Issue 11 by ExpertWitness

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THE JOURNAL FOR EXPERT WITNESSES AND INSTRUCTING PROFESSIONALS

FORENSIC SPECIAL

RICS - TRAUMA - DNA Vol 1 Issue 11 - Spring 2015 - UK £5.00 Euro 6.00

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A Catalyst for Forensic Science… The conversation about forensic science over the past few years has been themed around the absence of strategy. One of the most outspoken voices has been that of Dr Angela Gallop of Forensic Access who doesn’t mince her words in the open letter she penned to The Independent in January this year after their ‘threat to justice” article. Based on the NAO report on “The Home Office’s oversight of forensic services” this threat is very real. Despite the rise of a number of private sector providers, a framework for tendering ‘Lots’, and the ‘Insourcing’ of laboratory work by the Police, many think that the lack of strategy and budget cuts have been so severe that it could lead to the jeopardising of criminal cases and raise issues of impartiality and quality standards. Despite the bad blood, there are some positives. Police forces are joining up with their neighbours and collaborating with local academia to make the most of pooled resources and research. From Dundee to Derby, Liverpool to Portsmouth, Universities are becoming centres of excellence in areas as diverse as forensic archaeology, DNA profiling, and crime scene reconstruction. The whole area of evidence gathering has been revolutionised by technological advances and the development of game-changing software and toolsets (such as Expert Witness registrant Afentis Forensics’ offerings) which can unravel online, social media and mobile imprints or behaviour. In this issue you can read the opinions of the main movers and shakers across the board of forensic activity from ‘digital fingerprinting’ to pathology, DNA profiling to fraud investigation. Expert Witness would like to see more investment in this boundless culture of innovation – the establishment of a catalyst for forensic science to make the most of the UK’s coveted leadership in every aspect of forensic science and technology. Whilst this is the main focus of this issue, we still include article of interest to our core community in the other principal areas of expert witness work.

Des Griffin Editor This Journal and any related website and products are sold and distributed on the terms and condition that: The publisher, contributors, editors and related parties are not responsible in any way for the actions or results taken any person, organisation or any party on basis of reading information, stories or contributions in this publication, website or related product. The publisher, contributors and related parties are not engaged in providing legal, financial or professional advice or services. The publisher, contributors, editors and consultants disclaim any and all liability and responsibility to any person or party, be they a purchaser, reader, advertiser or consumer of this publication or not in regards to the consequences and outcomes of anything done or omitted being in reliance whether partly or solely on the contents of this publication and related website and products. No third parties are to be paid for any services pertaining to be from ‘The Expert Witness Journal’ The publisher, editors, contributors and related parties shall have no responsibility for any action or omission by any other contributor, consultant, editor or related party. ABC audit applied for 2015.

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News & Events Cable Theft on Railways Fall Sharply The problem of people stealing cable from British railways peaked in 2011, at a time when there was a lucrative market in scrap copper wire.

crucial. The Scrap Metal Dealers Act 2013 required all dealers to be licensed, banned cash payments to mobile scrap collectors and gave the police and councils more power to inspect their premises. The act also required sellers to produce identification and proof of address. This has reduced the amount of ready cash that was previously available to the thieves.

The fall in railway cable thefts has led to an equal fall in delays, according to Network Rail. In 2010-11, there were 995 cable thefts on British railways, causing more than 1,000 minutes of delays each day. By 2013-14, there were 179 cable thefts, causing around 190 minutes of delays each day - a fall of 80% on both counts.

Another factor is the decline in the price of scrap copper wire which peaked at £4,400 a tonne in 2011, and has since fallen to around £3,000 per tonne.

The new figures hark back to 2004-05 and 2005-06, when there were fewer than 100 thefts.

Even though the Rail companies have dedicated response teams, it's not a quick job. A single inch of cable stolen can translate into long delays. Some cables have up to 48 tiny copper strands in them that all need to be reconnected at both ends and tested before things can get moving again. ■

In November 2011, the government launched a "metal theft taskforce" with £5m funding, and introduced the scrap metal dealers legislation in 2013. The change in law, which made it harder to sell stolen metal, had been

International Commercial Arbitration Conference to Unveil Principles that Identify What Makes an Effective Arbitral Seat The guidelines identifying what makes an efficient, effective, economical, ethical and safe seat will be debated at the conference by key users, government policy makers, members of the judiciary and eminent practitioners from around the world. They will be debated and developed to be published following the event.

The Chartered Institute of Arbitrators (CIArb) is celebrating its 100-year anniversary this year that will be marked by a series of high profile conferences around the world. The centerpiece of its Centenary celebrations is the London Centenary Conference to be held 1-3 July. CIArb’s Centenary Chairman, Professor Doug Jones comments: “The London CIArb Centenary Conference promises to be a landmark occasion in the International Arbitration calendar. Leading members of the judiciary from around the world will join key users, government policy makers, and eminent practitioners in the field to critically examine and challenge issues crucial to the development of international commercial dispute resolution in the UK, Europe, and elsewhere in the world.

Director General of CIArb, Anthony Abrahams says: “With arbitration centres opening on a regular basis the commercial world and practitioners need to be careful when choosing a venue and seat for dispute resolution. “The CIArb Centenary Conference in London reviews the factors that a seat requires and will establish the principles that a seat should offer parties and representatives. These principles will set the framework for the future development of arbitral centres”.

Since centres of international commercial arbitration are of enormous economic value ‘The Principles’ will be key for both established and aspiring seats.

EXPERT WITNESS JOURNAL

“Both those interested in the future, and those whose personal, policy, or corporate activities involve staying at the leading edge of this area, should not miss this event.” ■ 2

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Contents Some of the highlights of this issue News and Events

Page 2

Forensics: The Anatomy of Crime Exhibition

Page 10

The Evolution of Mobile Phone Evidence by Daren M Greener

Page 13

Developing Forensic Practitioners of the Future by UCLAN

Page 22

Scotland to Lead Europe in DNA Technology

Page 29

DNA Expertise by James Clery, DNA Defence

Page 31

The Next Generation of DNA Profiling by Sue Carney, Ethos Forensics

Page 35

Pedigree of a Foreniscs Provider by FTS

Page 39

A Very Particular Expert... by Angela Shaw, Forensic Firearms Consultancy Ltd

Page 43

Driving Under the Influence by Dr Bernard Leddy

Page 47

Forensic Techniques Reveal Richard 111â&#x20AC;&#x2122;s Injuries

Page 54

Expert Engineers Plus by Daphne Wasserman of Cadogans

Page 56

Ensors Forenisc Accountants

Page 58

Volume of Fraud by BDO

Page 62

Accounting Evidence Case Studies by David Winch

Page 65

GBRW Company Profile

Page 70

Managing Trauma by A Tasker and B Kelly

Page 81

Failure to Examine the Evidence by Dr Angus Strover

Page 88

Genetic Defects in Glaucoma

Page 95

Heart Attack Demystifies by Dr Robin Choudhury

Page 97

Challenges in Cadiology by Dr Saul Myerson

Page 102

Medical Notes & Records Best Practice by Scott Lister & Elizabeth Bardolph

Page 105

Protection of the Vulnerable by Charles Essex

Page 114

Medico-legal Examination of Psychological Injury by Dr Hugh Koch, Dr Katie News and Dr Louise De Haro

Page 119

PTSD by Dr Dennis Trent

Page 124

Tree Data by Mark Chester

Page 127

Hot Tubbing and How it Helps by Martin Burns

Page 136

The Making of an Expert by Captain Peter J McArthur

Page 141

All rights reserved, material in this publication may not be reproduced without written consent. Editorial material and opinions expressed in The Expert Witness Journal are of the authors and do not necessary reflect the views of Expert Witness or The Expert Witness Journal. The publisher does not accept responsibility for advertising content. The information in this magazine does not constitute a legal standpoint. Printed in England 2014. The Expert Witness Journal, Second Floor, The Landmark Building, Back Turner Street, Manchester M4 1FR www.expertwitness.co.uk

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News & Events UK Pushing for More Cyber Security Experts As cyber threats increase every day, so does the demand for more cyber security experts. With the government wanting an increase in the number of cyber security experts among younger people, with an emphaises on more apprentices in the workplace. The aim is to attract the most gifted young people to this fast-moving area of technology.

As digital technology becomes more commonplace and sophisticated, the public needs to stay safe. The recent high-profile hack of Sony highlights the sophisication that hackers can achieve. The goverment also want more transparency from businesses, and particularly financial institutions, to secretly share observed digital attacks on their networks with the government.

The government’s National Cyber Security Programme is receiving a financial boost to assist recruitment. Although the UK has a vibrant cyber security sector as part of this government’s long-term economic plan they want the UK to be one of the safest places to do business online.

The UK is not the only country pushing for more cyber security experts. With the US launching Obama’s TechHire initiative, designed to get people trained for “well-paying technology jobs.” The goverments plan is loosley nased on Obama’s 2016 budget proposals that include a $300m (£200m) fund for IT job partnerships that will ultimately link people to well-paid technology day jobs. ■

Cyber security is pushing to become a more important part of modern education – it will become mandatory for undergraduates doing relevant studies.

Dr Roger Slater Consultant in Anaesthesia & Intensive Care

MBChB. BSc. MRCP. FRCA. FICM

Mr Jeffrey S Hillman Consultant Ophthalmic Surgeon MB ChB DO FRCS (Edin) FRCOphth

Consultant in Anaesthesia and Intensive Care in NHS practice since 1989.

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

Preparing medico-legal reports for 15 years. Has published peer review papers and articles in anaesthesia and intensive care practice.

I have been preparing reports supported by Literature references in personal injury and medical negligence cases for over 20 years. Between 1992 and 2012 I have advised in 1118 cases, 66% for Claimants solicitors and 30% for Defendants solicitors and 3% on joint instruction to bring my figures up to date.

Tel: 07710 280 348 E-mail: rogermslater@btinternet.com

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

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

EXPERT WITNESS JOURNAL

Correspondence address: Church Lodge Little Wenlock Telford TF6 5BD

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News & Events New Police Forensic Collaboration Model "It will also allow us to deliver an international forensics service across five forces."

A police forensics centre of excellence will showcase good practice techniques and innovation delivered through a unique five force collaboration, according to Police Oracle.

The building, which is anticipated to be complete by next February, has been given a total of ÂŁ920,244 from the Home Office's Innovation Fund.

The centre of excellence will amalgamate the forensic expertise of Derbyshire, Leicestershire, Lincolnshire, Nottinghamshire and Northamptonshire into a single building in Nottinghamshire. This will contain fingerprint and DNA laboratories as well as emerging digital technology.

Lancashire Constabulary is already conducting a pilot of Rapid DNA technology following a cash-injection from the fund. The five force collaboration will work with the constabulary during the project and if it proves a success, the technology and service will be delivered from the site.

In an interview with PoliceOracle.com, Jo Ashworth, Director of Forensic Services for the East Midlands Special Operations Unit, said that the building, called the Arrow Centre, will demonstrate the strength of the collaborated service.

Ms Ashworth added: "We want to have a one stop shop. "This will be the final jigsaw piece in the service for us. We will have kept the local aspects local as the scenes of crime officers will remain in the regions overseen by operational case managers." â&#x2013;

She added: "We are being very innovative with the building specification and we are building laboratories that can be accredited as well as putting capability in there that we did not have before. "The site will be future proof. I want use to demonstrate what this model looks like nationally and what we can deliver with forensics.

Mr William Stuart Hislop BDS MBChB FRCSEd FDSRCSEd FDSRCPS

Consultant Oral and Maxillofacial / Head and Neck Surgeon

Professor Christopher Raine Consultant Oto-Rhino-Laryngologist B.Sc. (Hons), MB BS, FRCS (Otol), Ch.M. Christopher Raine is a Consultant Oto-Rhino-Laryngologist, he has an active otological and rhinological practice, treating both paediatrics and adults

Mr Hislop has been a Consultant Oral and Maxillofacial surgeon at Crosshouse Hospital, Kilmarnock since 1994 and is now also at the regional Maxillofacial Unit at the Southern General Hospital ion Glasgow. He has been an Honorary Clinical Senior Lecturer at the University of Glasgow since 1995.

He has a special interest in interest in otology, hearing and tinnitus. He established the Yorkshire Cochlear Implant Service in 1990. Professor Raine is involved in Intercollagiate Examinations, for the final part in Oto-Rhino-Laryngology Head and Neck surgery qualification. He is also a member of the Royal Court of Examiners at the Royal College of Surgeons of England. .

He specialises in head and neck ablative and reconstructive surgery for malignancy, salivary gland surgery and facial aesthetic and cancer surgery. He is experienced in dealing with facial trauma and also undertakes routine oral surgery.

Christopher Raine has vast experience as an expert witness since 1986. He can discuss cases with council and solicitors alike. Instructions are received from both Claimants and Defence and he can act as a single joint expert. Independent cases can also be prepared for NHS tribunals as well as a medical expert for malpractice cases both for the patient and medical attendant.

Mr Hislop is currently carrying out approximately thirty medico-legal reports per year for both defence and prosecution.

Contact: The Yorkshire Clinic Bradford Road, Bingley, West Yorkshire, BD16 1TW Phone: 01274 550600 Fax: 01274 565349 Mobile: 07768 372748 www.professorchristopherraine.co.uk E-mail: chraine@btinternet.com

EXPERT WITNESS JOURNAL

T: 01563 827 488 M: 07703 578 136 E: stuarthislop@supanet.com 44 Dundonald Road, Kilmarnock, Ayrshire KA1 1RZ

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News & Events Concerns about Cancer Treatments drugs available offer the best clinical benefit, getting the most for patients from every pound.

Acording to an article on the BBC website, twentyfive different cancer treatments will no longer be funded by the NHS in England. It announced the step after it emerged the £280m Cancer Drugs Fund - for drugs not routinely available - was to go £100m over budget in 2014/15.

“There were drugs that did not offer sufficient clinical benefit so we simply cannot go on funding those. There were others that offered some benefit but were costly and I am pleased that a number of pharmaceutical firms worked with us to make prices more affordable, saving millions of pounds that can now be reinvested in other treatments.”

Some drugs will be removed and others restricted a move observers say could leave some without crucial treatments.

Some observers are extremely disappointed with the NHSE CDF delisting decision.

A national panel – comprising oncologists, pharmacists and patient representatives independently reviewed the drug indications currently available through the CDF, plus new applications.

Stephen Whitehead, ABPI CEO, said “NHS England’s decision to delist 16 cancer medicines with 25 separate clinical uses is extremely disappointing and a significant blow to the health and wellbeing of future NHS patients. These medicines have been proven to be effective through clinical trials and have already provided benefit to thousands of NHS patients through their prior availability on the Cancer Drugs Fund.” ■

The result of the review is that 59 of the 84 most effective currently approved indications (clinical ‘uses’) of drugs will rollover into the CDF next year, creating headroom for new drug indications that will be funded for the first time. Professor Peter Clark, Chair of the CDF and a practising oncologist, said: “We have been through a robust, evidence-based process to ensure the

Jennifer M Ham - BHSI Equestrian Consultant

Mr Terence J Duffy MA, BM, BCh, FRCS

Consultant General & Breast Surgeon Consultant Breast and General Surgeon North Staffordshire Nuffield Hospital Previously Lead Clinician (Breast) University Hospital of North Staffordshire Jennifer M Ham has considerable experience in a wide variety of roles within the equine industry.

Appointed in 1984, I have a special interest in Breast Disease (benign and malignant including delay in diagnosis, breast injury and breast surgery) also in Hernia Surgery. I have over 20 years experience of Medico-legal reporting.

She is widely employed as an equestrian consultant, not least in the role of equestrian expert witness. Providing expert opinion as an instructor, assessor, valuer and judge and all riding and horse related accidents. Member, Academy of Experts & 1st Tier Expert with APIL.

Address: Merry Tree, Baldwins Gate, Newcastle-under-Lyme Staffordshire ST5 5ES

Tel: 01761 432119 Mob: 07771 906406 Email: jm-ham@tiscali.co.uk www.equestrianconsultant.co.uk Manor Farm, Kilmersdon, Bath BA3 5SY

Tel: 01782 680 199 Fax: 01782 680 199 Mob: 07734 601 881 Email: tjduffy@merrytree.net

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News & Events End to Deaths from Acute Kidney Injury? tries, AKI often arises after major surgery and use of medicines which affect kidney function in hospitals, whereas in low- and middle-income countries (LMICs) it is mainly a community acquired disease that affects young and previously healthy individuals, and is often associated with diarrhoea, infections such as malaria, and toxins.

Preventable deaths caused by acute kidney injury (AKI) could be nearly eliminated in just 10 years, according to leading medical experts, in an article published in The Lancet. This often forgotten condition â&#x20AC;&#x201C; which affects around 13 million people every year and contributes to 1.7 million deaths annually â&#x20AC;&#x201C; is preventable and can be treated for as little as $US150 per patient.

Complications include chronic kidney disease and end-stage renal disease that need dialysis and transplantation, resulting in high long-term costs. NICE estimates the yearly cost of AKI to the NHS in England to be between ÂŁ434 million and ÂŁ620 million per year, which is higher than the costs associated with breast cancer, or lung and skin cancer combined.

A major new Commission from The Lancet and the International Society of Nephrology (ISN) reports on an ISN initiative, launched in 2013, which calls for preventable deaths from AKI to be eliminated by 2025. According to Professor Giuseppe Remuzzi, President of the ISN, and one of the Commission authors, â&#x20AC;&#x153;The ability to provide lifesaving treatments for acute kidney injury provides a compelling argument to consider therapy for it as much as a basic right as it is to give antiretroviral drugs to treat HIV, especially as care needs only be given for a short period of time in most patients.â&#x20AC;?

New estimates produced for the Commission suggest that 1 in 5 adults admitted to hospital worldwide develop AKI. But because most cases in LMICs are not recorded, this is likely to be only the tip of the iceberg in terms of the true public health burden of AKI in these regions, say the authors.

AKI, which causes an abrupt or rapid decline in kidney function, is a serious and increasingly common condition worldwide. In high-income coun-

Visit www.thelancet.com and www.nice.org.uk for more information.

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Events Excellence in Report writing Starting Starting 15 Apr 2015 09:30 in London Starting 11 May 2015 09:30 in London

Re:Cognition Health Re:Cognition Health invites you to our Medicolegal Expert Witness and Rehabilitation Service 2015 Educational Programme

Experts Meeting Overview Starting 21 Apr 2015 09:30 in London

Thursday 23rd April - 6.00pm -8.15pm Royal College of Medicine, 1 Wimpole Street, London W1G OAE Dr Mike Dilley - Consultant Neuropsychiatrist ‘Medicolegal conundrums after traumatic brain injury-a neuropsychiatric perspective’

Contact: Tel: 020 7549 2549 Web: www.bondsolon.com

Talking Life Court Skills and Expert Witness Training (2 day) Starting 17th June 2015 09:00 in London Starting 19th June 2015 09:00 in Bristol

Dr Karren Towgood - Clinical Neuropsychologist ‘Influence of feigned impairment and other secondary clinical variables on neuropsychological performance following brain injury’

Expert Witness Training & Court Skills – One Day Public Access Course Wednesday 4th June 2014, at The Office Group, 1 Euston Square, 40 Melton Street, London, NW1 2FW. Contact: Tel: 0151 632 0662 Web: www.talkinglife.co.uk

Thursday 28th May Dr Emer MacSweeney - Consultant Neuroradiologist ‘Traumatic Brain Injury: Neuro-Imaging in 2015 and new biomarkers for understanding TBI Severity and Prognosis’

RICS Introduction to Mediation Roadshow Seminar London, 31 Mar 2015 Mediation is a quick and cost effective method for resolving a wide range of property disputes, which helps parties to avoid ending up in costly and inordinately slow litigation. It is fast becoming the ADR method of choice for many people. To find out more or to book, contact RICS Training: Web: www.rics.org/uk/training-events Tel: 0207 695 1600

Dr Neil Parrett - Clinical Psychologist Clinical psychology in management of extremely challenging cases Wednesday 1st July Dr Steve Allder - Consultant Neurologist An emerging neurobiology of the mind: making sense of ‘unexplained’ neurological symptoms’ Dr Daniel Ghossain - Clinical Psychologist ‘Remediation vs Compensation: Evidence based treatment for cognitive impairment’

Leasing and Letting/Rent Review› Seminar Manchester, 31 Mar 2015 Matrics Join Matrics Manchester for the sixth of their Spring CPD sessions, taking place in the heart of the city

Bond Solon Courtroom Skills (1 day) Starting 16 Apr 2015 09:30 in London Starting 12 May 2015 09:30 in London Starting 16 Jun 2015 09:30 in Manchester

Forensics Expo Forensics Europe Expo, 21 - 22 April 2015, Olympia, London is the only premier dedicated international exhibition and conference for the entire forensic sector and supply chain.

Cross-Examination Day (1 day) Starting 17 Apr 2015 09:30 in London Starting 13 May 2015 09:30 in London Starting 17 Jun 2015 09:30 in Manchester

The 2014 edition of the show was a huge success with leading UK and International forensics professionals coming together to network, learn, and source new products and innovations. The 2015 event promises to be bigger and better with over 100 global exhibitors showcasing their latest innovations. www.forensicseuropeexpo.com

Civil Procedure Rules for Expert Witnesses Certificate Starting 11 Jun 2015 09:30 in London Criminal Law and Procedure Starting 14 May 2015 09:30 in London

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Events The Academy of Experts

Chartered Institute of Arbitrators

All courses based in London TAE offers a comprehensive range of training programmes for Expert Witnesses and Mediators. This enables both TAE members and others to develop their skills, and undertake Continuous Professional Development activity. Courses range from basic Role and Responsibilities through to the requirements of Procedure Rules and the practice of Giving Evidence.

16 – 23 March Commercial Mediation Training The Chartered Institute of Arbitrators, 12 Bloomsbury Square, London, WC1A 2LP T: +44 (0)20 7421 7439 F: +44 (0)20 7404 4023 E: education@ciarb.org W: www.ciarb.org

Healthcare Conferences UK 19th Mar 22nd to 23rd Apr 12th May 13th May 12th Jun 24th - 25th Jun 16th - 17th Sep 18th Sep 30th Sep 01-Oct 17th - 18th Nov 25th Nov 26th Nov

Legal Masterclass: Confidentiality, Data Protection and Information Governance Monday 20 April 2015

Into Court Foundation Course Law Procedure Rules Into Court Foundation Course Foundation Course Procedure Rules Into Court Law Foundation Course Into Court Procedure Rules

Hallam Conference Centre, London Good information governance is a key responsibility of all healthcare providers and is enshrined in law, Department of Health guidelines and professional association codes of practice. Implementing policies and procedures that reflect these key principles can be difficult with complex legislative requirements and guidance. This one day interactive masterclass, facilitated by Kate Hill a Senior Solicitor aims to provide an understanding of the principles and legal requirements regarding patient information storage, sharing and disposal. From there, guidance will be given on developing organisational-level policies and protocols that will help with day-to-day management of this key function of the health and social care service. Tel: 01932 429933

The Academy of Experts 3 Gray's Inn Square, London WC1R 5AH DX 283 - London, Chancery Lane www.academyofexperts.org

Talking Life is the No.1 choice for high quality training in the Public, Private and Voluntary sectors. Established for more than 15 years, we offer a portfolio of over 1000 in-house courses and a small number of specialised open-access courses which we can deliver from as little as £250 (+ vat) for a half day training course.

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Forensics: The Anatomy of Crime Take a journey from crime scene to courtroom in what is one of the most curious exhibitions to open in London in a long time. is rich with artworks offering both unsettling and intimate responses to traumatic events. Challenging familiar views of forensic medicine shaped by fictions inspired by the sensational reporting of late Victorian murder cases and popular crime dramas, the exhibition highlights the complex entwining of law and medicine, and the scientific methods it calls upon and creates.

Following a ÂŁ17.5 million development, Wellcome Collection has opened a major exhibition exploring the history, science and art of forensic medicine. 'Forensics: The anatomy of crime' travels from crime scene to courtroom, across centuries and continents, exploring the specialisms of those involved in the delicate processes of collecting, analysing and presenting medical evidence. It draws out the stories of victims, suspects and investigators of violent crimes and our enduring cultural fascination with death and detection.

It surveys real cases involving forensic advances, including the Dr Crippen trial and the Ruxton murders, pioneers of forensic investigation from Alphonse Bertillon, Mathieu Orfila and Edmond Locard to Alec Jeffreys, and the voices of experts working in the field today.

'Forensics' contains original evidence, archival material, photographic documentation, film footage, forensic instruments and specimens, and EXPERT WITNESS JOURNAL

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The first of five sections in the exhibition, ‘The Crime Scene’, investigates the different techniques of recording the location of a crime and its power both as a repository of evidence to be examined and a haunting site of memory. Representations of crimes and death scenes include sketches from the site of a murder attributed to Jack the Ripper, the work of Alphonse Bertillon, whose ‘God’s eye view’ brought methodological rigour to the new possibilities offered by photography, and Frances Glessner Lee’s Nutshell studies: intricate dioramas of domestic crime scenes built in the 1950s and still in use as training devices. Corinne May Botz’s large scale photographs magnify Glessner Lee’s miniature worlds to an unnervingly human scale, whilst artist Teresa Margolles brings a literal murder scene into the gallery, laying out the floor tiles on which a friend was killed.

Above, bullet picture courtesy of the Wellcome Collection

History of pathology The crucial clues offered by decomposition are explored both through the work of modern day forensic entomologists and texts and paintings which offer a history of our understanding of decay, from an exquisite ‘Kusozu’ sequence of 18th century Japanese watercolours detailing the physical deterioration of a dead noblewoman in nine paintings, to Sally Mann’s arresting portraits of open air ‘body farms’ in Tennessee, where corpses are laid out in different outdoor settings for the purposes of study.

Spilsbury index cards picture courtesy of the Wellcome Collection A succession of identifying and classifying techniques from Bertillon’s mug shots and physiognomic charts, Edward Henry’s fingerprint classification and Alec Jeffreys’ first genetic fingerprint, sit alongside the trace evidence techniques of blood and poison analysis that made traceless crimes visible.

‘The Morgue’ traces a history of pathology, from Song Ci’s 13th century Chinese text ‘The Washing Away of Wrongs’, often seen as the first guide to forensics, to the celebrity pathologist Sir Bernard Spilsbury, a selection of whose autopsy note cards are displayed for the first time. From a space for viewing corpses in Paris (the word morgue comes from morguer, ‘to peer’) to the virtual autopsies afforded by MRI, CT and 3D scanning, the morgue offers a vital space for questioning the dead. This silent exchange and the apparatus that enables it is recorded in the exhibition through damaged human remains, wound illustrations, weapons and post mortem tools, whilst the clinically direct morgue photographs of Jeffrey Silverthorne attest to the delicate threshold between life and death.

Reconstructions of movement and identity required in looking for missing people are considered in ‘The Search’, both through individual cases and mass disappearances. A newly commissioned artwork for the exhibition by Šejla Kameric seeks to recover human stories behind the critical mass of statistics and data generated by the on-going identification of massacre victims in the 1992-95 Bosnian war. The work of forensic anthropologists and archaeologists is reflected through troubling artworks exploring facial reconstruction, by Christine Borland, sexual violence, by Jenny Holzer and, in the portraits and film of Alfredo Jaar and Patricio Guzmán, genocide in Rwanda and political disappearances in Chile. These unsettling pieces trace different and urgent searches for justice, reparation and restitution of identity in the face of personal and political atrocities.

Edmond Locard founded the first police crime laboratory in early 20th century Lyon and his simple theory that ‘every contact leaves a trace’ (now known as the exchange principle) guides the array of disciplines, including serology, toxicology, microscopy, criminal profiling and DNA analysis that feature in ‘The Laboratory’. EXPERT WITNESS JOURNAL

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encounters with the changing relationship between medicine, law and society.â&#x20AC;?

Crime scene to courtroom â&#x20AC;&#x2DC;The Courtroomâ&#x20AC;&#x2122; marks the final test of forensic medicineâ&#x20AC;&#x2122;s success as evidence is gathered and presented in pursuit of justice. Forensic investigation has transformed the courtroom, but expert witnesses are subject to the less certain territory of performance when presenting their findings â&#x20AC;&#x201C; a dramatic tension exploited both by charismatic pathologists like Spilsbury and Hollywood scriptwriters.

Ken Arnold, Head of Public Programmes at Wellcome Collection, says: â&#x20AC;&#x153;Forensicsâ&#x20AC;&#x2122; reminds us of the human bodyâ&#x20AC;&#x2122;s extraordinary capacity to leave traces beyond death and disappearance. This unsettling truth is both the focus of an astonishing range of scientific enquiry and fertile territory for the cultural imagination. Challenging, affecting, at once familiar and disquieting, itâ&#x20AC;&#x2122;s a perfect subject for Wellcome Collection to explore as it welcomes visitors to its new expanded spaces.â&#x20AC;?

From the Roman forum to the Old Bailey the exhibition closes with the space which brings together the many strands of forensic medicine, either as a conclusion to an investigation, or to contest previous convictions. Taryn Simonâ&#x20AC;&#x2122;s photographs of wrongly convicted people, at the scenes of crimes they did not commit, gives a final reminder that forensics is an ever evolving field, constantly reviewing its own certainties.

'Forensics: The anatomy of crime' is free and runs from 26 February to 21 June 2015 at Wellcome Collection, 183 Euston Road, London NW1 2BE. Wellcome Collection is the free visitor destination for the incurably curious. Located at 183 Euston Road, London, it explores the connections between medicine, life and art in the past, present and future. The venue offers visitors contemporary and historic exhibitions and collections, lively public events, the world-renowned Wellcome Library, a cafĂŠ, a shop, a restaurant and conference facilities as well as publications, tours, a book prize, international and digital projects.

Lucy Shanahan, Curator, says: â&#x20AC;&#x153;This exhibition gives alternative views of the forensic process from the CSI detections of popular fiction and television, whilst exploring the cultural fascination that the disciplines of forensic medicine inspire. Our journey from crime scene to courtroom takes in pioneers of scientific techniques that have revolutionised the way in which crimes are investigated, and offers visitors unexpected

Wellcome Collection is part of the Wellcome Trust, a global charitable foundation dedicated to improving health. We provide more than ÂŁ700 million a year to support bright minds in science, the humanities and the social sciences, as well as education, public engagement and the application of research to medicine. â&#x2013;

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Forensics: The Anatomy of Crime Exhibition at Euston Road until 21st june 2015 - picture courtesy by Chris Connelly

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The Evolution of Mobile Phone Evidence From Best Guess to Precise Prediction, a Science Emerges by Daren M Greener CEng BSc CITP MBCS. Principal Consultant, SYTECH - Digital Forensics. Each mobile phone network provider (Vodafone, O2, EE, etc.) maintains a network of transceivers (transmitter & receiver) throughout the country in distribution of service coverage/provision.

Synopsis The integration of the mobile phone has seamlessly interwoven itself into many aspects of everyday life with inbuilt and associated technologies that made it the must have device it is today.

Many of these transceivers (cell-masts) are now common place and widely recognised for what they are standing like sentinels adjourning motorway networks or as great skeletal leviathans on high vantage points. Many more surreptitiously blend into the background of our surroundings, hidden on rooftops or disguised as street furniture such as lampposts, flagpoles and occasional modern artwork.

This article provides a general review to the evolution of mobile phone evidence and in particular Cell-Site Analysis, highlighting how technological and sociological change has brought about a maturity to its application whilst litigation attitudes to this branch of digital forensics have not always kept pace. Cell-Site Analysis (movement and location) is one of the fundamental components in a trident of mobile telecommunication evidence that also includes Attribution (who operated a particular phone) and Communications Analysis (who interacts with who and at what level).

Typical Cell-Mast structures and antenna equipment Importantly though, each network transceiver (cellsite) is uniquely identifiable. Therefore, the service provision from each transceiver is traceable and quantifiable with regards to the area of service cover.

Background â&#x20AC;&#x201C; What is Cell-Site Analysis? Cell-Site Analysis is a discipline of digital forensics that essentially examines the historic location and movement of mobile phones based upon record of the wireless link used to transfer call-events between â&#x20AC;&#x2DC;the networkâ&#x20AC;&#x2122; and mobile phone device (handset).

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As the mobile phone networks have grown and expanded over time, then the number and diversity of transceivers (cell-sites) has increased dramatically with the resulting coverage areas becoming ever more localised (smaller) to cope with greater capacity demands. 13

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sequence. It acts like fly-paper attracting and sticking other items of evidential value - eye witness accounts, DNA recovery, CCTV footage, ANPR sightings and payment transactions etc - into a pattern of chronological consistency.

The Popularity of Mobile Phone Evidence. As the adoption of the mobile phone infiltrated into society, towards the end of the 1990’s, it brought about a frequent source of information within criminal investigations that could, amongst other things, indicate the general movement and location of a suspect(s). Additionally, this evidential record of movement and activity could in turn be compared against a suspect’s account or alibi when such was offered.

• The greater the level of transaction within the mobile phone records the stronger the bond of the glue. A Note on Attribution A crucial aspect to the value of obtainable evidence is the attribution of the mobile phone to a particular person. Attribution applies both in terms of phone ownership and actual usage at the time when cell-site data or communication activity was recorded. (“it’s not my phone” or “I lend it to others” or “many people have access to it”)

• In essence, the mobile phone represented, and continues to be, a personal tracking device. Never before had law enforcement/forensic science had access to such a recorded stream of reference points that could indicate, without witness, a person’s general movements along with a record of who they had been in contact with over a prescribed period of time.

• The attribution of a mobile phone is a process in its own right and the subject of much debate beyond the remit of this article. However, similar to the advances of Cell-Site Analysis the ever involving technical and social change continues to produce far more intrinsic user profiling to cement attribution assertions.

Previously, such evidence would be reliant on fingerprinting or a possible DNA trace at a specific location - subject to the close scrutiny required to find such evidence. There was a greater reliance upon witnesses or informants to provide information with regards to a suspect’s whereabouts. The introduction of electronic banking services during the mid-1980’s had been a catalyst to early electronic activity tracking. The introduction of the Automated Teller Machine (ATM / cash point) in 1985 was followed by the arrival of the debit card in 1987 and both provided a limited source of information when tracking a person’s location or movements in accordance with their purchasing/ financial activity.

Developments and effects - The rise and rise of phone ownership and use. The mobile phone revolution started to gather pace in the late 1990’s as the cost of ownership started to become within the grasp of the mass populous.

For law enforcement the adoption of the mobile phone has been akin to having a string of eyewitnesses or informants all pointing in sequence to the area of a suspect. ‘He’s over here, he’s over there, he went that way and no he wasn’t over there.’

• Just 12 months later that figure had almost doubled and stood at 46% and by November 2001 the figure had risen to 75% (3 in every 4). (OfTel, 2002).

• In January 1999 Ofcom estimated that approximately 27% (1 in every 4) of UK adults owned, or had access to, a mobile phone.

In the early stages Cell-Site Analysis was often applied to define where a person (and their phone) could not have been to support or refute an alibi or allegation. A suspect may have stated that they had spent an evening at home whilst their corresponding Cell-Site activity may have contradicted such assertion and demonstrate widespread movements and activity. Predominantly mobile phone evidence often provides the glue to bring other evidence into EXPERT WITNESS JOURNAL

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pre-pay mobile phone bundles with a price point under £100.

• In recent figures, from 2014, the level of UK mobile phone ownership stood at 93% of the adult population (Ofcom).

Unsubscribed pre-pay – ‘burn’ phones One affliction to the criminal investigation process was, and still remains, the unsubscribed pre-pay option, which adds to the burden of the attribution process.

1993 - Digital mobile phone networks started to emerge from frontrunners Mercury and Vodafone quickly followed by Orange in 1994. Initial consumer take-up was slow and mostly aimed at the business executive in acknowledgement of the high cost of ownership and usage.

The popularity of pre-pay options and the ease of access to unregistered SIM cards led to the use of short life ‘burn’ phones. Such phones are frequently acquired by individual’s intent on criminal activity and deployed for very limited periods of time before being discarded and replaced on a regimental basis.

Early networks suffered from poor coverage in non-metropolitan areas and internment service quality. This generated a demand and competition for network companies to dramatically expand their network coverage. During the early adoption phones the biggest inhibitor to phone ownership was cost both in terms of handset ownership and monthly running expense from subscription fees and relatively high usage costs.

