place is not understood. And so, hopefully, this brief insight into the work of a fire investigator has achieved its aim, and given you, the reader, an awareness of how fire investigation is all about trying to, so to speak, complete the jigsaw!
Fire scene excavation is comparable to an archaeological dig. As a fire develops, debris collects on the floor and forms layers that constitute a timeline. Because the source of ignition is likely to be right at the heart of the point of origin, as the fire develops it becomes buried beneath a layer of fire debris. It is for this reason that a fire investigator will excavate comprehensively and systematically utilising small trowels, paint brushes, sieves and magnets, for example, to locate the sometimes-minute pieces of evidence that may be all that remains of the ignition source. It may be that all that’s left of a faulty electrical appliance are the metallic components that were originally within its plastic body. It may also be that the small metal disc at the base of a tea-light candle wick is all that survives an intense fire caused by the careless use of such a candle. EXPERT WITNESS JOURNAL
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National Operation to Retest Manipuliated Forensic Samples Continues Following a Randox Testing Services (RTS) report to Greater Manchester Police of alleged data manipulation within their laboratory processes, a team of experts identified that thousands of cases had been affected and a majornational retesting programme was commissioned. The National Police Chiefs’ Council (NPCC), working with the Forensic Services Regulator (FSR), the Crown Prosecution Service (CPS), the Home Office and the Association of Police and Crime Commissioners (APCC), has identified more than 10,500 cases across 42 force areas that may have been affected by manipulation.
we can assure the public that we have retested samples in every case where it is necessary and possible. “We’ve retested nearly 90 per cent of the highest priority cases. Of the cases retested three per cent have resulted in different outcome and a further four cases referred to the court of appeal – these are all road traffic cases.
The alleged manipulation came to light in January 2017 when RTS, during an internal investigation, uncovered irregularities and reported the details to Greater Manchester Police and the appropriate regulatory authorities. A criminal investigation was subsequently launched and as a result two men – a 47-year old and a 31-year-old – were arrested on suspicion of perverting the course of justice. They have been re-bailed until 10 January 2019. Six more people, two woman and four men, have also been interviewed and under caution, although all but one of those have since been eliminated from enquiries.
“Alongside the APCC and the Home Office, the NPCC are leading the work to bring other independent forensic testing suppliers into the supply chain to speed up the process. “We have requested that local forces and coroners review the relevancy of toxicology to each affected case, so we can concentrate our efforts where they are most needed. “This has succeeded in reducing the number of high priority cases, and has also led to around 2300 cases (approx. 22 per cent) being struck from the retesting process as they have been deemed unlikely to result in a change to the criminal justice outcome.
Of the 10,500 cases identified, nearly 4000 have been retested or submitted for retesting and 2300 cases have been struck from the retesting process as they have been deemed unlikely to result in a change to the criminal justice outcome.
“I expect this re-evaluation process to reduce the timescales for completing the retesting programme, but our conservative estimates are that all relevant road traffic cases will be complete by mid-2019, and all other cases where toxicology was pivotal will be done by December 2019.”
Of the highest priority cases, nearly 90 per cent (approx. 800) of cases have been retested, with the rest to be completed by April 2019. Of the 2700 cases which have been fully revisited, approximately three per cent (a minimum of 90) of outcomes were affected. All 90 are road traffic cases, of which 50 were discontinued by the CPS and 40 had a conviction overturned following the case being reopened under s.142 of the Magistrates Court Act, which gives Magistrates’ Courts a power to reopen cases to rectify mistakes.
Dr Elizabeth Soilleux Consultant Histopathologist MA, MB, BChir, PhD, FRCPath, European Board of Pathology, Cardiff University Bond Solon Expert Witness Certificate (Civil Law)
Practising consultant haematopathologist and autopsy pathologist in Cambridge. Cambridge University lecturer and fellow/director of studies in medicine, Churchill College, Cambridge.
Four additional road traffic cases have been taken to the Court of Appeal, with one case being overturned, one resulting in a reduced sentence, one appeal being unsuccessful and the fourth still to be decided.
Expertise in:
The NPCC has employed an independent expert to analyse the retest results, with more than 1000 cases already being closely examined to ensure the quality and accuracy of the retesting work.
Haematopathology - histopathological assessment of lymph nodes, bone marrow, thymus, spleen, lymphomas, leukaemias, myelomas, myelodysplastic syndrome, myeloproliferative disorders, benign conditions, including infections, molecular tests in haematopathology.
National Police Chiefs’ Council Lead for Forensics, Chief Constable James Vaughan, said:
Autopsy (post mortem) pathology.
“The integrity of forensic science is a fundamental part of our criminal justice system and we are working tirelessly to minimise the impact of this serious breach of standards.
Contact: Tel: 07798 643879 Email: expwitpathol@gmail.com Website: www.expertwitnesspathologist.co.uk
“Managing the process for retesting over 10,500 potentially affected cases has been a major national police operation. We will continue this process until EXPERT WITNESS JOURNAL
60 Cow Lane, Fulbourn, Cambridge, CB21 5HB
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Morrisons Found Liable For Staff Data Breach by Justin Govier, Partner at IBB Solicitors The Court of Appeal has upheld a High Court ruling finding supermarket chain Morrisons legally liable for a data leak caused by a former employee which affected around 100,000 members of staff.
Experts underline that there is “very little [companies] can do to guard against a similar situation,” since such acts may not be mere negligence but wilfully and maliciously planned to hurt the firm.
The case marks the first class action suit for a data breach in the UK and saw over 5,500 Morrisons staff seeking damages from their employer after auditor Andrew Skelton leaked their personal information, including salary and bank details, online and to newspapers.
Judges in the ruling admitted that finding employers vicariously liable for any data breaches caused by staff could result in firms being ordered to pay “potentially ruinous amounts” in compensation. However, they maintained that companies could protect themselves by “insur[ing] against losses caused by dishonest and malicious employees.”
Three senior judges concluded that Morrisons was “vicariously liable” for the offence, for which Mr. Skelton was jailed for eight years in 2015.
Retailer seeks further appeal to Supreme Court Employers are already advised to insure against their liability to pay damages for harm caused by employee negligence.
The food retailer could now be liable to pay compensation worth millions of pounds to its affected employees and has said that it will now apply for a further appeal to be heard in the Supreme Court. As the first ruling of its kind, the case is expected to set a significant precedent for companies across England and Wales. Employers may now be liable to pay vast sums to people affected by data breaches caused by individual staff negligence or overall failures of the corporation.
Under the doctrine of vicarious liability, employers are legally responsible for the acts and omissions of their staff, provided the staff member was acting in the course of employment. Beyond taking out insurance, companies should also take all steps as far as is reasonable to ensure that their systems and strategies to protect personal data are secure.
A legal representative for the claimants welcomed the verdict, stating: "The judgment is a wake-up call for business. People care about what happens to their personal information.”
Thorough processes should be in place for deleting personal data no longer needed, and those in a position to access sensitive information should be monitored closely. The bottom line in many cases however appears to be that companies will be held liable for the harm caused by employees wherever necessary to ensure that victims receive adequate compensation.
They maintained that it was only fair to “expect large corporations to take responsibility when things go wrong in their own business and cause harm to innocent victims.”
A spokesperson for Morrisons emphasised that the chain had “not been blamed by the courts for the way it protected colleagues’ data.”
Ruling could impact all UK employers Many lawyers have been quick to criticise the ruling as a dangerous precedent which opens the floodgates for companies to be forced to pay unforeseeable costs in compensation for data breaches beyond their control.
The spokesperson added that the retailer was “not aware that anybody suffered any direct financial loss” and believed it “should not be held responsible” for the criminal actions” of a former employee which “targeted at the company.”
One critic pointed out that the verdict “effectively achieved” Skelton’s “purpose of punishing Morrisons by making them liable for potentially millions…in compensation, through no fault of their own.”
Employment law advice for employers Find out how we can protect your business and your reputation from the acts and omissions of employees by calling us on 03456 381381.
Skelton deliberately leaked the data in act of revenge against the supermarket group after he was disciplined for operating an ecommerce business through the company’s mail room at its Bradford headquarters.
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Alternatively email your details to employment@ibblaw.co.uk. www.ibblaw.co.uk
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Psychological Injury, Cyber Crime and Data Breach Damages by Hugh Koch, Clinical Psychologist and Visiting Professor in Law & Psychology to Birmingham City University (BCU), Simon Midgley, Clinical Psychologist, Emma Riggs, Clinical Psychologist and Nkem Adeleye, Lecturer in Law (BCU) Data breaches concerning individuals and organisations are increasingly common highlighted by the growing emphasis on GDPR (General Data Protection Regulation) and organisational security measures. Despite best intentions and quality control of data disclosure, sensitive data breaches can have a variety of negative consequences (1). When a data breach occurs in an organisation, whether public or private, one compromising episode can adversely affect the best of reputations. Such damage to reputation and brand value as a result of a cyber security breach is an increasingly common occurrence. The digital world of immediate accessibility can lead to a company’s identity being adversely affected throughout its customer base, and result in a significant loss of customer trust, whether the ‘customer’ be an individual or another corporate entity. The consequent shut down in operations in order to rectify the data breach very easily results in significant loss of revenue. In the UK, between 40-45% of all businesses identified at least one cyber breach in the past 12 months (2) – it is clearly a priority for companies to learn how to keep data secure or face the consequences, one of which could be litigation. EXPERT WITNESS JOURNAL
Due to the highly sensitive nature of data breaches, individuals affected by a data breach may also be at risk of identity theft. Criminals can steal an identity and commit fraud in a victim’s name, using the exposed and released information. It can be used on the ‘cyber black market’ to file fraudulent tax returns, open new credit, make false purchases on existing credit accounts and obtain services including medical treatment (3, 4). Public bodies collect a significant amount of sensitive information about people that it provides services to/for. They have a duty to use and store this data responsibly. The Data Protection Act [2018] and Human Rights Act [1998] set out rules to protect the public and its personal data. Public bodies such as the NHS, Police, and Local Authorities are at risk of breaching these rules at times by storing inaccurate or out-of-data information, holding data longer than necessary, failing to make data secure from external hackers or by using data outside its stated purpose. Individual rights can be infringed when a public body commits any (5a) of these errors, and these can result in litigation.
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A breach can occur in numerous ways including hacking, lost laptops, iPads and iPhones, theft by an employee and error in data processing and transmission. It is incumbent on businesses to prevent data breaches and secure the personal information it handles but this does not always occur. Due to the myriad of potential breaches, the probability of a data breach increases over time and failure to promptly take action in the event of a breach can have significantly adverse results for any one individual and the organisation concerned (3).
• Panic Disorder. (DSM5 300.01) (F41.0) • Agoraphobia. (DSM5 300.22) (F40.00) • Generalised Anxiety Disorder. (DSM5 300.02) (F41.1) • Obsessive Compulsive Disorder. (DSM5 300.3) (F42) The finding of an appropriate diagnosis helps all parties understand logically how severe a psychological problem or ‘injury’ has been, and, secondly, whether it requires treatment to rectify. This can be reinforced by contemporaneous information from the GP records and reinforced by a clear descriptive narrative of how the index data breach has adversely affected the claimant. With regards to whether a data breach would meet the criteria of a life threatening event and its implication for PTSD, this is unlikely. However, the ‘knock on’ effect of a serious data breach could conceivably result in high levels of stress and subsequent adverse life events with serious implications.
Latest research indicates (5,6) that people are becoming stressed by the additional pressure to keep large amounts of information and passwords secure. There is a lack of trust in technology companies and organisations that hold information to keep that information safe. Least trusted was the Government and its many agencies. Most trusted were manufacturing, healthcare and education despite these industries all experiencing data breach problems recently.
Awards for Distress Increasingly case law has emerged, emphasising the interrelationships between privacy rights, Tort Law and data protection. Claims are being brought on more than one ground i.e. for the misuse of private information, and for breach of data protection obligations (7).
The Psychological effects of a Data Breach In most cases of cyber/data breach, there is some financial loss to the victim, a loss which gets greater when stolen data is sold on (6). However, a less understood effect is the psychological stress and trauma experienced by the individuals concerned. Typical psychological effects include: 1. Invasion of their privacy, feeling victimised 2. Feeling upset, depressed and guilty 3. Insomnia 4. Eating and sleeping difficulties 5. Social anxiety, avoidance, hypervigilance and disruption
Recent case law of relevance has included: a) TLT and others v. Secretary of State for the Home Department: The Court awarded a global sum of damages rather than separating out a damages award under district head of damages. b) Vidal-Hall and others v. Google Inc: This made it easier to bring claims for compensation for distress alone, and not only as an adjunct to some financial loss.
The stress of experiencing a data breach may result in other, well known adverse life events, such as needing to move house, move area, losing a job, relationship stress and separation, dislocation from friends and family, and difficulties with home purchase if I.D is compromised.
The type of data breach i.e. medical, financial or social will affect quantum. Differing effects on relationships both marital and social had significant effects on quantum. c) Burrell v. Clifford: The court held that the question of appropriate compensation was broad and should take into account circumstances such as: •. The nature of the information •. The nature, expert and purpose of the misuse •. The consequences of the misuse •. Whether the misuse caused the claimant financial loss •. Any aggravating factors
A number of diagnosable mental disorders or ‘psychological injuries’ can occur and be identified when interviewing claimants over 3-36 months after the data breach they have experienced. These include: • Adjustment Disorder with Anxiety and Depressed Mood. (DSM5 309.28) • Adjustment Disorder with Depressed Mood. (DSM5 309.0) (F43.22) • Adjustment Disorder with Anxiety. (DSM5 309.24) (F43.22) • Specific Phobia (Situational Type). (DSM5 309.29) (F40.248) • Post-Traumatic Stress Disorder. (DSM5 309.81) (F43.10)
d) Gulati: Emphasis may be put on high awards to celebrities but the Court of Appeal stated that there should be a reasonable relationship between the lack of damages awarded for distress in privacy claims and awards made for psychological injury in personal injury cases.
• Acute Stress Disorder. (DSM5 308.3) (F43.0)
In Gulati, the Court of Appeal also stated that damages should not be limited to damages for distress but recognised that an award of damages can
• Major Depressive Disorder. (296x)
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be made for infringement of the right itself – the misuse of private information, consistent with decisions of the European Court of Human Rights. This expands the reach of the law itself.
References 1. The scary side effects of a cyber breach (2018). www.vantiv.com 2. The damaging after effects of a data breach (2018). www.itgovernance.co.uk
Conclusion With greater awareness of GDPR, claims solely for distress against organisations who hold and control data will be given a firmer legislative basis (7) and become more common. The principles and methods for investigating psychological injuries consequent on data breaches are being developed (8), with each case being considered on its individual merits, and adjudicated with careful application of the Gulati principles and personal injury guidelines.
3. Data breach (2018) www.slk-law.com/practices 4. Data breach lawyers (2018) www.robinsonfirm.com 5. Cyber Crime victims left depressed and traumatised (2018) www.infosecurity-magazine.com 5a. Data breach issues (2018) www.irwinmitchell.com 6. Are data breaches stressing you out? (2018) www.kaspersky.com 7. Privacy and Data Protection Cases: Quantifying Damages for Distress (2018) www.brownejacobsen.com
Given that a claimant involved in a data breach claim is likely to be anxious and distressed, it is important that the claim is pursued and resolved as speedily as possible, ensuring the claimant finds the process convenient and accessible. Needless to say, the culture of this medico-legal process should, itself, be aligned with optimal information security and unbiased, fair and impartial witness reporting (9).