2001 - In November 2001 UK adult mobile phone ownership had risen to 75% (OfTel 2002) and it had become the norm for a person to own or have access to a mobile phone device. As a consequence the mobile phone became a more frequent source of potential evidence in criminal investigations.

In 1996 Motorola introduced its ‘Startac’ handset the world’s first Clam Shell design with the promise of up-to 8-day battery life. In the UK the handset retailed at £1,400.

At this time the mobile phone networks deployed 2nd generation (2G) cell-sites. These 2G cell-sites have a theoretical coverage range of 35-kilometres. This value was frequently bandied by barristers as the de-facto argument to throw at cell-site evidence when it got to the courtroom. In reality few, if any, of the deployed 2G cell-sites afforded ranges reaching the quoted theoretical level. However, at the time, it was not uncommon to find rural based cell-sites with a coverage range in the order of 15 to 20 kilometres and urban based city/town centre cell-sites would often extend in excess of 5 kilometres. Therefore, the level of affordable accuracy was far from precise and CellSite Analysis was frequently referred to as an un-precise science. A further inhibitor to early Cell-Site Analysis was the infrequency of phone usage, which still remained limited due to call and text messaging tariffing.

1997 - In attempt to address the issue of usage costs mobile phone companies introduced ‘pre-pay options to unshackle consumers from the requirement of a monthly contract. The move was to prove a huge success. The subsequent explosion of mobile phone ownership was driven by many social factors but predominantly by the reduction of cost and through advances in handset design and desirability. Since the turn of the millennium the growth in mobile phone ownership has been exponential.

As the consumer boom in mobile phone ownership took hold it drove forward widespread investment and development both for mobile networks and mobile phone devices. At the turn of the millennium mobile phone networks had grown to cover all major cities and towns with 2nd Generation (2G) cell-sites. As the demand for services continued to increase so did the number of mobile phone users at any given location and especially within busy urban environments.

1999 - In January 1999 ‘Oftel’ reported that approximately 27% (1 in every 4) of UK adults owned, or had access to, a mobile phone. In the same year (1999) Supermarkets started to sell EXPERT WITNESS JOURNAL

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The coverage area of a mobile phone cell-site can sustain a finite number of active users/subscribers. Generally the greater the volume of mobile devices at, or in any, particular location/area then the smaller the size of cell-site required to sustain those devices and combat the signal to noise ratio (SNR) problems.

rug from under the theoretical 35 kilometre range argument as 3G operated at a higher frequency and had much reduced range potential. Additionally, it created situations where a mobile phone would utilise combinations of 2G and 3G cell-sites, which in-turn improved analysis when examining the service and overlap of the differing technologies at relevant locations of interest.

In 2001 the vogue for mobile phone handsets was for smaller compact designs and few at the time had colour displays. Ericson’s T68 handset was the manufacturer’s first with a colour display.

2003 – Blackberry impact upon messaging In 2003 ‘Blackberry’ came to the market with its RIM 850 device that it marketed as a Personal Digital Assistant or PDA. Significantly, Blackberry were to introduce the Blackberry Messaging (BBM) service that offered instant messaging without the costs then often associated to text messaging. In the fullness of time, other third-party offerings for instance messaging services came to the fore that could be operated on cross-platform devices.

2002 - It wasn’t until 2002 that mainstream mobile phone devices started to include a camera option to further enhance their desirability. This additional option would in part contribute to a greater demand for the transference of digitised data (pictures/video) across the mobile phone network. Coincidently, the development and popularity of the camera option was to play a major part in improving the evidential value of recovering a mobile phone device as the stored imagery (of a subject or their family/associates) would often prove vital in the attribution of a mobile phone device to a particular person.

To an extent BBM still remains a commonly used communication mechanism uncovered in investigations into Organised Crime Groups.

Handset data could also provide vital information with regards to a person’s association with others and in certain cases actual evidence of crimes themselves as criminals took trophy pictures of their actions or ill-gotten gains.

In 2004 Motorola gained huge success with the introduction of the Motorola ‘Razr’ handset with its brushed aluminium casing and 2.2inch TFT screen it became a must have fashion accessory that led to eventual sales of over 130 million devices. Despite the 0.3megapixel camera and 5MB (yes mega-bytes) of non-expandable memory it would be the top s elling phone 2004 – 2006.

In 2004 Nokia, the then world leading handset manufacturer, released the 7610 handset which was the first to feature a 1 mega-pixel camera.

2003 – Hutchison introduce 3G services In 2003, in response to the demand for a greater range of services and higher data transfer speeds, Hutchison introduced the third generation 3G network. Other network operators would eventually catch-up with the introduction of their own 3G network in tandem with their existing 2G networks. The major impact of the 3G network from a Cell-Site Analysis perspective was that it pulled the EXPERT WITNESS JOURNAL

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In 2006 many network operators were offering of "all you can eat" data plans such had been the growth in demand from consumers now embracing mobile data services. By 2007 Ofcom were reporting 73.5 million active UK mobile subscriptions. (UK Population for 2007 was 61.3 million). Many consumers now ran two or more phones or would use secondary subscriptions for data services. The double-phone use is often found to apply in criminal investigations where a suspect may operate, or be accused of operating, what is often termed ‘Clean Phone’ ‘Dirty Phone’ separating out personal life (clean-phone) and otherwise dubious activity (dirty-phone).

benefit to the consumer in the battle for brand popularity.

In essence though, when such strategies are applied by those engaging in criminal activity the double use of phones merely adds to the level of obtainable evidence. That evidence can subsequently be compared and combined to show a much greater consistency to other events. Additionally, twice the amount of cell-site data may prevail to afford greater scrutiny, particularly in the identification of specifically defined travel patterns.

A growing number of mobile phones would incorporate GPS technology, which in turn could provide Satellite Navigation functionality. Wi-Fi transceivers were also being incorporated into mobile phone devices to extend the connectivity options for access to the internet and other digital devices. October 2007 saw the commencement of a program to switch over the existing analogue terrestrial TV broadcasting on to a digital broadcast that was to be completed by October 2012.

Ofcom reported that by the end of 2007, 17 percent of all mobile users (12.5 million) were using 3G, which had been an 11 percent increase on the previous year. The uptake in 3G subscriptions would continue to rise.

The resulting changeover made particular frequency bands available that were sold under licensed to communication network providers for further expansion and development of the mobile phone network.

Within the realm of Cell-Site Analysis it was now becoming common place to find a subject’s phone switching between 2G and 3G technologies within the Call Data Records under scrutiny. This added greatly to the level of analysis that could be applied, as examination could be made into where the two technologies would overlap and where one takes over from another.

2008 - In 2008 the 4th generation (4G) network was under development in timely anticipation of the ravenous demand for high speed data transfers from media hungry consumers. It would be four years in development before the roll-out of 4G cell-sites that commenced in 2012.

2007 – Apple gets a bite of the market In 2007 Apple Inc. branched out into the mobile phone market with the release of the Apple iPhone. Apple already had a loyal customer base from successful sales of IT and multi-media devices and its multi-media management platform ‘i-Tunes’, which was established in 2001.

The expansion of the mobile phone networks continued to see the installation of more 2G and 3G Cell-Sites (particularly 3G) nationally and generally a continual reduction in the size of cell-site coverage areas across urban and rural environments. • Governmental policy amended certain planning restrictions in order to facilitate a wide-spread expansion of mobile phone and data networks within the UK.

The introduction of the iPhone was a major development to the ‘Smartphone’ market that intensified brand competition, which continues to drive technological and ascetical development of mobile phones.

2010 - In 2010 the Mobile Network Operator ‘EE’ was formed (then as Everything Everywhere and latter abbreviated to EE) from a merger of network

The capabilities and functions of mobile phones continued to diversify to provide extra added EXPERT WITNESS JOURNAL

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operators T-Mobile and Orange. Effectively it meshed together the network resources (cell-sites) of each provider.

August 2003 Skype Voice and Video Calling • Skype - launched in 2003 and purchased in August 2005 by Ebay for 2.6 billon dollars. It was sold to Microsoft in 2011 for 8.5 billon dollars (Doug Aamoth, Time.com, May 2011)

In respect of the Cell-Site Analysis the creation of EE improved the affordable accuracy level when applying analysis in respect of T-Mobile or Orange phones. The merging of networks now allowed analysis to show where and why service ‘crossedover’ between T-Mobile and Orange resources. Furthermore, the increase of cell-masts now jointly available led to a general reduction in the size of coverage areas of individual cell-sites.

February 2004 Facebook Social Media Services • 1.3 billon active users by June 2014 February 2005 YouTube Video Sharing Website • Conceived in the wake of the 2004 Boxing Day tsunami. In 2015 YouTube’s website claimed more than 1 billion users and estimated 300 hours of video were uploaded every minute and 50% of YouTube views being made from a mobile device.

The developments of Smartphone capabilities have driven an ever expanding 'apps' market covering all manner of entertainment, service, information, and function.

March 2006 Twitter Social Media Services • First ‘Tweet’ posted by the company on 21st March 2006. In 2015 Twitter reported 288 million monthly active users sending over 500 million tweets daily with 80% of users accessing via a mobile device.

2011 - In October 2011 Apple announced that their App Store listed over 500,000 application titles for download, that number then exceeded the 1 million mark by October 2013. The latest figures announced by Apple (Jan 2015) claim that the App Store contained over 1.4 million titles to choose from and that total App Store downloads had exceeded 75 billion.

November 2009 Whatsapp Instant Messaging App • WhatsApp can be used to send messaging, images, video and audio media messages.

The 'apps' themselves often provide a vital source of information in the attribution and/or profiling of a subjects lifestyle and associations.

• In October 2014 WhatsApp was considered the most popular messaging app with more than 600 million active users. By January 2015 this had risen to 700 million users.

2013 – 2014 Mass Messaging Deloitte estimated the volume of instant messages composed in Britain doubled from 160 billion in 2013 to 300 billion by the end of 2014. This equates to approximately 820 million instant messages transacted daily (about 12 messages per day sent by every UK resident).

October 2010 Instagram Mobile Online Multi-Media Sharing • Following launch in October 2010 Instagram rapidly gained popularity. The Instagram website of 2015 reported daily uploads of more than 60 million photos by its online community of over 300 million subscribers. September 2011 Snapchat Mobile online multi-media messaging • According to Snapchat in May 2014, the app's users were sending 700 million photos and videos per day.

Social Media Revolution. The Smartphone phenomena supports, and is supported by, the social media revolution as it provides the ‘take anywhere – always connected’ portal to access and function. Over the last decade the development of the ‘mobile device’ (Phones, PDA, Tablets, Laptops) has been a perfect marriage to the social media revolution.

The development and adoption of both mobile devices and social media highlights the rapid technological and sociological changes that now make a mobile phone the most intrinsic and intrusive evidential hub into everyday life and personal detail.

The rapid adoption of ‘social media’ and the notion of ‘always being connected’ have seen the creation of vast global business empires transacting multi-billion dollar acquisition deals. What makes this more remarkable is that the majority of those business empires predominantly provide a free of charge service to the majority of their subscriber base. Here we look at a few of the movers and shakers of the social media world. EXPERT WITNESS JOURNAL

Additionally, the continual rising scale of customer interaction is phenomenal and generates colossal volumes of network traffic. This continues to drive 18

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heavy investment into the underlying network infrastructures that keep mobile phone devices connected. This has again led to a greater level and diversification of technology deployed to maintain and support the connected community. Through development of mobile phones networks there are now 2G, 3G and 4G cell-sites with, differing frequency ranges within these technologies. The diversification of underlying digital networks from founding 2G technologies is now complemented by increasing numbers of Micro and Pico cell-sites. Development and diversification continue to expand and enhance the level of analysis that can be applied in respect of mobile phone usage and its evidential value. The main challenge today One of the on-going challenges facing (mobile phone evidence) Cell-Site Analysis is to educate both Law Enforcement and Litigators that the afforded evidential value has risen exponentially along with the growth and development of the mobile phone networks (technological) and the growth in phone usage (sociological). As the evidential value of Cell-Site Analysis has increased the actual cost of its application has drastically reduced from the overly exhortation prices once charged by entities that monopolised and exploited the Law Enforcement (Prosecution) market.

It further demines the true value of Cell-Site Analysis and extends the negative viewpoint of an imprecise science. The evidential value of evidence cannot reach full potential if it is not accurately understood. If the primary decision maker (defendant or juror) is not empowered with the information in an understandable form then the usefulness of the evidence may not be achieved or worse be perceived to establish unsupported facts.

The cost reduction is due to a number of factors including; standardisation of Call Data Records, control on underlying data costs, the development and availability of surveying equipment options, and a wider pool of expertise. These factors, blended with commercial competition have driven down the cost of application.

When well-presented evidence is produced showing that a properly attributed phone is intrinsically linked to all, or even the majority, of an incidentâ&#x20AC;&#x2122;s milestones and where the overall pattern of consistency can be shown to be robust then such evidence may convince a subject to admit their involvement and guilt. Where this happens, and it often does, the resultant early admission of guilt saves the taxpayer the expenditure of a costly trial process. Such capital saving cannot be achieved on the back of summary analysis and poorly presented evidence. â&#x2013;

However, as a consequence of the rapid growth the complexity of the mobile phone network, with regard to Cell-Site Analysis, is ever more involved and requires in-depth analysis if it is to be utilised effectively. During the current climate of austerity and budget reductions the prosecution markets are outsourcing less and relying more upon their limited internal resources to provide basic overviews of cell-mast usage. This can have a negative effect both for an actual investigation and ultimately on the criminal justice process, for either prosecution or defence.

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Face Lab Reveals Faces of the Past and Present Liverpool will be a centre of excellence for craniofacial analysis, facial depiction and forensic art, following the launch of LJMU’s Face Lab. Craniofacial analysis and reconstruction involves the depiction and identification of unknown bodies for forensic investigation or historical figures for archaeological interpretation. This may involve post-mortem depiction, facial reconstruction, craniofacial superimposition and skull reassembly. Forensic art and facial depiction takes into account witness interviews or historical evidence to produce facial sketches/composites, age progression images and facial image comparison.

The Face Lab is a research group based at the University’s School of Art and Design which completes forensic and archaeological research as well as consultancy work for organisations such as the Police, national and international museums and forensic institutes. Police forces will use the facility to help identify dead bodies and make e-fits of criminals based on witness accounts or partial CCTV evidence. The Face Lab will also be able to produce facial images for forensic scientists following the discovery of decomposed bodies and it will be used by archaeologists to find out how figures from the past would have looked, by reconstructing profiles based on recovered skulls and historical evidence.

The Director of the Face Lab is Professor Caroline Wilkinson who is also the recently appointed Director of LJMU’s School of Art and Design. Professor Wilkinson is accredited as a forensic anthropologist Level I (craniofacial specialism) by the Royal Anthropological Institute (RAI) and is an experienced forensic practitioner. She began her professional career as a medical artist and has an MPhil in Medical Art and a PhD in Facial Anthropology. Her work is exhibited in over 30 galleries and museums worldwide and she has had research collaborations with many high profile research institutes including the Max Planck

Research conducted at the highly specialised lab relates to CCTV identification, post-mortem decomposition, ancestry determination, craniofacial reconstruction, preserved bodies and facial animation. It is equipped with the latest technology including laser scanning and 3Dprinting as well as modelling, texturing, animation and haptic reconstruction software.

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Institute, the Fraunhofer Institute and the Home Office Centre for Applied Science and Technology. She is a keen advocate of art-science collaboration and is committed to increasing public awareness of this cross-disciplinary field. Her research has included high impact cases such as the craniofacial analysis and depiction of Richard III, Mary, Queen of Scots and Robert Burns. Professor Wilkinson commented: â&#x20AC;&#x153;We look forward to working with the regionâ&#x20AC;&#x2122;s police, forensic organisations and museums to reveal faces of the past and present, as well as a continuation of our national and international work. We also intend to make the research of the Face Lab accessible through our public engagement activity and exhibition contribution, and we plan to run a related art-science postgraduate course at Liverpool School of Art & Design in the near future."

LJMU Vice-Chancellor, Professor Nigel Weatherill

LJMU Vice-Chancellor Professor Nigel Weatherill added: â&#x20AC;&#x153;We are delighted to launch the Face Lab which will become renowned as a centre of excellence for craniofacial analysis and forensic art. The University already has outstanding relationships with Police Forces and museums across the North West and we hope the Face Lab will build upon these relationships. Through public lectures regarding the work of the Face Lab we will also aim to further advance our position as a modern civic University.â&#x20AC;? â&#x2013;

Director of Face Lab, Professor Caroline Wilkinson

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Developing Forensic Practitioners of the Future and access to field sites for scene examination enable students to encounter a wide variety of scenes and evidence types to build their experience and confidence in working in different environments, each with their own challenges. There are now some excellent facilities available to students choosing forensic disciplines but it has become more difficult to separate institutions based on these features as most of the larger competitors in the market are similar in their provision.

Standing out from the crowd in the areas of undergraduate and postgraduate programmes of study in forensic disciplines is an ongoing challenge for Universities and Institutions across the UK. With tuition fees at an all-time high, prospective students are more discerning than ever before. The changing forensic marketplace, with the closure of the Forensic Science Service and cuts to public services, has done little to influence student choices in terms of study in these areas. A UCAS search for undergraduate programmes with â&#x20AC;&#x2DC;forensicâ&#x20AC;&#x2122; in the title delivers 87 providers in the UK and many of these have multiple forensic related courses within the institution. With such an array of courses on offer, what can prospective students do to ensure their course of study gives them the best advantage in obtaining a job in a niche and highly competitive field?

Other important factors for both teaching and research include specialist laboratory facilities and equipment. Access to the type of equipment used by forensic practitioners and scientific support services will ensure that students are well prepared for the workplace with a good working knowledge of real world facilities and methodologies. Institutions are always seeking to replicate practice in the facilities and equipment available to students. Fully equipped DNA laboratories, glass and fibre analysis equipment, comparison macroscopes and microscopes for marks and trace evidence comparison, Visual Spectral Comparators for document examination, microspectroscopy, Gas and Liquid Chromatography with Mass Spectrometry and field equipment such as 3D Laser scanners, Ground Penetrating Radar and GPS mapping equipment are among the many facilities students may be using for taught classes and research projects in forensic disciplines.

The Chartered Society of Forensic Sciences (CSoFS) offers an accreditation scheme to validate university courses. Accreditation is largely based on the forensic aspects of the courses; prospective students have the reassurance that content is relevant to their chosen field and at the required standard if they choose one of the 57 undergraduate, or 16 postgraduate programmes currently accredited by the CSoFS at 29 institutions. The facilities available for study can also be an important consideration. Scene houses, vehicle bays

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The vast majority of institutions employ practitioner and ex-practitioner staff, working alongside academics with research expertise. While academics are able to use research and innovation to inform teaching, practioners, past and present, play a vital role in maintaining the currency of course content through consultancy in addition to maintaining links with industry, ensuring teaching is representative of existing practice. Informative case studies and examples of workplace experiences boost student confidence in courses and strengthen engagement with their studies. Networking can result in many opportunities to enhance the learning experience through guest lectures and collaborative activities.

Above:World Skills Competition Previous page Forensic Anthropology students - field exercise

number of institutions taking part is increasing each year. With presentations of the final awards by the Forensic Regulator and the Chief Executive Officer of the Chartered Society of Forensic Sciences, respectively, in 2013 and 2014 and invitations to promote the event around the UK, medal winnersâ&#x20AC;&#x2122; profiles are raised and their successes recognised by the industry. Competitors are able to demonstrate their skills and knowledge through posters, presentations, practical scene examinations, laboratory analysis and mock court exercises judged by practitioners from various disciplines within forensic investigation services. The National finals are open to the public and media coverage is extensive.

Although all of these aspects are important in the selection process of prospective students, employability is now a key factor; students want to know they will have good prospects on completion of their degree. In an increasingly competitive jobs market, it is essential to equip graduates with the skills and attributes necessary for the workplace and universities are actively incorporating these into their curricula. Dedicated skills modules provide support to ensure high levels of numeracy and literacy and core skills for forensic practitioners, whilst also address written and verbal communication, respect and compassion, presentation skills and leadership. Team building and problem solving activities have become part of many academic courses in recognition of the attributes employers are seeking in their workforce, to supplement academic qualifications.

Work experience in forensic disciplines is notoriously difficult to acquire, although, a handful of internships are available directly through employers each year and there are a number of sandwich courses offering a yearâ&#x20AC;&#x2122;s work placement; it is advisable, however, to check the small print as the student is expected to find and secure the placement in some cases (with support and encouragement from university careers services). Where placements do exist, host supervisors are able to preview potential future applicants and how they conduct themselves in the workplace. Additional support to stretched resources can free-up valuable time for operational staff and students gain invaluable experience and insight into the workings of forensic and scientific support services. As more police forces and forensic service providers recognise the benefits of collaboration with academic institutions it is hoped that more work placements will become available to more students via more institutions in coming years.

Having academic knowledge, practical skills and the ability to demonstrate employability, students then require a platform from which to showcase their potential to employers and universities facilitate this in a number of ways. Supporting active membership of professional bodies such as the CSoFS provides access to practitioners and employers through conferences and workshops where vital networking opportunities and a wider understanding of the forensic community can be gained. It also provides valuable opportunities to the presentat research outputs via presentations and posters. Internal careers events are commonplace in universities and provide an interface for employers and potential recruits, although, in many cases the range of disciplines can be diverse and more targeted events for forensic and policing communities should be encouraged.

Collaborative research is a more accessible alternative for exposing students to practice in forensic disciplines and can be achieved on a number of levels. The involvement of the forensic service provider or scientific support service is

In 2013 World Skills UK added Forensic Science to its vast range of competition categories and the EXPERT WITNESS JOURNAL

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World Skills Uclan winner with Andrew Rennison - former Forensic Regulator.

World Skills Uclan winner.

flexible and can be tailored to the resources and time they are able to commit. Simply canvassing practitioners for suggestions for dissertations or research projects is an effective way to ensure relevance to practice and scientific support and forensic services can access outputs. At the other end of the scale researchers are supported by practitioners in devising project outlines, providing access to laboratories to ensure that appropriate methodology is applied to replicate practice and providing guidance through regular communication. In these cases outputs are generally far more informative and can lead to further projects and/or genuine contribution to innovation in forensic investigation. There are many opportunities for universities to become involved in the collection of data to support forensic and investigative practice through targeted surveys for trace materials such as glass and fibres and potential to publish results for the benefit of the wider forensic community.

was the first in the UK dedicated to the experimental study of all aspects of decomposition, trauma, forensic entomology and forensic DNA using animal models. In addition to student research and teaching the site is used for casework related experiments by a forensic service provider and in the training of cadaver dogs. ÂŁ360,000 has been invested in the new Hydra/ Minerva training simulator suite, the most sophisticated university installation in the country and one of very few in universities in the UK. This immersive learning environment allows students to take part in real-time simulated incidents and scenarios to develop critical incident management skills and mirrors the specification and complexity of the most advanced systems used by police forces and emergency services across the UK and abroad. In the recently completed J B Firth Building at the University of Central Lancashire (UCLan), millions of pounds were spent on developing its laboratories and equipment, including dedicated fire laboratories, state-of-the-art chemistry laboratories and an analytical suite with wide-ranging facilities used in taught classes and research.

The School of Forensic and Investigative Sciences at the University of Central Lancashire (UCLan) is one of the longest standing and largest Higher Education providers in the UK with a wide range of undergraduate and postgraduate programmes in forensic disciplines. There are over 80 academic staff, including practitioners and ex-practitioners in forensic science, crime scene investigation and policing, and around 100 postgraduate students and researchers. Facilities include scene houses, with a public house, post office and arson scene in addition to the domestic rooms, a dedicated Blood Pattern Analysis suite, a garage for vehicles, a stand-alone Automated Fingerprint Identification System (AFIS) and criminalistics laboratories housing equipment similar or identical to that found in working forensic facilities. The most recent acquisitions are the Foster and Freeman Trace Analysis system, Crime Lite Imager (semi-automated latent fingerprint capture and enhancement system) and Keyence 3D Digital Microscope.

A specifically targeted Forensic Science and Policing Careers Fair takes place in February, which is growing in stature each year with increasing numbers of employers and recruitment agencies exhibiting and presentations from alumni and seasoned practitioners providing insight into the varied career paths available to graduates. Representatives from Lancashire Constabulary and their Scientific Support Services, Cellmark Forensic Services, the Army and NHS Laboratories were among the many exhibitors at this yearâ&#x20AC;&#x2122;s event. Employability workshops and CV writing competitions run alongside the event and have proved very popular. All undergraduate forensic degree programmes include skills modules in the first year of study and further employability lectures and tutorials are embedded in 2nd year modules for Forensic and

The Taphonomic Research in Anthropology Centre for Experimental Studies (TRACES) facility EXPERT WITNESS JOURNAL

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Hydra-Minerva control room

The UCLAN Hydra-Minerva launch

Policing courses. Students are encouraged to maintain Employability Development Profiles to maximise their academic and personal experiences and achievements and opportunities to attend Leadership Courses, in the UK and abroad, add teambuilding and problem solving to their tool kit for securing a job on graduation.

recruitment process that closely resembles the real world and, even if unsuccessful, they gain valuable experience and feedback to support future applications. Feedback from both the host forces and students in these ventures has been very positive, particularly from the summer placements. So far two former placement students have secured full-time employment with the host force and other participants have secured roles in policing and scientific support elsewhere. Bi-products of these work placements and the communication lines they have opened between the police forces in question and the university have included assistance with

UCLan have been very fortunate to secure summer work placements in the Forensic Services Branch of a nearby metropolitan police force and one week attachments to the Crime Scene Investigation Unit of another. Places are limited, however, this provides students with the chance to participate in a

STUDY WITH THE SPECIALISTS With an international reputation for excellence in teaching and research, UCLan provides an unrivalled student experience in order to equip highly-valued graduates for lifelong achievement in the global market. Courses include: • BSc Forensic Science • BSc Forensic Science and Anthropology • BSc Forensic Science and Criminal Investigation • BSc Policing and Criminal Investigation • MSci Forensic Science and Chemical Analysis • MSci Forensic Science and Molecular Biology • MSci/BSc Archaeology [and Anthropology]

• MSc Counter Terrorism • MSc Criminal Investigation • MSc Cybercrime Investigation • MSc DNA Profiling • MSc Document Analysis • MSc Financial Investigation • MSc Fire Scene Investigation • MSc Forensic Science • MSc Forensic Toxicology • MSc Professional Practice (Early Action)

Facilities The School houses our new, purpose-built JB Firth Building complete with specialist laboratories and facilities. In addition, our state-of-the-art resources include three crime scene houses, a vehicle examination area, a Blood Pattern Analysis Suite and dedicated laboratories for the search and recovery of evidential materials not to mention our brand new Hydra/Minerva training suite.

Research We have well-established research centres in the areas of materials science, fire and hazards science, investigation and leadership (policing), molecular biology and archaeology.

Call 01772 892400 Email cenquiries@uclan.ac.uk Visit www.uclan.ac.uk/fis EXPERT WITNESS JOURNAL

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casework experiments and access to university staff and equipment to establish whether items of evidence meet the threshold for submission to Forensic Service Providers. Maintaining good links with practitioners has led to a number of research projects at UCLan for both undergraduate and postgraduate students. Many of these are a response to issues arising in casework or limitations presented by a lack of background data to support evaluation of evidence in terms of quantities of trace materials likely to be found in general or specific populations. Students engaged on projects have the opportunity to develop research strategies with support from practitioners and gain access to working laboratories and a greater understanding of the processes employed in evidence analysis in the real world. The School of Forensic and Investigative Sciences is constantly striving to enhance the student experience and develop facilities and teaching strategies to ensure graduates are best equipped for the jobs market. If you would like any further information about our taught or research degree programmes or if you are a forensic expert seeking collaborative support in casework experiments please visit us at www.uclan.ac.uk/fis or contact us by email (fisoffice@uclan.ac.uk) or telephone (01772 895687). â&#x2013;

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Birmingham City University Killer Study In November 2014, a team of leading criminologists from Birmingham City University published the first-ever study on how convicted killers have used the social networking site Facebook in relation to their crimes. IPublished in the international peer-reviewed Howard Journal of Criminal Justice, this unique research identifies 48 cases of "Facebook murder" from around the world between 2008 and 2013.

demonstrating their control over the victim and the situation. Antagonist Engages in hostile exchanges on Facebook that escalate into face-to-face fatal violence. Antagonists may seek to introduce a physical advantage when the conflict goes offline through arming themselves with weapons.

The study was carried out by Dr Elizabeth Yardley and Professor David Wilson from the Centre of Applied Criminology at Birmingham City University. They identify six different types of killer: Reactor Reacts to content posted on Facebook by attacking the victim face-to-face. This may be immediately after viewing the content that makes them angry or there may be a time delay in which they revisit the content and ruminate over its meaning.

Fantasist Uses Facebook to perform or indulge in a fantasy. For fantasists, the line between fantasy and reality has become increasingly blurred and the homicide may be a way of maintaining the fantasy or preventing others from discovering the deception. Predator Creates and maintains a fake profile to lure a victim and meet them offline. May draw upon the information available on the victim's profile to identify and exploit vulnerabilities to establish grounds upon which to develop a relationship.

Informer Uses Facebook to inform others that they intend to kill the victim, that they have killed the victim, or both. Informers use Facebook as a way of

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Version 2.2 is part of an entire suite which can be used to identify significant online behaviour whatever the platform, from tumblr blogging boasts to YouTube video uploads.

Imposter Posts in the name of someone else. This could be the victim in order to create the illusion they are still alive or another person to gain access to and monitor the victim's profile.

Specifically, users can conduct online investigations to identify suspect or illegal content, preserve digital evidence, instantly download full profiles, create profile public/private screenshots, and obtain account suspension or profile information. Profile Clone enables the downloading of complete Facebook profiles – including personal information, groups, associations, friends, media/photos, and status updates.

The team analysed cases of homicide in which the social networking site Facebook had been reported by the media as a significant factor. They found 48 examples from across the world, including British man Wayne Forrester who killed his wife Emma after reading her Facebook posts claiming that they had separated and she wanted to meet other men. Lead researcher Dr Yardley said: "We had been coming across references to 'Facebook Murder' in the media over the past few years but there had been no research in this area. We wanted to see whether homicides in which Facebook was reported to have been involved were any different to other homicides and found that on the whole they are not – victims knew their killers in most cases, and the crimes echoed what we already know about this type of crime."

Investigation progress and casefiles can be saved in open data format (XML) – allowing the sharing of files with other investigators or resuming a previous assessment. Expert reports can be generated in HTML, detailing the investigation conducted, search parameters, results of filters or data mining operations. Any incriminating evidence that is gathered is compliant with the Association of Chief Police Officers (ACPO) evidence guidelines, generating verifiable audit logs for Court or procedural requirements.

However Dr Yardley does urge that social networking sites should not be blamed for these crimes. "Social networking sites like Facebook have become part and parcel of our everyday lives and it's important to stress that there is nothing inherently bad about them. Facebook is no more to blame for these homicides than a knife is to blame for a stabbing – it's the intentions of the people using these tools that we need to focus upon."

Indeed it is thought that the UK will follow the USA in leveraging the power of the toolkit to embrace the investigation of the social media accounts of witnesses and jurors – where that information resides in the public domain.

Facebook Forensic Software from Afentis The Birmingham study is all the more significant in that it coincides with the introduction of the next generation software for the gathering of social media evidence by Afentis Forensics.

Find out more at www.facebookforensics.com or www.afentisforensics.com For further information on the study, please visit the Howard Journal of Criminal Justice website, where copies of the paper are available to download free of charge. ■

Developed by Ross Patel (Director at Afentis Forensics) to assist digital evidence and e-Discovery analysts, the new Facebook Forensic Software

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Scotland to Lead Europe in DNA Technology Scotland now has the most advanced DNA profiling system in Europe following a £6 million investment in new forensic capability. looks at 24 areas of a person’s DNA – a huge step up from the 11 areas that made up previous DNA profiling technology and an advance on the 17 areas which is the European standard.

Established within the ground-breaking Scottish Crime Campus at Gartcosh, scientists working at the Scottish Police Authority (SPA) Forensic Services laboratories are obtaining more DNA profiles from smaller or lower-quality samples than ever before. The technology now being used in the Gartcosh labs is at the fore-front of DNA testing available across Europe.

Michael Matheson MSP, said: “It is fantastic to see Scotland leading the way in this field with the most advanced DNA profiling in Europe, backed by a £6 million investment from the Scottish Government.

Michael Matheson MSP, Cabinet Secretary for ustice, visited SPA Forensic Services laboratories at the Scottish Crime Campus in February 2015 to formally launch the new DNA technology.

“Scotland is getting safer and crime is at a 40-year low but new and innovative technology like DNA24 is crucial to tackling and preventing future crime throughout Scotland and beyond.

Scotland’s DNA24/GlobalFiler technology, provided by Thermo Fisher Scientific based in Paisley,

“As well as being a vital tool in the armour for tackling organised crime and terrorism, this facility will be invaluable in the investigation of historical ‘cold’ cases, helping bring answers to the families of victims of crime who are still waiting for justice to be served.

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“These facilities should also serve as a powerful deterrent for potential criminals too, as our ever more sophisticated systems and technology means our justice agencies are tackling crime head on. There is nowhere for criminals to hide.”

Increasing the total number of markers in a DNA sample improves distinction between relatives whose DNA samples will be similar and provides a greater chance of finding matches for incomplete profiles lifted from a sample.

Tom Nelson, Director of SPA Forensic Services, said: “DNA24 provides the criminal justice system in Scotland with the most sensitive and informative DNA profiling results currently possible. It offers a major step forward in enhancing the contribution forensic services can make to the pursuit of justice in Scotland.

Legislative changes across Europe means there is a requirement to harmonise the kits used and, to that end, a European Standard generically known as DNA17 has been adopted across the continent. SPA Forensic Services took the decision to invest in technology which is even more advanced rather than invest in DNA17 now and then upgrade again to DNA24 at a later date.

“This technology will be particularly invaluable in processing samples for cold cases. The recent successful prosecution in the Worlds End murder trial demonstrates how DNA technology can be vital in getting justice for victims and their families long after the crime has been committed. The detailed analysis offered by DNA24 will be pivotal in processing DNA samples which have been held on file for many years and which are likely to be of poorer quality.

DNA24/GlobalFiler is currently in use in the forensic labs at the Scottish Crime Campus but it is anticipated it will also be rolled out to all SPA Forensic Services labs by the summer of this year. The Scottish Crime Campus, Gartcosh includes Police Scotland, the National Crime Agency, Her Majesty’s Revenue and Customs, the Crown Office & Procurator Fiscal Service and the Scottish Police Authority (Forensic Services) who are co-located at the site as part of a co-ordinated, multi -agency approach to help improve the way we share information in order to strengthen the fight against criminal activity. ■

”This technology, powered by the skills and expertise of trained forensic services staff, is an innovative way forward for science in Scotland. However, it will also allow the authorities in Scotland to reach back in time, with the potential to rekindle justice for those who had all but given up hope.” Deputy Chief Constable, Crime and Operational Support, Iain Livingstone, said: “We are excited by this investment in new DNA technology which will be a crucial tool in our drive to improve the safety and wellbeing of people, places and communities across Scotland. In a perfect world, every crime scene would give us a complete DNA sample each and every time but unfortunately crime scenes do not always give us that luxury and this new technology will be vital in helping us catch more perpetrators of crime. In addition, the ability to now get DNA matches from older or degraded samples is of particular interest to Police Scotland as it can help us prosecute criminals who may have thought they had gotten away with their crimes.”