8. Koch HCH (2018) From Therapist’s Chair to Courtroom: Understanding Tort Law Psychology. LCB Publishing 9. Fair and impartial witness reporting (2018) www.premexservices.co.uk 10. Data breaches are stressful (2018) www.hayesconnor.co.uk
Cases
Helping the claimant obtain the best legal and medico-legal advice requires trust in the legal firm involved. Making a compensation claim for a data breach can be stressful. Recent rulings have paved the way for those affected by data breaches to claim damages for distress with or without actual financial loss being involved (10). The immediate future for these types of claim should allow greater recognition and support for individuals who have been placed in such invidious positions by data breaches.
PPCS
1. TLT and others v. Secretary of State for the Home Department (2016) EWHC 2217 (QB). 2. Vidal-Hall and others v. Google Inc. (2015) EWCA. CIV 311. 3. Burrell v. Clifford (2016) 294. 4. Gulati (2015) EWCA 1482.
Further details on this area of personal injury litigation can be obtained from Professor Hugh Koch.
PSYCHIATRIC & PSYCHOLOGICAL CONSULTANT SERVICES 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.
Psychiatric and Psychological Consultant Services (PPCS) is an independent clinic and registered provider with the Care Quality Commission for assessment and treatment in psychiatry and psychology.
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 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
PPCS has over 50 clinical staff including 20 Consultant Psychiatrists with specialisms in Adult, Child and Adolescent, Family, Personal Injury, PTSD, Neuropsychiatry, and Forensic, and over 30 Clinical and Counselling Psychologists, neuropsychologists and other specialist therapists. Staff have extensive experience in medico-legal assessments and reports. Our services also includes our Neurorehab Clinic, EMDR, psychotherapy, CBT to cover anxiety, depression, pain management, PTSD, phobic anxiety, substance misuse, sexual abuse & relationship problems, occupational stress, psychosomatic illness, chronic fatigue, bereavement & learning disability, discrimination at work, etc.
In addition, we also provide psychological therapy carried out by experienced therapists using up to date treatment techniques such as Cognitive Behavioural Therapy.
For Further information please visit: Website: http//www.ppcsltd.co.uk Telephone: Andy Welch Commercial Director 020 7935 0640 Email: info@ppcsltd.co.uk
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Dealing with Service Users Who Bite, Scratch or Spit Foreseeable Risk by Joanne Caffrey, Expert Witness & Specialist Training Provider Safer Custody, use of force and managing challenging behaviour in custody, education, care and mental health sectors 2012 British Excellence in Performance Winner 2018 Forensic & Expert Witness award Winner – outstanding legal services to safer custody As an Expert Witness I am engaged on approximately 2-3 new legal cases per month where either staff or service users are injured, or die, as a result of failures to manage foreseeable risk with challenging behaviours and failure to provide suitable and sufficient assessment and control measures to either eliminate, or reduce to a minimum, the likelihood of harm to staff or service users.
The phrase ‘Behaviour Plan’ should be replaced with the terminology of ‘Behaviour & Care Plan’ to ensure the care aspect is covered. Typically ‘care’ factors such as medical implications, are missed from the plans we review. All service providers need to think more about ‘Person Centred Care’ rather than generic management plans of 1 size fits all, as this can be considered a restrictive practice and discriminatory to a person’s legal entitlements and safety.
Service user in schools are children, in care settings the patient, and in custody settings the detainee/ prisoner.
The more complex or challenging a service user is, then you should expect to have more complex and lengthy assessments and training for dealing with the person.
The cases I work on tend to be from schools, prison or police custody or mental health units and are a mixture of either staff or service users being injured. This short paper is to highlight just some of the issues for all sectors to consider and discusses some of the myths and pitfalls which service providers fall into.
We also see that little mention is made of the risks to staff who have to deal with challenging service users. The staff members individual demographics of gender, age, underlying health conditions are all relevant as a methodology may be fine for one member of staff to implement but due to the personal demographics of another, it makes it an unsafe practice exposing both the staff and service user to foreseeable risk.
“All de-escalation and restraint training is the same, and we just need to show the tick in the box that staff have completed it” WRONG. All employers have a legal obligation to conduct their due diligence checks to ensure that any training commissioned, and provided to staff, is suitable and sufficient for the performance needs of the service. (Performance needs analysis). Standard packages are just that – ‘standard’ and are suitable for a standard service user, provided by a standard employee in that sector. However, what adaptations have been considered as relevant and suitably implemented to ensure the safe care of the service user? For example, a person with Downs Syndrome may have hyper- mobile joints, respiratory disorders and heart defects. What specialist adaptation, by a suitably qualified consultant/trainer has been implemented?
“What risk assessment?” A general risk assessment about slips, trips and falls is not suitable, or sufficient, to safeguard staff or service users. A common issue we are dealing with is that of service users who bite, scratch and/or spit. The bottom line is – STAFF DO NOT HAVE TO ACCEPT THAT IT’S THEIR JOB TO BE BITTEN, SCRATCHED and SPAT AT. A detailed assessment must be conducted to establish risk levels to the staff and the service user, as staff failing to act appropriately to such behaviour puts the service user at risk e.g. staff member slaps child/adult, interferes with the respiratory system and causes a respiratory arrest or dislocates the person’s jaw.
It’s not uncommon for us to be involved with staff working with adults or children with Downs Syndromes and discover that the ‘standard’ techniques they are using are actually placing the person at high risk of injury or death, and the staff have little or no idea of the risks. EXPERT WITNESS JOURNAL
The staff member being bitten or scratched etc has an increased risk of infection, sepsis, and mental health anxiety disorders. 56
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and just one part of your management plan to keep staff and clients safe.
Saliva is toxic in the eye. One risk is regarding managing blood-borne virus exposure which may be in the saliva, such as hepatitis, but also many people are unaware that saliva in the eye can cause blindness. In 2016 a 32-year-old care worker had to have a corneal transplant in her eye after a spitting incident at Low Moor Resource Centre in Bradford left her with only 20% vision in the eye. Her solicitors argued that Bradford District Care NHS Trust failed to risk assess the risk of spitting when dealing with this patient. The union rep stated “The Trust knew this service user had a tendency to spit and should have protected staff ”. She agreed a settlement of £110,000. The cost to have prevented this incident would have been much less.
“What actually is reasonably foreseeable?” It is reasonably foreseeable that all service provision sectors will at some time have clients / service users who are challenging or displaying unwanted behaviours. Therefore, it is reasonably expected that an employer should consider what level of conflict management training is necessary, reasonable and proportionate. If the likelihood of an incident occurring is rare then the decision may be to offer e learning solutions as the only method, and keep it under review. If the likelihood of occurrence is possible, but if it did happen the anticipated impact is considered low injury then a blended approach may be reasonable such as e learning and supplemented with some face to face training and consultancy.
A member of staff must be protected in such a circumstance under both Health & Safety at Work Act requirements and general safeguarding duties to the client.
If the likelihood is regular and the impact is injury, then a more proactive management approach would be considered reasonable. This may include blended learning and development of staff based upon performance needs and training needs analysis; thorough assessments of risk conducted by suitably trained personnel; detailed behaviour and care plans; detailed safer systems of work; detailed assessments of risk and PPE availability; enhanced training by suitably qualified companies; whole workplace awareness training, and post training assessments/ reviews.
Safe systems of work are essential to keep both staff and service users safe from physical and emotional harm. Failure to implement safe systems of work for client services could in itself be an abusive practice contravening safeguarding responsibilities. Additional training is required in addition to any general training PLUS what are you doing to work longer term on managing down the incidents of biting, spitting and scratching? Why is it happening? Is it a manifestation of unseen abuse which is occurring to the person?
“Surely it’s all common sense?” Any liability case (civil or criminal) looks at facts of law – not ‘common sense’. As what is common sense to one person may be ludicrous to another.
It is not acceptable to make up your own practices to reduce biting e.g. placing things in the mouth of the biter based on a staff member’s decision in conjunction with an appropriate adult. What needs to be remembered is that if the person had respiratory failure or died is the appropriate adult or staff member suitably ‘expert’ in that area of intervention to stand in a witness box for a manslaughter case and explain to the jury their expertise to diagnose the intervention method and explain all the underlying medical and legal implications of the decision?
The law is simple – any work-related task needs to be assessed for risk and its risk eliminated or managed down to the lowest level. Anything which is necessary, reasonable and proportionate should be considered and accurately assessed and documented before being discounted on the basis that there is no money available. Person centred care means considering thoroughly that the person’s unique health, education, and disability needs etc have been taken into consideration and that the best interests of the service user is the primary focus – not what is in the best interests of the business alone. This also means looking at the demographics of the staff providing the care so that decisions do not put them at unreasonable risk.
Plus, from a safeguarding perspective we need to be thinking about fabricated & induced illness and abuse by the appropriate adult, in addition to the fact they lack knowledge regarding the subject matter, and despite their best intentions may be putting the person at increased risk of harm. Many employers are unaware of the availability of bite/scratch sleeves and clothing which are available for staff to wear as PPE (Personal Protective Equipment). This clothing can prevent penetration and laceration of the skin in addition to safe systems of work and longer term analysis and management strategies. This clothing is British Standard and EU kite marked for safety of the client and staff members. An issue to consider is the price of a civil claim against your company by a staff member who is harmed when the risk was foreseeable, and a range of reasonable control measures were available. Bite/scratch clothing is PPE EXPERT WITNESS JOURNAL
“We are good communicators and we try to de-escalate them” In a 1 day course it is impossible to make staff competent at de-escalation for all situations. General de escalation skills courses are just that – general one size fits all and do not necessarily take into consideration the complex needs of the service user and the capabilities of the staff member. For example, occupations such as education or care tend to attract personality styles of people to talk about feelings with comments such as “how do you 57
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tohink they feel about what you just did?” BUT if the service user is in crisis they are unable to process such a large volume of words AND if they are an activist in crisis they may tend to respond more to factual comments such as “what happened?”. The first comment can be viewed as a judgemental attack and escalate the situation further. Comments such as “why is it always you?” are highly unlikely to calm someone down.
Challenging behaviour / unwanted behaviours is a work place activity and therefore must be assessed for the level of risk posed to employees, the service user themselves and any other person affected by it. These are basic principles of Health & Safety at Work Act & Regulations. Safer systems of work always exist, and individualisation of plans for both service user and staff is required to accurately manage risk.
If the service user then has mental ill health, educational needs or disabilities these all impact upon which communication style works best for them. Moving closer to the person in a caring manner could actually escalate the situation as the person may need more space around them.
Challenging & unwanted behaviours in all sectors is a complex speciality. Joanne Caffrey has specialised in this field for over 30 years and works at national levels and within coroner, civil and criminal court cases. Her expertise is sought throughout the UK and Ireland.
It is essential that any service user’s behaviour and care plan also covers the communication strategies based upon objective assessment and in conjunction with the service user. Typically, if communication is covered in the plans we review it’s common that the business dictates how the staff will communicate to the person, with little, or no, mutual prior agreement, and consultation, with the service user. This could therefore be detrimental to de-escalation and be a catalyst for escalation of unwanted behaviours and the implementation of physical restraints. This could be considered as abuse from the service provider.
Her CV and further information can be obtained by contacting TOTAL TRAIN via totaltrain@sky.com She is an appointed Director of the national company Freedom From Abuse and has received multiple awards for her work in this field, which include: • 2018 Forensic & Expert Witness Award – Outstanding legal services for safer custody • 2012 British Excellence in Performance Award • 2008 & 2009 National Training Awards for Professionalising Investigations for investigation of sexual and violence offences committed against vulnerable people.
Overall It is essential that all service providers work to minimise the injury to both staff and service users as a result of unwanted / challenging behaviours. Just because many work places have a right to use force, does not mean it is the right thing to do. The ‘best interest’ test is about the best interests of the client, not of the business, plus using any force can put staff at an increased risk of harm.
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Caveat: The information contained within this report is generic and not provided as legal advice. Specific advice relevant to your situation should be obtained.
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Mark Solon, Chairman of Wilmington Legal & founder of Bond Solon gives some of the results from the Times & Bond Solon Annual Expert Witness Survey 2018 This was from 1 October 2018 to 15 October 2018. 607 experts completed the survey making it one of the largest expert witness surveys conducted in the UK. The full results can be found at https://www.bondsolon.com/expert-witness/survey-report-2018/ Legal Aid continues to be a hot topic in the legal world, particularly as rates have been curtailed or even withdrawn. The government’s own statistics show spending on legal aid fell from £2.6bn in 20052006 to £1.5bn in 2015-2016. The sharpest decline came the year after Legal Aid, Sentencing and Punishment of Offenders (LASPO) came into force. (Source: Legal aid statistics: July to September 2017, (2017). [online] Available at: https://www.gov.uk/
surveyed do not think that many parts of their expert witness work could be done using AI reducing the need for full reports as it exists now. We shall see! There are many examples from history that show predicting the future is a very risky game. Many thought the motor car would never catch on and obviously horses would always be used as the prime mode of transport. The Ministry of Justice is spending more than £1 billion to modernise the courts and tribunal systems. In June 2018, Lord Chief Justice said in a speech: “The advantages of enabling hearings to take place using technology ought to be obvious. If parties and witnesses are able to appear via their computers, it will be easier for them to fit their court appearances around their lives.” (Source: The Age of Reform, (2018). [online] Available at: https://www.judiciary.uk/ wp-content/uploads/2018/06/speech-lcj-the- age-ofreform2.pdf) We asked: “In the light of ministers’ plans to extend digital hearings to more trials, do you think that this will lead to the decline, or the end, of expert witnesses?” Perhaps unenlightened self-interest showed that as in last year’s survey, most of the experts surveyed do not believe that the increased use of IT in courts will lead to the decline, or the end, of expert witnesses giving evidence.
There have been rumblings from barristers, even resulting in strikes. Expert witnesses are in a different position from barristers in that they have a day job and expert work is a secondary source of income. We asked: “Would you continue to work in legal aid cases if expert witness fees were further reduced?” 72% of the experts surveyed said they would stop doing legal aid work if expert witness fees were further reduced. If experts don’t take on legal aid work, there could be a significant effect on fairness in the system if those with money can employ the best legal teams and experts, compared to those who are legally aided. Another perhaps unintended and certainly unwelcome consequence of the cuts to legal aid is the increase in the number of litigants in person who cannot afford to pay for their own lawyers and are not entitled to legal aid. Litigants in person pose real problems for experts as they do not know the complex rules around experts and particularly how to instruct them properly.
Later in the survey we asked: “Do you think your professional body or regulator should be more stringent in removing experts from their approved lists who act as hired guns or are incompetent?” 75% of the experts surveyed consider that professional bodies should play a more active role in situations where experts are incompetent or behave as a hired gun. Professional bodies should do more to ensure that experts who are regulated by them are properly trained and approved. It is better that professional bodies perform this role than yet another independent body. The professional bodies already know who is on their books as qualified members and could create lists of suitable members who could act as expert witnesses. This would assist lawyers in finding suitable experts and provide a stick to remove non-complying experts.
Apart from BREXIT, flavour of the month for many is artificial intelligence (AI). AI refers to technology performing processes that require human intelligence. The AI revolution has now arrived in the legal sector. For instance, AI-based technological solutions have been developed to assist with the e-disclosure process. Lord Chief Justice says: “The ability of computers to analyse vast quantities of material to enable accurate predictions in many areas of human activity is one of the most exciting developments of the age.” (Source: Lord Chief Justice hails potential of big data and AI to reduce litigation and promote settlement, (2018). [online] Available at: https:// www.legalfutures.co.uk/latest-news/lord-chief- justice-hails-potential-big-data-ai-reduce- litigation-promote-settl
Almost by definition, expert witnesses must deal with difficult questions on subjects not familiar to a lay person. We asked: “As expert evidence becomes more complex and specialist, do you have concerns that courts may increasingly struggle to understand it?”
In the survey, we asked: “In the future, do you think many parts of your expert witness work could be done using Artificial Intelligence (AI) systems reducing the need for full reports?” 80% of the experts EXPERT WITNESS JOURNAL
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65% of experts consider that courts struggle to understand the evidence of experts as that evidence becomes more complex. As the primary role of an expert is to assist a court to understand an issue and so their explanation needs to be in clear language that a non-expert can understand and act upon. Experts should make sure that their reports are clear and fit for purpose.
Dawn Cragg M.B.E Expert Witness trained with Bond Solon and accredited with Cardiff University.2004 & updated continually
We also asked: “Over the last 12 months, have the number of your instructions gone up, gone down or stayed the same?” Nearly 50% of the experts surveyed indicated that the number of instructions received were at the same level whereas 37% said they had increased. As a follow up we asked: “In the last 12 months have you considered stopping your work as an expert witness?” 32% of the experts surveyed have considered stopping their work as an expert witness in the last 12 months. One of the main reasons mentioned by the experts is the expert’s fees. Since the Jackson reforms have introduced proportionality for costs, expert’s fees have been reduced. As mentioned earlier, one must remember that expert witness work is for most experts a secondary source of income. If the expert’s fees are too low, experts have to decide whether the case is worth their time. Also, since the judgment in Jones v Kaney, experts are now facing the risks of being sued in contract or negligence.
Areas of expertise Permanent/Semi-Permanent Make-up (Micropigmentation) Eyebrows, Eyeliner, Guy-Liner & Lips Medical Tattooing Areolae, Hair Simulation, and Scar Camouflage Cosmetic Camouflage Creams for those not suitable for tattooing Non-laser Tattoo Removal For Permanent Make-up & Small Tattoos MTEC Limited, 58a Bridgegate, Retford, DN22 7UZ Area of work Nationwide Tel: 01777 860500 Mobile: 07875 498145 Email: dawn@dawncragg.net Website: www.dawncragg.net
Bond Solon The UK’s leading expert witness training company Telephone: 020 7549 2549 E-mail: info@bondsolon.com Website: www.bondsolon.com
Dr Linda Monaci Consultant Clinical Neuropsychologist Medico-legal assessments for suspected or known brain injury and/or brain dysfunction in Personal Injury and Medical Negligence claims • Acquired brain injury
• Post-concussion syndrome
• Stroke
• Anoxia
• Epilepsy
• Dementia
• Alcohol and drug abuse
• Neuropsychiatric conditions
• Mental capacity assessments Medico-legal services: Instructions from Claimants, Defendants and as a Single Joint Expert. Appointments usually within 2 to 4 weeks, and reports produced in a further 2 to 4 weeks. Assessments can also be carried out in Italian. Dr Monaci has a good knowledge of the Swedish language and has experience of working through interpreters. Clinical services: neurorehabilitation services are also available Dr Monaci has completed the Cardiff University Bond Solon Expert Witness Certificates (Civil and Criminal Law). Contact: linda@monaciconsultancy.com for an initial enquiry. Main consulting rooms (nationwide locations): Several locations in the UK are available. Domiciliary visits can be arranged when clinically appropriate Ten Harley Street London W1G 9PF Tel. 020 8942 3148
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Aston Clinic 26 Kingston Road Surrey KT3 3LS Tel. 020 8942 3148
Correspondence address: Aston Clinic, 26 Kingston Road, Surrey KT3 3LS Tel. 020 8942 3148
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In a Foreign Land Expert witness: “A person whose level of specialized knowledge or skill in a particular field qualifies them to present their opinion about the facts of a case during legal proceedings.” (Oxford English Dictionary.) An expert witness called in criminal proceedings has a duty to the court to help it to achieve the overriding objective, defined in the Criminal Procedure Rules as “dealing with cases justly. This includes “acquitting the innocent and convicting the guilty; …The overriding objective acknowledges that the presumption of innocence and a robust adversarial process are essential features to our legal system.” They do so by giving opinion which is objective and unbiased, and within their area or areas of expertise as defined by themselves in their reports to the Courts and in their evidence in person at trials.
walking into a foreign land in which lawyers were asking for help to use the art and science of psychology to answer legal questions, but in which familiar words can have unfamiliar meanings and the basic assumptions about how human beings function can be quite different. It is an adversarial world in which the questions asked of a psychologist might not necessarily be those that a psychologist can or could answer and the answers given may be interpreted in different ways from those intended. What follows are therefore traveller’s notes. Looking back over the last two to three years’ cases, about half have been concerned with questions about learning disability, either pre-trial or pre-sentence. A further substantial group of cases concerned actual or alleged sexual offences. A small but interesting group of cases arose from charges of ‘failure to provide a sample’ when being investigated for drunk or drugged driving, the failure resulting from a range of phobic and anxiety symptoms. Amongst the other cases, assessments of dangerousness have presented particular problems. I see each as raising questions that need much wider discussion.
That apparent welcome to experts’ contributions is not unlimited. A trial judge may be asked to rule that an expert witness’ evidence is inadmissible. That is because expert evidence is only admissible if the court is satisfied that it would provide information which is likely to be outside a judge or jury’s experience and knowledge, and which would give them help that they need in arriving at their conclusions. It must also be given by a person who is qualified to do so and the evidence must be sufficiently reliable to be admitted. Expert witnesses are also required to confirm that they have acted in accordance with the code of practice or conduct for experts of their discipline.
The cases came to me because of my expertise as a clinical psychologist. There are forensic psychologists. According to the British Psychological Society: “Forensic psychology deals with the psychological aspects of legal processes, including applying theory to criminal investigations, understanding psychological problems associated with criminal behaviour, and the treatment of criminals.” But on the whole forensic psychologists work in prisons or with offenders, with expertise appropriate to those settings and populations. Few will have the breadth of clinical training and experience with the general population which, as a clinical psychologist, is the expertise that I am able to bring to cases.
In short, an expert witness’ value to the court is in their willingness to offer trustworthy expertise, not in their knowledge and experience of the criminal justice system, and they are not to take it personally if their contribution is not used or not usable. I qualified as a clinical psychologist in 1974 and I have been in practice continuously since then, in the NHS until 2002 and in my own company since then. I am also an accredited cognitive behavioural therapist. My early experiences as an expert witness were in relation to personal injury cases, before the expert witness agencies took over the relationship between solicitors and the experts they instructed. From a psychological point of view most cases were straight forward, requiring an assessment of the nature and severity of the person’s response to some traumatic incident. Occasionally I was instructed in clinical negligence and family cases but I had not anticipated the demand for reports on defendants in criminal cases. Although the Courts want and need expert opinions there is no system for ensuring that a requisite expert is available; it simply seems to be assumed that experts will be found if and when needed, a somewhat optimistic approach one might think. I therefore set about getting myself ‘up to speed’ on the expectations of expert witnesses in criminal cases and the procedures to be followed. Little did I realise that I was EXPERT WITNESS JOURNAL
The Mental Health Act defines "learning disability" as "a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning." In practice that translates into: significant impairment of intellectual functioning (conventionally IQ 70 or below; average IQ is 100); a history of impaired adaptive / social functioning (including the skills required for independent living); age of onset before adulthood. Instructions to assess whether a person has a learning disability may arise pre-plea, pre-trial or presentence. It has to be admitted that the assessments that can be undertaken, particularly when the defendant is on 61
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the range within which they are 95% certain to score.
remand and is assessed in the legal visits area of a prison, are briefer and more superficial than those that would be undertaken in the NHS. From a psychological perspective they are more of a screening test than a thorough assessment, but that is usually adequate for the purpose. IQ tests can be undertaken provided the defendant can concentrate under those circumstances. Assessments of lack of effort during testing are often not feasible. Unless there is an opportunity to meet the defendant’s partner or a family member outside the prison to gather information about the defendants to date, information from their medical record has to stand proxy for an assessment of their adaptive and social functioning and age of onset. In practice many defendants have had a history of special education but were not specifically identified as having a learning disability during their school days. Do defendants give honest accounts of their lives under those circumstances? If their solicitor and the psychologist prepare them for the assessment, in my experience they do. However it is very important to receive and read the prosecution papers and the defendant’s medical records before meeting them. I have found that deliberate attempts to give me false information can be detected but deliberate withholding of potentially prejudicial information is very difficult to detect.
Before a defendant is required to plead to the charges they face, a Court may need to decide whether a defendant is ‘under a disability’ i.e. whether he or she is "unfit" to plead, and will do so (with the advice of expert witnesses) by reference to the Pritchard criteria. Restated by a judge in more modern language, these pragmatic criteria require that in order to be fit to plead (and if pleading Not Guilty, stand trial) a defendant must be able to: comprehend the course of proceedings of the trial so as to make a proper defence; know that they might challenge any jurors to whom they may object; comprehend the evidence; and give proper instructions to their legal representatives. It is the last two criterion which tend to prompt the instruction of a psychologist. In 2016 the Law Commission published a review of ‘Fitness to Plead’ with recommendations which have not yet been implemented. In the meanwhile, few defendants demonstrably fail to meet those criteria so clearly that a Court will accept them as ‘unfit to plead’. One recent development that has enabled Courts to try people with learning and related disabilities has been the use of intermediaries with vulnerable defendants. Learning disability is not simply a matter of limited understanding; vocabulary, memory, ability to put thoughts into words, speed of processing information, all these are impaired by comparison with the average person. As I have seen for myself, by facilitating the communications between the Court and the defendant, intermediaries undoubtedly improve the efficiency and fairness of trials.
But the technology of assessment, so long as it is sufficient for the purpose, is less of a problem than relating the results to the legal questions. For example, some lawyers still like to use the concept of ‘mental age’ as a way of quantifying immaturity and lack of experience, although from psychologists’ point of view it is a metaphor not a measurement. The current approach is to compare the defendant’s scores with the scores of a group of people in the same age range. An individual may have scores that fall within a wide range from Extremely Low to Very Superior. Most people, however, perform within the Average range. Usually a percentile rank is also reported. This shows where the person's scores rank relative to the comparison group. For example, if the percentile rank is 45, it would mean that the person tested had scored higher than approximately 45 out of 100 other people his or her age.
Some instructions concerning people who may have learning disabilities have included the question, “in your opinion is he or she capable of forming the intention to have committed the alleged offence”? It is not feasible to address the relationship between learning disability and criminal responsibility in this article. Suffice to say that it is an issue where the conceptual gulf between the psychology implied by legal concepts and the psychology of psychological science is probably the greatest, and likely to become greater owing to the oncoming tsunami of findings from neuroscience research. Generally speaking, the presumption that the majority of defendants are sufficiently rational, socialised into society and mature enough to be aware of social norms, to be able to choose whether to observe them or not, and to have the capacity to control their own behaviour, works well enough most of the time. But research is showing that presumptions of consciousness, choice, and control do not apply in any straightforward way to an increasing range of people including those with learning disabilities. When it is recognised that ‘state of mind’ can no longer be taken to indicate a ‘guilty mind’, a reconceptualization of the basis for justice will be required.
Diagram below Distribution of IQ scores in the general population
During my career as a clinical psychologist the system of services for people with learning disabilities has radically changed with, it is said, the unintended consequence that the prison population now contains a
Scores are often reported with a Confidence Interval because people may score slightly higher or lower if tested again on a different day. The interval indicates EXPERT WITNESS JOURNAL
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terpret the evidence presented to them, both about the defendant’s behaviour and that of the victim. In many of the cases in which I have been involved the defendant has been advised to plead Guilty to a lesser charge in order to get the consequent benefit of the reduction in sentence and to avoid a moral spasm on the part of a jury hearing their case. As a consequence there is no trial. Change sentence to Even an offender who may have been innocent of the original charges will be placed on the sex offenders register, with significant impact on their life. The lack of a trialof the evidence has two further consequences. In the case of alleged rapes and sexual assaults, particularly historical allegations, the veracity of the memories on which the case is based is not examined. There has been a great deal of psychological research on memory in general and specifically on memories of traumatic events; whether the findings of that research would be of value to the prosecution or the defence would depend on the specifics of the case. The point is, as a consequence of the Guilty pleas, psychological knowledge which might be of considerable value to the courts is not being introduced into trials.
significantly higher proportion of people with learning disabilities. Further, there is a known paradox that NHS and social services are now so limited that arrest by the Police may be the quickest or even the only way that services can be prompted to consider a person’s needs. So requests to screen a defendant for learning disability inevitably raise the question, what is the purpose, what will this assessment add to legal process? Section 142 of the Criminal Justice Act 2003 specified that the purposes of sentencing are: “the punishment of offenders; the reduction of crime (including its reduction by deterrence); the reform and rehabilitation of offenders; the protection of the public; andthe making of reparation by offenders to persons affected by their offences.” Pre-sentence reports are sought primarily in relation to mitigation of sentence, although some raise the question of dangerousness. In my experience both are problematic. Sentences after problematic to read ‘Dangerousness has a specific meaning in law. However there are certainly offenders from whom the public need protection because of their idiosyncratic beliefs and their self-centred willingness to use horrendous forms of deception and violence to meet their own needs. But for many people, including many of those with learning disabilities, dangerousness is situational. For example, they are dangerous when they are being used by other people abusing their vulnerabilities, or when relying on drink or drugs to help them cope with their own deep-rooted problems, or when they take the line of least resistance when they simply don’t understand the situation they are in. For such people, their dangerous behaviour reflects the lack of external influncers to ensure that they understand the wider consequences of their behaviour. For such people , their dangerousness may be mitigated by welfare support and rehabilitation (which, it has to be admitted, is not always open to them.’ Whether a prison sentence really constitutes a defensible punishment is psychologically problematic. For those offenders whose capacity to live independently is limited, even a short prison sentence can undermine that independence by promoting dependence on the prison facilities and routine and even institutionalisation. It also exposes them to abuse and sometimes training in criminal behaviour by other prisoners. On the plus side, a number of those whom I have assessed have spoken warmly of the education in reading, writing and arithmetic they have received while in prison.
The typical procedure used by ‘paedophile hunters’ is based on deception and is as follows (I quote from darkjustice.co.uk, originally accessed on 30th May 2017). The aim of the organisation is to catch online predators who try to groom & meet up with minors following sexual grooming. They set up a fake profile of an under-age teenager (whom they term “a decoy”) complete with a convincing photograph on an on-line dating site and wait for messages. When they receive a message, they reply straight away and tell the contact that they are underage. They say that they always try to avoid sexually explicit conversations with contacts by claiming to act young and uneducated on the subject. They intend never to encourage sexual chat or sexual behaviour. So when the contact eventually proposes a meeting they suggest a place to meet where they know they can control what is going on. When the contact confirms that they will attend and the ‘hunting’ team spots them, the ‘hunters’ phone the police and report the crime. They confront the contact with cameras, and ask them about their actions and intentions. As soon as the contact is arrested the hunters go to the police station to make statements. If a contact proposes a meeting with the decoy but doesn’t show up for it, the hunters still hand their evidence to the police to be investigated. The ‘hunters’ say they have found that nearly everyone who proposes a meeting following what is described as ‘sexual grooming of a minor’ turns up. The meeting is the critical element in the procedure set up by the ‘paedophile hunters’ because arranging a meeting is taken to demonstrate the alleged paedophile’s intention to commit an offence. But even those who do not turn up are reported to the police because as soon as they arrange the meeting it is a criminal offence, whether they show up or not.