Indecent images … Grooming…Fraud… Arson…Forgery…Murder…Rape…Drugs… Hacking…Terrorism…Political Corruption… Immigration and Trading Standards Offences.. Intellectual Property Theft … Computer Forensics CCTV Analysis Mobile Phone Analysis (Forensic) Data Recovery All digital media

DNA 17 to DNA 24 This £6 million investment has included upgrading and validating SPA Forensic Services instrumentation which included DNA profiling instrumentation, analysis and interpretation software packages, the Scottish DNA database, and training staff in interpreting and reporting the more detailed information available. EXPERT WITNESS JOURNAL

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DNA Expertise by James Clery, DNA Defence I have personally been working in the forensic sciences at court reporting level since 1997 after completing my Master’s Degree in forensic science at the University of Strathclyde in Glasgow. I specialise in the biological sciences involving bloodstain pattern analysis, scene of crime reconstruction, hairs and fibres, serology (which is the testing and interpretation of body fluid testing), forensic entomology (which is the study of insects) and of course DNA testing, interpretation of results, including complex mixtures in the ‘standard’ STR techniques as well as mitochondrial and Y-STR’s, and statistical interpretation. My personal forensic speciality is sex based cases since these tend to involve more complex testing’s and interpretations and have less empirical research data upon which to base opinions which means that more reliance on experience and past case involvement is vital.

taken place. The condoms were duly submitted for forensic testing to the FSP and various DNA results obtained. I was instructed to review the DNA findings and comment on the level of support for the various scenarios put forwards. The DNA findings were found to support all scenarios since the expectation of finding DNA from the complainant on the condoms was equally expected. This was agreed by the Crown expert, that neither scenario could be favoured. However, one crucial aspect I picked up on was that she had stated in her taped interview that she had returned home afterwards and changed her sanitary towel. This was not picked up on by the Police, the taped interview had not been provided to the Crown expert and the condoms were not tested for the possible presence of blood. This was a crucial loss of data, a simple cheap test that is done hundreds of times a day in a FSP laboratory could have made all the difference to the case and at trial the Crown expert stated she was not asked to look for blood and agreed this was a “missed opportunity”. The forensic strategy in my opinion should routinely include testing for the possible presence of blood where any form of force is alleged since bleeding may occur even if the complainant is not on her period. In my opinion this is an illustration of the FSP relinquishing assessment of the case and which exhibits should be tested and what may be crucial.

Having worked in New York City, Texas, South Africa and the UK in both Crown and defence capacities I have seen significant changes across the board. The roles of prosecution and defence expert witnesses has changed beyond all recognition. The closure of the Government Forensic Science Service and ACPO imposing a tendering system for the purchase of forensic testing has commoditised the industry in who can test a sample the cheapest. Based on financial considerations what is now expected of a Crown expert is different to the days where they had choices over the forensic strategy- what exhibits would be best to test to assist in helping to understand the level of support for a particular allegation. Nowadays it has become accepted that the Police will likely pre-screen the exhibits, either at the crime scene or at their laboratory, and submit only those items that they feel warrant further investigation at the Forensic Science Provider (FSP) laboratory. I don’t like to recall the number of times where I have been involved in trials where a Crown expert has not been given the full picture of the case circumstances and reported on limited information. One such example is where it was alleged the defendant (unnamed as was 16 at the time of the alleged offence), and another, had raped a woman in a park. Both males were said to have worn a condom. Both males agreed there had been some form of sexual consensual contact (that the complainant performed oral sex on them) and that condoms had been produced but no vaginal penetration had EXPERT WITNESS JOURNAL

In the case of the Metropolitan Police the in-house laboratory will do the examination, and take samples and then submit the material for DNA testing to a forensic provider who will report on the DNA results and then the Metropolitan Police expert will report on the summary DNA findings (received in tabulated form not the raw data) in the context of the case. Again, at trial when the court is trying to understand which expert to call to give evidence, if it be necessary, and how both elements of the DNA results and this being placed in the context of the case specifics, can cause unnecessary confusion and delays. This of course does not mean the defence expert has remained immune to commercial influences. The closure of the Government Forensic Science Service has meant that many experts with a history of working for the Crown, and the nature of work this involves, have been forced to migrate into the defence arena with no experience of working for 31

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the defence. This is due to a lack of jobs in the FSP’s and essentially pricing themselves out of the market as it is cheaper to hire less experienced staff and train them in house. This has meant that experts, whilst technically qualified, may not possess the relevant skillsets required for working for the defence, be it in court presentation or in identifying the relevant questions to be asked in a case which has possibly not been as thoroughly explored as one would hope.

of the case up to the point the two parties met on the 22nd February 2012 was largely undisputed by the Crown and Defence. The two had gone on a date at a Chinese restaurant and they left around 7.30pm and the complainant agreed to go back to his home address. The flat consisted of a single bedroom, bathroom, small lobby which leads into a small lounge with an open plan kitchen. There is no dispute that on arrival both sat on the sofa in the lounge and a bottle of wine was opened. At this stage the version of events differed considerably. The complainant states that Mr Taylor had pushed himself onto her whilst on the couch, removing her clothing. She states he then penetrated her vagina with his penis and had sex without her consent. She did not know if he ejaculated. The key point was that intercourse took place on the sofa. Mr Taylor’s account was that there was kissing on the sofa, and he removed her top with her consent and she agreed to go into the bedroom. Whilst there she removed her remaining clothing and he performed oral sex on her. He states that they both agreed to sexual intercourse and he put on a condom and began coitus. After a short while she complained she was too hot and later again said she had to go home to feed her cat and coitus stopped. Mr Taylor was arrested 2 days after the alleged rape. The allegation was that the rape occurred on the sofa. At this stage Mr Taylor insisted the sofa covers be collected as well as the bedding, sheets, pillow cases etc. He also produced the condom he had used on the night in question. The Police decided not to test the bedding or the sofa covers. This was despite Mr Taylor stating he would pay for the forensic testing personally if needs be. It was at this point I was instructed on behalf of the defence to test the bedding and sofa covers for body fluids and DNA to determine who may have had contact with them. The sofa did not contain any visible staining or body fluids after serological screening. Minitapes, small strips of sterile adhesive plastic, were used to collect any cellular DNA. Poor quality DNA profiles were obtained which did not particularly assist with possible contact of the complainant with the sofa. It is important to note that the absence of DNA on an item does not mean that someone must not, or could not, have had contact with it. Remember this was the first time she had been the flat and an absence of her DNA was not entirely surprising given his version of events, but less so considering her account since in her version she was naked and raped on the couch, in his version she only had her top off. The bedding was a different story. One of the pillow cases contained a visible saliva stain which matched the complainant. The sheets did not contain any visible body fluids but minitapes taken from the head and foot end (the Police failed to designate which side was the ‘head’ and ‘foot’ end

More recently there has been a worrying trend in experts coming into the industry who are not fully qualified to act as an expert witness. Recently, after giving an invited guest lecture to the Society of Biology on assessment of data and understanding of the crime scene in forensic biology and forensic entomology at the University of Reading the valid point was made that cases are being put in jeopardy by the increasing level of unqualified experts providing reports and opinions at trial. This tends to be especially so in specialist areas such as forensic palynology that deals with the analysis of pollen. This is a combination of pound signs in their eyes combined with the Legal Aid Authority (LAA) pushing for the cheapest quote, and not for experience, which encourages inexperienced people to enter the arena and not be concerned with a relatively low fee for doing so. In my experience working as a defence expert witness over the years I have had countless occasions where I have been instructed on a matter which had already been dealt with by another expert, the testing and report of which had fallen short of the required standard. This is a deeply worrying situation for the courts to be in since the weight placed on expert evidence before the courts can have a big impact if the Crown’s case relies heavily on association through DNA testing alone, so called ‘single plank’ evidence. Also, due to its very nature the Court does not necessarily understand if an expert report is robust or valid as the expert is there to advise and assist the Jury. To ensure that all is done to qualify the Crown’s forensic evidence so that what goes before the Jury equally considers the defence positon is vital to my mind, and a position in which I am sure the courts would want in every case. The change in the role of the defence expert can be illustrated by the amount of, what I would call, primary work being pushed onto the defence expert. So much so that it can be the case where I will have examined more exhibits than the Crown expert in a particular case. In discussing the issues with my counterpart it appears to be more due to a lack of funding to do the work rather than a lack of desire in performing the work. One such case, as way of example, occurred in R-v- John Taylor. The case was one of a single count of rape and the facts EXPERT WITNESS JOURNAL

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• Given the scenarios put forward, and questions posed, have suitable stains been targeted for examination? I very often see drug wraps being tested in their entirety and it is therefore then not possible to determine if the resulting DNA obtained is linked to the inside or outside surfaces which can have a big impact on what can be said as to activity. • Should any other people, e.g. shared house or relatives be considered? • Has the DNA profile been screened on the DNA database? A ‘spec search’ can be performed even if the DNA result does not meet permanent loading criteria. If so what matches were obtained and have these possible matches been checked?

Pillow showing visible saliva stain

so both ends were sampled) yielded a strong DNA match with the complainant. The same was true of the duvet cover. These findings strongly supported the Hd over the Hp. The complainant stated she had not been in the bedroom. The Crown FSP reviewed all of the examinations and DNA results and agreed all test data. At trial Prosecuting Counsel dropped the case against Mr Taylor based on the overwhelming forensic evidence. For completeness the condom was also tested but this did not assist given the Hp and Hd scenarios. This case is an example of the strength and value of forensic testing in assisting a Police investigation and the thoroughness that should be brought to bear with this valuable tool.

• Was the examination done in laboratory conditions under a UKAS 17025 quality system? Partial/ incomplete DNA results • How many components are present that actually match the defendant? A partial profile means anything from 1 to 19 matching DNA components under the SGMPlus system, (where 20 components are expected for a full match). • Is it possible that the DNA profile is in fact comprised of DNA components from more than one person? • Are there any unconfirmed DNA components present? Whilst they do not meet reporting guidelines they can indicate the presence of DNA from another/ more person(s).

In a broader context due to my role working for the defence, I have listed the types of questions I would pose to any defence Counsel in a DNA case. Of course not all of these questions will apply equally in every case because the points in issue will necessarily vary.

• Do these unconfirmed DNA components match the defendant? • Does the profile show evidence of any degradation? Whilst it is not possible to age DNA a degraded sample can assist with understanding if the DNA is consistent with being aged.

General points: • Has the continuity of an exhibit and any DNA samples created from it been maintained from the point of collection through to production of the DNA results? This will involve addressing the statements from the police collecting the evidence and whilst at the FSP to show traceability in the laboratory.

Mixture profiles •How many contributors are present? This is reported as “at least x number people have contributed”. It is accepted that the greater number of contributors to a mixture the greater the chance that someone could match purely by chance. Again the issue of statistical or verbal scale weight is important i.e. how likely is it that a person had contributed than they have not?

• Has the exhibit been kept separate from other exhibits that could potentially contaminate it? This applies to the crime scene before collection takes place- have any other surfaces, objects or people been touched prior to collecting?- and not just in the laboratory where the exhibits from different people must be examined in a separate location and any subsequent DNA samples kept separate. • Prior to submission to the FSP have the Police examined the exhibit e.g. in a fumigation or drying cabinet and was this done in a DNA clean environment? Was this done in the same laboratory as other exhibits? EXPERT WITNESS JOURNAL

• Is there support for more than the designated contributors based on peak heights and areas (and not simply due to a count of DNA components alone)? • Is it possible to designate a single major contributor? Is it possible that an apparent single source major or prominent contributor is actually an assemblage of DNA from multiple people? 33

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• Has the correct statistic been applied- Match Probability (MP) versus Likelihood Ratio (LR)?

• What biological source has the DNA come from? Has body fluid testing been performed? Has the biological source been confirmed, rather than just via a presumptive test and presumption of source e.g. saliva on a balaclava or drinks can?

• Have assumptions been made based on the mixture and case circumstances- are they fair and do they assist the court? Have relatives been considered?

• Is it possible to say, based on the amount of DNA is it more likely that the DNA was from skin cells or a body fluid? For any given amount of DNA it might be a greater amount of skin cells or a lesser amount of a body fluid. This can obviously assist with understanding how the DNA was transferred.

Statistics • How frequent are the DNA components found in the population? This is the basis for the statistical calculation. • Is it possible to separate out a single contributor from another if a mixture is present? Is a Match Probability (MP) calculation able to be supported?

• Does the quality of the sample provide any support for a recent or older deposition? • How was the DNA deposited?

•Is it possible to perform a Likelihood Ratio (LR) on a mixed sample with only two contributors? An LR can only be used where there is DNA from two people. It is possible to do statistics on complex mixtures from more than two people but this is limited.

• Is there support for transfer via another person or object? It has been shown empirically that DNA can be transferred to an object without a person ever having been in contact with it. • Is there further work that could have been done to assist in interpretation? Is this due to time and cost constraints imposed on the Crown expert? What does the Police submission form state on what is required to be examined and questions explored?

• In the absence of an MP or LR is it possible to determine if a more prominent contributor can be reported under Court of Appeal ruling of R-v-Dlugosz where in the absence of a statistical assessment a verbal weight as to a possible contribution is able to be stated?

• Have alternative scenarios been considered? We can use Bayes Theorem to interpret the findings, the balance between the Crown hypothesis (Hp) and Defence hypothesis (Hd). Are the findings supportive of one or the other or both, or neither? ■

• Ultimately is the result suitable for statistical interpretation? Drop in, where apparent DNA components are present which are not true DNA components, or drop out, where DNA components present in a person’s DNA profile are not present but would be ‘expected’ if they had contributed should be considered. • If there is additional data present in a DNA profile been considered and would further work be suitable to determine possible other contributors? I am often asked to repeat Crown DNA testing to determine if DNA components seen at a lower level could be improved. Interpretation What level of interpretation has been made? There are two main levels in the Hierarchy of Propositions- source and activity- that an expert witness can address. The former addresses who the DNA has potentially come from (and biological source at sub source level) and the latter how it could have got there. Often the Crown expert is only asked to consider the source level activity which may be suitable for the case, but may leave important questions unanswered such as the issue of secondary DNA transfer where DNA can be innocently transferred by another person.

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The Next Generation of DNA Profiling by Sue Carney, Independent Forensic Consultant, Ethos Forensics On 24 July 2014, the UK forensic science providers implemented DNA17, the next generation of forensic DNA profiling techniques, and The National DNA Database began accepting DNA17 profiles. What are the advantages of this new system and what has been its effect on forensic evidence?

1995 saw the next revolution in DNA profiling with the introduction of an analysis based, not on variations in sequence, but variations in length of well characterised regions of DNA known as Short Tandem Repeats. This STR profiling method coincided with the creation of the National DNA Database, which began to load the results of testing using the new STR profiling system referred to as SGM, Second Generation Multiplex.

DNA17 arrived at a time when, in the minds of many forensic experts, criminal DNA profiling had reached reasonable limits of sensitivity and probative value. Since it was pioneered in the 1980s by Sir Alec Jeffreys of the University of Leicester, forensic DNA profiling has continued to advance. Colin Pitchfork, the first UK man to be convicted based on DNA evidence, was sentenced to life imprisonment in 1988 for the murders of Lynda Mann and Dawn Ashworth, thanks to DNA fingerprinting, the earliest form of forensic DNA profiling. This early technique was time consuming and required vast quantities of biological material in comparison to todayâ&#x20AC;&#x2122;s highly sensitive processes. The technique relied on variations in DNA sequence at areas targeted by DNA-modifying enzymes known as restriction enzymes.

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SGM profiles examine six regions of DNA plus a gender-determining test and this method of profiling continued into the late 90s. By 1999, a new improved multiplex had been developed. SGM Plus examines the six SGM regions of DNA plus four additional regions and the gender test. These additional regions of DNA allowed for a test with far greater discriminating power in the identification of an individual. Those legal practitioners well versed in DNA evidence will already know that under UK law, a DNA match is not considered conclusive. Instead, forensic experts attach a weight of evidence (known as a match probability or likelihood ratio, depending on the form of words used) to a full 35

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the US, quote the actual match probability when presenting DNA evidence at court. In the UK, the one in a billion figure was considered to express sufficient strength of evidence and this capped estimate is used to describe the likelihood of all full profile SGM plus matches.

SGM plus profile match. Such a match is cited as being in the order of a billion times more likely if the biological material originated from the matching individual than if it were from another unrelated person. It’s interesting to note that this likelihood ratio of a billion times more likely is a very conservative estimate. Figures are determined based on the relative frequencies with which the various components that make up a person’s DNA profile occur in the general population. The more regions of DNA that are examined, the more discriminating a profile becomes, hence the advantage of upgrading the six region SGM to the ten region SGM plus.

The implementation of DNA17 adds six new regions of DNA to the existing SGM plus profile. This means that actual figures are even rarer than those for SGM plus profiles. However, the standard likelihood ratio of a billion times more likely will remain unchanged. The extra discriminating power of the additional regions in a DNA17 profile results in an increased stringency of matches on The National DNA Database, and far less chance of an adventitious match.

A good analogy to understand this principle, and one I have used in presenting DNA evidence at court on previous occasions, is to imagine the chance of encountering a specific type of car in a very large car park. If I want to know the chance that we’ll observe a silver car, one might consider that will be extremely likely, given that there are many silver cars. But, if we consider an additional characteristic by specifying that the car must have alloy wheels for example, then the chance of observing the required car is slightly decreased. In considering an additional characteristic, assuming of course that the presence of each characteristic is completely unconnected to the presence of the others, further decreases the likelihood of observing that particular car, and so on, until the chance of a car fitting all the specified criteria becomes particularly rare.

DNA17 also brings an increased sensitivity to DNA profiling, which has shown improved results from degraded samples. Requests for the detection of so called “Touch DNA” are becoming commonplace. These are techniques, known as Low Template techniques, used to detect very low levels of DNA from items that might merely have been handled and which have no visible biological material. DNA17 blurs the boundaries between routine DNA profiling and Low Template techniques. Its improved chemistry means that sensitivity to low levels of DNA is part of the standard package. Since such low levels of DNA cannot be attributed to a particular body fluid or tissue type, it becomes difficult to determine how that DNA was deposited, or indeed whether it relates to a specific incident. Furthermore, mixtures of DNA are being encountered with increasing frequency, as DNA17 shows us more of the previously undetected background DNA, including potential contamination. Even greater care in contamination prevention is advised at the crime scene along with cautious interpretation of such low level profiling results. For these reasons, careful consideration of the probative value of DNA17 profiles at the low level end of the spectrum will need to be exercised.

Each region of DNA examined in a DNA profile can be considered analogous to those features of our chosen car. Each region of is inherited completely independently of every other region, since they are each carried on separate chromosomes. The more regions of DNA are examined, then the more characteristics are specified in a match, and the less likely it becomes that the specified characteristics will be encountered together from any source other than the one from which that DNA originated. In determining the match probability, SGM plus considers the frequency with which every possible DNA component occurs in the general population. IN developing SGM plus, the match probabilities for multiple test profiles were calculated, including consideration of the most frequent components at every region of the profile. Every match probability was found, in reality, to be considerably rarer than one in a billion. Other legal systems, such as that in EXPERT WITNESS JOURNAL

DNA17 is a Europe-wide system, which means compatibility with profiles generated in other countries in the EU and a more effective use of DNA records exchanged internationally. The Home Office has approved five different DNA17 kits for use in the UK. Interestingly, the various UK forensic science providers have each opted to validate different kits and expert systems. Although the profiles generated contain results at the same 36

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17 areas of DNA, they have been generated in slightly different ways, which in the occasional rare circumstance, usually due to the presence of a mutation, might mean the occurrence of an inconsistency. The forensic providers and DNA database staff are primed and ready to identify such circumstances, and it is safe to say that the advantages of this next development in forensic DNA profiling far outweigh the risks.

Ethos Forensics provides: â?&#x2013; Forensic consultation in relation to DNA and

body fluids evidence â?&#x2013; Interpretation of blood pattern analysis evidence

Ethos Forensics are fully conversant with DNA17, and have received expert training in the interpretational systems of the largest UK forensic science provider. As such, we have the required expertise in DNA17 interpretation and are available on behalf of the defence in criminal proceedings involving forensic DNA evidence. Contact us for a no obligation quotation or to discuss the requirements of your case. â&#x2013;

â?&#x2013; Expert witness services â?&#x2013; Urgent responses and reporting within 5

working days, if required â?&#x2013; Forensic training for police customers, forensic

scientists or other interested parties (Bespoke courses can be arranged) â?&#x2013; Auditing and quality systems consultancy to

ISO 17025

www.ethosforensics.com 07796 546 224 Sue Carney, Independent Forensic Consultant.

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

A previous version of this article was published by The Solicitorâ&#x20AC;&#x2122;s Group in June 2014.

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Our accident investigation reports include: O Road Accident Reconstruction O Vehicle, Light Bulb, Tyre and Component Examinations O Tachograph Analysis, Route Tracing, Hours and Regulations O Death by Dangerous/Careless Driving O Speed Detection Devices O Fraudulent Insurance Claims, Staged Collisions O Stolen Vehicle Examinations O Personal Injury Claims, Whiplash Collisions O Scale Plans and Locus Reports O Surveillance Services, Vehicle Tracking O Incident Data Recorder Analysis

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Derby’s Replica Crime Scene House University of Derby Online Learning, which allows students from all over the world to balance work and family life and gain qualifications without leaving home, has also used the facility to film a 360 degree virtual crime scene. Students on its Forensics and Crime Scene Investigation course can navigate the scene remotely, collecting and analysing evidence then write and prepare a statement of evidence for a court of law.

The University of Derby’s new Forensic Training Facility (FTF) was officially launched in January 2015. The FTF is a £410,000 custom-built facility within, what looks from the outside, to be a normal four bedroom house, adjacent to the University’s Kedleston Road site. Hidden behind its walls are up to seven replica crime scenes (including a bedroom, bathroom, office, shop, garage, living room) and a blood pattern analysis room.

The FTF is one of many major estates developments made by the University this year. Also recently completed is the new courtroom at the Kedleston Road site, which is an exact replica of a real courtroom, used by students on Forensic Science courses as well as those studying law and criminology. ■

The house is fitted with state of the art CCTV, audio-visual equipment and other technology allowing tutors to monitor students from a distance, so they can work crime scenes independently in a real-life setting. The building was designed to a very precise specification, providing top-notch facilities not just for students on Forensic Science courses. Dr. Ian Turner, Head of Forensic Science at the University of Derby, said: “This is a really exciting development for the University. Having this resource onsite allows us to give our students the skills needed to develop a career in forensic science because they are learning in a real life context, with the same equipment and facilities used by professionals. “The staff on the teaching team are also a major asset. The academics leading the project have nearly 30 years of commercial forensic experience between them in addition to their academic expertise, and can share their skills and knowledge with the students.”

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You Canâ&#x20AC;&#x2122;t keep a Good Man/Woman Down Pedigree of an Established Forensic Provider Was founded in 2000 and continues to be overseen by CEO: Jonathan Clark MBE FRSA. accreditation - FTS being the first UK digital forensic company to achieve the world renowned ISO 17025 for their forensic scope. A strong emphasis is placed on best practice and audited forensic processes to ensure the constant fidelity, integrity and credibility of all FTS data output and products.

The company was formed in response to a growing need within Law Enforcement and Government Agencies to access potential digital evidence from all telecommunication devices [Mobile Phone Forensics] and to analyse network records for criminal investigations [Cell Site Analysis]. FTS is a primary contracted provider to the Metropolitan Police Service and also provides its services to Law Enforcement Agencies, Legal Services and other Government Agencies nationally and internationally.

FTS prides itself on the fact that many of its family have gone onto establish their own Forensic Companies or developed and achieved enhanced careers with other Commercial and Government Agencies.

Throughout its fourteen year pedigree FTS has maintained a high degree of impartial expertise to enable the delivery of Best Evidence as a standard. Building on this solid foundation, the business is managed and staffed by highly qualified individuals from the telecommunications industry, forensic science and technical graduates and by experienced former police investigators. An ISO 9001:2008 certified company, FTS is committed to achieving and maintaining the internationally recognised ISO standards relevant to the delivery of forensic services and consultation, including ISO 27001 and after a planned company restructure and resource shift we are to re-implement our prior ISO 17025:2005

Picture opposite, phone mast

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This is testimony indeed to their FTS training, character, and expertise, also the endurance and fortitude of all its employees in these testing financial times. But as we say ‘Actions speak louder than words’ and in the wake of an unparalleled history of overall involvement in many national and Internationally based very high profile criminal and terrorist investigations; from the reviews of the Stephen Lawrence and Jill Dando murders, the murder of West Yorkshire Police Officer Sharon Beshenivsky, the Reece Jones murder, the Tunbridge Wells Bullion Robbery, the 7/7 London Bombings and the FTS original and continued involvement with the Special Tribunal for Lebanon [ the attack of 14 February 2005 which killed 22 people, including the former prime minister of Lebanon, Rafiq Hariri]. The FTS Pedigree speaks for itself.

Forensic Scientist at a crime scene from the Chester le Street area to the Halifax area around the time the victim was last seen and that he had been moving between the two locations in the days after her disappearance. He was able to suggest possible locations where the suspects mobile appeared to go off the beaten track and hence possible deposition locations.

With an extreme emphasis on the definitive utilisation of fully qualified expert engineers (in all its forensic divisions), FTS do not utilise lesser qualified personnel to conduct any of its forensic services. This has been most recently born out in the Chief Constables Commendation of FTS Cell Site Analysis Engineer, John Tarpey BSc BA CEng MIET for his outstanding assistance provided in the Durham Constabularies investigation of the murder of Ms Pamela Jackson, 55, who vanished from her home in Chester-le-Street, County Durham, in March 2013.

Further desk top work identified locations on the moors above Halifax where it appeared that the suspect had been overnight after the disappearance of the victim. John was able to visit the area to discuss possible locations with the search teams and suggest avenues of investigation. Surveys in the area allowed him to narrow down the possibilities and identify an area high on the moors where the phone was used at what was believed to be a critical time. Surveys at the suspects home address allowed investigators to discount parts of the account the suspect had given.

Operation Sorrento was an enquiry into the murder of Pamela Jackson in Chester le Street which demonstrated many of the ways in which an expert Cell Site Analysis Engineer can assist the investigating authorities. In this case FTS Engineer John Tarpey was able to provide guidance to the search teams in finding the body, track the movement of the suspect as he moved long distances across the country and short distances around both the scene of the incident and the body deposition scene. He was able to provide advice on the interpretation of geographic data from the suspect’s smart phone and to provide evidential reports that helped to secure a conviction.

Durham Police carried out a download of the suspects smart phone and their analysts identified what appeared to be geographic data – latitude and longitude coordinates and date/time stamps. John Tarpey was able to map these and show, by correlation with the cell site data, that they did show the movement of the mobile. Further analysis of this data showed that the user of the mobile had returned to the scene on the moors identified as a prime candidate for the deposition of the body. This was confirmed by reference to the cell site data.

Durham Police contacted FTS early in their investigation. They knew that a woman from the Chester-le Street area had disappeared and they had a suspect, but they didn’t yet know that she was dead or what had been done with the body.

John was able to assist the Police by ruling out some area which appeared promising from intelligence sources but did not fit the cell site evidence. After a prolonged search the Police located a body carefully buried just off the road, in the location identified by FTS. It appeared that the person who buried the body had returned several times, possibly to camouflage the grave.

John Tarpey visited Durham Police to discuss the data available and what it appeared to show. He was able to confirm that the suspect had moved EXPERT WITNESS JOURNAL

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The work done was then consolidated into an evidential report which was presented in court and the investigation terminated with the suspect being found guilty of Manslaughter and receiving a long custodial sentence.

surveys were carried out by John Tarpey himself and this was invaluable in carrying out the surveys and interpreting the results. Visiting the locations, while aware of the cells of interest allowed him to fine tune the surveys as they progressed – this involved making decisions about where to drive on the area surveys and where to carry out the location surveys. Being on the scene allows the engineer to see for himself why a cell may or may not provide best server coverage at a location.

How to find a body? It is a commonplace of cell site analysis that it does not allow you to say exactly where a person was when using a mobile. This is almost always true and the accuracy of cell site analysis is usually of the order of half a mile. This case was unusual in that it allowed John Tarpey to identify the possible deposition scene with greater accuracy. Two factors combined to allow this. One was close co-operation with the search and investigation teams. Their input that the deposition scene would almost certainly be within easy walking distance of a road helped to discount large areas of open moorland. The second factor was that the mobile was using several different cells located many miles apart. Using a distant cell almost always means that there is line of sight to the cell site. Using two cells in close succession means that the location of the mobile must have line of sight to both of them. Map based investigations identified that there were few areas where these conditions were likely to be met in this case. This allowed John to discount certain areas and concentrate on others when carrying out surveys.

GPRS records and how they provide useful information. Another factor of interest in this case was the provision of GPRS data for the suspects mobile. Much of the key location data was from this source. GPRS data can be tricky, but in this case the nature of the network coverage in the area meant that it was extremely useful. GPRS records are generally only produced when the mobile switches LAC (local area code) and so can often be quite a long time apart. The timings of these records can also be difficult to interpret. However, where the mobile is going into and out of coverage, or flicking between GSM and UMTS (2G and 3G) then a record will be produced each time this happens. These records are produced without the knowledge or any action on the part of the user of the mobile. In this case, while he was on the high moors disposing of the body his phone was moving quickly between 2G and 3G and generating the records that were to pinpoint his location. Because the records were in quick succession timing was not an issue.

How does cell site work in the hills? The area of interest is a very hilly one. Several valleys cut through the Pennine hills and there are few flat areas. This means that simplistic methods involving assumptions about coverage based on standardised areas of coverage were not helpful. Some cells covered many miles in one direction but did not cover a few hundred yards away. At one period of interest the suspect seemed to go to the Rochdale area, over the border in Greater Manchester. His mobile used a number of cells on that side of the hills. This did not seem to fit in with his movements as described by other sources. John Tarpey was able to show that the cells used were actually consistent with being high in the hills looking down towards Greater Manchester and probably did not imply any movement down into that area.

The GPRS records were also used to track the mobile as it moved between Halifax and Chester Le Street. Additional interpretation of geographic data Durham Police’s analysis of the downloaded data from the suspects smart phone identified what appeared to be geographic data. This was in the form of latitude and longitude values with an associated time stamp. They appeared to be associated with an “Sat Nav” app called WAVE. It was not clear exactly what this data represented and how it could be used. Of particular interest was the fact that each record had two sets of co-ordinates. Was either the location of the mobile, and if so which? And what was the other set?

How surveys help Surveys proved very important in the analysis, both in confirming the map based analysis in the hill top areas and in establishing when the mobiles could have been at key locations such as the home addresses of the suspect and victim. Use was made of both area surveys and key location surveys. The EXPERT WITNESS JOURNAL

Analysis of the data, in combination with the cell site data allowed John Tarpey to come to the conclusion that these records almost certainly related to times when the app had re planned a journey after the mobile had gone off course. 41

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One of the sets of coordinates corresponded to the area where the cell site put the mobile and the other to a location to which it moved soon after. For example there were a series of records which had one set of coordinates at Wetherby Services and another at the victim’s home address in Chester le Street. Comparison with the cell site showed the mobile travelling up the A1(m) around this time between Halifax and Chester le Street. Applying this logic to the rest of the records showed that the suspect had visited a lay by in the body deposition area at significant times. This encouraged the search teams to continue their work in that area.

many of the so called ‘in-house’ forensic units now fielded by Police and Government Agencies. It is also a significant fact that on occasion, FTS engineers will find the methodologies and conclusions of certain ‘in-house’ capabilities sadly lacking and in some cases wholly incorrect. Recently commissioned by a well known Cheltenham based Solicitors acting under the advice of Defence Counsel, from an equally distinguished Cardiff based Chambers; FTS in the guise of Senior Mobile Forensics Engineer, Mr Trevor Wooding BSc (Hons) CFSS was at very short notice to an ongoing trial within the Gloucester Crown Court, able to conduct a fully independent forensic examination of a particularly salient mobile phone. The Crown sought to place great store in their ‘In-House’ findings relying on subsequent Police assertions the nature of may have proved quite damning in terms of certain charges faced by the Defendant. Trevor was able to show that the Police ‘In-House’ automated download was seriously flawed. Certain forensic data retrieval was poorly acquired; it was partial and resulted in wrong assumptions being made. Trevor was able to directly contradict the Crown evidence and provenance the same. This part of the Crown evidence was subsequently rendered unreliable and dismissed. Trevor was complimented by Defence Counsel for his tenacity and expeditious attention to the matter. The details of this particular defence forensic analysis (which can be provided on request) fully enforce the necessity to seek secondary independent and dare we say it ‘impartial’ expert opinion. Although no doubt a subject for another day, FTS have found in recent times that with the financial austerity generated in the forensic divisions of the public sector does come with the ‘potential’ for utilisation of lesser quality digital forensic product (both intelligence and evidential), the use of which raises the obvious ‘potential’ for miscarriages of justice. FTS will at all times look to utilise its full forensic capability and expertise across the Hi-Tech and Mobile Phone divisions.

Presentation in evidential format Eventually the body was found and the suspect charged and brought to trial. The work carried out by John Tarpey was all put into an evidential format with maps and tables providing clear illustrations of the information that could be put before a jury. John was able to combine information from a variety of sources into the mapping as requested by the investigation team. John presented his evidence at Newcastle Crown Court as part of a successful prosecution that led to Adrian Muir being found guilty of manslaughter and jailed for 18 years. Summary Operation Sorrento highlighted the way in which early consultation with an experienced Cell Site Engineer can help to move an investigation along. This case showed some unusual features which required a depth of analysis which perhaps cannot be expected from Police Analysts whose training and experience may lie in different areas. It was a case in which the excellent work of the police telecoms team in Durham Constabulary enabled John Tarpey to make substantial and significant contribution to the enquiry and which led to a formal Commendation from the Chief Constable. Quality Digital Forensics It does not stop at Cell Site Analysis, with many tens of thousands of Mobile Phones and other HI-Tech Digital Devices under its belt, the FTS E-Digital Forensic Division are well schooled in the acquisition of data. Commissioned on a daily basis by many Solicitors/Chambers, Corporate and Government agencies nationally, FTS have the ability to meet with the majority of Instructions.

FTS stand by their pedigree that they will always continue to: provide impartial expertise to enable the delivery of Best Evidence as a standard. ■ Forensic Telecommunications Services Ltd Contact: Mr. Ray Chappell PO Box 242, Sevenoaks, Kent TN15 6ZT Tel: 01732 459 811 Mobile: 07876591823 Email: ray.chappell@forensicts.co.uk Or via the FTS Website www.ForensicTS.co.uk; Website: www.forensicts.co.uk/

Although contracted and commissioned by Law Enforcement / Government Agencies internationally, it is a fact that in order to maintain its impartiality and expertise, FTS continues to assess and review the forensic product achieved by EXPERT WITNESS JOURNAL

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A Very Particular Expert... by Angela Shaw - ÂŠ The Forensic Firearms Consultancy Ltd 2015 are the size of large printers that can be set up in an office. But in terms of advancements in the analytical science this is not area in which any groundbreaking developments have occurred. But then, has there needed to be?

The discovery of gunshot residue (GSR) as an evidence type came about almost by accident when in 1974 Robin Keeley, a senior scientist at the Metropolitan Police Forensic Science Laboratory, was conducting a study of particles collected on air filters during a survey of lead levels in the atmosphere of indoor firing ranges. He noticed whilst observing the lead using scanning electron microscopy and energy dispersive x-ray spectrometry (SEM-EDX), discrete particles composed of lead, antimony and barium. He then discovered that they appeared to occur only in percussion primer residue; there was no nonfirearms source. For the first time scientists had a method for conclusive identification of gunshot residue. At about the same time and independently a similar project was undertaken by the Aerospace Corporation in California. The findings were confirmed by other workers and are still valid today.

If we look at other evidence types, for example DNA, last year saw the biggest change in DNA profiling in the UK for more than a decade with the advent of DNA17. This is the next generation of DNA profiling which offers improved discrimination between DNA profiles greatly reducing the probability of getting a chance match and improved sensitivity over the previous SGMPlusÂŽ test. This means the technique provides more information for comparison and will produce profiles where one would not have previously been obtained. The downside of this is that the sensitivity is such as to increase the risk of DNA contamination from the handling of samples by scenes of crime officers and forensic providers, and it means that contamination is more easily detected. There is also an increased risk of detecting background DNA, which may have been

Today, the instrumentation has advanced; the systems are now automated, digitised and controlled by fairly sophisticated software and some EXPERT WITNESS JOURNAL

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deposited before and after the deposition of the target DNA. Comparing DNA profiles from a suspect and a crime scene is therefore one thing but interpreting what it means is quite another. This cannot be carried out without the scientist being fully furnished with all relevant details of the case being investigated.

said he had been storing it prior to the shooting but he was unsure if Mr George had been involved. The Prosecution alleged that Mr George was responsible and the evidence at the trial was entirely circumstantial aside from the GSR findings. Mr George was arrested and his home address was searched by police almost a month after the shooting. Amongst the items recovered was a jacket from underneath the stairs, and a dummy cartridge consisting of a previously fired cartridge case and bullet, found in Mr George’s mother’s car. Both items were submitted to the Forensic Science Service (FSS) for examination for the presence of any GSR. The scientist reported finding two GSR particles containing the chemical elements lead, barium, antimony and aluminium (Type 2 GSR) on the front of the jacket and two particles containing the elements barium and aluminium, one on the front and one within the pockets of the jacket. Particles containing barium and aluminium can originate from firearms but they are also produced by certain types of green fireworks therefore it was not possible to say which of these was the most likely source. Type 2 GSR was found in samples from the spent cartridge cases recovered from the scene of the shooting.

DNA is rather like GSR in that it is an opinion based evidence type and the circumstances of the crime together with all of the surrounding information are key to the DNA or GSR expert being able to interpret the findings as fairly, accurately and scientifically sound a way as possible. This includes access to background data, for the DNA expert, this will include staff elimination databases, whilst for the GSR expert this will be surveys assessing the likelihood of cross-contamination from armed police officers or the chances of finding particles of GSR in the general environment. The requirement here, rather than sophisticated advancements in technology and indeed the most conclusive technique for GSR remains that which was developed in 1974, is for an expert to continually build on their knowledge and expertise and never to stop assimilating data upon which to base sound conclusions within their field of expertise.

The crown scientist concluded that there was some evidence to suggest the jacket had an association with a shooting incident but it was not possible to establish a link with the shooting of Mr Dale. Counsel for the crown asserted that this was evidence supportive of Mr George having been the gunman. The defence appointed their own GSR expert who was of the opinion that it would be unsafe to conclude that the Type 2 GSR on the jacket must be associated with the shooting incident involving Mr Dale as it could have arisen from another source, one such source being the dummy cartridge that contained the same Type of GSR. After having considered all of the evidence the jury found Mr George guilty and he was sentenced to life imprisonment with a tariff of 13 years. Mr George served his sentence and was released on licence.

It is rarely contested that GSR originates from a firearm. What is of far more interest is how the particles came to be present on a suspects clothing, skin or hair. This can only be evaluated within the full circumstances of the case taking into account both the prosecution and defence hypotheses. The type of firearm and ammunition used in the crime are also important to the GSR expert as it can have an impact on the amount of GSR that may be deposited onto the suspect or their surroundings. GSR, again, is rather like DNA, in that it is one of the most heavily scrutinised trace evidence types in criminal investigations and the expert must ensure that police officers, solicitors, barristers and ultimately the court understand the strength of the evidence. Forensic Firearms Consultancy Ltd have a proven track record of reviewing and challenging complex GSR cases for both prosecution and defence.

The Innocence Project and Pro Bono Unit attached to Cardiff Law School took up the case on Mr George’s behalf and submitted an application to the Criminal Cases Review Commission (CCRC). The application was based on the judgement in R v Barry George [2007] and a decision in relation to voice recognition evidence.1 The CCRC having considered the application commissioned Forensic Firearms Consultancy Ltd to undertake a full review of the GSR evidence in light of the R v

One such case was that of the conviction of Dwaine George in 2002 for murder, attempted murder and possession of a firearm. On 25th July 2001 at Miles Platting, Manchester, Daniel Dale was fatally injured and Darren Thomas was wounded in the hand by shots fired from a Walther PPK self-loading pistol. The gun was recovered from the home address of an alleged associate of Mr George who EXPERT WITNESS JOURNAL

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a total of twelve particles containing barium and aluminium found demonstrating that these particles are more commonly observed in the environment than GSR particles.

Barry George judgement and the perceived changes in assessment of GSR findings. This case of course involved only a single particle of GSR. In the case of Dwaine George the conclusion of the crown expert, that the Type 2 GSR found on the jacket could have originated from the ammunition fired on the day of the shooting, was correct and this was caveated to state, however, any ammunition containing a similar Type of GSR could also have been the source. The CCRC wanted to know what would be the significance, if any, that would now be attached to a finding of two particles of GSR.

In addition there were some further GSR findings, which had been reported by the original Crown expert but were not mentioned at the trial in 2002. A jacket had been recovered from the address where the gun was being stored. It was found in a box together with a balaclava. A number of particles of GSR were found on the items that could have originated from the firing of ammunition producing Type 2 GSR. The presence of the GSR could indicate that the person wearing the jacket could have either fired a gun, been standing next to someone firing a gun or handled a gun. If Mr George had any association with the wearer of the jacket and/or the address where it was recovered then GSR could have transferred unknowingly to him or his clothing.

It is not possible for a scientist to comment on the environment in which a shooting incident occurred thirteen years previously but what they are able to do is to comment on how the case would be reported today given their current knowledge and expertise with regard to any background data available and the potential of unknowingly picking up GSR particles from the environment. A survey conducted by the FSS between 2007 and 2010 of samples taken from the seats of buses, trains, taxis and the underground mainly in the London area but also on routes around England reported that a single particle of GSR was found in approximately one in ninety samples. Interestingly, there were also

Mr George had also been previously arrested in relation to a shooting incident several months prior to the murder. The arrest was made by armed police officers who were likely to have been contaminated with GSR. It was not known what Mr George was wearing when he was arrested but this could have included the jacket found at his home

FORENSIC FIREARMS CONSULTANCY CONSULTANT FORENSIC SCIENTISTS www.forensicfirearmsconsultancy.com

FFC offers bespoke, customer-led solutions to all firearms and GSR-related investigations. Forensic Firearms Consultancy (FFC) Ltd is an innovative company led by two world-renowned experts. During their time at the UK Forensic Science Service (FSS), Mark Mastaglio and Angela Shaw became the most senior scientists working in forensic firearms and gunshot residue (GSR) respectively. It is the only UK-based private consultancy offering this level of expertise, experience and worldwide reputation in firearms and GSR. FFC can undertake work at every level of forensic firearms and GSR examinations and has extensive experience of complex, sensitive cases from across the globe. The FFC directors are two of the most senior and experienced practitioners in the UK, with over 35 years of combined court going experience. FFC’s Expert Witness service includes: ❖ ❖ ❖ ❖ ❖ ❖ ❖ ❖ ❖ ❖ ❖ ❖ ❖

Examination of the full range of cases, from the alleged illegal possession of firearms and ammunition to complex interpretation of fatal shooting incidents In-depth knowledge of firearms legislation involving complex classification issues – an insider’s knowledge of firearms law policy Antique firearm evaluation Air gun classification Computer aided simulations of crime scenes and projectile trajectories” Potential for accidental discharge Trajectory reconstruction analysis, including scene visits Determination of the type of gun used Determination of how many guns used Range of fire determination Interpretation of autopsy findings, including autopsy examination attendance Interpretation of GSR findings (incorporating SEM-EDX results) Critical analysis of GSR contamination issues

If you need immediate advice, please contact either Mark Mastaglio on +44 7919 217 848 or Angela Shaw on +44 7919 392 397. Otherwise please email us at: enquiries@forensicfirearmsconsultancy.com. Our website is at: www.forensicfirearmsconsultancy.com

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warning relating to the limited significance that could be attached to such evidence. The Court of Appeal upon consideration decided that had the present scientific concerns explained in FFC Ltd.â&#x20AC;&#x2122;s report to the CCRC been available to the original trial judge they had no doubt that his directions would have been couched in terms of much greater circumspection and caution. They concluded that having admitted this evidence it might have reasonably affected the decision of the trial jury and the convictions were no longer safe. The appeal was allowed and the convictions quashed.2

address. Mr George was not charged in relation to this incident. It is doubtful that evidence of these other incidents was put before the court at the trial in 2002. Having considered the GSR findings in the case and the full circumstances FFC Ltd was of the opinion that very little in the way of interpretation could be applied to low levels of GSR (1-3 particles) given that particles can be found in the environment and there were a number of sources that could account for the two particles found on the jacket from Mr Georgeâ&#x20AC;&#x2122;s home address. Not all of these were considered at the original trial. The GSR could be related to the shooting, but it could also have been transferred from handling the dummy cartridge, or picked up unknowingly from contact by armed police officers or through any other exposure Mr George had to a source of GSR. FFC Ltd therefore reported to the CCRC that it would be unsafe to conclude that the GSR must have been associated with the shooting on the 25th July 2001.

This case only serves to highlight that the interpretation of GSR is complex and should only be carried out by highly experienced experts knowledgeable in all the facets of the evidence type against any available background data. FFC Ltd has a proven track record in this regard having been commissioned in cases from all corners of the globe. Get it wrong and miscarriages of justice result; the innocent are convicted and the guilty walk free. â&#x2013;

The CCRC referred the case to the Court of Appeal reflecting that it could be concluded that the weight of the GSR evidence was not appropriately conveyed to the jury and there should have been a

References 1, R v George (Barry) [2007] EWCA Crim 2722 2, R v George (Dwaine) [2014] EWCA Crim 2507

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Driving Under the Influence By Dr Bernard Leddy Ph.D. Leddy Consultancy Ltd www.leddyconsultancy.ie Driving a motor vehicle safely requires a coordinated mixture of cognitive,visual acuity and motor reflex skills.Driving is not intuitive it is learned behaviour which can be learned well or badly.When a person drives,or attempts to drive,under the influence of psychoactive drugs and medicines they violate some aspect of the Road Traffic legislation in most jurisdictions.

years and the equipment has been refined over time so that a handheld, device can now give very accurate readings of breath alcohol levels. Up to now portable roadside drug testing has been impractical.However, many new testing systems are under development and coming on the market soon, so that roadside drug testing will be as common as the â&#x20AC;&#x2DC;breathalyserâ&#x20AC;&#x2122; in a few years. I believe that legal practitioners will soon have to deal with complex and intricate drug driving cases in a way that they have not heretofore.

In the course of my work as a Pharmacy, Pharmaceutical Science and Toxicology consultant I am often called on by legal practitioners to help them with clients who are in trouble for driving or attempting to drive under the influence of drugs, including alcohol and medicines. Roadside testing for alcohol has been commonly used for nearly 50 EXPERT WITNESS JOURNAL

We need to develop new ways of professional interaction between legal practitioners and toxicologists. I am going to launch a Drug Information service for legal practitioners which 47

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In most jurisdictions these drugs are only available on prescription but like all psychoactive agents there would always be a black market or street trade in some of them. By far the largest group of these drugs are benzodiazepines or drugs which act like benzodiazepines. They are used in medicine as tranqullisers, hypnotics, anxiolytics, muscle relaxants and sometimes for clinical sedation and preoperative treatment. In spite of their wide clinical use they are powerful drugs. They differ widely in their physical properties,elimination and metabolism. The length of a drugâ&#x20AC;&#x2122;s activity is often expressed as its elimination half life. A useful definition of half life is the time in minutes, hours or days at which the amount of unchanged drug becomes 50% of the initial plasma concentration. For example Flunitrazepam has a half life of 1826 hours, Diazepam has a half life of 20100 hours and Midazolam has a half life of only 3 hours. It is clear from these figures that many drivers are impaired many hours after they have taken one of these drugs. Generally the degree of impairment is directly related to the dose taken. These drugs affect driving skills by slowing reaction times, interfering with hand eye coordination and affecting judgement of distance and speed. It is

worth mentioning here the socalled Z drugs, zolpidem,zopiclone and zalpelon. They are all used as hypnotics and although chemically distinct from benzodiazepines they exert their effects through the same receptor system as benzodiazepines. They start working quite quickly and have a measurable detrimental effect on driving skills often within 30 minutes. This adverse effect tapers off quite quickly and has usually disappeared by 79 hours after administration. These do not show up in drug screens for benzodiazepines and they can be difficult to find in forensic samples. There have been cases of drugged driving with these drugs where amnesia has been the overwhelming symptom and the subject has no memory of the journey. Impaired driving with these drugs can very often lead to proceedings under the criminal justice codes. How Can I Help You. I offer a full toxicology and drug information service for Lawyers.It will be fully available online later in the year but in the meantime you can contact me through my new website www.leddyconsultancy.ie Dr.Bernard Leddy 2015.

Dr Norman Wallace Independent Expert General Practitioner BSc, MBChB, MRCGP

PHARMACIST AND PHARMACEUTICAL CHEMIST

Dr Wallace was a Principal in General Practice from 1980 to 2011. He has wide clinical experience and was Senior Partner in an eight doctor practice and a Trainer from 1984.

We provide expert witness services to the Legal and Related professions in the area of Pharmacy, Pharmaceutical Science and the use and abuse of drugs and medicines. We undertake Criminal and Civil Litigation, Fitness to Practice Cases, Medical and Pharmaceutical negligence. Providing a comprehensive drug information service which may be accessed 24/7. We also specialise in toxicology, driving under the influence of drugs and medicines.

(Whinpark Medical Centre - www.whinpark.org)

He has an interest in medico-legal matters having previously been a police surgeon with Lothian and Borders police force for nine years. He gives independent expert opinions in cases where there is alleged medical negligence and has helped the Procurator Fiscal Service investigate sudden deaths by providing independent GP reports and giving evidence at Fatal Accident Inquiries.

Expertise in the area of the suitability and safety of medicinal products. We provide a comprehensive drug interaction checking facility. We specialise in crisis management in Community Pharmacy including dealing with adverse inspection reports from the Regulators.

Contact: Dr. Bernard Leddy Tel: 00 353 5853 341 Fax: 00 353 2494 898 Mobile: 00 353 872 60 9788 Email: info@leddyconsultancy.ie Web: www.leddyconsultancy.ie Leddy Consultancy Chapel Street, Lismore, County Waterford Area of work Nationwide, Scotland & Ireland

20 Craigs Bank, Edinburgh EH12 8HD Tel: 0131 334 8833 Mob: 07800 634 733 Email: normanwallace@btopenworld.com

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New UK Drug Driving Laws Which substances are limited and what are the consequences? New regulations aimed at stopping people driving while on drugs have come into force in England and Wales. The new rules run alongside the existing law, under which it is an offence to drive when impaired by any drug.

What if you take a listed prescribed drug? Government guidelines state that medication should be taken as advised by a doctor and driving should only be done within the limits outlined. Proof of using the specific legal drug, such as the container, should be kept in the car in case of being stopped by police.

The legislation came into effect on the day that a driver who took cocaine and cannabis before crashing his car into a tree and killing two of his friends was jailed for four years.

Testing Police will be able to use "drugalysers" to screen for cannabis and cocaine at the roadside. With low levels for the eight illegal drugs, and higher levels set for eight prescription drugs. Those using prescription drugs within recommended amounts will not be penalised.

Owen Clements was speeding and on the wrong side of the road when his VW Golf veered off the road in Llanrhidian, Gower. Swansea Crown Court heard that Jonathan Knoedl, 22, and James Holder, 17, died in the September 2012 crash. Clements, 27, of Lougher, Swansea, was found guilty of causing death by dangerous driving by a jury. Clements denied he was to blame and told police he had swerved around a badger. But a blood sample taken more than three-and-a-half hours after he was taken to hospital showed traces of cannabis and cocaine in his system.

The “drugalysers” will work similar to breathalysers. Apart from using the "drugalysers", officers can test for various drugs including ecstasy, LSD, ketamine and heroin at a police station, even if a driver passes the roadside check. The police can also enforce a ‘field impairment assessment’ if they think you’re on drugs. This is a series of tests, eg asking you to walk in a straight line.

Which drugs does the ban include? Drivers are to expect prosecution if they are caught having used illegal drugs such as ketamine, LSD, cocaine, cannabis and heroin. Or if they exceed the new limits for nine prescription drugs.

If they think you’re unfit to drive because of taking drugs, you’ll be arrested and will have to take a blood or urine test at a police station.

Nine prescription drugs so far have legal limits set per litre of blood. These are: Clonazepam is prescribed to treat seizures or panic disorders, 50µg/L. Diazepam is used for anxiety disorders, alcohol withdrawal symptoms or muscle spasms, 550µg/L. Flunitrazepam (also known as Rohypnol) is a sedative originally used in hospitals for deep sedation in the 1970s, 300µg/L. Lorazepam is used to treat convulsions or seizures caused by epilepsy, 100µg/L. Oxazepam is used to relieve anxiety, including anxiety caused by alcohol withdrawal, 300µg/L. Temazepam affects chemicals in the brain that may become unbalanced and cause insomnia problems, 1,000µg/L. Methadone is used in the treatment of heroin addiction and for pain relief, 500µg/L. Morphine or opiates treat moderate to severe pain 80µg/L. EXPERT WITNESS JOURNAL

What are the consequences? The penalties for drug-driving are the same as for drink-driving. A conviction could carry up to a minimum 12-month driving ban, a criminal record, a fine of up to £5000 or up to 6 months in prison or both.Your driving licence will also show you’ve been convicted for drug driving. This will last for 11 years. Your car insurance costs will increase significantly and your employer will see your conviction on your licence. You may have trouble travelling to countries like the USA. The penalty for causing death by dangerous driving under the influence of drugs is a prison sentence of up to 14 years. The law doesn’t cover Northern Ireland and Scotland but you could still be arrested if you’re unfit to drive. ■

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Video Surveillance Resolution 4K Ultra HD is revolutionising resolution in video surveillance says Ed Thompson, CTO DVTEL. Above, A mini-dome and bullet from DVTEL’s Quasar 4K Ultra HD line.

Resolution and clarity in video surveillance has always been a challenge in evidence gathering and investigation analysis. Who hasn’t seen the blurred and choppy images of crime scene getaways on TV shows such as Crimewatch – images that often help the culprits get away with it! Lights, Cameras, No action! Fortunately as with other technologies, camera manufacturers continue to push the boundaries of image clarity to enable catch-up.

This has significantly changed the quality of the image coming into the camera. At the same time, there have been some breakthroughs on the back end with digital signal processors (DSPs), which can handle larger image formats. With the combination of these new sensors and DSPs, manufacturers can now offer 4K at around the same total cost of ownership as 1080p.

Some manufacturers have introduced cameras that can deliver as much as 40-megapixel resolution. However, these cameras can only be used in a very limited number of applications at best and, at worst, merely serve as a marketing gimmick. If you’ve been keeping up with the market, you’ve heard about the buzz around 4K Ultra HD cameras. 4K holds realistic potential.

Four times the evidence detail What does this mean for police and the legal community? Harder evidence and forensic capability, in a nutshell! Users can now have four times the amount of evidentiary detail with minimal impact to storage costs. Those who may have only been able to afford cameras in the 720p to 1080p range can realistically think about using 4K and having much higher quality.

Although 10-megapixel cameras, which are essentially the equivalent of 4K cameras in terms of resolution, have been around for years, the devices haven’t exactly generated a lot of excitement or demand from end users. There are several reasons: frame rates and light sensitivity on these cameras are very, very low and the costs of storing high-resolution footage can be high.

What’s more, 4K provides more forensic zoom and delivers greater detail out of an image than previously possible; even with a higher megapixel camera. Even with the high-quality images from high-definition and megapixels, many users still run into a problem of the image becoming ‘choppy’ or the pixels ‘blocky’ soon after they the digital zoom.

These factors combine to make the deployment of cameras in the 10-megapixel range and above simply out of reach for most users. The difference with 4K is that a new set of high-quality sensors have been developed to accompany these next generation cameras, enabling the cameras to operate at up to 30 frames per second.

With 4K, you can zoom in quite a bit further on an image before it degrades. The finer pixel geometry that comes with 4K resolution also results in enhanced video analytic capabilities as algorithms are positively affected by the improved image quality and could, in some cases, even double detection ranges.

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Above, An overview of a car park; 4K detail on digital zoom; and 1080P comparison.

users can hope to achieve. For some, 4K may just be another offering among many, but others will look to make it their preferred solution. It really comes down to the value versus the cost of the evidence. The value tends to increase with resolution and, typically, the cost of the evidence rose faster than the resolution, which kept demand for high-resolution in check. Because costs associated with migrating to 4K are minimal, demand for this image quality will surge. ■

While the evidence gathering benefits of 4K resolution are obvious, users still face challenges: primarily network and bandwidth needs, and storage demands. The workstation processing for many applications also will have to expand substantially in many cases. However, many of these hurdles can be addressed without the need for extra infrastructure. For example, a 4K camera running at 30fps could operate at 4Mbps, which is no higher than a 1080p camera. In that case, storage would be virtually unaffected and there would be relatively little impact to a workstation because the decompression rate is about the same, depending on the camera and how it is optimised. Another factor often discussed is the need for a 4K monitor to view the live feed in 4K resolution. Prices of 4K monitors have fallen dramatically in recent months. Value vs Cost of evidence Although 4K is still in its early adoption stages, there are enough clear advantages to using 4K to seriously consider the technology now. Those looking to move should consider a package. Complete systems incorporate closely integrated video management software, adaptive streaming, streamlined deployment with plug-and-play, and ease of use through an intuitive drag-and-drop interface.

DVTEL is a leading developer of open-standard, end-to-end video surveillance solutions. DVTEL’s advanced technology R&D department provides enterprise-grade integrated IP video networks available for small, mid-size and enterprise applications – that are scalable and share unified architecture. Solutions include high-performance, storage-efficient HD IP cameras and video analytics for outdoor intrusion detection and tracking developed by DVTEL’s research teams. DVTEL partners with leading industry players to deliver ONVIF-compliant solutions, provide high-quality services, develop custom applications, and seamlessly integrates third-party products to ensure interoperability and performance. DVTEL’s installations provide field-proven expandability, flexibility, and functionality in thousands of locations across five continents, while minimizing your investment and cost of ownership.

Indeed, users in a variety of markets have only begun to make the transition to IP-based products, let alone high-definition and megapixel.

DVTEL UK LTD. 7 Lancaster Court, Coronation Road, High Wycombe, HP12 3TD Tel: +44 (0) 1494 430240 Fax: +44 (0) 1494 446928 Email: info.uk@dvtel.com web: www.dvtel.com

Adoption relies heavily on manufacturers and channel partners educating the market about what EXPERT WITNESS JOURNAL

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“I’m Not Dead Yet!” Forensic Pathology in the Living. by Stuart Hamilton MB, ChB, BMSc(Hons) FRCPath MFFLM Everyone “knows” what forensic pathologists do. We examine dead people, chase criminals,interview suspects, and become involved in complex love triangles with a zookeeper attempting to poison a rival with tiger bile and an alcoholic detective with a broken marriage but a good heart.

But that means that we look at injuries. Thousands of injuries. We are very good at offering expert opinion on the nature and likely causation of injuries. Injuries are largely the same in the living in the dead. A bruise is a bruise, a patterned abrasion is a patterned abrasion.

Except we don’t. We do examine dead people, quite often. We write reports, a lot. We give evidence in court, also a lot.

Forensic Pathologists are used to giving evidence, considering possibilities, and understand the precise implications of a given phraseology. We are painfully aware (spoiler alert) that people don’t always tell the truth, even when attending hospital or talking to police officers. That is even if the person isn’t so inebriated that they can’t recall what happened.

Forensic pathologists are considered to be experts (in the true legal sense) in determining medical causes of death, and in homicides a recent ruling would suggest that we are the experts1. EXPERT WITNESS JOURNAL

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As an anecdote, I gave evidence in an alleged rape where the “other expert” when confronted by my report backed down, said “I’ve only been doing this two weeks and I’m not really an expert”, and that was that. That’s not to say my report was amazing, it was fairly standard, but such is the power of the trained expert.

All too often I’m instructed in a case to discover that the prosecution “expert” is a doctor who’s seen a patient in the Accident and Emergency Department and has said that the injuries are “consistent with the account”. Or even more often written by a doctor who didn’t see the patient, or photographs of the patient, and is working from the medical records.

I can’t always say that we will support your case, we are “independent experts to the court” after all, but at worst you’ll get a reasoned explanation why the client’s account doesn’t hold water.

Let’s deconstruct that for a moment. I’m not for one minute criticizing the excellent work done in our emergency departments every day. I couldn’t do that job and I admire those who have the ability and dedication so to do. But someone’s liberty may be at stake.

I suspect that most people reading this work for the defence, and I certainly do a lot of defence work in this arena, but we can also do prosecution reports. I recently gave prosecution evidence in a successful attempted murder conviction.

Doctors in A & E have to assess patients quickly for life-threatening injuries or those that need treatment. By and large, they aren’t trained to record all findings in “forensic detail.” Even if they were they wouldn’t have time to do it.

So even if your client isn’t dead, someone like me may be useful!

There is a definition for “consistent with” in the Istanbul Protocol2, which is “the lesion could have been caused by the mechanism/pathology described, but it is non-specific and there are many other possible causes”. It should be readily apparent that this means that something may have happened that way. But “may” is a long, long way from “did.”

Take Home Messages • Pathologists can give expert opinion in the causation of injuries in the living as well as the dead. • Balanced expert assessment of injuries involves examining all accounts, not just what the complainant says.

The forensic pathologist has the luxury of time to consider the injuries, and the expert will be given a wealth of material relating to the alleged offence that isn’t available when someone lands in hospital bleeding.

• Pathology evidence can be useful both to prosecution and defence in Offences Against the Person cases. • Good quality photographs are the best thing for the expert to see, along with relevant statements and medical records. ■

So what do you get from us? A detailed report, detailed consideration of the relevant accounts, and a person trained to stand up in court and defend their position. All too often inexperienced middlegrade doctors are stood up to give evidence and then get savaged by a well-briefed barrister supported by an expert passing notes from behind.

References 1. Clarke & Anor, R v [2013] EWCA Crim 162. 2. The Istanbul Protocol [Sect V, D, 187, A-E], United Nations: Geneva, 1999.

Stuart Hamilton is a Home Office Registered Forensic Pathologist. He undertakes forensic autopsy examinations and expert interpretation of injuries in the living with associated expert evidence in courts. He has been consulted at both national and international levels.

So what would I need to give an opinion? The simple answer to that is “whatever you have”. Witness statements, defence case statement, medical records, ambulance records, but most importantly photographs. Ideally photographs will be taken of the injuries by a Crime Scene Investigator or Police Photographer in good lighting with a scale on each injury to indicate size and taken in such a way that the location on the body can be readily identified. This is, of course, an ideal situation. All too often we get a blurry image taken on an officer’s Blackberry device, but we’ll work with what we get. EXPERT WITNESS JOURNAL

Contact: Dr. Stuart Hamilton East Midlands Forensic Pathology Unit Level 3, Robert Kilpatrick Building, Leicester Royal Infirmary, Leicestershire, LE2 7LX Tel: 0116 252 3220 Email: sjhamilton98@gmail.com

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Modern Forensic Techniques Reveal Richard 111’s Injuries Scientists use modern forensic techniques to identify most likely cause of King Richard III’s death. New research led by the University of Leicester gives a blow-by-blow account of the injuries inflicted on King Richard III’s body at the Battle of Bosworth Field on Aug 22, 1485. Modern forensic analysis of the King’s skeletal remains reveals that three of his injuries had the potential to cause death quickly—two to the skull and one to the pelvis.

helmet, and the absence of defensive wounds on his arms and hands indicate that he was otherwise still armoured at the time of his death.” Figure insert above Reconstructed right hemi-pelvis and sacrum, Post-mortem CT with Osirix. Red line shows estimated direction of sharpforce trauma.

The remains of King Richard III—the last English monarch to die in battle—were found under a car park in Leicester by archaeologists from the University of Leicester, and subsequently identified by a multidisciplinary team from the University. The forensic imaging team, working with the Forensic Pathology Unit and the Department of Engineering at the University of Leicester, used whole body CT scans and micro-CT imaging of injured bones to analyse trauma to the 500-yearold skeleton carefully, and to determine which of the King’s wounds might have proved fatal. They also analysed tool marks on bone to identify the medieval weapons potentially responsible for his injuries. The results, published in The Lancet, show that Richard’s skeleton sustained 11 wounds at or near the time of his death—nine of them to the skull, clearly inflicted in battle and suggesting he had removed or lost his helmet, and two to the postcranial skeleton. Sarah Hainsworth, study author and Professor of Materials Engineering at the University of Leicester explains, “Richard’s injuries represent a sustained attack or an attack by several assailants with weapons from the later medieval period. The wounds to the skull suggest that he was not wearing a

The investigators, led by Dr Jo Appleby of the University of Leicester School of Archaeology and Ancient History, surmise that the postcranial

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Figure 1: Micro-CT image of the mandible

Figure 2: Facial skeleton

Figure 3: Injuries to the cranium

The investigators, led by Dr Jo Appleby of the University of Leicester School of Archaeology and Ancient History, surmise that the postcranial injuries, including the potentially fatal one to the pelvis, might have been inflicted after Richard’s death, on the basis that had he been alive he would have been wearing a specific type of armour worn in the late 15th century that would have prevented such wounds.

Figure 4: Inferior aspect of the skull

Figure 5 above: Right tenth rib with cut mark. Photograph, scale in mm.

According to Professor Guy Rutty, study co-author, from the East Midlands Pathology Unit at the University of Leicester, “The most likely injuries to have caused the King’s death are the two to the inferior aspect of the skull—a large sharp force trauma possibly from a sword or staff weapon, such as a halberd or bill, and a penetrating injury from the tip of an edged weapon. Richard’s head injuries are consistent with some near-contemporary accounts of the battle, which suggest that Richard abandoned his horse after it became stuck in a mire and was killed while fighting his enemies.” Commenting on the research, Dr Heather Bonney from the Natural History Museum in London, UK, says, “Appleby and colleagues provide a compelling account, giving tantalising glimpses into the validity of the historic accounts of his death, which were heavily edited by the Tudors in the following 200 years. Wherever his remains are again laid to rest, I am sure that Richard III will continue to divide opinion fiercely for centuries to come.” The Dig for Richard III was led by the University of Leicester, working with Leicester City Council and in association with the Richard III Society. The originator of the Search project was Philippa Langley of the Richard III Society. ■

Figure 6: Schematic illustration of 15th century plate armour King Richard III is likely to have worn similar armour on the battlefield.

All images courtesy of The Lancet EXPERT WITNESS JOURNAL

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Expert Engineers Plus? How Collaboration can Add Value by Daphne Wassermann, CEng, FIMechE, MIMMM, MCIWM Technical Director, Cadogans When you think of an expert witness you perhaps imagine a lonely role: the specialist in his field drawing on a life-timeâ&#x20AC;&#x2122;s experience. Even if he or she works for a large organisation they may be the only person doing this type of work.

Teamwork The first dispute was international, between a contractor and a utility company. It was complicated by different regulations in the country of construction, compared with the standards normally used by the contractor. This type of contract also required an immense quantity of documentation to support the design.

Support is available to individuals from various organisations which provide guidance, training and networking support. Nevertheless, when it comes to the crunch, the preparation of a report or standing in the witness box, the expert is generally alone.

Documents had to be translated, with opportunities for minor misunderstandings or differences in interpretation. Part of the dispute involved thousands of comments to which the contractor had to respond. In many cases the required changes had knock-on effects on other documents. Some comments were regarded as valid but some were viewed by the contractor as being unnecessary. In order to form an independent view of the extent to which these comments were valid a statistical sample was selected randomly. The comments related to all aspects of engineering including civil and structural, mechanical, electrical and health and safety. Cadogans put together a team of core staff and consultants with different disciplines and skills levels. Each comment was assessed according to predetermined criteria and graded as to whether it was a reasonable comment or not. The statistician then extrapolated the outcome to the full number of comments.

Cadogans adopts a different model. With a core salaried staff and over 80 consultants we have experts in almost every engineering discipline. But there is more to it than that. We have colleagues who understand what we are doing and a system of peer review to ensure that all reports that go out achieve a uniform high quality. A fresh pair of eyes can pick out the flaws in an argument, highlight information that may have been ignored or issues that have been disregarded. That is in addition to the typos! I have found this process improves my reports and my confidence immeasurably. It does not end there, however. In the rest of this article I will discuss large disputes where a whole team is required, smaller matters where two or three experts in different disciplines work constructively together and cases where we work closely with quantum and delay experts. EXPERT WITNESS JOURNAL

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The relationship with Hill International, experts in delay and quantum, has developed over the years and we have now become part of the Hill group. This gives us ‘in-house’ access to their range of skills and international contacts while they can now offer their clients our engineering knowledge and experience.

Our role in this was technical. Was the comment a reasonable one? But there were also cost and delay implications. So we worked closely with the quantum and delay experts who had been appointed on the matter. Complementary disciplines Much of my work relates to things that fail. This can be a valve in a pipeline, a plumbing fitting, a bicycle or a sports scooter. I combine knowledge of materials with a knowledge of stress analysis and mechanical engineering to try to determine the cause of the failure. Sometimes my own knowledge is not enough.

Conclusion There are many advantages to co-operation between experts in different areas of engineering. Two brains are better than one and the quality of our individual work is enhanced. In more complex cases we can offer clients an integrated approach covering two or more disciplines. For large disputes a whole team with different skills can attack mountains of information in a co-ordinated way. Finally, we can link with claims consultants with confidence and assurance. ■

Failure of a small plumbing fitting can cause a completely disproportionate amount of damage. It is tempting to blame the plumber and in many cases the fitting was incorrectly selected or installed. There may also have been unforeseen stresses in the system. However, the system may have been modified since it was originally installed and this may have led to circumstances where a perfectly adequate fitting can fail. In such cases I have consulted with colleagues who are experts in building services for advice on the design of the system. In some instances my colleague has been appointed in addition to me, to give the evidence that is within their field of expertise. Proximity to a variety of engineers in different specialisms encourages this synergy, to the advantage of the experts and their clients.

• Daphne Wassermann is a Technical Director at Cadogans, specialising in mechanical engineering and materials aspects of disputes. Cadogans accepts instructions relating to engineering and health and safety matters from within the United Kingdom and abroad. For details of Cadogans’ full range of services and specialist expertise please contact us by telephone or visit our website.

Expert Engineers

Corrosion is a particular type of failure requiring specialist input. In another case I inspected a metal mesh which had become discoloured following unexpected water ingress. The question was whether this affected the structural integrity of the mesh and what remedial measures were required. A metallurgical examination had been carried out by another party. One of our corrosion experts was able to give advice on the extent of damage and the probability of any further degradation. He also had knowledge of suitable protective coatings that could be applied.

Wide-ranging engineering expertise Report writing in clear English Extensive courtroom experience

How much will it cost? What is the delay? Quantum and delay are very specialist topics, outwith our normal engineering expertise. They are integral parts of most construction claims. Over the years we have worked with many claims and delay consultants on a wide variety of projects. One example was the fabrication of a sub-sea gas installation. Another related to a new oil and gas processing plant where there were differences between the original scope and the final requirements.

EXPERT WITNESS JOURNAL

Any country Any discipline Any dispute resolution process www.cadogans.com | 0141 270 7060

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Ensors Forensic Accountants

Ensors are leading forensic accountants. Here they demonstrate their expertise, list case studies and Fiona Hotston Moore explains the growing rise of professional negligence claims against auditors, accountants and tax advisers In today’s complex, technology-driven world, it's good to know you have experts on your side. We provide professional, objective analysis of relevant financial information to help you resolve disputes as quickly and cost effectively as possible.

Members of our team are accredited with The Academy of Experts and NIFA (Network of Independent Accountants) and act as Expert Witnesses in civil and criminal matters and have experience of giving evidence in Court.

By working closely with lawyers, insurers, arbitrators, insolvency practitioners, mediators, corporations and individuals, our highly experienced Forensic Accounting team provides authoritative advice on all kinds of litigation and investigations, including commercial disputes, civil and criminal cases, business valuations, professional negligence and personal injury claims.

Areas of Expertise • Commercial disputes including: breaches of contract; loss of profits and loss of earnings claims; intellectual property rights and royalty claims; cross-border disputes; warranty claims; partnership and shareholder disputes. • Tax disputes including tax tribunals and litigation and National Crime Agency (NCA) investigations.