Turning to cases of alleged and / or admitted sexual offences in which I have been involved, some have prompted me to think that psychologists are not being used to best effect. The cases have included rape, recent and historical, actual and statutory, and an increasing number of cases resulting from the activities of so-called ‘paedophile hunters’. Allegations of sexual misconduct or violence often generate an emotional response in those who have to deal with them, and rightly so. And it is now well known that there is a concern about how juries will inEXPERT WITNESS JOURNAL
The ‘hunters’ have undoubtedly uncovered some dangerous offenders and no doubt they believe that 63
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difficulty breathing into the CAMIC machine owing to hyperventilation or a panicky tensing of the chest muscles. People are asked in those circumstances whether they have any medical condition which accounts for their difficulty in allowing blood to be taken but may say ‘no’ because they do not think of fear or a phobia as a medical condition. Some people even have difficulty providing a sample of urine because of an obsessive-compulsive disorder focused, for example, on cleanliness or the use of specific rituals. The result is a charge of ‘failure to provide’ and sometimes a request by the Defence to a psychologist for an opinion as whether the fear or phobia was so severe as to constitute ‘a reasonable excuse’ (as the law puts it). Sometimes the answer is in the defendant’s medical record. Sometimes it is necessary to elicit the fear directly in the consulting room. Either way, the problem might have been avoided by the use of the specialist skills of some doctors and nurses who have almost imperceptible ways of taking blood and other samples.
the end justifies their means. Nonetheless through the cases in which I have been involved I have noticed that the deceptions used are flawed. The dating sites have a rule that no one under the age of 18 is permitted to use the site. Someone using the site and coming across a profile of a 14 year old boy or girl therefore has to make sense of what is going on. For example, some report that people on dating sites sometimes play sexual games in which an adult pretends to be an under-age child; they assume that they are messaging just such a person. Others assume that they are messaging a genuine 14 year old and seek to find out what the youngster hopes to achieve by doing so. What most notice is that, unusually, their messages are always answered. For those men who are socially isolated, or socially incompetent, or who have an autism spectrum disorder, the continuity of contact is particularly welcome. But what do they have in common with a 14 year old girl that they can message about? Only sex and sexual relationship issues come to mind, so it seems. And if they go on to propose a meeting, contrary to their previous attempts to meet women, to their delight the answer is ‘yes’!
As an observer and occasional participant, travelling in the foreign land of the criminal justice system, what do I think clinical psychologists have to offer that would help Courts to meet ‘the over-riding objective’? Firstly, I disagree with those lawyers who think that psychologists’ evidence is inadmissible because it does not provide information which is likely to be outside a judge or jury’s experience and knowledge. The problem is that people do not know what they do not know; until more psychologists are called to give expert evidence, the criminal justice system cannot benefit from advances in psychological science.
But those are common sense issues. They only become relevant to this discussion when the case against the defendant places particular emphasis on statements made in messages which are being taken out of context. The context is a text consisting of a sequence of mobile phone messages, sometimes made over a period of many days or weeks. Psychologists and researchers in many other disciplines have developed thorough methods for analysing texts which are not routinely brought to bear on these exchanges of messages. However even a superficial analysis shows that what is going on is not as simple as the ‘paedophile hunters’ suggest. For example, the absence of refusal to respond to improper suggestions can come across as permission to continue, even as a willing acceptance that the conversation is going that way. And when the ‘hunter’ in the guise of a 14 year old girl re-initiates contact after a break in the interaction, it is perhaps not surprising that the contact perceives it as interest and evidence of some kind of relationship. In short, it has sometimes seemed to me that the ‘hunter’ has offered the defendant an opportunity to commit an offence which they would not otherwise have committed and then (perhaps inadvertently) induced them to do so. But that is not explored when there is no trial, owing to a Guilty plea.
Lawyers seek to infer intention from a defendant’s verbal and non-verbal behaviour. In order to identify and provide therapy for their client’s psychological problems, clinical psychologists have also needed to develop ways of drawing inferences. We call the process ‘formulation’. Information is gathered from a range of sources and integrated in a way which permits predictions to be made about the potential impact of therapeutic interventions. The following is one of a number of simplified summaries of the elements of a formulation.
On a different topic, a phobia is a disorder of fear characterized by a marked and excessive fear or anxiety that consistently occurs when exposed to one or more specific objects or situations (such as hypodermic needles or the sight of blood) and that is out of proportion to the actual danger. The phobic objects or situations are normally avoided or else endured with intense fear or anxiety. But can they still be avoided at a Police station after arrest on suspicion of driving when drunk and the person is required to provide a sample of blood for analysis? And other fear phenomena can emerge in that situation, such as EXPERT WITNESS JOURNAL
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to be fair and match the complexity of the situations they have to address.
The procedure should be just as valuable when the presenting problem is behaviour that constitutes an offence. Where it seems to differ from current practice in the criminal justice system is that it recognises the interactions between the person and their social environment rather than locating the origins of a person’s behaviour entirely within their own impulses and intentions. It is also different to the aims and outcome of ‘diagnosis’. Most diagnoses are based on a categorisation of the person’s signs and symptoms, not on the causes of the condition thereby diagnosed. Post traumatic stress disorder is an exception because the cause is known to be a traumatic incident. The Power Threat Meaning Framework published by Johnstone, Boyle and colleagues at the beginning of 2018 is a development out of research on responses to trauma. It summarises and integrates a great deal of evidence about the role of various kinds of power in people’s lives; the kinds of threat that misuses of power pose to us; and the ways we have learned as human beings to respond to threat. It also looks at how we make sense of those difficult experiences, and how messages from the wider society can increase our feelings of shame, self-blame, isolation, fear and guilt leading to psychological pathologies. The way in which the approach is used has been summarised as follows’ to ‘has been summarised by Johnstone and her colleagues as follows:
Finally, as I noted at the beginning of this article, the demand for psychological assessments originally came from defence solicitors, often at quite a late stage in the legal process. Assessments undertaken as a matter of routine at an earlier stage could be contributing to a more efficient use of Court time and custodial facilities. NHS Court Liaison and Diversion schemes may offer an organisational framework through which such assessments could be commissioned and potential defendants sign-posted through to clinical psychologists with the requisite skills and experience to undertake them. Reference: Johnstone, L. & Boyle, M. with Cromby, J., Dillon, J., Harper, D., Kinderman, P., Longden, E., Pilgrim, D. & Read, J. (2018). The Power Threat Meaning Framework: Towards the identification of patterns in emotional distress, unusual experiences and troubled or troubling behaviour, as an alternative to functional psychiatric diagnosis. Leicester: British Psychological Society. (Free download via the internet). Mr. Bernard J B Kat Chartered Health & Clinical Psychologist BA, MSc, CPsychol, FBPsS Mr Kat qualified as a clinical psychologist in 1974. He is registered as a health psychologist and as a cognitive behavioural psychotherapist. Mr Kat has been providing expert witness reports in the North East of England for Courts
Instead of working through a checklist of signs and symptoms in order to arrive at a diagnosis, ask your client: • ‘What has happened to you?’ (How is Power operating in your life?)
Tel: 0191 230 6461 - Mobile: 0788 799 8375 Email: b.kat@psynapse.co.uk Web: www.psynapse.co.uk
• ‘How did it affect you?’ (What kind of Threats does this pose?) • ‘What sense did you make of it?’ (What is the Meaning of these situations and experiences to you?) • ‘What did you have to do to survive?’ (What kinds of Threat Response are you using?) [Note: these responses can become the basis of pathology]
Psychological Expert Witness and Treatment Service Personal Injury - Clinical Negligence - Employment Tribunal
In addition, to help think about what skills and resources a defendant might have, and what it all means to them:
Dr. Aftab Laher BA (Hons.) MSc PhD C.Psychol. AFBPsS UKCP CSci.
• ‘What are your strengths?’ (What access to Power resources do you have?)
Consultant Chartered Clinical & Health Psychologist (BPS) Registered Practitioner Psychologist (HCPC) Accredited Cognitive-Behavioural Psychotherapist (BABCP)
• ‘What is your story?’ (How does all this fit together?)
Extensive training and experience in the psychological assessment and treatment of adults presenting with psychological injury in the context of accidents, clinical negligence and employment.
I have also thought that because the law and the Courts focus on an individual’s criminal responsibility, they seem to struggle with issues which fundamentally arise from interactions between people. I refer to issues such as duress, coercion, provocation, retaliation, deception and the whole range of issues arising from victims reacting to domestic, emotional and financial abuse. These are big topics and I have been involved in very few cases but I believe that it is important for Courts to know that the psychological study of the use and misuse of power and control is there to be drawn upon. Findings from that research may enable Courts to reach decisions which are seen
Clinical issues and conditions covered include adjustments disorders, PTSD, anxiety, phobias, depression, sexual abuse, body dysmorphic disorders, chronic pain, chronic illness/ disability and work-related well-being.
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What is the Problem with Amending an Expert Report? by Giles Eyre, recently retired barrister and an Associate Member of Chambers at 9 Gough Square, London It has recently been reported that a survey of experts found that nearly a third of medical experts and a quarter of all experts overall felt under pressure to change their evidence by their instructing solicitors in a way that they saw as damaging their impartiality (Times, 8.11.18, www.bondsolon.com/media/16939 2/expert-witness-survey-report-2018.pdf). At the same time nearly two-thirds of experts thought that the courts struggled to understand their evidence. I suggest that these two reported perceptions of experts might well be connected.
the expert read, understand and comply with the Civil Procedure Rules and the Practice Direction but also the Guidance. Pursuant to these ‘rule books’ the report is required to include the substance of all material instructions, the expert’s qualifications (and in particular any with special significance to the case in hand) and the substance of all material facts and identify where they come from. In addition, where there is a range of opinion (which there frequently is) then the range must be given, if there are factual disputes then opinions need to be given on each factual scenario, the report needs a summary of conclusions and the expert must indicate that he or she has understood the expert’s duty to the court and complied with it. If this is a sequential report, then any rules as to sequential reporting must be complied with. 2
The Guidance for the Instruction of Experts in Civil Claims is clear about amending reports. Paragraph 65 states: ‘Experts should not be asked to amend, expand or alter any parts of reports in a manner which distorts their true opinion, but may be invited to do so to ensure accuracy, clarity, internal consistency, completeness and relevance to the issues. Although experts should generally follow the recommendations of solicitors with regard to the form of reports, they should form their own independent views on the opinions and contents of their reports and not include any suggestions that do not accord with their views.’
To be practical for the use of litigators and courts and tribunal alike, the report must be succinct, focused and analytical.3 It must identify the material facts, explain the reasoning process applied by the expert, and so deliver a conclusion that can be assessed by someone without the expert’s expertise and compared with any alternative conclusion reached by another similar expert.
It is likely therefore to be quite proper for a solicitor to request an expert to make amendments to ensure accuracy, clarity, internal consistency, completeness and relevance to the issues in the case. Experts should however form their own independent views as to the contents of their report. This latter provision is quite reasonable if, and only if, the expert has a full and proper understanding of the requirements of court expert report writing.
Finally the report must apply (and should be seen to apply) the legal tests relevant to the purpose for which the report is required. If it is to report on standard of care, then it must provide a conclusion applying the appropriate test for that, such as ‘the standard fell below the standard reasonably to be expected of a reasonably competent expert in that field’, if on quantum, the report must address the loss or injury caused by the breach of duty which would not have occurred but for the breach of duty, and must address the reasonableness of any proposed remedial action or treatment. And overlying all of this, the report must apply the appropriate standard of proof.
The problem facing lawyers in preparing their cases for court is that, unfortunately but not surprisingly, in the absence of adequate training and an independent certification system to ensure and identify properly trained and truly competent court experts, very many reports do not serve their purpose well.
The difficulty facing lawyers on a daily basis when they receive the expert’s draft report is that so many expert reports do not comply with these requirements. The requirements are onerous, as is the role of a court expert, but are there for a purpose, and yet very many reports fail to demonstrate a proper understanding of these requirements or the reasons for them.
The purpose of an expert report is of course to assist the court with matters within the expert’s area of expertise.1 To do that the expert must provide evidence in a report in a manner which its anticipated audience, of lawyers, judges etc, can understand in the absence of their having the expert’s expertise. Further the report must address the issues which the court has to address, which are likely to be very different from the issues the expert normally addresses in the expert’s ‘day job’ away from the role as a court expert.
Problems are caused for the lawyer by the different failures that occur in complying with these requirements, such as a failure to identify, from the mass of facts related (unnecessarily) in the report, which facts are material; or the unnecessary overloading of a report with non-relevant material such as extensively
The report must also comply with the requirements of the appropriate court or tribunal procedure rules. For example in the case of a civil claim, not only must EXPERT WITNESS JOURNAL
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citing the contents of witness statements which all parties to the litigation and the judge would prefer to read in the original and not have repeated by the expert; or the inclusion of a long list of entries in records or correspondence which, while they may ‘tell the story’, do not take the report any further, and make understanding the reasoning in the report that much more difficult; or the failure to explain the reasoning process by which the conclusion is reached, and the material facts on which it is based; or an inaccurate expression of the legal test relevant to the expert’s report; or the use of unexplained technical language or the presumption of greater knowledge or understanding on the part of the audience than is reasonable. Often confusion is caused where the structure of the report chosen by the expert, while adequate for providing a single opinion, is inadequate to deal with the situation where several opinions are required to be given.
Giles Eyre is a recently retired barrister and an Associate Member of Chambers at 9 Gough Square, London, having practised for many years in the field of injury claims and at the interface of law and medicine. He continues giving training and presenting workshops for experts on providing effective expert reports and evidence, and on medico-legal issues. He is co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd edition 2015), and author of Clinical Practice and the Law – a legal primer for clinicians (October 2018) both published and sold by Professional Solutions Publishing (www.prosols.uk.com), and regularly writes articles on these subjects. He blogs on issues relevant to court experts in civil claims – with particular but not exclusive relevance to medical experts - at www.medico-legalMinder.net.
Despite the temptation on the part of the lawyer sometimes simply to discard the report and the expert, neither the court’s approach to changing experts nor the economics of litigation make this the practical solution.
Need an expert fast call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk
It is hopefully now clearer to the reader why it is that experts are frequently asked to amend or change their reports to ensure accuracy, clarity, internal consistency, completeness and relevance to the issues. With a lesson in appropriate report writing skills most experts can understand why it is necessary to do that which is asked of them, but giving that lesson should not be the role of an instructing lawyer or barrister. Many experts feel uncomfortable in rewriting or restructuring their reports at the request of their instructing lawyers because of a lack of understanding of the requirements of report writing and a misunderstanding of their role as independently minded experts. For the same reason some take criticism of their reports as pressure to change their opinions where what the lawyer is much more likely to be seeking is a comprehensible, effective and compliant report.
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
This is not to ignore that due to the pressures on lawyers, financial and reputational, to win there are some who may be prepared to use pressure to assist them in that cause. But a properly trained expert who understands what the law requires should find it straightforward, when there is a request to amend a report, to distinguish between the appropriate and the inappropriate request. I doubt strongly that this survey is identifying the true incidence of such improper pressure.