With the potential for disputes to become protracted and costs to spiral out of control, our team is responsive and efficient, while maintaining meticulous attention to detail. They combine high-level accountancy expertise with extensive knowledge of current legislation and best practice in the fields of tax, insolvency and corporate finance. They are also acutely sensitive to the stresses and anxieties often experienced by those involved in civil or criminal disputes and are fully transparent, offering a flexible fee structure. EXPERT WITNESS JOURNAL

• Personal injury and insurance claims. • Support for criminal investigations including: cases involving fraudulent trading; wrongful trading; false accounting; and employee and officer fraud. Services also include asset tracing & recovery reports; testimony for use in court; and fraud prevention reviews. Picture above: some of the Ensors team

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partnerships had changed over the last decade. Fiona provided a joint report with the other party’s expert and the matter was settled shortly thereafter.

• Commercial and tax valuations including advice for divorce and family matters. • Due diligence for sale and purchase agreements and post sale disputes including warranty claims.

Money laundering Ensors were engaged to provide an expert report to assist the court in relation to criminal proceedings for substantial money laundering. The report was required to give an opinion on the extent of funds laundered through casinos and other means.

• Professional negligence claims including auditor, accountant and financial advisers.

Case studies Tax fraud A tax payer who was under investigation by the National Crime Agency (NCA) for tax evasion engaged Ensors to assist. The nature of the case and the sums involved was such that HMRC had passed the matter to the NCA to resolve. The initial estimates of the potential liabilities for tax evaded amounted to in excess of £2m.

Ensors were able to review the records and provide an analysis of the transactions, it was suggested that the sums involved were substantially lower than the sums initially estimated by the prosecution. We were then required to illustrate via diagrams and graphs to explain the movement of funds.

An analysis was carried out on a substantial amount of data covering five years, including 80 bank accounts, trading records and property transactions. A report was produced on the under declared tax liabilities and represented the client in the negotiations with the NCA. This case resulted in a final settlement of less than a quarter of the original assessments.

Auditor professional negligence Ensors were engaged by the claimant to provide an expert report on whether the audit was in accordance with the standards of a reasonably competent auditor and to quantify the loss arising. In our report we identified substantial failings in the audit such that the financial statements contained a material misstatement and substantiating a resulting loss in excess of £10m.

Employee fraud Ensors were engaged by a substantial group to investigate a suspicion of employee fraud. While there was initially no suspicious transactions, the company had become aware of criminal proceedings against the employee in relation to a previous employment.

Errors identified included: • A failure to demonstrate appropriate professional scepticism, A failure to set and use an appropriate materiality level which then undermines the whole audit process; • A failure to follow the firm's audit guidelines and manual;

An investigation of the company financial records was undertaken including sample checks on banking transactions, cash requests and purchase invoices. Within a week, we identified a number of fraudulent transactions in excess of £100,000 and also identified failings in the banks processes in relation to the mandates. Ensors successfully provided evidence to assist in the recovery of monies from both the employee and the bank.

• A failure to investigate errors arising in the sample during audit testing; • A failure by the audit partner to investigate questions or review points raised by audit team members; and • A failure to adequately audit the going concern assumption upon which financial statements are normally based.

Professional negligence claim against tax advisers Ensors were engaged by the defendant to act as an expert witness in a claim for approximately £500,000 against the tax advisers by their clients in relation to a tax scheme. The case related to transactions entered into nearly a decade earlier, Fiona Hotston Moore was able to draw from her own experience working as a tax adviser in relation to film finance in the relevant time. Fiona prepared a report to cover her opinion on how the tax legislation applied to the transactions anticipated and undertaken. Equally helpful, she was able to explain how the relevant practices and political environment in relation to film EXPERT WITNESS JOURNAL

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Professional Negligence Claims Against Auditors and Accountants/Tax Advisers By Fiona Hotston Moore – Forensics partner, Ensors Chartered Accountants In the past negligence claims against professional advisers were rare. However, in recent years, clients and other third parties have become more willing to pursue claims against professional advisers and a number of substantial claims have been filed.

An auditor is judged against the standards of a reasonably competent auditor and Auditing Standards tend not to be prescriptive, allowing the auditor to exercise professional judgement. An expert witness will give an opinion on what work a reasonably competent auditor should have undertaken and the conclusions they would have reached.

The issues surrounding ‘auditor negligence’ differ from the wider issues of negligence by accountants and tax advisers.

The UK Financial Reporting Council (FRC) noted in 2013 that some auditors were failing to adhere to ethical standards and/or to demonstrate sufficient professional scepticism. The FRC reported an increase in audits needing significant improvement from 10% to 15%.

When is an auditor negligent? The duties of an auditor are found within the Companies Act, the profession's Auditing Standards and the client’s engagement letter. In giving a clean audit opinion the auditor is representing to the company that the financial statements contain no "material misstatement" and that they give a true and fair view of the state of the company's affairs.

The FRC also noted particular concerns about the auditing of loan book provisions which is an area of weakness the author has also noted.

Professional negligence claims against auditors can be brought by the company or, in restricted circumstances, by third parties to whom the auditors vouched the accuracy of the financial statements. For example prospective purchasers of a company.

In the US a recent study again reported a failure by auditors to demonstrate professional scepticism as well as a failure to assess fraud risk and to make basic mistakes in audit process. The authors suggested auditors made errors due to fee constraints or a concern that by pressing clients for answers they would alienate the client.

Claims can be for negligence leading to failure to uncover fraud or negligence leading to a failure to discover a material error in the financial statements resulting in the auditor giving an incorrect audit opinion.

In my professional experience the commonest failures by auditors include: • A failure to demonstrate appropriate professional scepticism, which is particularly dangerous when exhibited by the senior members of the audit team;

The case of Stone & Rolls v Moore Stephens established that the company cannot bring a claim for auditor negligence in cases of fraud unless there is an innocent shareholder. In Stone & Rolls there was only one shareholder and that individual was the perpetrator of the fraud.

• A failure to set and use an appropriate materiality level which then undermines the whole audit process; • A failure to follow the firm's audit guidelines and manual;

Furthermore auditors are not automatically responsible for detecting fraud. However auditors are required under Auditing Standards to consider the risk of fraud and plan and conduct their audit accordingly. EXPERT WITNESS JOURNAL

• A failure to investigate errors arising in the sample during audit testing;

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associates), the claimant suffered a loss and that the claimant was owed a duty of care.

• A failure by the audit partner to investigate questions or review points raised by audit team members; and

An expert witness can give an opinion on whether the adviser was negligent and whether their conduct fell short of the standards of a reasonably competent professional as well as potentially giving an opinion on the quantification of the loss. ■

• A failure to adequately audit the going concern assumption upon which financial statements are normally based. Our work as an expert witness will involve a detailed review of the auditor's working papers, any related correspondence and potentially re-performing audit work.

Contact Contact: Fiona Hotston Moore Tel: 01473 220 034 Mob: 07770 642 491 Contact: Fiona Hotston Moore Email: fiona.hotstonmoore@ensors.co.uk Web: www.ensors.co.uk

Aside from claims against auditors, claims against accountants for negligence typically arise from defective tax advise including the promotion of tax schemes, corporate finance work or business valuations. However I have seen a variety of other claims including one arising out of a referral to another firm where the claimant felt the referral had been given without sufficient care. The claimant will need to show that, due to an act or omission by the firm (or its employees and

Forensic Musicology: He’s So Fine provided the world’s first detailed systematic investigation into collaborative songwriters’ creative processes. Joe was awarded a National Teaching Fellowship (NTF) in 2004 by the UK Higher Education Academy in recognition of his contribution to the teaching and learning of popular music. This award was used to fund a five-year investigation into the creative processes used by songwriters and culminated in Joe founding the UK Songwriting Festival, of which he is the director. He is a Fellow of the Higher Education Academy.

Forensic musicology has hit the headlines lately when recording artists Robin Thicke and Pharrell Williams were found liable for copyright infringement in a lawsuit accusing them of plagiarizing the late soul singer Marvin Gaye in their hit single Blurred Lines. One of the most trained ears in this respect is Professor Joe Bennett who has been analysing and transcribing popular music for international publication since 1994. He has written more than 30 books, including transcription, teaching and reference works (published worldwide by Music Sales Group), and more than 300 articles for Total Guitar magazine and others, relating to classic songs, guitar techniques and songwriting.

As a forensic musicologist, Joe’s clients have included Universal Music Publishing, Warner/Chappell Music Publishing, Bartle Bogle Hegarty, JWT, Adelphoi Music, Kassner Music, Westbury Music, Simpson & Marwick solicitors, Michael Simkins LLP, Van Straten solicitors and Fatfox Music Publishing, as well as many individual songwriters. His work was recently used in evidence in Naxos v. Salmon (2012). Recent media appearances include the BBC Radio 4 Today Programme and Voice of Russia radio. He is listed on the UK Music Publisher’s Association’s Register of Expert Witness Musicologists, and although moving to Boston later this year, will retain a UK presence. ■

As a songwriter and composer his work is published by World Domination Music, Music Sales Group and Rockschool Ltd. He is a writer member of PRS for Music and an academic member of IASPM. As an academic Joe’s primary area of research expertise is the psychology of songwriting and similarity thresholds in popular songs. His PhD research (University of Surrey) was entitled ‘Constraint, Creativity, Copyright and Collaboration in Popular Songwriting Teams’ and it

EXPERT WITNESS JOURNAL

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Volume of Fraud at Highest Level For 12 years

BDO’s 2015 FraudTrack Report values fraud at £720m The latest February 2015 BDO FraudTrack report shows that the total value of fraud in 2014 was £720m, a decrease of 31% from the previous year and the lowest value since FraudTrack started in 2003.

Increased Enforcement of Low Value Fraud Whilst the average value of reported fraud fell by 34% to £1.3m in 2014, just two frauds (a film tax evasion case, and a money laundering operation at a bureaux de change) accounted for 31% of total reported frauds in 2014. Removing these two cases, the average value of remaining frauds was £0.9m which is a 55% fall from 2013.

Paradoxically, the latest FraudTrack report, which examines all reported fraud cases over £50,000 in the UK, finds that the total number of reported cases rose to a record 546 cases 1 in 2014 from 525 in 2013. The average value of fraud meanwhile, has continued to fall from £3.3m in 2012 to £2.0m in 2013 and £1.3m in 2014.

Further to this the report shows that 402 of the 546 reported cases had a value of £0.5m or below. Whilst these cases represent 74% of all fraud cases they only make up 9% of the total value of all reported fraud.

• Average value of fraud drops by 34% as larger complex cases increasingly dealt with outside the judicial system

The report's author, Kaley Crossthwaite, Partner and Head of Fraud, BDO LLP commented: "2014 was characterised by a large increase in unsophisticated fraudulent activity which was of low value but high in volume. The continued growth in number of reported frauds suggests that the police and courts are becoming increasingly effective at convicting low level fraudulent activity.

• 45% increase in non-corporate fraud prosecutions to highest levels since 2006 • Financial Services fraud falls to lowest value since 2008 falling 56% in 2014 to £236m - Volume falls 11% to 118 cases

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• A £6.5m cheque fraud scheme based around intercepting cheques and new cheque books in the post. Thousands of pages from fresh cheque books were copied and used to print forged cheques. The co-conspirators responsible each received a nine year jail term. • A Ponzi scheme run by an un-authorized investment manager who convinced the FCA he was no longer trading by asking his customers to lie to the regulator. The help his victims gave him allowed him to operate for seven years and steal £21m. He was jailed for seven years.

"One of the reasons why we have seen the lowest total value of fraud since 2003 is due to a growing trend for high value complex fraud to be dealt with outside of the judicial system and out of the public eye. Companies are increasingly assessing the reputational cost to their brands of a public case against the cost of pursuing the perpetrators of the fraud through the courts. This is leading to large numbers of cases being dealt with privately in-house and through alternative remedies. There is a clear correlation emerging between low value crime being reported and taken through the courts which is deemed to be less damaging to corporate reputations, in opposition to those cases of large financial loss being dealt with through other means of remediation."

Increase in non-corporate fraud prosecutions Prosecutions against non-corporates or individuals have increased in 2014 with a total of 97 cases (an increase of 45% from 67 cases in 2013) and total value of fraud at £103m (an increase of 31% from £78m in 2013). Non-corporate fraud now accounts for 21% of all reported fraud in 2014 2 compared to 7% in 2013 and 1% in 2012. Prosecutions of this type are often for fraud committed against vulnerable individuals, family or close friends; however this is not always the case. Some of the frauds include more complex, elaborate and wide-reaching schemes including a case of two women who devised a pyramid scheme which drew in over ten thousand victims with a value of £21m and a case of a fraudster who used the claim that his assets had been frozen under the suspicion of terrorism in order to extract £2.2m from those he befriended.

Many of the cases dealt with publicly in 2014 involved "old fashioned" manipulation of victims and authorities, and relatively low-tech fraud schemes. Submitting false invoices whether to get cash, support insurance claims or VAT refunds are all simple and make up a large number of cases, often in conjunction with other types of fraud. In terms of fraud per location, London and the South East continues to grow as the hotspot for reported fraud in UK, increasing from 56% in 2013 to 67% in 2014, with a value of £484m from reported cases.

Kaley Crossthwaite, added: "In 2014 we have seen non-corporate prosecutions increase by 45% and the average value of each prosecuted fraud fall by 55%. If this trend continues the UK courts' capacity to deal with corporate or complex fraud will be diminished. This may re-ignite the debate over whether a jury based trial of complex fraud is the most appropriate way of dealing with cases that sometimes take many months to be heard. Corporates may continue to choose to deal with larger and more complex frauds outside the criminal courts. This will inevitably lead to further fog around the true size and cost of fraud in Britain."

Fall in fraud in the Financial Services Sector In terms of sectors, perhaps surprisingly the total value of fraud in Finance and Insurance more than halved, falling 56% from £532m in 2013 to £236m in 2014. Yet despite this, and in line with the overall trend, the volume of fraud in the Financial Services industry has continued to remain high relative to other sectors, with the volume of cases only dropping by 11% to 118 in 2014 from 132 in 2013. BDO's Kaley Crossthwaite added: "In line with the paradoxical trend in fraud, the value of fraud in the Financial Services sector has plummeted despite volumes remaining high with Money Laundering in particular also following this trend."

Other sectors to have seen an increase in fraud during 2014 include: • Health Care and Social Assistance - 163% increase (£4.1m in 2013 to £10.7m in 2014) • Manufacturing- 238% increase (£1.1m in 2013 to £3.8m in 2014)

Mortgage fraud and money laundering accounts for 47% of all fraud cases in the finance and insurance sector but 74% of total value of fraud in that sector. Other cases in the finance and insurance sector include: EXPERT WITNESS JOURNAL

• Professional, Scientific and Technical Services 60% increase (£7.4m in 2013 to £11.9m in 2014)

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• Public Administration - 70% increase (£150m in 2013 to £254m in 2014)

• Employee Fraud - £71m (10% of all activity)

• Retail Trade - 80% increase (£17m in 2013 to £31m in 2014)

Kaley Crossthwaite concluded: "2014 was perhaps a paradoxical year exemplified by an overall drop in the value of fraud but a rise in the volume. As enforcement professionals have become more proficient at securing convictions for high volume low value fraud this has become the focus of their attention. We must be careful that the pursuit of the low hanging fruit does not distract attention away from larger more complex fraud."

• Mortgage fraud - £57m (8% of all activity)

• Wholesale Trade - 1194% increase (£1.2m in 2013 to £15.2m in 2014) Sector breakdown: The top three industries3 most susceptible to fraudulent activity are: • Public Administration - £254m (35% of all activity)

Fraud Track is prepared by BDO LLP and is based on all reported fraud cases over £50,000 between 01/12/2013 and 30/11/2014. The sources for the database are publicly available and include the UK's national, regional and local press. ■

• Finance and Insurance - £236m (33% of all activity) •Retail Trade - £31m (4% of all activity) Types of fraudulent activity: • Tax fraud - £235m (33 % of all activity) • Money laundering - £144m (20% of all activity)

References 1 Volume of fraud at highest level since FraudTrack started in 2003

• Third party fraud (suppliers, customers) - £102m (14% of all activity)

2 Excluding two cases which account for one third of all reported fraud 3 Not including non-corporate fraud

Mr R Scott-Watson BSc(Hons) MB BS LLB (Hons)(Open) Cert Av Med. Cert MR(2) CUBSEWC DDAM FRCS(Ed)

RSW Medico Legal Ltd Expert Witness in Orthopaedic Trauma. APIL Expert. Injury reports and Employment Tribunal reports (Equalities Act.) Waiting list 4-6 weeks. Urgent reports undrtaken. Reporting since 1990. Over 18,000 reports. Cardiff University Expert Witness Certificate 2014. Fully trained in CPR, Court appearance (3 per year) and report writing. Low velocity impact traffic accident cases accepted. Clinics in Stourbridge, Coventry, Bristol, Swindon and Oxford Home and prison vists undertaken. Contact: Carol Couzens 7a Heath Lane Oldswinford, Stourbridge West Midlands DY8 1RF Tel/Fax: 01384 441126 Email: carolcouzens@ymail.com

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Accounting Evidence Case Studies Accounting Evidence Ltd are forensic accountants specialising in crime and proceeds of crime, including restraint, confiscation and civil recovery proceedings under the Proceeds of Crime Act 2002 and earlier legislation. Our examination confirmed some of the allegations in the RART report (particularly in relation to previous mortgage applications having been made on the basis of false income details), but enabled other previously unexplained items to be satisfactorily resolved.

Accounting Evidence Ltd are chartered accountants and director, David Winch, is an experienced expert witness and well respected speaker and writer, noted for his depth of accounting and legal knowledge of proceeds of crime and money laundering issues. He and his team have many years experience as a Forensic Accountant.

Immediately prior to the scheduled court hearing the RART and Arthur agreed a benefit figure of just over ÂŁ100,000 based on our report.

Detailed in this article are case studies highlighting some of their proceeds of crime cases. In order to preserve client confidentiality names and locations in these case studies have been changed

Thefts of cash by an employee - Theft Act 1968 In April 2004 Brian was offered a job as manager of a public house in Solihull. He had many years experience in the pub trade but had never managed a pub before. He explained to the pub owner that he would need some help with book-keeping. The owner explained a system of record keeping and banking which he had himself devised. When the quarterly VAT return was due in July the owner checked the records and found the there appeared to be a substantial shortfall in the bankings. He complained to the police and Brian was charged with theft of the shortfall and false accounting. We were instructed to review the accounting records and bankings on behalf of the defence.

Confiscation - drug trafficking Proceeds of Crime Act 2002 Arthur ran a cafe in Rotherham. One day in January 2004, whilst in his cafe, he sold half a kilogramme of cocaine to Peter - not realising that Peter was an undercover police officer. Arthur was subsequently convicted of an offence under the Misuse of Drugs Act 1971. In the confiscation proceedings that followed the Regional Asset Recovery Team calculated Arthur's benefit of his 'criminal lifestyle' as nearly ÂŁ400,000. We were instructed by the defence to critically examine the RART report. We undertook an extremely detailed examination of Arthur's income and expenditure covering the period from a date 6 years prior to his arrest up to the date of our report, and his assets held since conviction.

EXPERT WITNESS JOURNAL

We gave our opinion of the elements required in a properly designed accounting system for a pub and highlighted the many serious deficiencies in the system devised by the pub owner and the difficulties that Brian would have experienced in attempting to operate it. 65

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Charles and his friends had produced a business plan which showed an anticipated borrowing requirement of nearly £100 million. We formed the opinion that this business plan, and particularly the supporting cash flow projections, had not been competently prepared and would not have provided an appropriate basis upon which to enter into negotiations with a potential lender or investor. In the event the company had been unable to secure any significant funds either by way of borrowings or investments.

We also pointed to a number of possible causes of the cash shortfall, other than theft by Brian. When the case came to court many of the points in our report were put to the prosecution witnesses in cross-examination. At the close of the prosecution evidence the judge agreed that Brian had no case to answer and he was acquitted. Fraudulent trading - Serious Fraud Office prosecution - Companies Act 1985 Charles had a brilliant business idea and, in 2000, set up a company with two friends to exploit it initially in the UK but also in Australia, Canada America and other countries. The plan was to sell to the public for just over £100 computers worth £600, but in return retain a link with the customers so that they became virtually a captive market for the sale of other goods, such as cars and kitchen equipment, at discounted prices. Charles could buy the computers for £450 and, once he had sufficient customers, planned to agree bulk purchase deals enabling him to make significant profits on the subsequent sales of the cars and other goods while still offering a substantial discount on retail prices.

Furthermore the company not only required to find new customers and expand continuously to survive, but also it needed to expand at a particular rate of growth. Too slow an expansion would not bring in funds quickly enough to meet the costs of computers already required for existing customers, too rapid an expansion would accelerate the need to find yet more customers to fund the purchase of computers for which orders and payments were being taken. We concluded that in our opinion these arrangements went well beyond the range of normal and acceptable business practices and risks. In the event, Charles' legal team decided not to rely upon our report and it was not used in evidence.

At the same time, once the operation had gathered momentum the price of the computers would be steadily increased until it exceeded the £450 cost. Charles planned to sell only the first 250,000 computers at below cost price.

Charles was later convicted of fraudulent trading and sentenced to four years imprisonment. Confiscation - statutory assumptions - Criminal Justice Act 1988 as amended by Proceeds of Crime Act 1995 In 2002 Daniel met a man in a pub in Norwich who offered to sell him a nearly new Mercedes car, worth approximately £30,000, for £4,000 cash in hand. Daniel bought the car. Later the same year Daniel traded-in the Mercedes with the same man and, on payment of a further £1,000 in cash, acquired a nearly new BMW worth approximately £35,000.

Unfortunately start up funds were very limited and the computer manufacturers would give no credit to Charles' new company. However he considered that by taking payment in advance from customers and growing the business exponentially he would manage to supply each customer with a computer 8 weeks after receiving their payment (by using funds received from later customers to pay for the earlier customers' computers).

Some months later Daniel was stopped whilst speeding on Norwich by-pass in his BMW. Police enquiries revealed the car had been stolen and, by checking Daniel's motor insurance history, the police also uncovered his previous ownership of the Mercedes (which also proved to have been stolen). Daniel was convicted on two counts of handling stolen property.

Sadly the company ceased trading after 8 months when the Department of Trade and Industry intervened following complaints from the public. By this time approximately 18,000 customers had paid in advance for a computer but only just over 1,000 of these had actually received one. However the company had been able to pay Charles £150,000 for the intellectual rights to his brilliant business idea and had met the costs of overseas business trips by Charles and his family in preparation for opening in foreign markets. Charles and his friends were arrested and charged with fraudulent trading.

Confiscation proceedings were initiated. A report from the local Regional Asset Recovery Team, relying upon the statutory assumptions contained in section 72AA (4) Criminal Justice Act 1988 (as inserted by the Proceeds of Crime Act 1995) was prepared. This calculated Daniel's benefit from crime as just over £250,000.

We were instructed by the defence to give an opinion on the viability of Charles' brilliant business idea. EXPERT WITNESS JOURNAL

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dementia. She accompanied one resident, Martin, to his branch of the Newcastle Building Society where, at her suggestion, he drew a cheque from his savings account in favour of Acme Used Car Co which Edith then used to purchase a car for herself.

We were instructed by the defence to give an opinion on the validity of this benefit figure. There was evidence that Daniel was engaged in legitimate gambling on a substantial scale. He had accounts with national firms of bookmakers and monies were paid to these firms by direct debit from his bank accounts. Winnings were similarly received by direct credit into his bank accounts. Indeed Daniel had several bank and building society accounts in which there had been numerous deposits and withdrawals over the six year period prior to his arrest and charge in connection with the stolen cars.

A few months later Martin died and when his family discovered that most of his savings had been spent, and in particular learned about the cheque to Acme Used Car Co, they alleged that Edith had taken advantage of Martin's mental weakness to steal from him. Edith accepted that she had told Martin that the cheque was required in payment of his care home fees but asserted that:(i) she had been told by the proprietors that Martin did owe fees to the care home,

Daniel also informed his solicitors that he was an active gambler in cash at local bookmakers and that he made a substantial income from his cash betting (although the evidence showed that he had lost money overall on the betting conducted through his bank accounts). He had not retained any records or evidence in relation to the cash betting.

(ii) Edith was herself owed money by the care home, and (iii) the proprietors had suggested that to Edith that she should obtain a cheque from Martin's building society account so that the amount of the cheque could be deducted from both the amount Martin owed to the care home and the amount the care home owed to Edith. The proprietors of the care home were in dispute with Edith regarding the sums due to her, and this dispute had led to civil litigation which was ongoing. The proprietors could not confirm that they had made any arrangement with Edith regarding Martin's outstanding fees.

We were able to show that the RART calculations were flawed in a number of respects. In particular where Daniel had transferred money between his various bank and building society accounts the RART had treated the deposits as assumed additional proceeds of crime. Also the RART calculations had included one of Daniel's bank accounts twice, describing it as a Barclays account on the first occasion and, erroneously, as an HSBC account on the other.

There were also other allegations of thefts by Edith from residents' cash held under the "residents' purses" arrangements in the care home office.

The RART report had not considered transactions on an Abbey National account because this was used primarily for legitimate gambling payments and receipts. However the RART had failed to recognise that cash withdrawals from the Abbey National account could explain some of the 'unidentified' deposits in Daniel's other bank accounts.

We were instructed by the defence to critically examine the accounting records of the care home in respect of fees owed by Martin and sums due to Edith, and to comment upon the "residents' purses" arrangements.

On the basis of our report Daniel's legal team were able to agree a substantially reduced benefit figure with the prosecution.

We formed the opinion that there were serious deficiencies in the accounting records of the care home in respect of fee income, purchases, wages and petty cash.

Thefts by care home employee from elderly residents - Theft Act 1968 Edith was the manager of a care home near Newcastle. She was responsible not only for the care of the residents but also for custody of their money, which was kept in her office under an arrangement referred to as "residents' purses". However the proprietors, rather than Edith, were responsible for the accounting records and financial management of the care home.

There were no accounting records which identified fees charged to every resident. Invoices for fees due were not issued unless a resident, or a person responsible for paying the resident's fees (such as a local authority), specifically requested them. Most residents apparently did not request invoices. Essentially the care home's principal records of fees were the bank statements and paying-in books. Since a significant proportion of fees appeared to be received in cash the amounts actually received from many of the individual residents (including Martin)

Edith became close to many of the elderly residents in the home, some of whom suffered from senile EXPERT WITNESS JOURNAL

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could not be ascertained. There was therefore no basis of determining whether these residents had over-paid, under-paid or correctly paid the fees due from them. It appeared to be the case that some cash received in respect of fees was used to make purchases or fund petty cash expenditure for the care home (and so was never banked). This fee income was therefore not reflected at all in the accounting records of the care home.

##.4-3)-' 5)$%-#% 3$ !1% &.1%-2)# !##.4-3!-32 !-$ #(!13%1%$ !##.4-3!-32 6(. !#3 !2 %7/%13 6)3-%22%2 !-$ !$5)2%12 )- 1%+!3).- 3. +%'!+ /1.#%%$)-'2 #.-#%1-)-' #1),% !-$ /1.#%%$2 .& #1),% (% 91, !1% #(!13%1%$ !##.4-3!-32 !-$ 3(% $)1%#3.1 !5)$ )-#( )2 !- %7/%1)%-#%$ %7/%13 6)3-%22 !-$ 6%++ 1%2/%#3%$ 2/%!*%1 !-$ 61)3%1 -.3%$ &.1 ()2 $%/3( .& !##.4-3)-' !-$ +%'!+ *-.6+%$'% .& /1.#%%$2 .& #1),% !-$ ,.-%8 +!4-$%1)-' )224%2 % (!2 ,!-8 8%!12 %7/%1)%-#% !2 ! .1%-2)# ##.4-3!-3

Wages cheques had been issued to Edith with irregular frequency and these could not always be agreed to the care home's PAYE records. The accountants acting for the care home had written to the proprietors expressing their concern that the wages records were "very messy and payments were unclear".

41 %15)#%2 )-#+4$% !$5)2)-' .- %5)$%-#% #.-#%1-)-' 9-!-#)!+ !2/%#32 .& $14' 31!&9#*)-' (%&3 1!4$ "3!)-)-' "8 $%#%/3).- %-%93 &1!4$ !7 1%$)3 &1!4$ 1!4$4+%-3 31!$)-' !+2% !##.4-3)-' .13'!'% )1% /41#(!2% .1 +.!- &1!4$ .-%8 +!4-$%1)-' .-92#!3).- !-$ 1%231!)-3 )5)+ 1%#.5%18 5!2).- .& $438 5!2).- .& 3!7 .,/!-)%2 #3 .&&%-#%2 !-$ -2.+5%-#8 #3 .&&%-#%2 (% 91, !+2. !#32 )- 1%+!3).- 3. $)1%#3.1 2 $)204!+)9#!3).-2 !-$ .41 &.1%-2)# !##.4-3)-' 2%15)#%2 !1% !5!)+!"+% 3(1.4'(.43 3(% .-3!#3

%+%/(.-% .")+% ,!)+ $ 6)-#( !##.4-3)-'%5)$%-#% #., %" 666 !##.4-3)-'%5)$%-#% #.,

It was not possible to reliably determine what sums, if any, were owed to Edith by the care home. The records of "residents' purses" were not made available to us, but the reports of the local authority Inspection Unit indicated that records of "residents' purses" and control of the monies in them were also inadequate. The Inspection Unit reported that monies from "residents' purses" were routinely used, by a variety of staff, to meet petty cash expenditure of the home, and monies belonging to one resident would frequently be used for the benefit of another resident in an informal manner. The Inspection Unit described the accounting records for the "residents' purses" as "misleading".

##.4-3)-' 5)$%-#% 3$ %++ .42% 1.4'(3.- )- 41-%22 4,"1)! %').-!+ &9#% )-'26!8 )$-%2 (%2()1% %+

However during the search of his house the police had found documents that suggested that Frank owned various residential properties, or at least had received rent from them, and that he had purchased a villa on a Mediterranean holiday island. They also found various bank statements and vehicle registration documents. Frank was charged with conspiracy to commit armed robbery, a charge of which he was acquitted when the matter came to court the following year.

In short, in our opinion, the accounting records were not adequate to establish whether or not Martin had owed fees to the home, or whether or not the home had owed money to Edith, or whether the alleged thefts from "residents' purses" had taken place.

The file was then passed to the Assets Recovery Agency. They obtained a Court Order restraining Frank's assets and appointing an interim receiver under civil recovery powers contained in Chapter 2 of Part 5 of the Proceeds of Crime Act 2002. The Court Order referred, in particular, to the cash seized from Frank's home, to the various residential properties and the Mediterranean villa which the police had identified, and to certain other assets including bank accounts and motor vehicles.

When the matter came to trial, with the agreement of the prosecution, Edith was formally acquitted of certain allegations whilst the remaining allegations were allowed to 'lie on the file'. As a result the allegations were not put before a jury and Edith was not convicted of any offence. Civil recovery - Part 5, Proceeds of Crime Act 2002 A few days after an armed robbery in which a gang had made off with cash of over ÂŁ1 million, Frank was arrested and his home was searched. Cash of over ÂŁ100,000 was found in Frank's house and this was seized by the police. Frank offered no explanation to the police for the presence of this cash. But the police could find no evidence of any involvement by Frank in the armed robbery, although he was a prime suspect. EXPERT WITNESS JOURNAL

The interim receiver was obliged, under the terms of the Court Order, to establish whether these assets were 'recoverable property', in other words whether they were assets that had been obtained by unlawful conduct (in effect, proceeds of crime) or assets that represented such proceeds. Ten months later the interim receiver reported to the Court that he had indeed established to his own satisfaction that the residential properties (including the Mediterranean villa) and other assets itemised 68

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We were instructed to critically review the interim receiver's report and conclusions in respect of the residential properties.

in the Court Order had been acquired by Frank, and that Frank had no legitimate income which would have enabled his purchase of them. In short, the interim receiver concluded that all the itemised residential properties and assets were 'recoverable property'.

We had a number of criticisms of the interim receiver's conclusions. The residential properties, including the Mediterranean villa, had been purchased by Frank on various dates, but all of these property purchases were made prior to the date of the armed robbery in relation to which Frank had been charged. Therefore the armed robbery could not, in any event, have been the source of the funds used to purchase these properties. The sums alleged to have been received in income support and other state benefits were relatively trivial when compared with the purchase costs of the residential properties. Therefore this source, even if unlawful, could not have contributed significantly to the purchase of these properties.

In reaching this conclusion the interim receiver had considered all the information he had been able to obtain concerning Frank's financial affairs in the 12 year period up to the date upon which the Court Order had been made. The interim receiver alluded to Frank's receipt of state benefits, including income support, in earlier years at a time when he clearly had assets of an amount which made him ineligible for those benefits, and to the armed robbery which had occurred 18 months prior to his appointment under the Court Order. Frank did not wish to contest the interim receiver's conclusion regarding the cash seized at his home, nor in respect of certain other assets which were not of significant value. However Frank did wish to challenge the interim receiver's conclusion that the residential properties, including the Mediterranean villa, were 'recoverable property'.

Ajit Ambekar MCh.Orth., FRCS(Eng), EWI

Consultant Orthopaedic Surgeon Cardiff University Law School Certificate as Medico-legal Expert I am able to prepare expert witness reports and give evidence in court in my specialist areas of: • Orthopaedics and Bone and Joint Trauma • Muscle-tendons, peripheral nerves and soft-tissue injuries

Following our report Frank entered into negotiations with the Assets Recovery Agency to agree a lump sum payment to bring matters to an acceptable conclusion. ■

Extensive experience in management of fractures in adults and children – (Exception: certain types of pelvic and cervical spine fractures.) I will act for either claimant or defendant and also as a Single Joint Expert (Exception: ‘Breach of Duty’ Report in Clinical Negligence arena.) As a Member of the Expert Witness Institute, London, my reports are in compliance of CPR 35, corresponding Practice Directions and the Civil Justice Council Protocol for Expert Witnesses. As a Fellow of the American Academy of Orthopaedic Surgeons with Expert Witness Affirmation I am also able to provide percentage evaluation of Permanent Impairment, ‘DASH’ Score and the Judicial College Guidelines Category of Disability for international jurisdictions. I am prepared to undertake reasonable travel if necessary.

T: 020 7467 8309 / 07922 607 948 E: aa@ortho-trauma.uk / ajit.ambekar@me.com 10 Harley Street, London W1G 9PF EXPERT WITNESS JOURNAL

The Mediterranean villa had been purchased with monies drawn from a bank account in Spain. Monies deposited in that account had been in relatively large lump sums. It appeared inherently unlikely that these lump sums represented monies originally received as income support or other payments of state benefits. Whilst the interim receiver had shown that the source of the purchase monies was unexplained it could be argued as a point of law that he had not satisfied the test in section 242(2) Proceeds of Crime Act 2002 that it be shown that "the property was obtained through conduct of one of a number of kinds, each of which would have been unlawful conduct". We referred Frank's solicitor to the decided case of Director of Assets Recovery Agency v - Green [2005] EWHC 3168 (Admin). We also drew the solicitor's attention to the policy of the Assets Recovery Agency with regard to negotiated settlements.

Need an Expert Free Searchline for Solicitors Barristers and all legal profesions Call Expert Witness

0161 834 0017 www.expertwitness.co.uk SPRING 2015

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GBRW Company Profile Finding the Right Expert for Financial Sector Litigation over an extended period - normally enables them to propose one or more candidates whom they consider the best equipped to address specific issues on which expert evidence is required. On occasions, they may suggest using more than one expert where the requirements of the case cannot be covered by a single individual.

Introduction GBRW Expert Witness Limited is an affiliate of GBRW Limited, a consulting company based in the City of London which provides advice on banking, insurance, financial sector and enterprise development issues. This year the company celebrates its twentieth anniversary of expert work in banking, investment management, insurance, stockbroking, derivatives and related litigation.

The group’s consulting activities also enable them to identify potential “new” experts, particularly when recent industry experience is important. These will not appear in the usual expert directories and websites and may require time and professional support to help develop them in the expert role.

Three of GBRW Expert Witness’s directors - Paul Rex, David Croft and Tim Dowlen - are active as experts and their pool of experienced associates is probably the widest in the UK for financial sector cases.

Where individuals have had little or no prior experience, they can be assisted where necessary on research and presentation issues and carry out a detailed critical review of their first draft and final reports. If required, experts can also be helped to prepare for cross-examination.

In the past eight years, their experts have worked on over 400 cases involving civil and criminal court proceedings, arbitrations and mediations in jurisdictions which include England and Wales, Scotland, Australia, Bahamas, Cayman Islands, Dubai, Hong Kong, Ireland, Jersey, New Zealand, Singapore and Sweden.

Contractual Approach When an expert is selected, GBRW Expert Witness signs an engagement letter with the instructing law firm and a matching engagement with the expert concerned. The law firm issues a letter of instruction directly to the expert and communicates directly with him or her from that point. Billing is on an hourly basis, with supporting time records. No charges are for the expert search or for initial discussions – billable time only starts to run once an engagement has been agreed.

Martin Edwards, GBRW Expert Witness’s Director, Asia, is based in Singapore and is responsible for relationships with law firms in the region, especially those in Hong Kong and Singapore. Finding The Right Expert Law firms looking for expert witnesses or advisers in financial sector litigation face a number of challenges: • How to identify the right expert in a specialised discipline

The Management Team Paul Rex oversees GBRW Expert Witness’s activities. He has dealt personally with a range of areas which include lending and approval procedures, trade finance, specialised lending and practices in the syndicated loan market. He has given oral evidence in several cases, most recently in a London Arbitration (2015), IRD v Westpac New Zealand (2009, High Court of New Zealand) and KBC & Bank of Tokyo Mitsubishi UFJ v Ferrero & Others (2009, High Court).

• How to develop a short list of suitable candidates on a discreet basis • How to avoid individual experts “shoe-horning” themselves into roles for which they are not properly equipped • How to assess individuals’ strengths and weaknesses and prior track records GBRW Expert Witness’s experience - as experts themselves and from working with their associates EXPERT WITNESS JOURNAL

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Paul Rex

David Croft

Tim Dowlen

Martin Edwards

Each case will have its own characteristics, but in the company’s experience the following elements feature regularly:

David Croft has given evidence in a number of high value cases involving structured finance, complex investment products, capital markets and bank treasury/risk issues. He has given oral evidence most recently in Alliance Bank JSC v Metropol (Cyprus) Limited (2013, London Court of International Arbitration) and Zeid v Crédit Suisse (2011, High Court).

• A mismatch to the investor’s requirements. In a falling market, many complaints will be based on the assertion that the investor’s risk appetite was either misunderstood, incorrectly recorded or ignored.

Tim Dowlen is a former Senior Examiner in Liability Insurance for the Chartered Insurance Institute and an experienced insurance broking expert who also practices as an insurance broker. He has been instructed in more than 100 cases (including six court appearances) and oversees the development of GBRW EW’s insurance work.

• The characteristics of the investment. The investment adviser or manager may have mis-classified or misunderstood the nature of the investment, which may in turn imply failures in its product approval process and/or its underlying due diligence or analysis. • Unprofessional behaviour, typically exhibited in practices such as mis-selling to inexperienced investors or misrepresentation of the nature of the investment product.

Jeremy Denton-Clark and Martin Edwards are highly experienced international bankers. While neither currently practises as an expert, they are very familiar with the issues involved in selecting and instructing expert witnesses and advisers. Client base GBRW Expert Witness has been engaged by more than 70% of the Legal Week Top 50 UK firms as well as overseas practices and HM Revenue and Customs Solicitor’s Office in a number of tax related cases.

BANKING, INVESTMENT AND INSURANCE EXPERTS

Their clients include leading solicitors UK and worldwide including Cyprus, New Zealand, USA, Singapore and Hong Kong:

Over the past 20 years, our directors and associates have been engaged by more than 70% of the Legal Week Top 50 UK firms as well as overseas practices and HM Revenue and Customs Solicitor’s Office.

Briefing Papers GBRW Expert Witness has produced Briefing Papers to assist lawyers, on a number of areas which are frequently subjects of litigation. A number of these areas are discussed in the following sections.

We have handled more than 400 engagements since 2008, dealing with: ◆ Banking (including lending and credit) ◆ Investment management ◆ Insurance ◆ Trade Finance ◆ Foreign Exchange ◆ Derivatives ◆ Leasing and Asset Finance ◆ Cheque and payment fraud

Investment Litigation. “It's only when the tide goes out that you learn who's been swimming without a bathing suit.” – Warren Buffett

GBRW Expert Witness Limited Level 17, Dashwood House 69 Old Broad Street, London EC2M 1QS

Investment losses are often followed by lawsuits and requests for expert advice on investment performance have formed one of GBRW Expert Witness’s most active areas of work since the global financial crisis in 2008/2009.

EXPERT WITNESS JOURNAL

Jeremy Denton-Clark

T: +44 (0) 20 7562 8390 F: +44 (0) 20 7681 2012 Email: experts@gbrwexpertwitness.com Website: www.gbrwexpertwitness.com

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Many solicitors looking for an expert may only be involved in insurance cases from time to time. Given the particular characteristics of the insurance market, an early approach to an expert is highly advisable and can often be very persuasive in the progress of a case. If an expert is approached too late in a case (when the parties have already taken positions), assumptions about insurance contracts by the legal team may prove to be ill founded or incorrect. Insurance jargon and the wording of contracts occupy a particular world; a basic error in interpreting the effect of an insurance policy can badly weaken the client’s position in a disputed claim.

• Fraud. In its most blatant form, this may involve theft of assets or Ponzi schemes such as Madoff’s. Less extreme forms may involve churning, self-dealing and front running. In many cases, these practices may be symptomatic of inadequate governance and control processes in the investment manager or adviser. There may be a number of headings under which claims for compensation can be pursued. It is important to bear in mind that poor performance is not automatically a basis for a claim. The starting points for expert advice will usually include the following areas:

The world of insurance is based on payment of claims. Most litigation is therefore between two parties to an insurance contract; however, litigation occurs not only between policyholder and insurer, but also between a policyholder as a client and an insurance broker as their agent (policyholders may also claim against both their broker and their insurer). Insurers also sue reinsurers and vice versa, with reinsurance brokers often party to such disputes.

• Were the investments appropriate? Under this heading, the expert will examine the investor’s risk appetite and stated investment objectives, the nature of the investments which are the subject of the litigation and the percentage of the total portfolio which they constituted. • Were proper procedures followed? Many jurisdictions have detailed requirements for fact-finding and record-keeping procedures when advisers are dealing with clients. Investment advisers and managers will also have internal policies and procedures which they may have to disclose in litigation. Failures in either of these areas may not necessarily establish the basis for a successful claim, but they will often be relevant to the claim and may generate pressure for a settlement.

Private consumers’ claims are often rejected (“avoided”) by their insurer on the grounds of non-disclosure. Changes in consumer insurance law now put the onus on the insurer to prove the relevance of alleged non-disclosure. This is a recent development, so contracts entered into before 2013 are still subject to dispute on the grounds of non-disclosure.

• Timing. Certain classes of investment (split caps, for example) become increasingly risky as the original concept is developed. The point at which advice was given can often be crucial and access to industry data and comment at different points in time may be necessary to substantiate claims.

Market sectors range from motor to marine insurance, from liability to livestock insurance and from property insurance to placing agencies (“binding authorities”). Private insurance policy disputes feature, as do professional indemnity problems and esoteric areas such as contingency insurances – prize indemnity, defective title and restrictive covenant. Experts have dealt with life assurances, investments, mortgages and pension

• Quantum of loss. Even when it can be established that a particular investment was mismanaged, “what if” analyses for a number of scenarios are required to establish the loss for which the investor can actually claim. This loss will be set by reference to the position he or she would have been in if the investment had not taken place. Insurance Disputes GBRW Expert Witness decided in 2009 to enter the insurance expert field by acquiring the business of Associated Insurance Experts, a group experts in many insurance disciplines who had been pooling their knowledge and contacts for nearly 20 years. The majority of its cases concern broker negligence (roughly one third of instructions) or underwriting decisions and practice (another third). EXPERT WITNESS JOURNAL

Supreme Court of the Bahamas

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provision as well as health and medical insurances and loss adjusting and forensic claims experts can assist with quantum issues. GBRW Expert Witness’s experts have been actively involved in the Law Commission reform of insurance contract law leading up to the 2013 Act mentioned above, the first Statute for private insurance customers. The Law Commission introduced a version of a business insurance Bill to Parliament in July 2014, which is now under discussion and review. Supreme Court of Singapore

Interest Rate Swap Disputes There has been extensive coverage of the mis-selling of Interest Rate Swaps – some containing embedded and sometimes complex options – to Small and Medium-sized Enterprises (SMEs) in the UK.

bank), extendable (by the bank) or increased or decreased in amount (by the bank); all of these features involved the client – often unknowingly – selling one or a series of options to the bank. Selling options is a potentially risky activity for a small business and banks were frequently at fault in not making it transparent that the client was taking on these risks when it bought such products.

On 29 June 2012, the then Financial Services Authority (now FCA) announced that it had reached agreement with four major banks – Barclays, Lloyds, HSBC and RBS – so that the banks would provide appropriate redress where mis-selling of interest rate derivatives had occurred. Independent reviewers were appointed and approved by the then FSA to ensure that the correct level of compensation – if any – would be paid by the banks. On 23 July 2012 a further seven banks agreed to do the same thing.

Not all clients will be eligible for this scheme: • Firstly, “sophisticated” customers will be excluded; the FCA’s position is that this is intended only to exclude clients who should have been very familiar with the complexity of these products. It is clear that some banks have excluded claims on the basis of the FCA parameters, even if it appears that the client was non-sophisticated. The only immediate way forward in these situations is to institute legal proceedings, but time limitations may already exclude some cases, and with others the time left will be very limited.

The independent reviewer process is obviously an attractive route for clients of the banks who feel that they were mis-sold interest rate hedging products, because it provides a low or no cost method of settling the dispute, and avoids expensive mediation or court costs. Furthermore, the banks are obliged to approach every client who was sold these products if there is a case for mis-selling.

• Secondly, if the bank believes that the client fully understood the product when it was sold, then such clients will also be excluded. These situations will often be worth appealing – probably with expert support.

However, not all interest rate hedging products are automatically included in the scheme; structured collars were specifically mentioned and the banks agreed that no further sales of these products would be made to retail customers. Structured collars were sold under a number of different brand names, but essentially they gave the client a maximum and minimum rate payable on the product, but also raised the rate (although never above the maximum) if interest rates fell below certain levels. With the massive fall in interest rates seen after the financial crisis, the vast majority of these minimum rates kicked in, and clients found themselves paying higher rates – even while market interest rates continued to fall.

It is important to bear in mind that any redress offer from the bank is binding on the bank, but not on the client. This suggests that in many cases the first offer will not necessarily be the final offer and a period of negotiation may well ensue. If the final offer is not acceptable to the client, the client will still have available legal or non-legal methods of recourse. But how does a small business assess what is a fair offer, and how can it tell whether the independent assessor has taken into account all the facts that might have established mis-selling? It is difficult to create a template that will answer either question definitively – specific circumstances will always have to be taken into account.

Not all suspect products were structured collars; many interest rate swaps were also “structured” in different ways. They could be cancellable (by the EXPERT WITNESS JOURNAL

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In summary, therefore, it is worth giving careful thought before accepting any redress offer that does not involve the voiding of the hedge product. Commercial Property Lending The property crash of the early 1990s led to a wave of litigation between banks, borrowers, valuers and other professional advisers. Despite the severity of the 2008 financial crisis, commercial property lending litigation has been at much lower levels, in part because low levels of interest rates have enabled lenders and borrowers to defer some of the problems facing them. A number of elements in current problem lending are remarkably familiar to lenders who lived through previous property downturns.

High Court of New Zealand

Essentially – and in very simple terms – there are three possible outcomes:

They include: • over-optimistic, and in some cases fraudulent, valuations; • excessive loan to value ratios;

• The bank may decide that the hedge should be voided and all costs associated with it repaid; this is clearly the “best” solution, so it will probably come as no surprise if this is not what is offered.

• poor control over disbursements for development lending; and

• The second is the replacement of a structured collar (for example) with a more straightforward vanilla collar. It is also assumed that a client would not have bought a hedge if it might be expected that under “reasonably pessimistic” assumptions about interest rates the break cost would be more than 7.5% of the nominal value of the hedge. This generally means that the tenor of the new hedge is between 5 and 7 years, but so far it has been impossible to ascertain the exact methodology underpinning the calculation.

• defective legal work on Reports on Title and loan security documentation. In addition, many banks sold (or mis-sold) interest rate protection products in the form of interest swaps, collars and other derivatives as discussed in the previous section. These have exacerbated problems for many borrowers. One major difference is that the present unprecedentedly low levels of interest rates have enabled banks to sit on their non-performing property lending at minimal cost. However, there is little prospect that property prices will increase far or fast enough to return defaulting property loans to performing status and we therefore expect to continue to see high levels of litigation in this sector as problems are crystallised

• The final outcome is that the bank decides that the original hedge should stand. This is most likely for 5 years or under and more straightforward hedging products like vanilla swaps. Clearly nobody will appeal if the bank chooses to refund everything under the first option, although consequential losses may still be an issue (see below). In the case of both the second and third options, it may be worth appealing – the downside is after all limited, since the original offer is binding on the bank. Expert advice may be required at this stage, as some cases have been successfully appealed on the basis of quite technical arguments about the replacement hedge being offered. Consequential losses based on loss of profits or business are possible although the FCA does warn that this may delay the process. Any claims under this heading will clearly require strong supporting evidence, especially where it is argued that a bank’s actions led to the borrower experiencing solvency problems or breach financial covenants. EXPERT WITNESS JOURNAL

Further information GBRW Expert Witness’s website at www.gbrwexpertwitness.com provides further information on their activities, including the Briefing Papers referred to above and their newsletter, Expertise. The company welcomes enquiries from law firms and other parties looking for experts in cases involving banking, investment or insurance disputes. ■

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What is Forensic Gait Analysis? John Cleese’s Ministry of Silly Walks is in the annals of comedy for its hilarious mechanics. But the walk can be more revealing than we think.David Blake specialises in sport/gait/walking, pathomechanics, and forensic podiatry. His speciality is gait (walking) analysis. The use of digital video camera equipment is used to analyse gait (walking) clinically for diagnostic purposes. Here he answers basic questions. What is gait analysis? Forensic gait analysis provides anatomical and biomechanical analysis of the gait (walking and body movement of individuals) that are captured on CCTV.

Forensic CCTV footage is core to criminal enquiry in the modern era. Equally, forensic gait analysis has been accepted as being scientific on numerous occasions in English Crown Courts. This has been the case since the turn of the century.

The act of gait (walking) involves most of the body's anatomy, including the upper torso and arms and is not exclusive to the feet and lower limbs. Gait is anatomy, anatomy is gait. In essence walking, skeletally and anatomically, is gait. Biomechanics is a subsection of gait analysis.

Two years ago in Lancashire, a house burglar was convicted thanks in part to grainy footage captured by a nearby surveillance camera. Although the tape didn’t catch the man’s face, a podiatrist identified him by analysing, frame by frame, his distinctive bow-legged gait.

The evidence can then be interpreted forensically and the subjects momements then compared to known individuals or patterns of human movement. This has contributed to some suspects admitting their guilt. The use of forensic gait analysis can help illustrate a suspect’s location and time for the purposes of criminal investigations.

In my own experience there have been a number of significant cases. A murderer who said he was unfairly convicted because of the way he walks failed in an Appeal Court bid to clear his name. Elroy Otway was jailed in 2009 for the murder of Mark Daniels, 25, who was shot dead in Wythenshawe in August 2006. My testimony was instrumental in bringing Otway to justice. At London’s Appeal Court, Otway’s legal team argued that I ‘could not be considered an expert’ and that podiatry is ‘not sufficiently recognized or advanced’ as a forensic science to justify its use in court.

“Great Juno, comes; I know her by her gait.” The Tempest How is it used in forensic terms? The adoption of gait analysis in forensic medicine started with the Aalsgaarde Case1 where concordance was found in the gait pattern between suspect and perpetrator with respect to pronounced side-to-side movements of the head and hyper extension in the knee joints.

How do you combine this with your core work? I consider it a natural progression and an extension of my medicolegal work, which apart from the negligence side, has included numerous post-operative biomechanical/gait/walking analysis studies.

The widespread use of CCTV (the UK has the most cameras per capita in Europe) evolved in tandem with this power of scientific analysis. EXPERT WITNESS JOURNAL

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Typically, these have involved incidents. For example, walking may be analysed to assess requirements for in shoe orthotics, shoe modifications and/or walking aids. So there is a lot in common with the forensic side – it’s all about acute observation and drawing valid conclusions from a sound scientific podiatric footing.

5. Litfield House Medical Centre, 1 Litfield Place, Clifton Down, Bristol BS8 3LS 6. Walsall Chiropractic Health Clinic, 81 Broadway, Walsall WS1 3EZ

How can you be contacted? Hyperion welcomes enquiries in gait/walking and general anatomy analysis including instructions for medical negligence, assessment, advice and treatment plans for post industrial or road traffic collisions. The first port of call is my new website: www.hyperionforensic.com. Here you can get an immediate feel for my services in medicolegal and forensic podiatry terms. Or you can phone me on 07990 973257

8. The Elms Consulting Rooms, 24 Hall Place Gardens, St Albans, Hertfordshire, AL1 3SF (near London)

7. Nuffield Health Wolverhampton Hospital, Wood Road, Tettenhall, Wolverhampton WV6 8LE

References 1, Surveillance images from a bank robbery were analyzed and compared with images of a suspect. Based on general bodily features, gait and anthropometric measurements, we were able to conclude that one of the perpetrators showed strong resemblance to the suspect. Both exhibited a gait characterized by hyperextension of the leg joints, and bodily measurements did not differ by more than 6 mm on average. The latter was quantified by photogrammetry: i.e., measuring by using images of the perpetrator as captured by surveillance cameras.

Consulting room locations 1. Heath Lane Consulting Rooms, 7 Heath Lane, Oldwinsford, Stourbridge DY6 1RF 2. Consulting Rooms, 38 Harborne Road, Edgbaston, Birmingham B15 3HE 3. St John Street Consulting Rooms, 11 St John Street, Manchester M3 4DW

Reprints available from: Niels Lynnerup, M.D., Ph.D. Institute of Forensic Medicine, Frederik d. 5, sVej11, DK-2100 Copenhagen, Denmark E-mail: n.lynnerup@antrolab.ku.dk

4. The Consulting Rooms, 5 Davenport Road, Earlsdon, Coventry CV5 6QA

If yyou ou n need eed a rreport eport o on nas specialist pecialist s subject ubject tthen hen m make ake s sure ure y you ou iinstruct nstruct a Specialist Specialist Chris Drake, Chris Drake, Dip Dip OTC, OTC, BAPO, BAPO, CUEW CUEW C onsultant Orthotist Orthotist and and Orthotic Orthotic Expert Expert Witness Witness Consultant Chris C hris h has as 30 30 years years of of experience experience in in the the field field of of orthotics orthotics and and over over 18 18 yyears ears of of medical medical legal legal reporting reporting experience. experience. As As well well as as his his in-depth in-depth kknowledge nowledge of of orthotic orthotic p rinciples a nd practice practice h e has has specific specific expertise expertise principles and he iin: n: P ost trauma trauma orthotic orthotic rehabilitation rehabilitation Post N euro-rehabilitation Neuro-rehabilitation C omplex disabilities disabilities Complex O rthopaedic cconditions onditions Orthopaedic A dult a nd paediatric paediatric orthotics orthotics Adult and L ower limb limb b iomechanics Lower biomechanics L ower limb limb o rthotics Lower orthotics C omplex ffoot oot a nd a nkle conditions conditions Complex and ankle F oot orthotics orthotics Foot S pecialised o rthopaedic a nd b espoke footwear footwear Specialised orthopaedic and bespoke He has He has a wealth wealth of of experience experience acting acting as as Orthotic Orthotic Expert Expert for for the the cclaimant, laimant, d efendant and and as as a single single joint joint e xpert. H eh as undergone undergone full full E xpert Wi tness defendant expert. He has Expert Witness ttraining raining w ith B ond S olon a nd h olds tthe: he: Certificate Certificate of of E xpert W itness with Bond Solon and holds Expert Witness A ccreditation (CUEW) (CUEW) issued is s u e d b Bond Solon Solon and and Cardiff Cardiff University U n iv e r s ity L aw Accreditation byy Bond Law S chool. R egistered with with the the Health Health & Care Care Professions Professions Council Council (HCPC). (HCPC). School. Registered Consulting C onsulting a at: t: 1 152 52 Harley Harley Street, Street, a able ble to to travel travel throughout throughout the the UK UK ffor or cclient lient vvisits isits w hen rrequired. equired. when O rthotic E xperts L td Orthotic Experts Ltd 5 2 Beresford Beresford Avenue, Avenue, Surbiton Surbiton 52 S urrey, KT5 KT5 9 LJ Surrey, 9LJ Tel: +4 4 ((0) 0) 7 7 2 1 -5 1 4 5 6 8 , Tel: +44 7721-514568, Fax: +4 4 ((0) 0) 2 07 192 3 339 Fax: +44 20 7192 3339 E-mail: info@OrthoticExperts.co.uk info@OrthoticExperts.co.uk E-mail:

EXPERT WITNESS JOURNAL

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When Ability Matters Ability Matters Clinic is a part of Ability Matters Group, an international group of companies, whose principal activity is to supply products and services that enhance the lives of those who require devices to improve their mobility and accessibility. The group has 30 years experience in providing enablement product and services throughout the UK and Ireland and has a fast growing international profile with direct operations in both Holland and France. In 2014, we were pleased to be ranked 22nd on the Sunday Times HSBC International Track 200. Our continued growth means that we now employ more than 450 staff.

Ability Matters Clinic has formed a part of the Group’s organic growth over the past ten years. We are proud to be able to offer fast access to a team of highly experienced clinicians, all proven experts in their fields. This enables us to offer a complete range of private prosthetic and orthotic care. We can formulate medico-legal reports in relation to prosthetic or orthotic treatment as well as provide patient care and support in terms of the prescription of devices following personal injury and limb loss. Our reporting can also include treatment justification, cost justification and future cost justification for all aspects of Prosthetic/ Orthotic requirements.

The Group enjoys extensive partnership arrangements with the NHS for the provision Prosthetics, Orthotics and Wheelchair Services. This is complemented by our strong reputation as product supplier under our Ortho Europe brand. More recently we have established a chain of Ability Matters Mobility/Independent Lifestyle stores at strategic locations within the UK alongside a specialist wheelchair lift access company – Ability Matters Lifts. EXPERT WITNESS JOURNAL

We work to the international medical quality standard ISO 13485, which is specific for medical devices and related services to meet both patient and regulatory requirements. Ability Matters Group is also member of the British Healthcare Trade Association – BHTA.

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EXPERT W WITNESS ITNESS SERVICE SERVICES ES & MEDICO-L MEDICO-LEGAL LEGAL REPORTS FROM ABI ABILITY ILITY MATTERS Ability Matte Matters ers has 30 years experience in providing enablementt product and throughout services thro oughout the UK and Ireland.. highly We have h hig hi ghly hl experienced d clinicians, experts proven expe erts in their Ã&#x20AC;HOGV ZKR FDQ IRUPXODWH Ã&#x20AC;HOGV ZKR F FDQ IRUPXODWH medico-legal medico-lega al reports in relation to o prosthetic and nd the treatment a SUHVFULSWLRQ RI SURVWKHWLF SUHVFULSWLRQ SUHVFULSWLRQ RI SURVWKHWLF RI SURVWKHWLF GHYLFHV IROORZLQJ SHUVRQDO GHYLFHV IROOR RZLQJ SHUVRQDO also so provide injury. We al medico-legal expert medi ico-lega relation services in re elation to orthotics.

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For information info ormation about our experts exp perts or to book a consultation, consu ultation, contact us today. toda ay. Telephone: 0800 0723 072 23 122 2 Email: info@abilitymatters.co.uk info@abiliitymatters.co.uk

ABILITY MA MATTERS ATTERS CLINICS: ABINGDON Â&#x2021; BELFAST Â&#x2021; BRADFORD Â&#x2021; DUBLIN Â&#x2021; MANCHESTER Â&#x2021; OXFORD Â&#x2021; WIMBLEDON ABINGDON Â&#x2021; BE ELFASTT Â&#x2021; BRADFORD Â&#x2021; DUB BLIN Â&#x2021; MANCHESTER R Â&#x2021; OX FORD Â&#x2021; WIMBLEDON

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Above: A small selection of our life-like silicone prosthetics

Above: Vertical Platform Lift Our team of highly qualified and Experienced Prosthetists and Orthotists work in conjunction with an affiliated panel of healthcare professionals, including consultants, physiotherapists, podiatrists, occupational therapists and counsellors. We welcome referrals from Consultants, Doctors, Physiotherapists and Occupational Therapists as well as direct referrals. Our Ability Matters clinics are conveniently located in 7 locations – Abingdon, Belfast, Bradford, Dublin, Manchester, Oxford and Wimbledon. In addition we can offer appointments in a number of other satellite clinics throughout UK and Ireland.

Above: Our new Specialist Ability Centre in Manchester

We opened our brand new state-of-the-art clinic in Manchester late last year – this also boasts an excellent retail outlet giving high quality access to a comprehensive range of orthotic products, specialist seating, wheelchairs, mobility scooters, daily living products and specialist footwear. Ability Matters Prosthetics We offer a complete range of prosthetic care for both upper and lower limb loss. Our prosthetists are able to select the most appropriate prosthesis to match the clients’ requirements and enhance their ability. Ability Matters is able to draw upon an excellent working relationship with all major component manufacturers and suppliers. The value of a prosthesis is directly related to the way in which the prosthetist develops an understanding of the client’s needs and is able to provide the time, care and equipment to satisfy the client’s requirements. This can be the most technologically advanced microprocessor knee joints, such as the Genium®, C-Leg, or sophisticated myo-electric arm units. Equally important to the function of a prosthesis is the comfort and the ability to use it to enhance everyday activities including sport where EXPERT WITNESS JOURNAL

Above: Biomechanical Assessment 79

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appropriate. We are therefore able to supply a wide range of lightweight artificial limbs or specialist prostheses for sports activities.

Dr Zbigniew Kirkor Consultant in Pain Medicine Medico-Legal Expert and Mediator

Our prosthetist will discuss all of the available options with the client.

Dr Kirkor has been involved in medico-legal work since 2011. He has experience as a Consultant in Anaesthesia and Pain Medicine in regional district hospital (DRH). Work in DRH means a broad variety of cases seen in his clinic every week including, back and neck pain, whiplash injuries, Whiplash Associated Disorders, Neuropathic pain, Post-traumatic injuries and many more.

Ability Matters can also offer clients access to our very own high-definition silicone service. Our sister company is a leader in the field of producing high quality custom made cosmesis. Using our SkinMatch technology we are able to produce the most life-like cosmetic finish possible. We can offer cosmetic covers for upper and lower prosthetic limbs, manufacture hands and feet, single digits and reconstructive silicone.

Areas of expertise include: Chronic pain Acute pain Whiplash injury Whiplash-Associated Disorder Post-injury pain Postoperative pain Anaesthesia

Ability Matters Orthotics Our experienced team of Orthotists use the latest in technology and biomechanical assessment equipment to assist in the prescription of specialist orthotics such as knee braces, orthopaedic footwear, insoles, sport orthotics and other support products. We are able to supply a wide range of advanced private orthotics solutions, including E-Mag Control & E-Mag Active Orthoses, Donjoy and Össur braces. A growing number of clients with complex, short or long term conditions and rehabilitative needs rely on this service to enhance their mobility and improve their quality of life.

Dr Kirkor can offer the appointments for Polish customers in their native language.

All correspondence to: Apley Clinic, Apley Castle Telford, Shropshire TF1 6TF Tel: 07724 928444 E-mail: medicolegal@pain3.org Website: www.drkirkor.com

Appointments available in three venues: Birmingham, Telford and Shrewsbury Evening and Saturday appointments. available and in some circumstances home visits (subject of additional fee.)

For further information please contact us on 0800 072 3122, info@abilitymatters.co.uk or visit our website www.abilitymatters.co.uk

Dr Joshua Adedokun

FCARCSI, FRCA, FFPMRCA

CONSULTANT PLASTIC RECONSTRUCTIVE & HAND SURGEON

Chronic Pain Expert

Mr Atul Khanna is a consultant plastic surgeon and has been involved in medical legal work since 1997. In this period he has provided over 2,300 medical reports. These have been predominantly in the following areas of expertise:

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.

• Hand surgery: Sequelae of hand injuries and surgery • Soft tissue injury: Sequelae of post traumatic scarring • Burns management: Sequelae of disability following burns injury, scarring and surgery. • Medical negligence in Cosmetic Surgery

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.

His work involves the treatment of patients with hand injuries, burns, soft tissue and facial injuries, breast surgery, scars and deformities, skin cancer and cosmetic surgery.

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.

He is on the GMC’s specialist register in Plastic Surgery and is a member of the British Association of Aesthetic Plastic Surgeons (BAAPS) and British Association of Plastic, Reconstructive and Aesthetic Surgeons (BAPRAS)

Contact:

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

Tel: Email: Web:

Suite 6, Wilmslow House, Grove Way, Waterlane, Wilmslow Cheshire, SK9 5AG

EXPERT WITNESS JOURNAL

0121 507 3455 atulkhanna@doctors.org.uk www.atulkhanna.co.uk/expert_witness.html

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Managing Trauma: The Evolution from ‘Early Total Care/Damage Control’ to ‘Early Appropriate Care’ by A Tasker - MB BS, MRCS, FRCS (Tr&Orth) by M B Kelly - MB BS, MRCS Eng, FRCS (Tr&Orth) Introduction There are over 48,000 serious trauma victims per year in England. 20,000 risk death or severe disability and the annual mortality is 5,400, many more are left with a permanent disability(1). In April 2012 trauma care delivery in England underwent a major change to respond to these challenges. The country was divided into 18 major trauma networks, four having been established in London in the year before. These networks of trauma units are supported by major trauma centres. Service reconfiguration brought a new focus on how trauma care is delivered using a specialist multi-disciplinary approach to the individual patient.

Background The 70s and 80s saw the popularisation and success of fracture fixation. Early fixation of femoral fractures appeared to lead to better outcomes and decreased pulmonary complications (4). Throughout the 80s multiple studies described better outcomes from early operative stabilisation of femoral fractures, resulting in the adoption of what became known as ‘early total care’ (4-8). It was apparent that unstable long-bone fractures contributed to secondary lung injury. Early stabilisation offered the benefit of minimising on-going tissue damage, inflammatory activation and haemorrhage (‘stabilising the haematoma’) with the benefit of early mobilisation and reduction of the secondary lung problems. Most of the studies were retrospective until the publication of Bone’s landmark prospective randomised study of 178 patients(9). Bone reported markedly reduced rates of fat embolism, respiratory distress and sepsis related mortality in patients who underwent definitive fracture stabilisation within 24 hours of admission. Delay in stabilisation after that time resulted in a five times greater risk of adult respiratory distress syndrome (ARDS). The argument became “patients are too sick not to have an operation to stabilise their long bone fractures”(10). However during the following decade it became apparent that early stabilisation might be deleterious in a sub-group of patients, those that were haemodynamically unstable, or had concomitant chest or head injury (11, 12). In 2000, Scalea et al (12) coined the term ‘damage control orthopaedics’ (DCO), borrowing from the general surgeons’ transduction of the military term (13).

90% of multiply-injured patients will have a bony injury, orthopaedics accounts for 50% of the operations undertaken(2), orthopaedic services are very much in the forefront of delivery. The aim of the multidisciplinary approach is to identify the seriously injured patient and navigate them through their surgical needs without delay while adding as little as possible to their injury burden in terms of complications, particularly pulmonary problems. The term ‘early appropriate care’ was coined by Vallier et al (3) and is the practical voice of reason that supersedes the decade long debate over the place of ‘early total care’ and ‘damage control’ orthopaedics and is the method by which the MDT achieve their goal. This article outlines the chronology of the terms ‘early total care’ and ‘damage control orthopaedics’ and reinterprets the debate in the face of the latest studies. EXPERT WITNESS JOURNAL

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The aim was to prevent exsanguination and death, rather than to definitively treat the broken bone. Stabilisation rather than fixation became the operative aim of the orthopaedic surgeon when faced with a severely injured patient in extremis. Pape at al (in his 2002 tribute to the lifetime achievements of Professor Tscherne (14)) then tried to better define groups of patients. The paper outlined an observed change of practice from 1981 to 2000 and identified a group that lay between the stable patient and the patient in extremis, named the ‘borderline’ patient in whom prolonged orthopaedic attempts at definitive care, particularly of the femur may lead to a ‘second hit’. This is where the inflammatory cascade is further activated by the surgical ‘insult’ resulting in pulmonary complications, systemic inflammatory response syndrome (SIRS) and even multi-organ dysfunction syndrome (MODS). Pape sought to extend the utility of the damage control principles. While damage control orthopaedics has a definite place, Meek in his John Border memorial lecture, cautioned against the sudden surge in it use(10). He reinterpreted the Pape figures and reached very different conclusions. On closer examination, the benefits of damage control orthopaedics in the stable and borderline populations are not superior to those of definitive fixation. Meek’s conclusion was that either approach was appropriate and a matter of surgeon and institutional philosophy. Subsequent papers sought to show advantages of one relative to the other. This debate has now been superseded by the later publications of Scalea and Vallier (3, 15).

These Images (right above and left below) demonstrate bilateral retrograde femoral nails inserted as part of early appropiate care in Polytraumatised patient

Measuring Injury Throughout the early total care and damage control era of orthopaedic management of the multiply-injured patient, quantifying the severity of the injury in terms of decision making remained problematic. Injury Severity Scores help to quantify the trauma ‘dose’, facilitate research and could correlate with morbidity and mortality. The injury Severity Score (ISS) is now the most commonly used and defines the criteria for transfer within the trauma networks in England. However, it is not specific enough to guide the orthopaedic decision making. Other more specific markers have been sought. Inflammatory cytokines, in particular Interleukin 6 (IL-6), appear to be robust in interpreting the trauma ‘dose’ in terms of the pathophysiological response (16). The European

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poly-trauma study on the management of femur fractures (EPOFF) group have shown that levels differ with different severities of injury and in response to the surgery undertaken to treat those injuries (17). However, measurement of cytokine levels is not readily available in the vast majority of trauma centres. Therefore other more readily available markers have been sought.

injury or clinical parameters that warranted delaying definitive fracture fixation in relation to resuscitation and to determine the optimal timing of surgery. Statistical modelling was performed to develop cut-off values beyond which the probability of a complication diminished to an acceptable level (below 20%). In a patient responding to resuscitation measures, a lactate < 4.0mmol/L, pH≥7.25 or a base excess (BE) ≥ -5.5mmol/L was indicative that they could proceed with definitive fracture care. They also found that the greatest predictor of pulmonary complications was chest injury. Failure to respond to resuscitation and normalise acidosis resulted in increased morbidity and mortality with lactate the most specific predictive measure. Presenting pH was lower, base excess worse and lactate levels higher in those that subsequently developed pulmonary and non-pulmonary complications. In their centre, DCO is reserved for those who fail respond to resuscitative measures within the first eight hours and definitive management timed for when these parameters normalise.

The ‘new’ focus - resuscitation In 1999 Blow et al reviewed their trauma patients with ISS>20 and introduced the concept of endorgan occult hypoperfusion (18). They noted a higher infection and mortality in those with occult hypoperfusion (19). They applied these observations to their femoral fractures and reported a two-fold higher incidence of post-operative complications (50% versus 20%) in patients with normalised haemodynamic parameters whose serum lactate remained greater than 2.5 mmol/L at time of primary intramedullary nailing (20). They concluded that adequate resuscitation reflected by a normalised lactate could act as a guide to the timing of surgical intervention. Focus therefore changed from seeking quantitative markers of tissue injury, which were proving difficult to implement at a practical clinical level, to markers of resuscitation. The orthopaedic literature had become too focused on fracture management techniques and overlooked the contributions from intensive care and anaesthetic resuscitative techniques applied to trauma which had also evolved hugely (2, 10). In addition, experience reported by the British Military Medical Services from various conflicts in the 90’s and 2000’s regarding the use of blood products much earlier and more aggressively in the trauma patient rather than fluid resuscitation leading to quicker and more complete normalisation. The early group in Pape’s 2002 paper were operated on in less than eight hours, probably leaving insufficient time for adequate resuscitation (14). Baltimore applied the principles of adequate resuscitation using standard physiological markers and a lactate of under 2.5 and reported reduced morbidity and mortality (15). Their mean time to theatre was 14 hours. DCO was implemented in only 12% of their patients.