Experience at The Central Criminal Court, providing reports and live evidence. Qualified as a Psychologist for over 27 years’ Former Head of Department Experienced within both the NHS & Local Government Experienced in working with offenders within the community
References 1, See for example CPR35.3 and PD35 2.2 in civil claims 2, Guidance para 63 in civil claims 3, Harman v East Kent Hospitals NHS Trust [2015] EWHC 1662
Contact: Mob: 07952 170 627 Email: info@grahamrogers.org.uk Web: www.grahamrogers.org.uk
Article by Giles Eyre 2019
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Domo Arbitrato, Mr Roboto: Where and Under what Rules Will we be Arbitrating, Commercial Arbitration Claims in 2028 By Dorothy Murray (London) and James McKenzie (Hong Kong) King & Wood Mallesons In 2028, 45% of international commercial arbitrations will be seated in Asia, 15% will be in Africa and 5% will be delocalised (“seat less”) with only 35% in traditional Western centres.
other institutions but with international commercial courts issuing widely enforceable judgments under the Hague Convention[2], and new forms and forums of dispute resolution. Rules and centres will compete to be the quickest to adopt innovative technologies, offer the most cost efficient result and to promote the latest expertise and specialisms in their arbitral panels.
Blockchain technology will not just have created new disputes but will have required and driven new methods of dispute resolution designed for a delocalised world and for millennial and postmillennial participants who by 2028 make up most of the business community and who have grown up dealing with all aspects of their lives remotely and with technology.
Why do we predict this? We summarise below some of the current trends we see in arbitral centres and rules and explore the drivers for these.
In terms of traditional seats, by 2028, we will have completed the first Asian quarter-century. Asian capital will have dominated, and will continue to dominate, global investment flows with the result being that more investments and therefore more disputes will involve Asian parties, likely to favour geographically closer and more familiar seats and arbitral institutions.
Sitting pretty: new, newer and nowhere seats The rise of Asian centres and why this trend is here to stay The authors break no new ground here by saying that Asian seats and arbitral centres are on the ascendancy. As Asia’s economies have grown and caught up (and in many cases, surpassed) those in the West, so too has the desire of their countries’ governments to secure a share of the international arbitration market. Since it began reporting in 2007, the Singapore International Arbitration Centre’s (“SIAC”) yearly new cases have increased fivefold from 86 cases in 2007 to 452 in 2017.[3] In 2017, the Hong Kong International Arbitration Centre (“HKIAC”) reported it had a total of 532 new cases (a 15.7% increase from 2016) and a 100% increase in the total value of the amounts in dispute (from HKD19.4 billion in 2016 to HKD39.3 billion).[4]
As to Africa, African parties are regular participants in international arbitrations today but, by 2028, the focus will have shifted. More African disputes will involve Asian, typically Chinese, parties driven in part by increased investment from the Belt and Road Initiative (“BRI”). This will lead to an inevitable uptick in the prominence of construction and infrastructure arbitrations in African as well as Asian seats such as Hong Kong and Singapore, which are often chosen as a “neutral” compromise seat. In the meantime, local African institutions will have gained some longawaited traction and will be more popular choices themselves for two key reasons: first, they will have a track record to draw on and second, at least some key African seats will have achieved greater political and economic stability and therefore be more attractive venues for international parties.
The two leading European arbitral centres (and the most preferred centres globally[5]), the London Centre for International Arbitration (“LCIA”) and the International Court of the International Chamber of Commerce (“ICC”) had 285 and 810 new cases respectively last year. The top two Asian centres therefore almost equalled the top two European centres in total new cases last year and (perhaps most remarkably) have managed to achieve this rise over a period of a mere few decades.[6] This rise in Asian centres is driven not just by these two leading international centres but other centres including both the stalwart (such as the China International Economic and Trade Arbitration Commission (“CIETAC”)[7] and the Japanese Commercial Arbitration Association) as well as the emerging (such as the recently rebranded Asian International Arbitration Centre in Kuala Lumpur, formerly the KLRCA). With the
The arbitral rules parties will choose from in 2028 will, in one sense, be increasingly homogenous, adopting all commonly recognised aspects of best practice. Rules will offer a menu of options to increase efficiency and reduce costs, with developments from the technological (such as online depositories, virtual hearing rooms and the like) to the procedural (such as expedited procedures and emergency arbitration mechanisms) becoming the norm. On the other hand, arbitral institutions will seek to differentiate themselves in a marketplace crowded not just with EXPERT WITNESS JOURNAL
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inexorable movement eastward of the world’s economic centre of gravity and the increased global economic connectivity of the region through projects such as the BRI, we predict the trend to continue. Asian seats and institutions will only continue their rise.
No seat is the new seat In terms of cryptocurrencies, parties wishing to invest and transact outside a fiat currency are typically unwilling to resolve their disputes within any national system of law (even though those courts may only be exercising a supervisory jurisdiction). In terms of smart contracts, much of their attraction and utility is their cost effectiveness, in terms of entry and automatic execution. The uncompromising mantra “the code is the law” may be somewhat discredited after the Ethereum fork[10], but the incident highlighted the need for effective yet flexible dispute resolution methods to be agreed in advance.
The rise (finally) of Africa Travelling optimistically, Africa is poised on the edge of economic changes that it will be able to seize over the next decade. There is an increasing call for the Africanisation of arbitration. The African Regional Centres for Arbitration were expressly set up to provide an alternative to traditional western centres, and since 2008, a number of new centres have opened their doors, including the Arbitration Foundation of South Africa, which adds to those already in existence in Cairo, Lagos, Kigali and Mauritius.[8] Whilst Cairo has long been a popular and respected venue, as other African centres mature, modernising their rules and demonstrating a more solid track record, they will become more attractive choices.
Despite the rise of international commercial courts and court judgments for disputes regarding more traditional subject matter, we predict that the greater neutrality of arbitration and its flexibility will prove more attractive to smart contract coders and users. While contracts will begin by selecting an arbitral seat in the traditional way, by 2028 we will also see completely delocalised decisions. Parties will see no need for any court to have supervisory jurisdiction or to have to enforce through the courts: concerns about enforcement of a delocalised decision made by an autonomous delocalised arbitral panel will be minimised by their auto-execution according to the code.
Chinese investors will make up an even greater proportion of counterparts to African investment and infrastructure projects in 2028 than they do today and will culturally understand the desire of African counter-parts to choose local centres (and in our experience may be willing to trade their common seat choices of Singapore or Hong Kong for other contractual benefits) and have no historical attachment to western centres.
Playing by (and with) the rules Arbitral institutions constantly face two related but conflicting pressures: to adopt all generally recognised best practices and to be different.
Further, we predict that at least some African countries will have made noteworthy progress in offering more secure environments for international parties, with better infrastructure, less local corruption and more arbitration friendly (or at least commercial arbitration friendly) laws. They will therefore be more common choices as an arbitral seat for contracting parties. We see the ability of blockchain technologies to assist this necessary economic development being felt most powerfully in the African continent.
The debate about efficiency and costs has been ongoing for much more than a decade and will still be a hot topic in 2028. By 2028, however, arbitral institutions will be facing ever increasing pressures in these areas, from each other, from completely new DR forums (see above as to blockchain) and also from the international commercial courts or ICCs (see the article “The Rise of the Courts” in the 10th edition of Crossing Borders) and increased adoption of the Hague Convention, which does for court judgments what the New York Convention does for arbitral awards, ensuring simple international recognition and enforcement.
While most commonly discussed use-cases for blockchain or distributed ledger technology are cryptocurrencies, these are not the ones that will have the widest impact. The adoption of blockchain by the oil and gas and natural resources sectors will dramatically reduce the potential for leakage, fraud and corruption, by allowing improving tracking and transparency in the chain of custody, verification of origin, verification of transactions and simplifying cross border payments. Origin tracking will also drive ethical, environmental and socially responsible extracted and produced commodities.[9] These developments will benefit the African continent more than any other, with its wealth of natural resources but sad history of exploitation and embezzlement. Wealthier, more secure jurisdictions, with better infrastructure and less corruption will (we predict) drive modernisations in, and attract users to, African international arbitration, similar to developments seen in Asia over the last few decades. EXPERT WITNESS JOURNAL
These ICCs are being set up as a response to Brexit (in Paris and the Netherlands, to offer English language common law dispute resolution outside of England and in Europe) and as a response to the BRI (with China setting up two new international commercial courts in Xi’an and Shenzhen, and with other countries along the old Silk Road seeking to offer alternatives themselves, such as Kazakhstan’s Astana International Financial Court). The new ICCs join the existing Singapore International Commercial Court, established in 2015. As for the Hague Convention, China signed in September 2017, joining the EU, Singapore, Mexico, the US and Ukraine and we have already seen the Chinese and US courts recognising each others’ judgments even outside the Convention framework, under the principle of mutual recognition[11]. By 2028, we see the courts, and therefore the international commercial courts, being 69
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a credible challenge to international arbitration, especially given the calls for transparency not just in investor-state disputes but also in the commercial sphere.[12]
and potentially reducing a common and undesirable problem in this sector: inconsistencies in the outcomes in upstream and downstream disputes. The SIAC Proposal on Cross-Institutional Consolidation will be widely recognised as addressing a real concern of parties about the expenses and risks in parallel proceedings at different institutions. We predict, however, that consolidation agreements and terms will still be under discussion by several working groups in 2028 (the devil being in the detail and arbitration practitioners loving committees). Joinder and consolidation within one institution’s purview or by party agreement will however become increasingly common.
Most widely used sets of international arbitration rules (or the arbitration law of their home juris diction) already contain many common features, namely: expedited procedures, emergency arbitrations, interim relief, joinder, consolidation, third party funding, transparency, ethical rules for counsel. The above table shows how such trends have spread. Rules will continue to reflect and adopt best practice, in line with each other and the ICCs. In terms of trends between now and 2028, we anticipate that to attract more Asian parties, more rules will expressly include med-arb protocols[13], allow for broader joinder and consolidation procedures and expressly deal with multilingual procedures. By 2028, disputes arising along the Belt and Road will be widespread and arbitration rules that accommodate for Chinese preferences and typical practices, will be popular choices.
More flexibility in adducing evidence and summary dismissal for the brave few We also see the need for greater flexibility in how factual, witness and expert evidence can be adduced and eventually presented at a hearing. This is a key bug bear for Chinese users (as well as their lawyers) where translating primary documentation and witness and expert written evidence remains a substantial additional cost to the arbitral process.
Med-Arb, joinder and consolidation Whilst med-arb is already an extremely popular and accepted practice in Mainland China, we predict this trend will follow Chinese investors along the BRI. SIAC and SIMC, for example, already have an established arb-med-arb protocol. CIETAC’s recent new arbitration rules for international investment disputes were expressly designed to fill the gap between Chinese and Western practices and were presented as combining the best features of modern international arbitral practice with those elements of Chinese arbitration law and practice seen as indispensable. These include med-arb procedures such as directed mediation and low fees.[14]
By 2028, some braver institutions will have adopted express summary dismissal provisions, but we see many institutions treading carefully here, conscious of the risk of challenges to awards and at enforcement on the basis that a party has not had the reasonable opportunity to present its case, and the risk of the process being used for unmeritorious applications as a further delaying tactic. We expect a spectrum of options ranging from the SIAC or SCC model of summary dismissal to softer touch provisions giving greater discretion to tribunals in terms of timetabling, and document only decisions. Specialist (robot?) arbitration panels To differentiate themselves from each other, and the international commercial courts, institutions will rely on their ability to adapt quickly to change and offer specialist arbitral expertise which the courts cannot. For example, the HKIAC already offers a specialist panel of financial services specialist arbitrators. We predict panels of arbitrators able to code.
The HKIAC Rules Committee is currently also considering the express inclusion of similar ADR provisions along with expanded provisions for joinder and single arbitration under multiple contracts. This is to be welcomed as BRI projects will be complex beasts frequently involving separate employer, contractor, subcontractor, guarantor and lender contracting mechanisms. The ability to more easily consolidate existing construction and infrastructure disputes or enjoin parties to them will be crucial to effective and efficient resolution of disputes EXPERT WITNESS JOURNAL
In 2028, arbitral institutions and centres will also compete to offer the latest technology, whether in terms of venue and services support (witness Maxwell Chambers’ “Smart Maxwell” initiative with robo-as70
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[4] http://www.hkiac.org/about-us/statistics.
sistants), or virtual reality (VR) and augmented reality (AR) for presentation of facts and exhibits (bringing remote witnesses, site visits, schematics and 3D presentation of complex data sets to the Tribunal). Faulty industrial components will be examined in virtual 3D in the hearing room, failed projects will be built and rebuilt in different counterfactuals by each side and damages models will be presented by AR. Institutions will also amend their rules to allow greater publication of anonymised data from past arbitration and awards, and parties and institutions will use AI to analyse this data.
[5] Please see our other article discussing the Queen Mary Survey: www.kwm.com/en/au/knowledge/insights/thequeen-mary-survey-our-crystal-ball-into-the-future20181119 [6] This is further evidenced in the Queen Mary University of London survey, in which Singapore and Hong Kong are the 2nd and 3rd most preferred seats in Asia and the 3rd and 4th most preferred seats globally. [7] Established in 1956 and with a caseload of 2183 cases in 2017, of which 485 were “foreign-related”. [8] Although with the termination of the LCIA-MIAC joint venture in July 2018, the MIAC will now compete as an international centre on a standalone basis.
New technologies and the “millennial” viewpoint will create an even greater need for streamlined quick resolution. New sets of rules for such disputes will provide for paper only arbitrations, with short timelines (expedited procedures will get even shorter) and for smaller value disputes to be resolved by algorithm with limited ability to appeal to a human arbitrator.
[9] Witness Everledger’s recording of conflict-free diamonds on the blockchain and certifications against child labour and modern slavery. [10] In short: a distributed autonomous blockchain venture capital fund, the DAO, was the subject to an arbitrage attack. It was intended to invest Ether (the Ethereum cryptocurrency) into projects on the Ethereum blockchain by majority vote of its investors. In mid-2016, it was not hacked, but rather its code was exploited in a way that many considered unethical such that one user gained control of Ether worth around USD 50m. The Ethereum community decided to hard-fork the Ethereum blockchain to unwind the offending transactions, which led to a schism: the original un-forked blockchain continues, with two active Ethereum blockchains each with its own cryptocurrency.
Robots will not just be used to provide legal advice (see the legal services provided through AI robots in the north-western Chinese province of Qinghai) or to determine straightforward traffic violations (the pilot in the eastern Chinese province of Jiangsu), but will also determine commercial cases. AI will have developed to allow reasoned decisions. Concerns by the current generation of arbitration users will not be felt by many of the users in 2028, used to smart contracts, AI and self-driving cars. The attraction of the quick judgment will outweigh any perceived downsides. As put in the inaugural May 2018 Law Society lecture on the ‘Future of Law’, by the Chancellor of the English High Court Sir Geoffrey Vos: “The millennial generation, which expect to be able to obtain everything they want in an instant on their mobile devices, will not make an exception for justice.”
[11] https://www.chinalawinsight.com/2017/09/articles/ global-network/china-signsthe-hague-choice-of-court-convention/. [12] See https://www.kwm.com/en/jp/knowledge/insights/ how-far-shouldtransparency-in-international-commercialarbitration-go-20180412. [13] As explained by the SIAC-SIMC: “Arb-Med-Arb is a process where a dispute is first referred to arbitration before mediation is attempted. If parties are able to settle their dispute through mediation, their mediated settlement may be recorded as a consent award. The consent award is generally accepted as an arbitral award, and, subject to any local legislation and/or requirements, is generally enforceable in approximately 150 countries under the New York Convention. If parties are unable to settle their dispute through mediation, they may continue with the arbitration proceedings.”
Further, as a greater proportion of disputes arise from economies with less to no history of a rule of law or of an independent judiciary and decision makers, more faith may be placed in “ROBOTribunal” than human decision makers.
[14] For more on CIETAC, see https://www.kwm.com/en/knowledge/insights/newcietacinvestment-arbitration-rules-english-chinese-treatydisputes-20171115.
Remember: you heard it here first. See you in 2028. References [1] Credit to Valentine Kerboull (London), Cassandra Ditzel (London) and Ray Chan (Hong Kong) for assisting the authors with their research.
Dorothy Murray Partner - London, (King & Wood Mallesons) T +44 20 7550 1521 - M +44 77 6457 7625
[2] The Hague Choice-of-Court Convention, formally the Convention of 30 June 2005 on Choice of Court Agreements is an international treaty reached within the Hague Conference on Private International Law. It was concluded in 2005 and entered into force on 1 October 2015. The aim of the Convention is to promote international trade and investment by encouraging judicial cooperation in the field of jurisdiction and recognition and enforcement of judgments. (The content of the Convention: https://www.hcch.net/en/instruments/conventions/full-text/?cid=98 )
Crossing Borders is KWM’s periodic review of developments in international arbitration across the world. Included in a special 10th edition, from which this article is taken, KWM explores what arbitrations will be like going into 2028 - where, how and by whom disputes will be decided. Many thanks to Dorothy and James for permission to reproduce this article which was correct as at October 2018.
[3] SIAC Annual Report 2017: http://www.siac.org.sg/images/stories/articles/annual_report/SIAC_Annual_Report_2017.pdf. EXPERT WITNESS JOURNAL
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Ethics and the Expert Witness “No legacy is so rich as honesty� William Shakespeare - All's Well that Ends Well" Someone can describe themselves as an expert if they possess knowledge and/or experience of a subject, over and above that of a layman. It may also be argued that being manifestly proficient in a subject area is all the qualification someone needs to be an expert witness in court or other proceedings.
There is no legal duty for an expert witness to have been trained in how to present evidence, or write a report, though an expert will invariably be required to confirm in their report that they understand, and comply with, their duty to the court. My employer, the Royal Institution of Chartered Surveyors (RICS), like other professional regulatory bodies, is responsible for ensuring its members act professionally and ethically. Our Royal Charter declares that RICS exists primarily to protect the public.
The reality is, however, that being an industry or market expert does not necessarily make someone a good expert witness. To be both a reliable expert witness, and avoid getting into all manner of difficulties, you must be good at some other things too.
Chartered surveyors who act as experts in court or other proceedings are performing in the public interest. They must not only comply with legal requirements for expert witnesses, but also a mandatory RICS Rules of Conduct, RICS professional statement on Conflicts of Interest and the International Ethics Standards*. RICS also publishes guidance and encourages its members to attain an RICS Expert Witness Certificate. All of this is intended to give confidence to instructing parties that they can depend on RICS experts to know how to discharge their duties to a high standard. A key message, which underpins RICS rules of conduct and the practice statement and guidance for expert witnesses, is that those who take on this crucial role must act ethically.
First up, you must have a firm grasp of the precise nature of your role and know, for example, that you are not an advocate for either party. You must maintain independence and remember that your primary duty is always to the court or tribunal. Your task is to help the court or tribunal understand your subject to the extent that it can reach an informed judgment on the substantive matter that is before it. You must not only be a credible subject-matter expert, you must fully understand and comply with procedural formalities that will inevitably be attached to the role of expert witness. In particular, you must understand, and be able to carry out, the role of expert witness in accordance with applicable rules and court directions. You should be capable of handling robust interrogation by lawyers, including those whose objective is to get you to accurately explain certain matters to the court, and those who will who seek to undermine your credibility and challenge your opinions. You may need to respond effectively to contrary opinions submitted by others who profess expertise in the same subject and withstand direct scrutiny from the judge or head of the tribunal.
Given that the overall membership of RICS Comprises upwards of 120,000 we receive remarkably few complaints about members who take on the role of expert witnesses. Some of the complaints that we do receive originate directly from the courts. Investigations sometimes reveal that relatively inexperienced practitioners have received initial instructions well within their comfort zone. At some point the client asks them to provide a report and, before they know it, the matter is before the courts and it is too late in their minds to back out.
It is essential that you can communicate information, and give answers to questions, effectively to people who do not have your high level of expertise and will not necessarily understand technical language associated with your subject. Your communication skills may need to cover both written and verbal.
Expert witnesses who are faced with situations where there is potential for moral or ethical dilemmas, should perhaps be encouraged to ask themselves three questions.
You should know how to dress for court and how to address the court. Even when you have acquired all the above qualities and qualifications. you will need to demonstrate the single most important trait required of an expert witness. You must always be ethical. EXPERT WITNESS JOURNAL
1.Is it illegal? This is an obvious question, but one must consider if a situation involves anything illegal. Has the expert, for example, been given access to information about a fraud or money laundering? 72
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ethical expert witness is a person who is openminded, honest and rational in everything they do. It seems an obvious thing to say, but an expert must never consciously mislead, whether by withholding or distorting information. An expert who fabricates, exaggerates or gets caught out in a deliberate lie just once is unlikely to ever be totally trusted thereafter.
2. Does it breach professional rules of conduct? While something may be prima facie legal it may yet be an invitation for the expert to act contrary to professional and ethical standards. (RICS members who act as expert witnesses must have regard to, and comply with, the relevant practice statement). Mandatory content in an organisation’s professional standards should, however, be concise and sparing. Ethical lines that are not to be crossed should be made clear, and rules should only be included if the organisation is genuinely able to regulate against them.
An expert who is a chartered surveyor, a lawyer or doctor, etc. must demonstrate ethical behaviours that are expected from someone who is a member of their relevant professional body. Poor conduct by an expert may not only create problems for the expert, it will often reflect on their peers. Judicial criticism of expert witnesses happens. When it does it inevitably throws a spotlight on the individual expert. It can also give rise to wider concerns about the behaviour of other professionals working in the same sector or industry.
3. Would the expert be happy for their actions to be made public? If an expert feels uncomfortable about the idea of something they say or do being published in the newspapers or on the internet, then they should consider why that is. It is likely the reason is that there is something fundamentally wrong about the action. Ethics are about who you are and what you do. They are not concerned with doing the right things at the right time. They are about doing the right things all the time, even when no one is watching. Expert witnesses should always be prepared for their actions to be scrutinised, and to be judged against cultural morals and values.
Martin Burns RICS, Head of ADR Research and Development 10 January 2018 * The International Ethics Standards, which RICS are part of the coalition (https://ies-coalition.org/).
Providing high standards of professional service and treating people with respect is always expected. An
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The Time is Right for Commonhold Announce Law Commission The Law Commission today has proposed reforms that would support the expansion of commonhold as an alternative to leasehold.
• Make it easier to convert from leasehold to commonhold • Increase lender confidence in commonhold so as to increase the choice of mortgage lenders available for purchasers • Replace service charges set by a landlord with commonhold contributions which have to be approved by a majority of those paying them.
Commonhold was introduced in 2002 as a new way to own property. Commonhold allows a person to own a freehold flat and at the same time be a member of the company which owns and manages the shared areas and the structure of the building. The benefits of commonhold Commonhold offers significant benefits to homeowners compared to leasehold including: • Owners own their property outright, so their ownership won’t run out in the future – whereas leases expire and extending them can be costly • There is no landlord – instead, owners have a stake in the wider building and can make decisions about the shared areas together • There is no ground rent – owners will only pay what it costs to maintain the building and will control that expenditure • There is no risk of forfeiture in commonhold – in leasehold, if a leaseholder breaches the terms of the lease, the landlord can take back the property without paying anything to the leaseholder • Standard rules and regulations apply – which means owners know where they stand, and should also make conveyancing simpler and cheaper.
The need for change Commonhold ownership is commonly used around the world in countries such as the USA, Australia and across Europe. In England and Wales, commonhold has been available since 2002, but take-up has been poor; fewer than 20 commonhold developments have been built. There are several reasons why commonhold has not taken off. For example, the system has been criticised for lacking flexibility to cater for larger, more complex developments and for making it difficult for existing leaseholders to convert their lease into commonhold. Legal issues have also made many mortgage lenders reluctant to provide loans against commonhold properties. These are all issues that this consultation addresses. Recent dissatisfaction with the current leasehold system has led to pressure from the media and campaigners for reform, and demand for an alternative. Legal reform to reinvigorate commonhold is now required and is what our consultation looks to achieve. The government is also considering other non-legal options for reinvigorating commonhold and suggestions for how this could be achieved are included in the consultation paper. These include increasing consumer awareness, improving mortgage lending, or incentivising or compelling the use of commonhold instead of leasehold.
The Law Commission is proposing a range of legal reforms which will remove barriers to commonhold’s uptake. These reforms, which are now open for consultation, should kickstart commonhold as an alternative way of owning property which avoids the shortcomings of leasehold ownership. The reforms would: • Allow a commonhold development to include both residential units (incorporating different types of affordable housing such as shared ownership), as well as commercial units (such as restaurants and shops)
the hampden consultancy CONSULTING ENGINEERS - EXPERT WITNESS - MECHANICAL & ELECTRICAL SERVICES Since 1993 we have specialised in assisting clients in resolving technical and contractual problems with respect to mechanical & electrical engineering services that can (and often do!) occur on many construction projects, whether during the pre-contract or construction phases, or indeed post-contract. As such we have been retained either as expert advisers, party-appointed experts or as single joint experts in respect to disputes between building owners/end-users & their contractors or between contractors & their sub-contractors concerning technical and/or contractual aspects related to mechanical & electrical engineering services. We have also acted for clients in issues involving professional negligence of M&E consulting engineers.
Please call Bob Swayne EngTech AMIHEEM for an initial discussion without obligation on 01494 868 868 or 07768 497 005 or visit our website on www.thehampdenconsultancy.com for more details
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To discuss your requirements, contact a member of our Sanctum medico-legal team on 0161 302 0577 or email medicolegal@sanctumhealthcare.co.uk Or visit our website at: www.sanctumhealthcare.co.uk
Darnley V Croydon Health Services NHS Trust Mr Mike Paynter Consultant Nurse - NHS Emergency Nursing Expert Witness – Apex Health Associates info@apexhealth.net was based on misleading information from the receptionist about the waiting time to see a clinician. The trial judge stated; ‘the provision of such misleading information by a receptionist as to the time within which medical assistance might be available was negligent.’
Mr Paynter is an Emergency Nurse Consultant and part of the Apex Health Associates expert nursing team. Apex Health Associates is a UK wide and international nursing expert practice owned and run by nurses. In this short paper, Mr Paynter looks at the recent ‘Darnley’ decision by the Supreme Court.
Supreme Court Justice Lord Lloyd-Jones acknowledged that emergency departments operate in very difficult circumstances and under colossal pressure. However, Lord Lloyd-Jones concluded that ‘it is not unreasonable to require receptionists to take reasonable care not to provide misleading information as to the likely availability of medical assistance. The provision of misleading information was negligent.’
In 2010 Mr Michael Darnley, aged 26 years was the victim of an assault, he had sustained a head injury, he was taken by a friend to the Emergency Department at Mayday Hospital. When Mr Darnley arrived at the reception desk and ‘booked in’ the receptionist advised him of an approximate 4 to 5-hour wait. Mr Darnley felt unwell and decided not to wait in the waiting room and took himself home. Mr Darnley’s decision to not wait was based on the alleged ‘misleading’ advice provided by the receptionist. Mr Darnley did not wait to see the assessing clinician.
This is believed to be the first case of negligence involving Emergency Department receptionists giving misleading information. It is not uncommon in many Emergency Departments and minor injury units for patients to selfpresent see a full waiting room or see the moving message board displaying the approximate waiting time and elect to leave. Likewise, it is not uncommon for patients to ‘book-in’ and then decide not to wait, many of these might leave prior to contact with a clinician. Traditionally these patients are recorded as ‘did not waits’. It has usually been considered that these patients are responsible for their own decisions. This ruling will understandably cause concern amongst NHS managers and lead clinicians in emergency care. It will no doubt cause an amount of anxiety with clerical and administration staff who are always the first point of contact.
A short time later he collapsed at home and an ambulance was called. On arrival back in the emergency department his level of consciousness was reduced and his GCS was 9 out of 15. A large extradural haematoma was identified. Mr Darnley underwent neurosurgical intervention but was left with permanent brain injury and a left hemiplegia. In 2015 proceedings were brought against the Croydon Health Services NHS Trust alleging a breach of duty on the part of the receptionists for giving incorrect and ‘misleading’ advice on the waiting time. The High Court Judge determined that the harm suffered was outside the scope of any duty of care or obligation owed by the receptionists. In addition, it was considered that as Mr Darnley had elected to not wait in the emergency department the causal connection had been broken. The claim of negligence against the Trust was rejected.
The solicitor for Mr Darnley has stated ‘that despite fears expressed by hospital trusts, this will not lead to a new layer of responsibility for clerical staff or a new layer of liability for the NHS. The reception area of an Emergency Department is the first point of contact between the public and the hospital. The decision does not mean that reception staff should accurately state the precise time a patient would be seen by medically qualified staff. They must take reasonable care not to provide misleading information about the availability of assistance.’
An appeal was made to the Supreme Court in June 2018. On10 October 2018 five Supreme Court justices overturned earlier judgements. It was judged that far from constituting a break in the chain of causation Mr Darnley’s decision to leave to emergency department was foreseeable and EXPERT WITNESS JOURNAL
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‘The standard of care required is that of an averagely competent and well informed person performing the function of a receptionist in a department providing emergency medical care.’
MR SAMEER SINGH
Consultant Orthopaedic Surgeon
Receptionists in our Emergency Departments and minor injury units do an outstanding job in sometimes very challenging circumstances they supervise the waiting room and keep clinicians informed and updated.
MBBS, BSc, FRCS (Trauma and Orthopaedics)
As a result of this ruling it would be reasonable to expect them to have a closer relationship with clinical teams when waiting times become excessive clinicians need to be aware of supporting them.
Specialist interests – All aspects of Trauma (soft tissue and bone injuries), Upper Limb Disorders, Whiplash Injuries Medical Reporting Personal injury and Medical Negligence Expert
The waiting times should not be used as a subtle deterrent to encourage patients to go elsewhere, certainly not without contact with a health care professional.
Clinic locations in References Darnley (Appellant) -v- Croydon Health Services NHS Trust (Respondent)
The Manor Hospital, Church End, Biddenhamm Bedford MK40 4AW The Saxon Clinic, Chadwick Drive, Saxon Street Milton Keynes, Buckinghamshire MK6 5LR
On appeal from [2017] EWCA Civ 151. Judgement given on 10 October 2018
Tel: 01908 305127 Mob: 07968 013803 Email: orthopaedicexpert@gmail.com Web: www.orthopaedicexpertwitness.net 61 Church End, Biddenham, Bedford MK40 4AS
Dr Khalid Binymin Consultant Rheumatologist Hononary Lecturer at Liverpool University
Dr Gordon Williams Consultant Cardiologist
MBChB, FRCP, MSc
MB BCh FRCP FACC
Consultant Rheumatologist and lecturer. I have over 25 years experience as a doctor. I am the author of two published medical books and the rheumatology chapter of the masterclass book for the Royal College of Physicians. Appointed as the Royal College of Physicians Tutor, Honorary lecturer at Liverpool University.