Vallier et al. concluded that the focus should be on ‘Early Appropriate Care’ (EAC) with definitive management of mechanically unstable fractures of the axial skeleton and long-bones within 36 hours of injury as long as the patient has demonstrated response to resuscitation as based on improvement of acidosis with lactate< 4.0 mmol/L, pH ≥7.25, or BE above 5.5 mmol/L. Resuscitation and economics On the basis of their findings, Vallier et al. instituted a standardised protocol to expedite definitive fracture fixation once patients are physiologically optimised. They compared the performance of multiple surgeries in one sitting to a staged approach over several days (21). Although the complication profiles were no different; so long as they had been adequately resuscitated; those undergoing multiple sessions stayed an average of 1.4 days longer in the trauma centre. In an allied study, they undertook a prospective cost analysis study. In adequately resuscitated patients, those undergoing single session surgery were more efficiently treated and generated better incomes for the institution (22). The implementation standardised protocol to expedite definitive fracture fixation reduced costs and enhanced the profitability.

Early appropriate care Vallier et al. reported on a retrospective study of 1442 patients with pelvic, spinal and / or femoral shaft fractures in 2013 (3). The aim was to define the

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Conclusion It is no longer a question of ‘camps’. The duality of the traditional discussion has been superseded by ‘early appropriate care’: a more consistent focus on the physiological state of the patient and in particular the success of the resuscitative effort. No single physiological parameter or blood marker can as yet be used to guide intervention, but the accepted level of 2.5mmol/L for lactate is likely too conservative and is being superseded by a more comprehensive and patient centred approach, focusing on physiological improvement and reversal of acidosis reflected by a lactate< 4.0 mmol/L, pH ≥7.25, or BE above 5.5 mmol/L.

7. Meek RN, Vivoda EE, Pirani S. Comparison of mortality of patients with multiple injuries according to type of fracture treatment--a retrospective age- and injury-matched series. Injury. 1986;17:2-4. 8. Seibel R, LaDuca J, Hassett JM et al. Blunt multiple trauma (ISS 36), femur traction, and the pulmonary failure-septic state. Ann Surg. 1985;202:283-295. 9. Bone LB, Johnson KD, Weigelt J, Scheinberg R. Early versus delayed stabilization of femoral fractures. A prospective randomized study. J Bone Joint Surg Am. 1989;71:336-340. 10. Meek RN. The John Border Memorial Lecture: delaying emergency fracture surgery--fact or fad. J Orthop Trauma. 2006;20:337-340. 11. Pape HC, Auf'm'Kolk M, Paffrath T, Regel G, Sturm JA, Tscherne H. Primary intramedullary femur fixation in multiple trauma patients with associated Lung contusion--a cause of posttraumatic ARDS? J Trauma. 1993;34:540-7; discussion 547-8.

By monitoring and maintaining the resuscitative effort, multiple injuries can be dealt with in one session in most of these patients. This results in an improved complication profile, shorter hospital stay, improved hospital income and much better use of hospital and operating theatre resources. At its core is a multi-disciplinary approach that evaluates when definitive care is most appropriate.

12. Scalea TM, Boswell SA, Scott JD, Mitchell KA, Kramer ME, Pollak AN. External fixation as a bridge to intramedullary nailing for patients with multiple injuries and with femur fractures: damage control orthopedics. J Trauma. 2000;48:613-21; discussion 621-3.

Originally published in the Journal of Trauma & Orthopaedics.

13. Rotondo MF, Schwab CW, McGonigal MD et al. 'Damage control': an approach for improved survival in exsanguinating penetrating abdominal injury. The Journal of Trauma and Acute Care Surgery. 1993;35:375-383.

14. Pape HC, Hildebrand F, Pertschy S et al. Changes in the management of femoral shaft fractures in polytrauma patients: from early total care to damage control orthopedic surgery. J Trauma. 2002;53:452-61; discussion 461-2.

Mike Kelly michael.kelly2@nbt.nhs.uk References 1. Office NA. Major trauma care in England 2010. 2010

15. O'Toole RV, O'Brien M, Scalea TM, Habashi N, Pollak AN, Turen CH. Resuscitation before stabilization of femoral fractures limits acute respiratory distress syndrome in patients with multiple traumatic injuries despite low use of damage control orthopedics. J Trauma. 2009;67:1013-1021.

2. Scalea TM. Optimal timing of fracture fixation: have we learned anything in the past 20 years? J Trauma. 2008;65:253-260. 3. Vallier HA, Wang X, Moore TA, Wilber JH, Como JJ. Timing of orthopaedic surgery in multiple trauma patients: development of a protocol for early appropriate care. J Orthop Trauma. 2013;27:543-551.

16. Roberts CS, Pape HC, Jones AL, Malkani AL, Rodriguez JL, Giannoudis PV. Damage control orthopaedics: evolving concepts in the treatment of patients who have sustained orthopaedic trauma. Instr Course Lect. 2005;54:447-462.

4. Riska EB, Myllynen P. Fat embolism in patients with multiple injuries. J Trauma. 1982;22:891-894. 5. Goris RJ, Gimbrere JS, van Niekerk JL, Schoots FJ, Booy LH. Early osteosynthesis and prophylactic mechanical ventilation in the multitrauma patient. J Trauma. 1982;22:895-903.

17. Pape HC, Grimme K, Van Griensven M et al. Impact of intramedullary instrumentation versus damage control for femoral fractures on immunoinflammatory parameters: prospective randomized analysis by the EPOFF Study Group. J Trauma. 2003;55:7-13.

6. Johnson KD, Cadambi A, Seibert GB. Incidence of adult respiratory distress syndrome in patients with multiple musculoskeletal injuries: effect of early operative stabilization of fractures. J Trauma. 1985;25:375-384.

18. Blow O, Magliore L, Claridge JA, Butler K, Young JS. The golden hour and the silver day: detection and correction of occult hypoperfusion within 24 hours improves outcome from major trauma. J Trauma. 1999;47:964-969.

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19. Claridge JA, Crabtree TD, Pelletier SJ, Butler K, Sawyer RG, Young JS. Persistent occult hypoperfusion is associated with a significant increase in infection rate and mortality in major trauma patients. J Trauma. 2000;48:8-14; discussion 14-5. 20. Crowl AC, Young JS, Kahler DM, Claridge JA, Chrzanowski DS, Pomphrey M. Occult hypoperfusion is associated with increased morbidity in patients undergoing early femur fracture fixation. J Trauma. 2000;48:260-267. 21. Childs BR, Nahm NJ, Moore TA, Vallier HA. Multiple Orthopaedic Procedures in the intial Surgical Setting: When Do the Benefits Outweigh the Risks in Patients With Multiple System Trauma? Proceedings of the Orthopaedic Trauma Association Conference; Phoenix: 2013. 22. Vallier HA, Dolenc A, Moore TA. Early Appropriate Care: A Protocol to Standardize Resusitation Assessment and to Expedite Fracture Care Reduces Hospital Stay and Enhances Revenue. Proceedings of the Orthopaedic Trauma Association Conference; Phoenix: 2013.

Prof Charles M Court-Brown

Mr R N Brueton

Professor of Orthopaedic Trauma MD, FRCS Ed (Orth)

Consultant Orthopaedic Surgeon

Professor of Orthopaedic Trauma and Orthopaedic Surgeon with particular interests in the management of orthopaedic injuries, encompassing Musculo-skeletal injuries and diseases, fractures, foot, ankle, wrist, hand and upper limb injuries and spine and neck injuries (including whiplash injuries) and surgery in respect of all of these.

MB BS, MRCS, LRCP, FRCS (Lon), MD (Lon), BA, MA

Mr Brueton is a Consultant Orthopaedic Surgeon, based in London. With a particular interest in the management of trauma, especially pelvic and acetabular fractures.

Surgery expertise also covers emergency and trauma surgery and intensive care for multiple injury patients of personal injury, Road Traffic Accidents and slipping, tripping, falling and other hazards.

He has operated on over 70 acetabular fractures. His expertise in the treatment of fractures of the upper and lower limbs is considerable.

I have written 8 books and over 100 papers on my specialities and have in depth medico-legal experience, averaging some 300 new instructions annually and including court appearances.

Contact: Mr R N Brueton 45 Grosvenor Road London N10 2DR Tel: 0208 442 0464

Contact: Prof C M Court-Brown Craigesk House, Lothianbridge EH22 4TP, Tel: 0131 660 4227 Email: ccb@courtbrown.com

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Email: bruetons@ar2.net

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Increased Care for Genuine Whiplash Victims Aviva’s landmark March 2015 published report “Road to Reform: Tackling the UK’s compensation culture” is a landmark publication which aims to increase support for genuine accident victims and put care for the injured party at the heart of the claims process.

Provide care not cash In line with its major stakeholder status as an insurer, Aviva is calling or a change in legislation so that minor, short-term whiplash claims are treated with rehabilitation instead of cash compensation. Insurers would arrange and pay for the customer’s rehabilitation, regardless of fault.

The recommendations are about how best to compensate accident victims for their benefit as well as the insured motorist’s benefit. Aviva’s stated number one priority is to pay genuine claims quickly and fairly while offering a great service to its customers. Last year in the UK, it settled over 910,000 claims worth £2.65 billion.

It states that whiplash is the key area that continues to inflate motor insurance premiums despite the 2013 motor reforms. Whiplash costs the UK motorist around £2bn per year in insurance premiums and half of this is for minor injuries. Aviva believes that in most instances of minor whiplash injury, a system of appropriate medical treatment or rehabilitation will be both effective for the injured parties and benefit all drivers through reducing costs.

Maurice Tulloch, Chairman Global General Insurance, outlines the shift to greater care in his Introduction. “It’s time to put the brake on the UK’s compensation culture: should we continue to compensate minor, short-term injuries with cash, which drives up the cost of insurance for all of us? Or should we provide care, such as rehabilitation, to those with minor whiplash, while keeping motor insurance affordable for Britain’s motorists?”

Their report shows that 64% of consumers are in support of this method of compensation. It outlines how removing financial incentives would also greatly reduce the number of fraudulent claims, such as crash for cash. Aviva also welcomes the introduction of independent medical panels later this year.

Mr Tulloch goes on to outline three key steps to deliver this ambition which will protect motorists from escalating costs and increase support for genuine accident victims.

The company believes these will help call out potential fraud and will end the practice of insurers settling a claim without medical evidence. It estimates that this important change which was brought in as part of the LASPO Act will help insurers, and ultimately policy holders, save around £70m in spurious and fraudulent claims.

“First, we must move away from a system which pays cash compensation for minor, short-term whiplash, to one that focuses on providing and helping them with the costs of medical treatment. Second, we have to restrict the use – and fees – of lawyers on cases where their involvement is simply not needed. Finally we need to bring in a comprehensive ban on all referral fees, and tackle the aggressive pursuit and marketing texts and telephone calls chasing the personal details of accident victims to sell to lawyers.

Automatically compensating those with minor injuries with medical treatment rather than cash would save around £1bn each year, according to the insurer. Taking into account an estimated cost of £100m to implement a rehabilitation facility operated and paid for by insurers, this would save £900m – a premium saving of around £32 for every driver.

“The main reason we need these changes is to reduce the impact of minor, short-term whiplash claims. We understand that whiplash, a neck injury sustained in an accident, can cause pain and discomfort. That’s why we want to put care for the injured party at the heart of the claims process.” EXPERT WITNESS JOURNAL

“Most insurers already have either a rehabilitation offer available to their customers or a health insurance arm that allows them to easily offer rehabilitation to their customers.” 86

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Claims in Road Traffic Accidents (the RTA Protocol) and to the Civil Procedure Rules.

Aviva’s Whiplash Treatment Scheme Aviva has helped nearly 7,000 people recover from their injuries through its Whiplash Treatment Scheme. Originally a pilot launched in 2011, it now has facilities across the UK. It complies with the Rehabilitation Code of Conduct.

The amendments bring into force the following procedural changes: • In respect of any Claim Notification Form sent on or after 6 April 2015, the first report in a soft tissue injury claim must be a fixed cost medical report commissioned from a medical expert or medical reporting organisation sourced via the MedCo Portal.

How it works: • Applies to all not at fault unrepresented claims under £10,000. • An Aviva handler makes an assessment in conversation with the claimant and offers rehabilitation.

• In respect of any Claim Notification Form sent on or after 1 June 2015, claimants’ legal representatives must undertake ‘previous claims’ checks on potential claimants and insert the unique reference number generated by that search in the additional information box in the Claim Notification Form.

• A full Immediate Needs Assessment Report is undertaken within 24 hours and the claimant has access to a web-based instruction portal. For 30% of people this addresses their needs. • Contact with the claimant is by a trained physiotherapist with a clinical background.

• With effect from 1 January 2016, medical experts must be accredited by MedCo Registration Solutions in order to provide the initial fixed cost medical report in a soft tissue injury claim.

• A DVD containing practical information about whiplash neck/back pain is sent to the claimant. • Regular contact with the claimant is maintained and recovery targets set.

In putting care and rehabilitation at the heart of its procedures, both the MoJ and Aviva are converging in their thinking about the importance of robust medicolegal reporting and clinical care in personal injury case management. ■

• More serious injuries are referred for specialist treatment Government whiplash reform progress Radical Ministry of Justice Reforms in terms of personal injuries are already changing the landscape of reform. A new costs protection regime has been introduced for personal injury claims (including clinical negligence). This will provide protection limiting the costs that a claimant might have to pay to the other side. This regime is called 'qualified one way costs shifting' (QOCS). This affects the costs that a claimant might have to pay to a defendant. A losing defendant remains liable for the claimant's costs in the usual way.

Mr Shahid Khan MA (Cantab) FRCS (Tr&Orth)

Consultant Orthopaedic and Spinal Surgeon

And since early 2014 the Ministry of Justice has been working with a number of cross industry working groups on the implementation of whiplash reform. Provides 400 medico-legal reports a year on all areas of personal injury specialising in trauma and otthopaedic injury, back pain and whiplash injury. Provides clinical negligence reports within the field of Spinal Surgery

Recently introduced, the second tranche of reform installs a new system for obtaining initial medical reports for soft tissue injury claims brought under the RTA protocol.

EXETER SPINE

From 6 April 2015, medico-legal experts and MROs will need to be registered with MedCo in order to provide initial medico-legal reports for RTA soft tissue injury claims.

The Avenue, Brampford Speke, Exeter, Devon EX5 5DW Tel: 07779 238366 Fax: 01242 708192 E-mail: karen_street_khan@yahoo.co.uk Web: www.oceanphysio.com Consulting rooms/appointments available in Bristol, Exeter and Plymouth

Amendments have now been agreed to the Pre-Action Protocol for Low Value Personal Injury EXPERT WITNESS JOURNAL

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Failure to Examine the Evidence (Episode 3) Referral to the Orthopaedic Professor by Angus Strover The story so far: 1. In the first two episodes the Claimant (a selfemployed professional businessman) was referred to a prominent Knee Surgeon, (Surgeon I) for treatment of recurrent knee pain in a hospital (Hospital 1) 600 miles away from his home .

9. Surgeon 2 organised an appointment with the Claimant and gave his opinion that the posterior cruciate ligament had torn and booked an operation for the following month to arthroscope the knee and at the same time to remove the prominent screws.

2. Claimant suffered a dreadful accident in the evening of the operation whilst the quadriceps muscle was paralysed by a local anaesthetic injection administered by the Anaesthetist, when the Claimant was left without support in the lavatory of the ensuite bathroom of his private room.

10. In the meantime the Claimant’s symptoms were relieved by the fitting of a PCL brace. 11. A month later (7 months after the original accident in Hospital 1), the Claimant was called to have an MRI scan that had been arranged by the Claimant’s General Practitioner.

3. The accident shattered the tibia and fibula and required another operation to mend the fractures.

12. The MRI Senior Radiologist reported that “both the Anterior and Posterior Cruciate ligaments are intact. The fat pad and patellar tendon display moderate to severe fibrosis.”

4. Having recovered from the operation the Claimant was flown 600 miles home to be looked after by his Partner and to be nursed in his own house by the Staff of the General Practitioner who had originally referred him to Surgeon 1.

13. At this stage, following the arthroscopy, Surgeon 2 wrote a referral to an academic Professor of Orthopaedics and Trauma 600 miles away for an opinion on the pathology in the Claimant’s knee, the broken tibia and, in his opinion, the incompetent Posterior Cruciate ligament.

5. After four days it was apparent that the home nursing was not altogether satisfactory and the Claimant was admitted to the Acute Unit of the Hospital with a swollen leg and his care was taken over by the local Orthopaedic Surgeon (Surgeon 2) who made a clinical, but fallacious diagnosis of an infected wound and treated it with two operations ostensibly to clear up the infection.

The referral letter to the Professor of Orthopaedics 1. The referral letter from Surgeon 2 to the Professor was flawed in that although it described the accident which broke the Claimant’s tibia in the Hospital1, the letter claimed that Surgeon 1 had sent his patient home with a “nasty deep infection” and that he, Surgeon 2, “was left to pick up the pieces” by which he implied that he had to clear the infection by radical debridement including pulsed lavage.

6. During the ensuing five months following the operations under the auspices of Surgeon 2 the Claimant was subjected to a monthly radiograph of the affected tibia and fibula. 7. The radiology reports said that the fracture lines were still visible indicating that the repair of the fractures was not progressing normally.

2. In the letter to the Professor, Surgeon 2 omitted to give the details of the 2.consecutive operations within 48 hours of each other that had occurred on the pretext of a septic wound 7 months previously.

8. About 6 months after the last operation the metaphyseal part of the fracture gave way into hyperextension with pain and swelling of the back of the knee and some of the screws in the were backing out, and the heads of these screws were palpable under the skin which caused considerable consternation with the Claimant and his Physiotherapist who contacted Surgeon 2. EXPERT WITNESS JOURNAL

3. No radiographs, no radiographic reports or laboratory reports (which would have shown the evidence of the absence of infection) were supplied or mentioned in the referral letter to the Professor.

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4. The Professor organised an early appointment with the Claimant, and after taking a history and examining the leg and knee he requested a single A-P radiograph and wrote a reply to the referral letter of Surgeon 2.

Mr Angus Strover Consultant Knee Surgeon In 1988 Mr Strover founded the Droitwich Knee Clinic, the first private knee surgery clinic in the UK for treatment of knee disorders, where he is a Director and member of the board.

The appearance of the Radiograph requested by the Professor This radiograph was sent by surgeon 2 ro the Professor with his referral letter. 4 screws have been removed and teh fractures appear to have united at this stage. There was no lateral radiograph taken and no CT scan at this stage, 8 months after the first operations of Surgeon 2.

Mr Strover has specialised in ligament reconstruction at the knee, meniscal transplantation, cartilage transplantation, knee a rthroplasty and patello-femoral conditions including patella alta, dislocation of the patello-femoral joint, the plica syndrome and a simple method of correcting patella alta. He has been a specialist in knee surgery from 1985 to retirement in 2011, he now concentrates on medico-legal cases where injuries to the knee joint or the lower limb are concerned.

United Surgical Services 64 Springfields, Bugle, Saint Austell PL26 8SJ Area of work Nationwide Tel: 01726 338 126 Mob: 07791 870 719 Email: angusstrover2014@gmail.com

Referral of the claimant to his Senior Lecturer 1. The Professor replied in his letter to Surgeon 2 saying that he would refer the Claimant to his Senior Lecturer who had experience in the surgical correction of malalignment of long bones.

7. He discussed the details of his prospective operation, to remove the remnants of the previous internal fixation and then to cut the tibial shaft, correct the malrotation and hold the new position of the tibial cut by a new plate and screws applied to the lateral side of the bone, whereas the previous internal fixation had been applied to the medial side.

2. The Senior Lecturer examined the referral letter from Surgeon 2 to the Professor which intimated that the Surgeon 1 had sent the Claimant home with â&#x20AC;&#x153;a nasty deep infectionâ&#x20AC;?. 3. The Senior Lecturer correctly said that he would not operate until he had seen a CT scan of the tibia which would be able to show, even at this late stage, indications of an infection in the areas of bone healing.

8. The operation would be the sixth within 13 months and the Claimant was keen to sign consent and to get on what he thought would be the final operation. Consent was signed and a date was set for the operation.

4. He requested a CT scan and made another appointment for the Claimant to be seen in the following month once the scan results had been reported.

The sixth operation, transverse tibial osteotomy

5. The CT scan was reported by the very experienced and enthusiastic Professor of Radiology who spent time on a careful analysis of the tibia and concluded that there was no evidence of past infection of the bone and that it would be safe to operate without stirring up a past infection. The Professor discussed the situation with the Senior Lecturer, but did not mention the possibility of accurate measurement of malrotation.

The operation performed by the Senior Lecturer (Surgeon 4) involved removal of the plate and remaining screws but failed to remove the two screws in the shaft of the tibia inserted by Surgeon 2. The Senior Lecturer cut the tibia transversely

6. The Orthopaedic Senior Lecturer examined the Claimant again and on his clinical examination he concluded that the rotational deformity was about eleven degrees. EXPERT WITNESS JOURNAL

FRCS

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4. The pain that the Claimant was having was not only situated in the non-union of the tibia, but also in the soft tissues of the knee itself where the previous MRI scan had shown that the menisci, cruciate ligaments and joint surfaces were healthy but the patellar tendon was inflamed, with patellar tendinopathy and the retro patellar (Hoffa’s) fat pad was scarred and fibrotic.

and applied a new plate on the lateral side of the tibia. 1.It is also of note that the fibula was solidly united and that Surgeon 3 did not osteotomise the fibula when doing his “corrective rotation”.It is common practice to osteotomise the fibula in this procedure in adults 2.The radiograph (below) taken afrter 11 months indicated that there was some callus but the union is not complete

5. It is well known that patellar tendinopathy and fibrosis of the retro patellar fat pad can be responsible for chronic anterior knee pain.

The claimant’s persistent symptons of severe pain

The decision to cut out the articulating surfaces of the knee joint and insert a revision hinge type of knee prosthesis 1. The Professor was of the opinion that the pain in the leg was generated mostly by the delayed union of the osteotomy and thought that if the osteotomy site were treated by a long-stemmed hinge prosthesis the knee would be pain-free. 2. The Professor decided that the problem would be best treated with a hinged total knee replacement with long stems projecting into the femur and tibia to deal with the painful combination of pathologies.

1. The Claimant, whose occupation was desk-bound was losing time at work and not sleeping well at night due to pain and was taking painkillers and anti-inflammatory medication to no avail.

3. The Revision Total Knee Replacement required the removal of the joint surfaces, the cruciate ligaments and the menisci all of which had not been damaged.

2. The Senior Lecturer discussed the situation with the Professor of Orthopaedics, who suggested that removal of the plate and full weight-bearing exercises to stimulate the bone healing would be appropriate at this stage.

The source of the pain was apparently caused by the inflamed and fibrosed patellar tendon and retropatellar fat pad which continued to be painful.

The removal of the plate and screws after 11 months 1. In the operation, which was the seventh procedure, the Senior Lecturer removed the plate and screws and, with the Physiotherapy Department, he instituted full weight-bearing exercises which were painful and performed with some support with a single crutch used on the opposing side.

As a result the Claimant continued to walk with crutches and could not exercise full weight bearing without pain after the knee replacement has been implanted. 4. The operation was the eighth to be performed on the left lower limb 2 years and 6 months after the accident that had occurred in the original hospital on the evening of a relatively minor operation on the left knee.

2. The plate and screws were removed leaving the two screws further down the tibia, which had been inserted by the Surgeon2 during his two operations. There is now the development of a bridge of new bone posteriorly. 3. The Claimant was desperate with knee pain and once again consulted the Professor for a final solution to this unrelenting and constant pain. EXPERT WITNESS JOURNAL

5. It was very unfortunate that the Professor’s operation was a complete failure from the point of view of pain relief and the Claimant was depressed and suicidal following the procedure. 6. His pain in the soft tissues of the knee joint was apparently aggravated by the heavy metallic endoprosthesis.

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7. After more than two years of suffering with the pain and a prolonged treatment with a very Competent Psychiatrist the Claimant did indeed attempt suicide with an overdose of pain killers and alcohol but was discovered by his partner who came home early from work, found the Claimant unconscious and raised the alarm bells successfully.

9) Date 0+42 months The 9th procedure by Surgeons 3 and 4 together to remove the Knee Replacement and provide an above-knee amputation of the left leg; The strange behaviour of Surgeon 2 Please give your opinions by ticking the relevant boxes. 1. Surgeon 2 was an elderly and well-thought-of Orthopaedic Surgeon in his own area, but he had, for the past two or three years experienced a drop in referral to him from the local GP and the Sports Medicine Specialist who had been sending their referrals 600 miles to a group of Surgeons (including Surgeon 1) who specialised in surgery of the knee.

8. At this stage the Claimant requested an amputation and he discussed the situation with the surgical team, his General Practitioner and his Psychiatrist who warned him that he would quite possibly be troubled with pain in the “Phantom Limb”. Timing of the saga that ended in amputation Almost four years after the accident that had occurred in the first Hospital1 the following list of surgical procedures had been performed on the left lower limb of the Claimant.

2. This reduction in his own Private Practice was evidently irritating Surgeon2 and he was obviously piqued to know that the Claimant, who had previously been treated by him, had been referred to away from his area to have an operation by a Knee Surgeon who had become popular with the local doctors.

1) Date 0. The first procedure was an arthroscopy and tibial tubercle transfer by Surgeon1 to correct the problem of patella alta (high riding patella) to relieve anterior knee pain.

3.When the Claimant, who was well-known by Surgeon 2 and had been previously treated unsuccessfully by Surgeon 2, had returned from the more distant group having had an accident in the Hospital there, Surgeon 2 took over the Claimant’s treatment with glee and fabricated the diagnosis of “a nasty deep infection” which was never substantiated by the laboratory results.

2) Date 0+1 Second procedure by Surgeon1, 24 hours later was the emergency osteosynthesis of the shattered left tibia due to an accident when the Claimant fell as a result of the effects of a local anaesthetic nerve block and the negligence of the attendant Nurse.

4. Once the farce had been initiated, Surgeon 2 obviously had to continue with the treatment of the illusion by operating as he did, with all the medical and surgical treatment that would be appropriate for the diagnosis of sepsis.

3) Date 0+21 days The Third procedure on the pretext of infection under the care of Surgeon 2. 4) Date 0+23 days. The Fourth procedures 48 hours later to apply more pulsed lavage and insert two screws beyond the tibial plate by Surgeon 2.

5. On the evening of the hospitalisation of the Claimant, Surgeon2 claimed that he was unable to attend to his patient that night and brought in the younger Trauma surgeon to do the first “emergency operation” ostensibly to clear the infection.

5) Date 0+7 months. The fifth procedure 7 months later by Surgeon 2 to arthroscope the left knee and remove some loose screws. 6) Date 0+13 months The sixth procedure By the Senior Lecturer a) to remove the original plate and screws (omitting 2 screws),

6. Then 48 hours later he repeated the procedure and added 2 more screws into the tibial fragment beyond the plate on the tibia.

b) to make a transverse osteotomy in the tibia c) attempt to correct malrotation of the tibia,

7. Surgeon 2 was obviously cognisant with the fact that his surgical interference using pulsed lavage would be likely to delay the union of the fractures, but took care to request six-weekly radiographs, the reports of which he did not store in his records but he made sure that the Physiotherapists received his fabricated reports of progressive boney union.

d) to apply a new plate and screws to the lateral side of the tibia. 7) Date 0+23 months The Seventh procedure in Hospital3 by the Senior Lecturer a) to remove the plate and screws and mobilise the Claimant weight bearing to complete the bony union of the osteotomy.

8. For instance after the first 6 weeks the Radiologist wrote in his report that the fracture lines were “still visible” .

8) Date 0+30 months The 8th procedure in Hospital 4 by the Professor to insert along-stemmed “Revision, hinged Knee Replacement”. EXPERT WITNESS JOURNAL

9. Surgeon 2 wrote a letter to the Senior Physiotherapist that the fractures were “healing 91

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nicely” and admonished the Senior Physiotherapist that it was appropriate to begin weight-bearing exercises at this stage.

Yes No Uncertain

10. This charade with the radiographic reports under his left hand and his fabricated report in the form of a letter tendered to the Senior Physiotherapist in his right hand continued for six months until the partially united fracture collapsed.

2, Do you agree that failure to osteotomise the well-united fibula may have been the reason for delayed union following the osteotomy performed by the Senior Lecturer? Yes

11. Do you agree that the advice from Surgeon 3 to the Senior Physiotherapist was disingenuous and dangerous for the Claimant? Yes No Uncertain

No Uncertain

❑ ❑ ❑

No Uncertain

❑ ❑ ❑

❑ ❑

6, Given that the knee joint had normal articular surfaces, cruciate ligaments and menisci, do you think that the Knee Replacement should have dealt successfully with the pain that the Claimant was having in his knee joint? Yes No Uncertain

❑ ❑ ❑

7, Would you agree to the amputation as a final solution to the painful lower limb? Yes No Uncertain

(6) The indications for the operations at the medical school and their outcomes 1, Do you agree that the Professor of Orthopaedics and the Senior did not do sufficient preoperative imaging, including CT studies to measure the exact rotation of the prior to the operation performed by the Senior Lecturer?.

EXPERT WITNESS JOURNAL

❑ ❑

5, After the plate and screws were removed did the osteotomy unite? Yes ❑

(5) In your opinion would you agree that the backing out of 4 screws and the incident of hyperextension, pain and swelling together with the backing out of screws were indications of delayed union that had been caused by the operations involving pulsed lavage under the care of Surgeon 2? Yes

❑ ❑

4, Would you have osteotomised the fibula at that stage? Yes ❑

❑ ❑ ❑

(4) When, after six months, the Claimant had collapsed with pain and swelling at the back of the knee, and felt some of the screw heads palpable under the skin backing out, do you agree that Surgeon2 was particularly disingenuous in making a false diagnosis of a ruptured posterior cruciate ligament? Yes

❑ ❑ ❑

3, When the osteotomy was taking more than 11 months to unite, and the Professor suggested removal of the plate and screws, did the osteotomy unite? Yes ❑

12. In your opinion, would you agree that Surgeon 2 was again being disingenuous in requesting 6-weekly radiographs and not passing the Radiologist’s reports to the Physiotherapists? Yes

❑ ❑ ❑

This is a true story. If you would like to comment, please send your comments to me via the Expert Witness journal or if reading on-line via the downloadable word document. The next episode will be on the opinion of the Orthopaedic expert Witness in this case Don’t miss it! 92

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A Stroke of Luck or Jesus saved a Life by Dr Bashir Qureshi - FRCGP, FRCPCH, FFSRH-RCOG, AFOM-RCP, Hon MAPHA, Hon FRSPH • Expert Witness in GP Clinical Negligence. • Expert Witness in Cultural, Religious & Ethnic issues in Litigation. • Life Fellow of the RCGP, RCPCH, RSM & Life Member of the BMA, ICGP. I retired in 1998 but carry on doing GP locums in various parts of London. I believe that it applies to all parts of the body, especially to the brain, if you do not use it you lose it. Let me tell you a true story, while hiding details of real characters to preserve privacy. How the life of a Black British woman, age 29, was saved by a sheer stroke of luck or by Jesus Christ.

abdomen. I filled a request form for urgent “Scan of abdomen, pelvis and gynaecological”. I rang hospital and made urgent Scan appointment for Monday morning. I made an appointment for her to see a GP Partner on Monday afternoon. I advised her to attend Urgent Care Clinic again, if feeling worse. One Friday evening in April 2013, I went again to the same practice to do a locum. A locum is akin to a bus driver and he or she is as good as their last performance. Only a very few Partners have a high opinion of them. I do not mind. This is the story of my life. One English Partner was waiting for me. I nearly died of the surprise. He said “you saw one of my patients last month, you saved her life. Come with me to my room and I show you the scan”. I specialise in “Cultures, Religions and Ethnicities”. I know that sarcasm is a part of the English sense of humour and even I use it. I thought he is pulling my leg.

One Friday evening in March 2013, I went to do a locum in Vauxhall, London. A Black British receptionist told me that a Black British woman wants to see a black doctor. I have an acquired British sense of humour as I live in London since 1964. I told her that I am a British Asian doctor and I can act as a white or a black doctor as it suits me. I called the patient in my consulting room. The patient was crying due to stress and abdominal discomfort. She said that she has had loose motions alternating with constipation for last four months. No vomiting or blood in stools. She has seen all four English Partners, one each month, they have diagnosed “Irritable Bowel Syndrome” and given medication. She has been to the Urgent Care Clinic in her local hospital who diagnosed the same. She said she has dreamt that she is dying. She also said she saw Jesus in the same dream who asked her to see a Black doctor. She literally begged “please save me”. I felt shaken as a human reflex. I regained my self confidence because a patient can call a doctor but I cannot call anyone else before trying my best.

The partner took me to his computer in his consulting room and showed me the Black British woman’s abdominal scan. It showed an “enlarged ovary with cancer”. He said she was sent to the surgical unit and had an operation straight away. She is now at her home and recovering. I felt shaken as a human reflex, inspite of dealing with living and dead human beings all my professional life over fifty five years (1960 -2015). I thanked the partner and went to my consulting room. I continue to help patients and support practice staff. I find it rewarding.

I called the same receptionist to chaperone me. I examined her abdomen and found that there was bloating but no tenderness. I thought that there was some swelling in abdomen which was like a balloon. I excluded acute appendicitis and acute EXPERT WITNESS JOURNAL

Finally, in medical practice, sometimes it helps if the doctor knows the patient but other times it helps if the doctor does not know the patient. The diagnosis of myxoedema is one such example; a locum doctor can spot it better. Similarly, 93

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sometimes it helps if the doctor is young and other times it is an advantage if the doctor is only young at heart. I am retired but not tired. I often say to my friends “Make new friends but do not forget the old. New are silver, old are gold”. In life, everyone but everyone is important in their own way. Everybody should enjoy work and live life fully. We get only one life; let us make the best of it. ■

Above Dr Qureshi inside number 10 Downing Street Below and opposite outside number 10 Downing Street

Emanuel Rosen

BSc, MD, FRCSEd, FRCOphth, FRPS, MAE

Ophthalmology Expert Witness with over thirty years experience of personal injury and clinical negligence claims I have been involved in medico legal practice for over thirty years dealing with aspects of general ophthalmology and I have a special interest in cataract and refractive surgery. My experience covers both personal injury and medical negligence issues. I am fully conversant with, and practise according to, the new Civil Procedure Rules. I am the author of numerous text books of varied aspects of ophthalmology including 'Ophthalmology for Medico Legal Practitioners'. I am case reports editor of the international Journal of Cataract and Refractive Surgery.

Mr. Emanuel Rosen Consultant Ophthalmic Surgeon 10 St John Street, Manchester, M3 4DY Telephone: 0161 832 8778 All enquiries to Louise Brennan, PA to Emanuel Rosen, at louise_brennan@btconnect.com

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Liverpool Identifying Genetic Defects in Glaucoma Scientists from the University of Liverpool have sequenced the mitochondrial genome in glaucoma patients to help further understanding into the genetic basis for the disease. personalised medicines to identify drugs that will target mutated mitochondria.

Glaucoma is a major cause of irreversible blindness, affecting more than 60 million people worldwide, increasing to an estimated 79.6 million people by 2020. It is thought that the condition has genetic origins and many experiments have shown that new sequencing approaches could help understand how the condition develops.

Professor Colin Willoughby, from the University’s Institute of Ageing and Chronic Disease, explains: “Understanding the genetic basis of glaucoma can direct care by helping to determine the patient's clinical risk of disease progression and visual loss.

Studies on primary open-angle glaucoma - the most common form of glaucoma - have shown that mutations in mitochondria, the energy generating structures in all cells, could give valuable insight into how to prevent the disease.