Consultant Cardiologist at York Teaching Hospitals NHS Foundation Trust Medico-legal expertise in invasive and non-invasive investigations, diagnostic techniques, coronary artery disease, hypertension, heart failure, adult congenital heart disease and general cardiology
I ran various nationwide training courses. Research areas include; SLE, fibromyalgia, rheumatoid arthritis, Psoriatic arthritis, mechanical trauma and back pain. Medicolegal reports have been written for most legal firms in the north west region with great emphasis on punctuality and quality. Personal injury, ill health retirement and medical negligence is major area of work.
Aviation Medicine – Cardiological Adviser to the Civil Aviation Authority Preparing Expert reports since 1985
Contact Renacres Hall Hospital Renacres Lane, Halsall Nr. Ormskirk, L39 8SE Area of work: Nationwide
Spire Leeds Hospital Jackson Avenue, Leeds LS8 1NT Email: sandra.ellerbeck@spirehealthcare.com sandra@cardioreports.co.uk Tel: 0113 218 5943 Fax: 0113 218 5987 Mob: 07740 184203 or 07702 550 758
Tel: 01704 841133 Mobile: 07939 540 839 Fax:01704 842030 Email: kbinymin2012@yahoo.com or kbinymin@nhs.net
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The Servant of Two Masters: How can an Expert Witness Square the Circle of Serving Both his Client and the Court? by Peter Caillard Executive Director, HKA The appointing party needs him to advise it on the key issues pertinent to its case. It will be seeking accurate and reasoned opinion which may be used by its advocates to build its case, and will be hoping that the expert’s findings and expressed opinions will be favourable to its position.
Introduction Goldini’s classic 18th century tale entitled ‘The Servant of two Masters‘ tells the story of Truffaldino, a servant in 18th century Venice. Many of Truffaldino’s problems stemmed from his idea that he would seek the employ of two masters at the same time. He had reasoned that, if he had two masters, he could make twice as much money – so long as neither ever found out about the other!
So we immediately have a potential conflict of interests. If the expert is appointed and remunerated by one of the parties, surely this puts pressure on him to favour that party in his deliberations? After all, pleasing a client is fundamental to good business. Yet the court wants independent and impartial advice. So how can the expert square this circle?
Unlike Truffaldino, an expert witness appointed to give testimony in a dispute does not set out to deceive, but may nonetheless find himself attempting to serve the apparently conflicting requirements of his client and the court. Typically, he will be retained by one of the disputing parties, which pays his fees; whereas his duty is to the court, which does not. The danger is that in attempting to please both, he pleases neither, and fails in his obligations.
Rules and Protocols There are a number of rules and protocols which help steer the expert through his work: Civil Procedural Rules The Civil Procedural Rules (CPR) apply to all civil litigation in England and Wales. In particular, Part 35 provides guidance for the conduct of experts. Clause 35.3 makes clear that the expert’s overriding duty is to the court. It states that: “It is the duty of experts to help the court on matters within their expertise.”, and: “This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.”
This paper addresses this dilemma – if indeed it is such – and considers how experts should conduct their duties so as to avoid getting into difficulties. The Role and Duties of the Expert Witness An expert, if asked to investigate and opine upon a matter of dispute, will frequently find himself or herself in a position where they are preparing an expert report for a court or tribunal. When an independent expert presents evidence in such a forum, he or she has an overriding duty to that forum. However, the expert may well be engaged on behalf of one of the disputing parties, which no doubt will be hoping to receive a report which assists its case!
So the CPR makes clear where the expert’s loyalties must lie. The opinions expressed by experts must be independent and uninfluenced by the pressures of the litigation process. The expert should not seek to promote the arguments of his instructing party. It is often said that a test of independence is whether the expert would have reached the same conclusions had he received the same instructions from the opposing party.
The courts require the expert to provide it with knowledge and opinion that will help it address the complex issues of the case (including technical matters which it might not ordinarily understand), and thereby to reach a reasoned judgement. It needs the expert to be accurate and truthful, and to express his opinion without deference to the appointing party. Importantly, it does not wish the expert to act as an advocate.
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The Ikarian Reefer Judgement Sometimes referred to as the ‘Cresswell principles of Evidence’, a set of guidelines were issued following a shipping case, known as The Ikarian Reefer. This 79
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case involved a Panamanian vessel that ran aground and caught fire. The insurers alleged arson, and in this respect, they relied on expert evidence. Mr Justice Cresswell had significant difficulties with the testimony of some of the experts, and their understanding of their duties and responsibilities. The guidelines which he produced following the case have subsequently been widely accepted as standard good practice for instructed experts.
secondly, to assist the court, which does not possess the relevant skill and experience, in determining where the truth lies.” Mr Justice Garland’s comments are of interest because they recognise that, although the expert’s principal duty is to the court, it is not necessarily his or her only role in the matter. The appointed expert will not only have provided evidence to the court, but will have advised the party that appointed him. Indeed, that party’s decision to proceed may well have hinged on the opinions expressed by the expert.
Mr Justice Cresswell’s seven principles are summarised as follows:
With this recognition the expert need not be coy about his dual roles. Clearly he is not an advocate, but he is to use his skill, knowledge and expertise to provide interpretation. In the interests of all involved, fundamentally, the advice that he will give the court should be no different to that which he would provide to his client.
1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation; 2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise (see Polivitte Ltd -v- Commercial Union Assurance); An expert witness in the High Court should never assume the role of an advocate;
Share Content The courts require the expert to provide it with knowledge and opinion that will help it address the complex issues of the case, and thereby to reach a reasoned judgement. It needs the expert to be accurate and truthful, and to express his opinion without deference to the appointing party. Importantly, it does not wish the expert to act as an advocate.” Peter Caillard, Executive Director, HKA
3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion; 4. An expert witness should make it clear when a particular question or issue falls outside his expertise; 5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report;
Impartiality and Confidence Apart from technical competence, the two most important aspects for an expert are to demonstrate his impartiality, and to give the judge confidence in his evidence.
7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.1
Demonstrating impartiality is key. Advocacy is an easy trap for the expert to fall into. As is a lack of willingness to change an opinion. An instructed expert may be fully familiar with his client’s case, and have developed his opinions well before receiving the counterarguments of the other party. The expert may then consider that subsequent concession displays weakness, or possibly even a lack of competence. However, an expert’s willingness to recognise the strengths of the other party’s expert’s argument, and to incorporate it into his overall assessment, both assists the court in reaching a decision and strengthens his own standing. Courts do not like to see an expert failing to modify an opinion in the light of overwhelming evidence.
These rules have been quoted on a number of occasions since and stand as a basic code of good practice for experts today.
Apart from rules and principles, there are good reasons why an expert should strive to demonstrate his independence and maintain impartiality:
In the case of Polivitte Ltd v Commercial Union Assurance (mentioned under the 2nd principle above), Mr Justice Garland said:
1. A report that demonstrates neutrality will hold greater sway with the court. In turn, this increases the value and likely influence of the expert’s evidence;
“I have almost considered the role of an expert to be two-fold: first, to advance the case of the party calling him, so far as it can properly be advanced on the basis of information available to the expert in the professional exercise of his skill and experience; and
2. It will give the expert greater confidence under cross-examination. A balanced and well-reasoned report is much easier to defend than one which appears partisan;
6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court;
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3. If there are weaknesses in the client’s case, it is better that he is advised of these at the earliest opportunity;
Which, after all, is exactly what his client wanted in the first place! Conclusions Overall, the expert witness is not serving two masters, he is serving one, the court. And to the extent that he has a duty to the party that appointed him, that duty is best served in exactly the same way that he would best serve the court – the same report, the same conclusions and the same expressed opinion.
4. The evidence of an expert who has the appearance of a ‘hired gun’ is compromised, and will be of little value to the court – and hence of little help to your client’s interests. Judges and arbitrators are consistent in their comments about what they expect from an expert witness. Top of the list is the demonstration of independence. He should discuss both sides’ cases with equal vigour. He should not just dismiss the opinions of the other side on the basis of “in my experience” but state clearly the flaws in the opposing argument, or opine as to why such positions cannot be sustained. Whatever the view of the expert, judges want to see logic and learning behind the opinions expressed.
For poor Truffaldino it all turned out well in the end. His delicate deception worked for a while, but collapsed when letters addressed to one master were accidentally handed to the other. With his misdemeanours now exposed, he confessed his deception, both his masters forgave him, and they all lived happily ever afterwards! But the expert witness may not be so lucky, for to receive instructions he relies on his good reputation, and reputations are created and preserved by delivering quality products to the ultimate users of his services – the courts.
Cross-examination provides the opportunity for the expert to reinforce the message of independence by demonstrating his balanced and reasoned approach through the answering of questions. However, if any expert is not acting fully in accordance with such principles, it will quickly become evident and experienced judges and arbitrators will not fail to spot it! Nothing looks worse than an expert repeatedly being asked the same question by opposing counsel because he has failed to answer it. The judge must know that the expert is being open and honest. This will give him confidence in the expert’s testimony, and vastly increase the chances that he will rely upon it in reaching his judgement.
References 1. Factsheet 4: The ‘Cresswell’ Principles of Expert Evidence (JS Publications, 2009) This publication presents the views, thoughts or opinions of the author and not necessarily those of HKA. This publication is protected by copyright © 2018 HKA Global Ltd. Many thanks to HKA. for permission to reproduce this article www.hka.com
Medical & Legal Admin Services • Medical & Legal Admin Services (MLAS) is committed to providing high quality, maximum efficiency and the best medico legal expertise to both claimant and defendant solicitors. • We deliver the logistical support for some of the most accomplished medical experts in the UK. • We ensure that reports are of the highest quality and deadlines are always met. • If you are a solicitor or insurer and need to secure the services of a medico legal expert look no further. • We provide expertise in a variety of case types including but not restricted to; Persistent Pain, Spinal Injury, Oncology, Obstetric Emergencies, Gynaecology, Orthopaedics and Neurodegenerative Conditions. Services for Experts - We offer an excellent and comprehensive logistics service, that includes managing all communications, travel and diary meetings, administration, finance, marketing and promotion. Contact us to consolidate or grow your Medico Legal practice. Become a Mentor – We will work with Medico legal experts with a mature practice who can help to develop the next generation of medico legal experts, whilst still growing their own practice and increasing their own revenue. Email: enquiries@mlas.co.uk Telephone: 0114 2455423 Twitter:@MedLegAdmin Web: www.linkedin.com/company/mlas - Medical & Legal Admin Services: Registered address: Haywood House, Hydra Business Park, Nether Lane, Sheffield, S35 9ZX.
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Experts: To work with MLAS contact our office Business Relationship Manager Andrew Kwame: Telephone:07562 717854 Email: AndrewOsei-Kwame@mlas.co.uk Solicitors/Insurers: To give instruction please contact: Telephone: 0114 2455423 Email: enquiries@mlas.co.uk
WINTER 2019
Preparing For a Hot Tub by Dr Chris Danbury MB BS M.Phil FRCP FRCA FFICM Hot-tubbing, the process of expert witnesses from the same discipline providing concurrent expert evidence (as set out in paragraph 11 of the CPR practice Direction 35), is becoming more widely used. Dr Chris Danbury, Consultant Intensive Care Physician has been instructed in cases reaching the High Court, Court of Protection, Coroner’s Court, Court of Appeal and Supreme Court. In this article he shares his experience of “hot-tubbing” and how expert witnesses can best prepare, and be prepared, for a judge-led joint examination.
Staying on topic The less structured and less formal setting of a judge-led joint examination can allow an expert witness to stray off topic. Legal counsel could usefully help experts prepare for hot-tubbing by reminding them of the scope of their evidence and that their duty is to the court and not as advocates for their instructing party. With increasing focus on the length (and cost) of trials, the ‘hot tub’ looks like it is here to stay. For expert witnesses this means that court room skills need to be extended to prepare them for questioning, and being questioned by, the other expert as well as communicating clearly and effectively with the judge. The first time in the ‘hot tub’ doesn’t need to get an expert witness hot under the collar with a little support and forewarning from their legal counsel.
Expecting the unexpected For many expert witnesses the courtroom is not a familiar environment. Any expert worth their salt will have attended training in courtroom skills, with the focus historically on giving their testimony confidently and clearly under cross-examination. It can then be daunting to arrive at court to be told that the judge has given direction for ‘concurrent expert evidence’ or a ‘hot tub’. On the face of it, it doesn’t change the preparation an expert witness should and would do, although a thorough knowledge of current reviews and meta-analysis on the specific topic in hand will stand an expert in good stead in a ‘hot tub’. For legal counsel any forewarning gives a first-timer the opportunity to read up about the process and how it should work (recognising that as a ‘judge-led’ approach, it will vary from individual to individual). Some judges have a history of ‘hot tubbing’ and legal counsel could usefully identify that to an expert who is preparing for court.
Dr Danbury can be instructed through Medicolegal Associates on a range of cases involving intensive and high dependency clinical care settings. Many thanks to Dr Danbury and Medicolegal Associates for permission to reproduce this article. www.medicolegal-associates.com
Striking the right balance When ‘hot tubbing’ works well it provokes intellectual debate between experts. It is a good way to explore complex issues and seek to find common ground in the areas where two experts are not in agreement. From an expert’s perspective, there is a balance to be struck between confidence in one’s own opinion and having an open mind and being flexible if the other expert makes a valid point. A mutual respect between experts is key to the success of the ‘hot tubbing’ format, so an expert witness should not be deferential to a colleague who may be seen to be more senior. A more junior expert should keep in mind that their view is still relevant, possibly more so if their clinical work is more extensive at the current time than their senior counterpart. Experts with experience, age and/or seniority on their side should not seek to undermine the other expert on that basis.
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Six Figure Sum Recovered for Young Lady after Delay in Diagnosis of Cancer at Lewisham Hospital Lauren instructed Mark Bowman to pursue a claim against Lewisham Hospital after she was concerned that they had delayed in diagnosing her with olfactory neuroblastoma, a rare form of cancer that develops in the nose.
that they had made any difference. It was not until after expert reports had been exchanged and our experts met with the Defendant's experts to discuss matters, that finally it was admitted that Lauren's life expectancy was reduced due to the substandard treatment provided. Even then, arguments persisted as to by how much Lauren's life expectancy had been reduced, and it took a mediation, only two months prior to trial, for the Defendants to make a substantial offer that properly compensated Lauren for her pain and suffering, the treatment she will now require and the losses that will be incurred due to her prognosis.
Lauren had been suffering with sinusitis, loss of taste, loss of smell and increasing headaches from 2013. She was referred by her GP to the ENT department at Lewisham Hospital. A CT scan was arranged and took place on 01 April 2014. The scan was reported on the very next day, and determined that Lauren was suffering from a polyp. In fact the scan was highly suspicious for malignancy, and Lauren should have been contacted ASAP for a follow up appointment and a biopsy within 14 days. As it was, Lauren was not seen for follow up until November 2014, and was told she should have surgery to remove the polyp. Surgery was commenced in December 2014, but during the operation it became clear to the surgeon that something was not right. A biopsy was taken and in January 2015 Lauren was given the devastating news that she suffering from cancer. In addition it became clear that this had been obvious since the previous April, when a diagnosis should have been made.
At the end of the case Lauren commented "I would like to say a big thank you to mark and his team for all their help and for the professional way they treated the whole situation. In particular I want to thank Mark for his caring and personal touch and the way his team cared and supported me through the whole case." Contact us For further information about delayed cancer diagnosis claims, please call Mark Bowman on 0207 861 4043 or email mark.bowman@fieldfisher.com. You can speak to our medical negligence solicitors on freephone 0800 358 3848 E-Mail them at personalinjury@fieldfisher.com
Initially the Defendant denied all liability but made an offer of ÂŁ5,000 to settle the claim. This was swiftly rejected. Following service of proceedings the Defendant admitted they had made mistakes but denied
Dr Duncan Dymond
Dr Joshua Adedokun
MD FRCP FACC FESC
FCARCSI, FRCA, FFPMRCA
Consultant Cardiologist
Chronic Pain Expert
Dr Duncan S Dymond has been a consultant cardiologist at St Bartholomew's Hospital, now a part of Barts Health NHS Trust since 1987.
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.
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.
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.
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.
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:
T: 0207 079 4260 E: medicolegal@harleycardiology.com secretary@drduncandymond.com W: www.drduncandymond.com
Tel: 01625 526 665 Email: expertpainreports@gmail.com Web: www.expertpainreports.co.uk Spire Manchester, 170 Barlow Moor Road, Manchester M20 2AF
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Accreditation for the Expert: A Good Idea or Not Such a Good Idea? by Alec Samuels Accreditation sounds to be a good idea. On his CV the expert can show his competence, assured by an institution of standing. The solicitor and the lay client instructing him can have confidence in him. He can be readily found, as he will appear in the appropriate directory. Anyone searching for an expert need not rely on self-advertisement but a reliable independent source.
may know an expert and recommend him, but the solicitor must bring an independent assessment to bear in light of the nature of the case.
The EU is working on the creation of a directory. The Expert Witness Institute EWI in conjunction with the Institute of Judicial Administration at University College London is working on a new accreditation scheme, led by EWI Governor Dr Sandy Mackay, an architecture and construction expert. The scheme is based on assessment, for the more experienced expert, not training for the less experienced expert. The assessment is looking for the knowledge and awareness and understanding of best practice, e.g. meeting the lay client, writing reports, knowledge of the GDPR, interplay at meetings, working with the lawyers, working with the other experts in the case, understanding the forensic court scene, giving evidence, handling cross-examination.
There have been several moves towards accreditation in recent years, with mixed success. It will be interesting to see whether current well-intentioned efforts to promote accreditation can succeed and prove their worth.
Many experts of standing positively refuse to be entered into directories, preferring to rely upon their reputation. They do not need to seek work, they are busy anyway, because they are known to be good; and they dislike self-advertisement.
Š Alec Samuels 2018
Need an expert fast call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk
Reservations However, many experts, solicitors, clients and others have reservations about accreditation and directories. The good expert learns by forensic experience, not yet another classroom experience. The assessment exercise inevitably takes considerable time, trouble and expense for all involved. The public are suspicious of directories; and directories can become stale, out of date. The CV of the expert should anyway fully and accurately show his qualifications and experience, without the need for accreditation. Most solicitors and clients choose their expert by reputation, or having instructed the expert previously, or having seen him perform, or by judicial comments in previous cases, or by his contributions to the specialist literature, or by recommendations from a reliable source. The duty of the solicitor, and the mark of a good solicitor, is to know the good expert, or to know how and where to find him, how initially to assess the expert before instructing him, how to establish a good working relationship, how to assess suitability for each stage of the process, how to gain the confidence of the expert, and the willingness of the expert to be instructed by that solicitor.
Mr Jack Lancer
Consultant Ear, Nose & Throat Surgeon MB, ChB, LRCP, MRCS, FRCS(Otol), DLO My areas of surgical expertise include all aspects of middle ear disease, especially stapedectomy and in facial plastic surgery especially rhinoplasty. I also deal with general adult and paediatric ENT problems. I have issued many medico-legal reports over a 25 year period, with the majority relating to cases of noise induced hearing loss, with the remainder dealing with personal injury and negligence claims within my area of expertise, but including all aspects of general ENT practice. Contact: Park Hill Hospital Thorne Road, Doncaster, DN2 5TH Tel: 01777 817 160 Email: jacklancer88@gmail.com Fax:01777 817 158
The client himself may be something of an expert, e.g. a builder or engineer familiar with the technical side of matters, and be technically useful. The client EXPERT WITNESS JOURNAL
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Litigation Privilege and Witness Statements – High Court Clarifies the Law If a witness adopts his witness statement while giving evidence in open court, then any litigation privilege attaching to that statement is lost. But does a witness statement lose privilege when it is served on the opposing party but never adopted in open court? What is the privileged status of a witness statement which is not adopted but is used in court? These were some of the questions recently considered by the High Court in Defender Ltd v HSBC Institutional Trust Services (Ireland) Ltd.1 In that case, Defender brought proceedings against HSBC alleging negligence in relation to its alleged role as a custodian of funds on its behalf. HSBC had also been previously sued in separate ‘closely connected’ proceedings by an unrelated party. Those earlier proceedings settled, but some of the HSBC witnesses who had been due to give evidence in the earlier proceedings were also now due to give evidence in the Defender proceedings.
hand completely and fairly to the other side in a witness statement (in the hope, perhaps, of settling), that litigants would lose a particular benefit of settling, namely avoiding a public airing of their dispute as set out in their witness statements. This benefit would be lost simply because they had not managed to settle their dispute before those statements had been served. There was a strong public interest in ensuring that every effort was made to settle cases so that court resources were not wasted, particularly in long running cases which would monopolise the court’s time to the detriment of other litigants.
Issue for the court Defender sought their previous witness statements as well as expert reports in order to see if there were inconsistencies between the statements of those HSBC witnesses in the current Defender proceedings when compared with the statements of the same witnesses in the earlier proceedings.
Therefore, there were good reasons for attaching privilege to witness statements until the very last minute ie until they had been adopted by the witness in evidence or put into the public arena. If they were ultimately not used in this way, the litigation privilege could survive past the conclusion of those proceedings but only if subsequent proceedings were ‘closely connected’ with the proceedings in which the documents were originally provided.
It was accepted that although litigation privilege will generally come to an end when a set of proceedings conclude, it can survive to apply in subsequent, ‘closely connected’ proceedings such as those here.
Pointing first to the fact that such witness statements lacked any evidential value, and noting that Order 63A was silent on the issue, Twomey J. concluded that there were a number of policy reasons why these witness statements should remain privileged.
The court then went on to consider the position where a witness statement had been served on the other side, not adopted by that witness in open court (as the case settled in advance of that witness giving evidence) but had been relied on in court when cross-examining another witness. Twomey J. held that the use of a verbatim extract and several summaries of various parts of a particular witness statement, without any caveat or restriction, in the cross examination of the plaintiff in the earlier proceedings amounted to a substantial reference to that witness statement. Thus, the ‘effective opening’ of that witness statement in court by HSBC (in the earlier proceedings), albeit that it was not adopted by the witness, meant that the witness statement was effectively ‘put into the public arena’ leading to a loss of privilege.
He noted that often cases settled not only after witness statements had been served but after a hearing had commenced. It would be a disincentive to parties settling at this stage, if having revealed their
Comment This is an interesting and helpful judgment insofar as it addresses a specific aspect of the law of privilege not previously considered by the courts. However,
The issue for the court was whether HSBC witness statements from the earlier proceedings which were served on the other side in those proceedings but not adopted by the witnesses as their evidence in court (because the case settled), remained privileged, so as to be unavailable on discovery to Defender in the current ‘closely connected’ proceedings? Decision of the court
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the wider impact of the judgment may be tempered by the judgment in UCC v ESB2 where, as recognised by the court in this case, it was held that litigation privilege will only continue beyond the final determination of a particular set of proceedings to apply in subsequent proceedings if those later proceedings are ‘closely connected’ to those going before. This means that it may be only in a relatively narrow set of circumstances that this new decision of the High Court will come into play.
Dr Liam Parsonage Consultant Psychiatrist BA, MBBS, MRCPsych
Dr Liam Parsonage is a Consultant Psychiatrist specialising in Adult and Old Age Psychiatry. He has worked in the NHS as the Lead Consultant for community mental health services in Surrey.
References 1, [2018] IEHC 587. 2, [2014] 2 IR 525.
Dr Parsonage provides psychiatric evaluations of mental disorders, sleep disorders, and attention deficit disorder (ADHD). Mental Capacity Assessments, university performance and mitigating circumstances reports, psychiatric evaluations of the effects of abuse, neglect or trauma, post-traumatic stress disorder, and personal injury. He also provides psychiatric evaluations relating to occupational health matters including fitness to return to work and early retirement on medical grounds and, undertakes psychiatric evaluations regarding immigration matters
Many thanks to Seán Barton and Megan Hooper at McCann FitzGerald for permisison to reproduce this article. McCann FitzGerald offers expert, forward-thinking legal counsel to clients in Ireland and around the world www.mccannfitzgerald.com
Contact Name: Diane King Tel: 020 8920 5606 Email: liam.parsonage@nhs.net Alternate Email: Diane.king8@nhs.net Website: www.parsonagepsychiatry.com Address: Priory Hospital North London Grovelands House, The Bourne, London, N14 6RA
This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.
Need an expert fast call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk
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Professor Charles Claoué
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Contact: Miss Nadia Bouras DBCG Legal Ltd, 36 New Atlas Wharf, Arnhem Place, London E14 3SS Tel: 020 8852 8522 Fax: 020 7515 7861 Email: eyes@dbcg.co.uk Web: www.eyelawchambers.com
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Thinking of Going to Court? Skilled Witnesses Must Remain Independent by Sarah Phillips - Director at Anderson Strathern LLP Expert evidence from skilled witnesses can be crucial to the success or failure of a court case. Such witnesses certainly have to be well qualified in their specialist areas to advise the court. But recent court decisions on the instruction and use such experts show there are several important points that must be borne in mind for their evidence to be of real value to the court.
• Tell the other party to the case about any change in his opinion and, if appropriate, tell the court too, without delay • Provide copies of all photographs, plans, calculations and relevant documentation referred to in any report they have prepared to the other side at the same time as the report One area which has come under the spotlight is a contingency fee arrangement for a skilled witness. This can exist, although it’s not common. It’s where a skilled witness is paid for the work done only if the party who instructed them wins their case.
It’s common for skilled witnesses to be instructed in personal injury and medical negligence claims: doctors, surgeons and psychiatrists are often the only people who are properly qualified to advise the court about the cause of the injury, the impact of it and the future prognosis for the injured party. Other specialist experts will often help the court with questions of negligence in more technically complex cases involving health and safety or occupational health issues. Skilled witnesses can also be involved in a wide variety of cases, including in contract, financial and accounting and engineering disputes.
The Sheriff Appeal Court recently considered this. In the case of Armstrong & Others v ERS Syndicate Management Ltd, the court said it would consent to a ‘contingency fee arrangement’ between a party and a skilled witness only in very rare circumstances. This is because the contingency fee arrangement gives the skilled witness a financial interest in the outcome of the proceedings and, it could be said, this might colour their evidence and jeopardise their objectivity.
Importantly, skilled witnesses must not only be experts in their area. As part of fulfilling their duty to the court they must also remain impartial and independent and be fully advised on the detail of the case. If the circumstance of their instruction show they may not be, their evidence may be ‘inadmissible’ or deemed to have less weight, all of which could affect the outcome of the case.
Another recent decision of the Court of Session involving a skilled witness – Taylor v Dailly Health Centres - showed that those instructing experts must make them aware of any contradictory evidence that exists. The case highlighted that where expert witnesses need to work from the evidence provided by eye witnesses, it’s important that information is as complete, accurate and consistent as possible. There the court noted that the evidence of one of the expert witnesses was provided on a factual basis different to the one which the court found was established. Those thinking of using an expert witness should ensure that they can put forward one who can remain independent, impartial and knows the full details of the case. Failure to do so may lead to the evidence of skilled witness being deemed inadmissible or of lesser value, and, ultimately, to the loss of the case.
The obligations on skilled witnesses were clearly outlined in the 2016 Supreme Court case of Kennedy v Cordia: • Make sure that the evidence they give is not influenced by the fact that the issue is going to court • Provide independent assistance to the court by giving an objective and unbiased opinion in relation to matters which are within their expertise • Ensure they do not act as an advocate for either party – their job is to assist the court by speaking about facts, not the rights and wrongs of the case • Set out the material facts and assumptions which they have based their evidence upon
Sarah Phillips is a Director specialising in defender litigation at Anderson Strathern LLP
• Make it clear when they cannot answer a particular question because it is outside of their expertise • Make it clear that their opinion is provisional only if they do not have all the data they need in order to provide a definite opinion EXPERT WITNESS JOURNAL
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TCC Criticises "Partisan" Experts Again ► Experts who are not sufficiently independent do not find favour with the courts ► Experts and lawyers should take careful note of the principles governing expert evidence ► How to avoid serious transgressions of the rules on expert joint statements What's it about? In two recent cases, the TCC highlighted again the importance of expert impartiality and the necessity for experts and their instructing solicitors to adhere to the rules which govern expert evidence as set out in the Practice Direction to Part 35 and the TCC Guide.
statement. The Judge confirmed that the TCC Guide envisages that an expert may, if necessary, provide a copy of the draft joint statement to the solicitors, but that: ► the expert should not ask the solicitors for their general comments or suggestions on the content of the draft joint statement; and
In Imperial Chemical Industries Limited v Merit Merrell Technology Limited [2018] EWHC 1577 (TCC) the court considered quantum issues in relation to a dispute arising from a contract between Merit Merrell Technology Ltd ("MMT") and Imperial Chemical Industries Ltd ("ICI") for works at a paint manufacturing facility.
►
the solicitors should not make any comments or suggestions, save for in the very limited circumstances identified in the TCC Guide at paragraph 13.6.3 and the Practice Direction to Part 35 - where legal representatives are concerned that the experts' views as stated in the joint statement may have been infected by some material misunderstanding of law or fact and any such comments should be made to all experts involved.
Both parties’ experts approached the valuation of MMT’s final account differently. MMT’s expert valued the works in accordance with the Contract and taking the factual context with regard to various interim assessments reached between the parties, whilst ICI’s expert undertook the exercise based on actual cost, in most instances ignoring the interim assessments and agreements.
Why does it matter? An expert who is partisan or who breaks the rules governing expert evidence will not help his client in court. The comments in both cases highlight the importance of independence in expert evidence and are a helpful reminder: ► of the guidance set out in Practice Direction 35;
Justice Fraser, preferring the evidence of MMT, in his judgment, considered the independence of ICI's experts and noted that they were "not sufficiently independent of the party who has instructed them". He raised concerns that all four experts called by ICC were found "to have been lacking in independence" and hoped that this lack of independence would not become "part of a worrying trend in this respect".
►
that experts should consider all issues relevant to their report and should not identify versions of the facts to be preferred over others – this is the job of the courts;
►
that the principles that govern expert evidence must be carefully adhered to, both by the experts themselves and the legal advisers who instruct them;
In the case of BDW Trading Limited v Integral Geotechnique (Wales) Limited [2018] EWCH 1915 (TCC) (in which it was held that IGL had not failed to give proper advice in respect of asbestos risk) it became apparent during the trial that one of the experts for IGL had shared the first draft of the joint expert statement with his instructing solicitors for comments and made changes to the draft as a result of the solicitors' comments on the statement.
► that the duty of the expert is to the Court; and ►
that the utmost care should be taken when instructing experts so as not to compromise accuracy and independence. Many thanks to THOMAS HURST - Managing Associate SARAH WILSON - Associate www.addleshawgoddard.com © 2018 Addleshaw Goddard LLP. All rights reserved. Many thanks for permission to reproduce this article.
In deciding the case HHJ Stephen Davies issued valuable guidance on expert joint statements noting that there was a "serious transgression" by the expert witness in seeking solicitor's comments on a draft joint EXPERT WITNESS JOURNAL
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