“Increasing evidence suggests that mitochondrial dysfunction results in glaucoma and drugs that target mitochondria may emerge as future therapeutic interventions. “Further studies on larger glaucoma numbers of patients are required to firmly establish the link between genetic defects in the mitochondrial genome and glaucoma development.

Using new gene sequencing techniques, called massively parallel sequencing, the Liverpool team have produced data on the mitochondrial genome taken from glaucoma patients from around the world.

“Our research, however, has demonstrated that massively parallel sequencing is a cost-effective approach to detect a wide spectrum of mitochondrial mutations and will improve our ability to understand glaucoma, identify patients at risk of the disease or visual loss and support the development of new treatments.”

The impact that mitochondrial gene change has on disease progression has been difficult to fully determine as cells in the human body can contain mixtures of healthy and mutated mitochondrial genes. Using this new technology, however, the researchers aim to support the delivery of EXPERT WITNESS JOURNAL

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The research is published in Genetics Medicine and supported by the British Council for the Prevention of Blindness.

Doctors and scientists from St Paulâ&#x20AC;&#x2122;s and the Universityâ&#x20AC;&#x2122;s Department of Eye and Vision Science will be talking to visitors about the latest technologies and techniques being used to identify and treat eye conditions and showing them how the state-of-the-art equipment at St Paulâ&#x20AC;&#x2122;s is used. St. Paulâ&#x20AC;&#x2122;s Eye Unit dates back to 1871 and is regarded globally as a centre of excellence for care, research and education. Over 100,000 patients visit St. Paulâ&#x20AC;&#x2122;s Eye Unit each year.

In a separate study, the research team in Liverpool are also analysing microRNAs in glaucoma, funded by Fight for Sight and The International Glaucoma Association. The research aims to uncover what role microRNAs play in regulating the eyeâ&#x20AC;&#x2122;s drainage system. The eye maintains a constant pressure by continuously producing fluid (called aqueous humour) while an equal amount of the fluid drains out of the eye through what is known as the trabecular meshwork. In the most common type of glaucoma, the trabecular meshwork becomes blocked slowly over time. As pressure in the eye mounts the optic nerve becomes damaged, leading to serious, irreversible sight loss if left untreated.

Professor Simon Harding, from the Universityâ&#x20AC;&#x2122;s Institute of Ageing and Chronic Disease and Chair of Clinical Ophthalmology at St Paulâ&#x20AC;&#x2122;s Eye Unit, said: â&#x20AC;&#x153;St Paulâ&#x20AC;&#x2122;s has always had a huge amount of support from the local community and, as part of the Freedom of the City programme, we wanted to host an event for members of the public to allow them to discover more about the eye, meet the team, and see first-hand some of the groundbreaking work performed at the University.

It is known that complex networks of microRNAs control whether proteins are produced or destroyed in the body, both in health and disease. In the healthy trabecular network microRNAs are involved in cell death and how the tissue responds to mechanical stress and scarring. It is not known, however, which microRNAs might play a part in primary open-angle glaucoma or which proteins they control.

â&#x20AC;&#x153;This is a rare opportunity for people to explore first-hand the world of ophthalmology in a unique environment.â&#x20AC;? The official Freedom of the City ceremony for St Paulâ&#x20AC;&#x2122;s Eye Unit will be presented by The Lord Mayor, Cllr Erica Kemp CBE. The accolade is recognised as â&#x20AC;&#x2DC;the highest nomination that can be bestowed to an organisation that has rendered significant and valuable service to the City and its

Professor Colin Willoughby said â&#x20AC;&#x153;We plan to assess the microRNA genes in tissue from patients undergoing surgery for glaucoma and compare this with normal trabecular meshwork tissue. â&#x20AC;&#x153;We will use the latest microarray technologies to assess over 2000 microRNAs in a global fashion to understand which microRNAs are linked with glaucoma. From this list we will validate the best candidates and use computer models to identify the genes and proteins they control.â&#x20AC;?

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Results from the project should give significant insight into some of the key molecules involved in glaucoma. They could also help advance the emerging field of microRNA therapeutics, in which microRNA mimics or blockers against specific targets could be developed to lower eye pressure as new treatments for glaucoma. In the area of microRNA therapeutics, they have funding from the National Centre for the Replacement Refinement & Reduction of Animals in Research (NC3R) to develop an organ culture system of glaucoma in which part of a human donor eye is maintained in the laboratory to test these new miRNA therapies.

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In a timely follow up to the research publication, scientists and consultants from The University of Liverpool and St Paulâ&#x20AC;&#x2122;s Eye Unit have got together to create an exhibition exploring the human eye at Liverpool Town Hall. EXPERT WITNESS JOURNAL

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Heart Attack Demystified An explanation of key terms and concepts by Robin Choudhury DM, FESC, FRCP Professor of Cardiovascular Medicine, University of Oxford Hon Consultant Cardiologist, Oxford Heart Centre Heart attack (acute myocardial infarction) remains a huge clinical problem. Each year, over 80,000 heart attacks occur in the UK. The cost of heart attack and its sequelae are huge, estimated at over £2 billion annually to the NHS. Heart failure, which can be caused by myocardial infarction affects 900,000 patients in the UK.

demand, notably on exercise. Because of this work as a perpetual pump it requires a reliable blood and nutrient supply, which is obtained from the coronary arteries. The three principal coronary arteries run along the surface of the heart, dividing into branching structures that nourish the adjacent muscle.

Despite these astonishing figures, public understanding of some of the terminology around this medical area remains very patchy. This article will unpick and explain key terms including “angina”, “myocardial infarction”, “heart attack”, “cardiac arrest” and “heart failure”.

Coronary Artery Disease Most of the heart disease that will be discussed in this article relates to the consequences of interrupting blood supply to the heart. This is most usually due to the accumulation of “atherosclerosis” within the walls of the coronary arteries. Atherosclerosis reflects the buildup of fatty deposits, rich in cholesterol and attracting an inflammatory response mediated by the immune system. These deposits start in the second and third decades of life and build progressively over many years. They often come to light in the sixth and seventh decades (sometimes before) through the symptoms of “angina”. A patient with ‘stable angina’ experiences no symptoms at rest, but when the work of the heart increases due to physical

Normal heart function In normal circumstances, the heart is a hollow muscular organ that works as a variable output pump. As a heavy duty mechanical pump, its energy requirements are relatively high. The heart has integrated electrical circuitry which allows its resident pacemaker to orchestrate organized, automatic beating activity at a baseline level and to respond to certain stimuli in response to increasing EXPERT WITNESS JOURNAL

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exertion, fixed narrowings within the coronary arteries restrict the free flow of blood leading to inadequate nutrient supply and consequent discomfort. Symptoms are usually manifest as tightness / pressure / pain felt centrally in the chest, perhaps with radiation to the left arm, jaw, back. In this stable syndrome, the discomfort usually eases swiftly as the heart is returned to its resting state following exertion. This is a relatively benign condition.

Following large clinical trials in the 1980s, restoration of blood flow was generally achieved using powerful clot-busting enzymes (“thrombolysis”) that were injected intravenously and literally digested a blood clot, allowing the passage of blood to be restored. This is still a valid treatment used widely in much of the world, particularly where access to specialist cardiac centres in a timely fashion is restricted. More contemporary management, prevalent in the UK, is to restore blood through so-called “primary percutaneous coronary intervention”. In other words, the patient is transferred directly to a specialist cardiac centre where the arterial blockage is relieved mechanically using techniques involving wires, balloons and stents all delivered through minimally invasive access in the radial or femoral artery.

In the context of angina described above, the narrowings in the arteries are stable and fixed. Their size changes slowly if at all. However, for reasons that are not always apparent, but sometimes related to surges in blood pressure or intense physical activity, these narrowly can change suddenly and dramatically. Rupture or fissuring of the lesion in the wall of the artery can lead to the rapid accumulation of a blood clot. Where this completely obstructs the passage of blood, a heart attack is imminent. This blood clot in the artery, otherwise known as a “coronary thrombosis” is a life-threatening and often intensely painful event. In this setting, a patient would typically experience extreme central crushing chest pain, often associated with nausea, vomiting, sweatiness and profound pallor or greyness. This is a medical emergency.

In general, the quicker this therapy is delivered, the better. The benefit is greatest in the first 2 to 3 hours, falling quite steeply even within that time period and maintained at a lower level for up to 12 hours (Figure 2 below). Care providers actively monitor the times to effective treatment after (1) onset of symptoms; (2) first medical contact; (3) arrival at hospital. Integrated medical care systems, such as the National Health Service, where mechanisms of care delivery can be developed in a collaborative way that co-ordinates the ambulance system and the accepting hospitals have proven very effective in this emergency context.

Heart Attack Patients with this type of heart-attack usually present to the emergency medical services and the diagnosis is often made by paramedics in the community, based on the clinical history supported by an ECG (Figure 1, below). The first principle of management is to transfer the patient to a place of safety so that the blocked artery can be opened as quickly as possible. Restoring blood flow and nutrient supply to the heart muscle is critical since the longer the muscle is deprived of blood, the more likely that in reversible injury, culminating in scarring and loss of function will occur.

Figure 2 - Treatment delay is associated with diminishing patient benefits, particularly within the first 0-3 hours. Successful treatment of acute myocardial infarction typically involves the relief of obstruction by removal of the blood clot and inflation of a balloon within the affected artery (which is typically 2 to 4 mm in diameter); followed by placement of a metallic stent (Figure 3, see over). Where the procedure is uncomplicated, the patient is often discharged within 72 hours, with a package of medications and a structured rehabilitation program planned.

Figure 1 - The ECG shows patterns of electrical activity in the heart. In the case of a heart attack (shown here), so-called ST segment elevation suggest blockage of a major coronary artery. EXPERT WITNESS JOURNAL

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Figure 3 - Angiogram showing a blocked coronary artery (panel A) that has been opened with a stent procedure that restores blood flow to the heart muscle (panel C). The first presentation of this type of problem is often abrupt without any prior warning. However, not unusually, the definitive heart attack event is anticipated by episodic, milder though similar, symptoms in the preceding days. Unfortunately, is not unusual for patients and their carers to attribute these less dramatic symptoms to unrelated putative problems such as indigestion or acid reflux. Indeed without specific diagnostic testing, the actual diagnosis can be very difficult to pin down. Indeed the initial diagnosis often depends on clinical judgments. There are a number of diagnostic aids, including the measurement of troponin (a protein released from damaged heart muscle) and the electrocardiogram (ECG). However both of these tests are commonly normal even in the presence of significant coronary artery disease and should be considered ‘rule-in’ (when abnormal) rather than ‘rule-out’ (when normal).

and early complications of acute MI and those occurring late. Immediate and Early complications As soon as the coronary artery is blocked (see above), the heart is in potential grave danger. The most significant potential hazard is that the lack of oxygen will render the heart susceptible to serious arrhythmias. In practice, this can mean very rapid, possibly disorganized contraction of the heart muscle. Where this is sufficiently severe, it can make the heart ineffective as a pump and may result in a catastrophic fall in blood pressure. Where there is insufficient blood pressure to perfuse the brain, loss of consciousness occurs. This constellation of events is a cause of “cardiac arrest”. Without immediate resuscitation, this would be fatal. Increasingly, with expanding awareness of cardiac arrest and cardio pulmonary resuscitation, patients are arriving at hospital following “bystander resuscitation”. This intervention can be a life-saving bridge to definitive treatment. Restoration of normal blood flow is often effective in removing the hearts susceptibility to these arrhythmias.

In confirmed myocardial infarction, the objective of prompt effective treatment is to restore the blood supply to heart muscle in jeopardy and to prevent permanent damage due to lack of oxygen and other nutrients. Where this is successful, damage to the heart can be very minimal, and sometimes discernible at all. It is frequently possible for a patient to return to a completely normal life. Unfortunately, this is not always the case. Irreversible damage may occur due to late presentation or delayed / ineffective treatment. Sometimes even where the treatment is apparently successful and the main coronary artery is opened, the blood supply to the small blood vessel within the heart muscle remains compromised, perhaps due to obstruction with microscopic blood clot debris. In these cases, complications of myocardial infarction can ensue.

A similar presentation occurs when the heartbeats extremely slowly, a recognized complication of myocardial infarction. This usually resolves with effective treatment, but can occasionally require implantation of pacemaker. Even where the heart rhythm is not disturbed, disruption to the blood supply to the heart can result in impaired pumping function. Not surprisingly, the larger the volume of blooddeprived heart muscle, the more significant is the likely negative impact on pump function. At the severe end of the spectrum, this can result in extreme pump failure, with low blood pressure, accumulation of fluid in the lungs (“pulmonary oedema”) and sometimes failure of the kidneys and

Complications of Acute Myocardial Infarction It can be helpful to regard these as the immediate EXPERT WITNESS JOURNAL

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other organs. Happily, with the benefit of contemporary treatments this is now a relatively unusual scenario.

Alternative diagnoses. Finally, it is worth noting that not all chest pain comes from the heart. Relatively common causes include oesophageal reflux and spasm, hiatus hernia, musculo-skeletal pain, pulmonary pathology including pulmonary embolus and, importantly, diseases of the aorta – most notably “aortic dissection”, which is a surgical emergency.

Late complications Even in patients who have sustained significant damage to the heart muscle, the future with appropriate medical management can be satisfactory from a symptom point of view. However, where there has been significant damage to the heart, “heart failure” can ensue in the succeeding months and years. This is often manifest as exertional breathlessness, ankle swelling and sometimes severe breathlessness requiring admission to hospital. The risk of heart failure can be minimized by appropriate medical therapy, so-called ‘secondary prevention’.

Glossary Angina Pain or discomfort experienced in the chest, jaw or arm that is often provoked by exercise. Angina reflects inadequate nutrient supply to the heart muscle, usually due to atherosclerosis narrowing the coronary arteries. Aortic dissection Usually-spontaneous tear in the wall of the aorta. Can have very serious consequences including death and paralysis. Often present with severe chest and or back pain

Where normal heart muscle is replaced by scar tissue as a consequence of heart attack, a proportion of patients will be susceptible to lateoccurring arrhythmias. These may manifest as palpitation, but can also result in abrupt loss of consciousness (“syncope”). Clearly this abrupt, unheralded loss of consciousness can prove hazardous to the patient and potentially to those in the immediate surroundings. This would be particularly important in the context of driving or in the operation of machinery/working at heights etc. In some cases, for instance in patients with severely diminished pump function, it is possible to anticipate this arrhythmic complication and to implant a device known as an “implantable cardioverter defibrillator”, with the intention of rapidly detecting malignant arrhythmias and correcting them either with intensive pacemaker activity or with the delivery of an internal electric shock.

Atherosclerosis Fibrous and fatty tissue that builds up in the walls of large arteries (such as the carotid arteries to the brain and the coronary arteries to the heart). Atherosclerotic diseases are very common and reflect a process that has often already begun by the second decade of life. Cardiac arrest Catastrophic fall in blood pressure that is usually due to a heart dysrhythmia – either too fast or too slow. Commonly occurs in the context of heart attack. Coronary thrombosis Blood clot in the coronary artery. Most usual cause of a heart attack.

Risk factor and provocation Risk factors for the development of atherosclerosis in the coronary arteries include genetic predisposition, high blood pressure, high plasma cholesterol, diabetes, tobacco smoking. Usually, it is not possible to determine the relative contributions of these factors. On occasion, there can be further contributory factors to the timing of acute myocardial infarction in susceptible individuals. For instance, cocaine use has been associated with surges in blood pressure, rapid heart rate, increased coagulation of blood and spasm of the coronary arteries - all of which may contribute to heart attack. Similarly, intense physical exertion has been associated with a rise in heart-attack risk of over 100 fold. Significant emotional and can also place physiological strain on the heart predisposing to heart attack and / or arrhythmia in susceptible individuals.

EXPERT WITNESS JOURNAL

Heart attack Damage to the heart muscle usually caused by blood clot in a coronary artery Heart failure Inability of the heart to work as a pump that can deliver nutrients to the other organs. Implantable cardioverter defibrillator Implanted device that monitors the heart electrical activity for abnormal rhythms and intervenes with an electric shock to correct the most malignant of them Pulmonary oedema Accumulation of fluid in the lungs, usually due to failure of the heart as a pump. Pulmonary oedema causes distressing breathlessness and requires prompt treatment.

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About the author Professor Robin Choudhury studied medicine at the University of Oxford with postgraduate training in London (Royal Brompton & Hammersmith), Boston (Massachusetts General Hospital), Oxford and New York (Mount Sinai). He is Professor of Cardiovascular Medicine at the University of Oxford, UK and Honorary Consultant Cardiologist at the Oxford Heart Centre.

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His clinical practice is in interventional and general cardiology, including the management of patients presenting acutely. He is active in both clinical practice and research and has published approximately 150 papers and book chapters on aspects of cardiovascular disease. He is co-editor of the textbook â&#x20AC;&#x153;Cardiology Emergenciesâ&#x20AC;? (Oxford University Press). He has a particular interest and expertise in the assessment and management of chest pain and heart attack [myocardial infarction].

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Professor Choudhury has been elected to Fellowships of the Royal College of Physicians, the American College of Cardiology, the European Society of Cardiology and of Balliol College. He is past President of the Royal Society of Medicine Section on Lipid and Vascular Risk. He serves on the Editorial Board of the Journal of the American College of Cardiology (Section Editor, Clinical Cardiology). His professional bases are in Oxford and London.

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Challenges in Cardiology – A High Stakes Medical Specialty An Overview of Cardiology by Professor Saul Myerson Cardiac disease is common, particularly in developed countries (where life expectancy is long enough for the common cardiac conditions to occur), and cardiology is a popular specialty in medicine. It requires good judgement and accurate decision making, as for other specialties, but the stakes can be higher than some areas of medicine. The chance of death or significant impairment of quality of life can be greater, although because of the older age of most patients and the higher chance of death with cardiac disease, the incidence of longstanding/lifelong disability is relatively low, and settlements for negligence do not often reach the seven figure sums seen in some other specialties (e.g. obstetrics).

Timely treatment is also important in cardiology conditions can change rapidly, and the benefit from treatment can depend on early intervention - e.g. when a heart attack occurs, treatment is needed urgently (within an hour ideally) to minimise damage, and reduce the chance of death or future heart failure. Cardiac diseases can often be lifelong, and the cardiologist needs to consider the best long term approach. Examples include coronary artery disease (which can be treated/symptoms abated but never ‘cured’), and heart muscle conditions (cardiomyopathies), which require long term management. There are some cures however radiofrequency ablation can remove the risk of some lethal rhythm problems, and good antibiotics can settle infections on heart valves.

It is however an area that benefits from an abundance of clinical trials and other studies, so the data available to the clinician on likely diagnosis, outcome, risk and benefit from treatments is often well known/characterised. Diagnostic accuracy is important - in addition to correctly informing the patient of the problem, it determines the predicted outcome, the appropriate treatment options, and the timeliness required for intervention. This is especially so as the treatments themselves can involve a high risk. For example, a patient considering coronary artery bypass surgery who also has poor cardiac function faces significantly higher risks of surgery (perhaps a mortality of 5-10%). The cardiologist, cardiac surgeon and patient need to know whether the weakened cardiac muscle is viable (i.e. alive and likely to recover function after surgery) or non-viable (scarred muscle, having suffered a heart attack previously). In the latter case, the surgery would be inappropriate as the patient would be facing the high surgical risk but unlikely to gain any benefit. A cardiac viability study (using echocardiography, cardiac magnetic resonance or nuclear imaging studies) would accurately advise whether the surgery was potentially worthwhile. We also know that where there is partial scarring, the degree/depth of scarring assessed with cardiac magnetic resonance imaging is directly related to the chance of functional recovery, so a precise estimate of benefit can be made. This is a good example of where the assessment of risk and potential benefit can often be made accurately using the correct diagnostic tools and the knowledge from previous clinical studies. EXPERT WITNESS JOURNAL

The cardiologist can also be faced with patients who have a heightened anxiety about their heart and potential problems, without any abnormality being detected – this is related to the nature of the heart and the understandable emotion attached to it! A good cardiologist needs to be able to distinguish patients with benign symptoms from those with potentially important conditions. There are also particularly specialised areas within cardiology (sub-specialties), and these often require good procedural skills as well. The major sub-specialty areas are intervention (keyhole procedures on the coronary arteries or valves), electrophysiology (rhythm management), cardiac imaging, heart failure and congenital heart disease. Common areas of expert witness work in cardiology Litigation is less frequent in cardiology than some other medical areas, but I have outlined the more common situations where shortcomings can occur. Failure in making the diagnosis This occurs more commonly if a patient is not referred to cardiology services and/or the relevant examination +/- investigations are not performed, i.e. the physician doesn’t place him/herself in a position to make the diagnosis. The important aspects are whether the appropriate treatment is likely to have improved the outcome for the patient if this had been given, and/or whether a patient’s choices about other treatments might have been affected by the cardiac diagnosis (e.g. deciding not to have an operation). 102

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Identifying the cause of a cardiac problem There are occasions when a heart is failing but the cause is unclear, and identifying which is most likely and the probable time course of the condition, even in retrospect, may impact on whether the clinical situation could have been improved. A recent legal case involved a patient with severe multi-organ failure (including liver and kidney failure) who had poor cardiac function. Identifying whether the cardiac failure caused the liver and other organs to fail, or that the severe liver and kidney failure (and secondary sepsis) led to cardiac dysfunction was important - the cardiac failure could have been picked up by the patient’s GP ten days prior to admission when he was unwell, if an adequate examination had taken place. In this case, the severity and type of liver failure was too great to have been secondary to the cardiac failure, and it was more likely that liver failure due to hepatitis was the primary cause – this would have been more difficult to identify until jaundice had occurred (after the GP had seen the patient).

physical exertion. Most of those screened are young (teenage or in their twenties), and about to embark on a career in sport. The screening aims to identify inherited or congenital conditions such as cardiomyopathy (heart muscle weakness), heart rhythm problems, or rare abnormalities of the coronary arteries that might affect participation in sport. Assessment relies on the history (including family history), but particularly on diagnostic testing, especially electrocardiography (ECG), exercise treadmill testing and cardiac imaging. This is a difficult area clinically as there is considerable overlap between cardiac changes due to athletic training (termed ‘athletic heart’) and those due to cardiomyopathy – both can result in larger hearts with thicker walls, and both can lead to similar changes on the ECG. Differentiating the two (healthy changes from pathological hearts) requires an accurate knowledge of what is the normal in an athletic population, what features that are clearly abnormal, and (for the majority of findings that occur in both healthy and pathological states), the probability that a particular finding suggests a pathology. The difficulty is further compounded by ethnic differences in normal ECGs and imaging findings – particularly in black or Asian athletes, who are often over-represented in sporting populations! The consequences of the assessment for both the doctor and athlete are extremely high: the athlete needs to be protected from unnecessary risk if there is a cardiomyopathy/other cardiac condition, which could have severe consequences (including death) if they continued playing professional sport. On the other hand, over-diagnosis of a pathology (i.e. being too defensive) could result in the termination of a career as a sports-star that is potentially worth millions of pounds. Understandably, significant anxiety can occur in the athlete on the cusp of signing a professional contract after years of training, and good communication and sensitive handling are required. Some athletes are reluctant to be tested, for fear of a bad result, and sceptical of the outcome. To add to the pressure, a professional athlete that collapses while participating in sport (which is often televised) can generate huge media and public interest, as several high profile examples can testify – a notable example of this is Fabrice Muamba (the Bolton Wanderers footballer who survived a cardiac arrest during a game against Tottenham Hotspur in 2012).

Sports screening This is a growing area, with potentially high stakes on both sides and difficult judgements to make. Professional sportsmen/women (and amateurs competing at a high level in sport) are often screened in advance for underlying cardiac conditions that might put them at risk of sudden death or other problems associated with high level

Thus, a robust and accurate approach is required for the cardiologist undertaking an assessment (usually as a result of an initial screening test being abnormal). An example of the correct approach involved a rugby player who was tested prior to signing for a professional club, and a cardiac MRI scan confirmed clear evidence of hypertrophic cardiomyopathy. This would halt his career in sport

Delayed/missed diagnosis Given the timely nature of appropriate treatment in some conditions, a delay in making the diagnosis can lead to harm. Examples might include a general practitioner failing to recognise the initial symptoms of a heart attack, resulting in late recognition and delayed treatment, which could result in a higher mortality or more severe heart failure than if treated earlier. Recent advertising campaigns have however raised the public’s (and doctors’) awareness of heart attack symptoms, and this is now an uncommon area. Another example would be a patient with endocarditis (an infection on the heart valves), whose symptoms were mistaken for a prolonged viral illness, and went on to experience a stroke due to embolization of the infected tissue to the brain. Inaccurate diagnosis The good range of diagnostic investigations in cardiology make this unusual, but there are still instances where several possible cardiac diagnoses exist (e.g. the potential causes of a cardiomyopathy), and some of these may be treatable (e.g. a severe valve problem) while others may not be (e.g. an inherited cardiomyopathy) – understanding the relative severity of each and how likely these are to cause the cardiomyopathy is important for obtaining the correct diagnosis.

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altogether, and he was keen for the result to be kept confidential. The club however refused to sign a contract without the results of the scan, and he eventually gave permission for the result to be divulged. As predicted, it resulted in the termination of his planned career (with understandable distress on his part), but may well have prevented his sudden death during a game, and he has subsequently received an implantable defibrillator to protect him from lethal arrhythmias. Another recent case highlighted the importance of good communication and appropriate handling in avoiding a legal challenge. A professional footballer for a premier league club had an abnormal ECG but normal cardiac imaging. His likelihood of a cardiomyopathy was higher than the normal population but still low (<10%), and he was allowed to continue playing. However, an appropriate consultation with him did not occur, and the abnormalities and potential risks were not discussed with him, denying him the opportunity to consider his options which included detraining for a period of time to see if the changes resolved. Unfortunately he suffered a cardiac arrest in his first professional game and although he was resuscitated, he suffered significant neurological damage and required lifelong nursing care subsequently. The family won a high court case for compensation and ongoing care costs, based on the clubâ&#x20AC;&#x2122;s failure to implement an appropriate process for assessment, and the failure of communication denying the player the opportunity of making an informed choice.

Appropriate and competent treatment A few cases involve inappropriate or poor quality treatment, but this a rare area of legal challenge in cardiology. Cases commonly result from a failure of communication about the risks of a procedure (and subsequent occurrence of a recognised risk), or failure to communicate if a complication has occurred (a â&#x20AC;&#x2DC;cover upâ&#x20AC;&#x2122;). It is important for patients to understand the risks of the choices they face â&#x20AC;&#x201C; especially if they elect not to have a procedure while the choice may well be the best option for them, the communication is key My practice I have been a consultant cardiologist for 8 years and although Iâ&#x20AC;&#x2122;m a general cardiologist with specialist interests in valve disease, aortic disease and cardiomyopathy, my practice also includes a large component of diagnostic testing, particularly advanced cardiac imaging (I have an international reputation for cardiac magnetic resonance imaging). I am often consulted about diagnosing particularly difficult cases/diagnoses, and am asked to identify the causative processes involved and their likely time frame, as well as differentiating normal from abnormal findings. Assessing future risk/prognosis and identifying suitable patients for cardiac surgery (e.g. viability studies, and assessing severity of valve disease) also forms part of my practice. My medico-legal work therefore reflects this expertise and I have a varied case mix involving these areas. â&#x2013;

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Medical Notes and Records – Best Practice By Mr Scott Lister & Ms Elizabeth Bardolph . Scott Lister is qualified as both a Nurse and a Solicitor. He qualified as a Nurse in 1995; his nursing career was mainly focused within the critical care environment. For 10 years he worked as a senior member of the transplant team across London, Essex and Hertfordshire. Scott retrained as a Solicitor and practised for a short time prior to founding Apex Health Associates Ltd. Apex Health Associates is a leading medico-legal company that provides a medical records (sorting, pagination and chronology) service and a nursing expert witness service. Elizabeth Bardolph is a certified nursing expert. She qualified as a nurse in 1969 attaining Directorate Nurse Manager. Following family development, she spent eleven years in clinical research in parallel with two years of health education in industry. After establishing and managing an independent skin laser clinic within a District General Hospital, she founded her own business in 1999. Cosmecare provides specialist advice, health education and treatment of skin problems. She has recently completed the LLM in Medical Law and Ethics. In addition to her clinical duties, Liz acts as a nursing expert witness. full account of your assessment and the care you have planned and provided relevant information about the condition of the patient or client at any given time and the measures you have taken to respond to their needs.

Both Scott and Liz have extensive experience of reviewing medical notes and records for the purposes of investigations and/or litigation. In this article, they provide some advice and ‘top tips’ as to how to keep good medical and nursing records.

evidence that you have understood and honoured your duty of care, that you have taken all reasonable steps to care for the patient or client that any actions or omissions on your part have not compromised their safety in any way.

It is our experience that healthcare professionals are extremely surprised when there is a complaint or legal proceedings are contemplated/issued by the intense scrutiny that records are under. Unfortunately doctors and nurses are not given sufficient training about documentation and the expected content and standards, and it is only when things go wrong that health care professionals realise how reliant they are upon their previous notes and records. As can be expected, often these records have been created a long time prior to the complaint or legal proceedings being raised.

Record of any arrangements you have made for the continuing care of a patient or client.”

Top tips 1, Legible and clear The records need to be legible and clear. Anyone accessing the document/s needs to be able to read and understand the content. If healthcare professionals have particularly bad handwriting then the medical records should be printed so that any one else referring to them can easily decipher them. The records are often the only record of what has happened and accordingly they need to be well written, clear and easy to follow. Bear in mind they may need to be photocopied, so black or blue ink/biro should be used. Hopefully as the National Health Service moves towards an electronic notes keeping system the problem of deciphering colleagues’ hand writing should become less of a problem.

The BMA has said “Doctors must keep clear, accurate and contemporaneous patient records which report the relevant clinical findings, the decisions made, the information given to patients and any drugs and other treatment prescribed.” The NMC’s ‘Guidelines for Records and Record Keeping’ are even more prescriptive when they state: “… …you have both a professional and legal duty of care. Your record keeping should be able to demonstrate: EXPERT WITNESS JOURNAL

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2. Date and time This may sound like a simple tip but it is absolutely essential that the correct date, time and year be recorded in the medical notes and records. Time after time we see medical notes and records where either the date is incorrectly written or the year is not included. While at the time the note is produced the paper records may flow and it is clear to the reader what has happened, the notes are often found in a disorganised state during an investigation many years later, when it is impossible to accurately work out when the entry was made. Events should therefore be recorded consecutively.

documents. Although proforma documents are very good and highlight all the information that is required (for example, during a clerking process) it is important that all the relevant information is fitted into the proforma document. The documents are only a guide and are not bespoke to every conceivable clinical situation, and therefore, need to be used with caution. It is also important to ensure that the correct proforma document is being used within the relevant clinical scenario.

3. Descriptive text The medical notes entry needs to be as descriptive as possible. All the information about what has happened and the process that has been gone through needs to be set out clearly. For example, if a patient has deteriorated and new medical interventions have been started, then it seems sensible for the healthcare professional to explain the situation as they found it, the treatments that they considered, and the actual treatment that was instigated. Moreover, it is essential to ensure that when this process is described that any discussions with more senior or allied healthcare professionals are clearly documented. It is important that the process is set out and the reasons for including or excluding the treatment options are documented. Each and every page should contain the patient’s details and be numbered. All entries should be signed and the name of the clinician writing the note should be stamped or printed.

6. Abbreviations It is important to remember that patients and nonmedical people may also be reviewing the medical notes and records. Therefore avoid abbreviations and keep the language simple and straightforward. There are hundreds of abbreviations that can be found and some are local to each hospital or health care practice, again, these are not acceptable and must be avoided.

A clinician should also make sure that they are using the correct form for the correct purpose e.g. consent and CPR decision documents.

7. Contemporaneous It is important to keep records contemporaneously. Although it may be quite proper, it can appear odd if a note is recorded sometime after the event without there being a note explaining the delay. 8. Amending records In a busy clinical environment there will of course be occasions when an entry is made in the medical records that needs to be amended and changed. It is advisable never to remove anything from the records, as this would look suspicious. Merely, cross out the entry, sign, initial and re-write. Never use tippex or similar products.

4. Escalation As above it is important that all of the information that has been exchanged during the care afforded to a patient is included within the medical notes. Importantly, it is suggested that if a healthcare professional such as a Junior Doctor calls on the assistance and guidance of a senior member of staff that this is documented within the medical records. For example, in Scott’s practice as a Junior Intensive Care Nurse he would often speak to the Registrar or the Senior Sister who would give advice and guidance on ventilation settings and adjustments to intensive care drugs that were maintaining blood pressure and perfusion. In these kinds of circumstances it is important that the healthcare professional describes these conversations and why any changes to the treatment occurred.

9. Personal/Judgmental comments We all know that practising as a Doctor or a Nurse in a busy clinical environment is both stressful and exhausting. Sometimes it is tempting to describe patients’ characteristics in a sarcastic or judgemental manner, particularly when stressed and a patient is thought to have been difficult. Obviously this should be avoided and all comments should remain professional. In addition one often sees ‘patient reassured’. This is meaningless without a description of what has gone before. 10. Dictated notes and records It is common to see letters within records that have been dictated but are marked as not being checked. Secretaries and administrative staff cannot possibly fully understand the dictated note, as they do not have the same degree of medical training as the practitioner preparing the letter. Moreover, there

5. Proformas One of the recent interesting developments that we are seeing more frequently is the use of proforma EXPERT WITNESS JOURNAL

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can be equipment failures, which mean it is absolutely essential that the record is checked and signed, and any amendments are made before the record goes out. Both Liz and Scott have dictated many letters and correspondence, which have been typed, but when returned bear little resemblance to the actual words spoken and required significant amendment.

practitioners make sure that they are aware of the local guidelines where they are practising. Of course, this is not about preserving health care practitioners’ careers and preventing potential legal issues; it is to ensure that our patients receive exceptional care and those caring for them are aware of the patient’s healthcare journey. Apex Health Associates is a UK medico-legal company. If you would like to know more about our services then please visit our website – www.apexhealth.net. ■

11. Telephone advice. If advice was given over the telephone, this should be recorded and reasons why a visit was not deemed necessary recorded. This applies to all branches of healthcare, NHS and private.

References:1. NMC. Guidance for nurses and midwives. 2009/2010. http://www.nmc-uk.org/Documents/NMC-Publications/NMC-Record-Keeping-Guidance.pdf

12. Conversations It goes without saying that all conversations with patients and/or their relatives about their care should be carefully documented as per local protocol and policy. The information exchanged and choices given should be clearly set out along with documentation regarding any printed literature that was supplied. Both Scott and Liz have obtained formal consent from patients for various procedures. Both recommend that in addition to asking for a consent form to be completed that a note is written about the process followed, information given, questions answered and decisions made.

2. BMA. Access to health records. Guidance for health professionals in the United Kingdom. August 2014. Page 2. http://www.bma.org.uk/-/media/files/pdfs/.../accesstohealthrecords_aug2014.pdf

NURSE EXPERT WITNESS SERVICE

In the event that a patient and or their relative raises concerns about their care then these concerns should be documented and the escalation action taken.

Clear and concise reports of specialist nursing opinion

$SH[ +HDOWK $VVRFLDWHV· QXUVH expert witnesses are highly TXDOLÀHG DQG H[SHULHQFHG QXUVHV who practice at a senior level around the UK.

13. Managerial & organisational responsibilities Senior clinicians and managers also have responsibility to make sure and offer their juniors adequate training and guidance as to best practice and the standards expected. Senior clinicians should regularly review the juniors records to ensure that they are adequate and of a reasonable standard. Moreover, the health care provider/ organisation also has an obligation to make sure it monitors/audits the standard of its documentation, trains, educates, adapts and views the importance of documentation which sufficient reverence.

Owned and managed by senior nurses, we have expert and detailed knowledge of clinical, medical and nursing care issues. We offer specialist opinion across a wide range of disciplines, and all reports comply with Civil Procedure Rules Part 35. For more information please visit www.apexhealth.net telephone 020 3633 2213 RU :HOVK 2IILFH

To conclude, it is absolutely essential to ensure that patients’ medical notes and records are kept in exceptional condition, in a secure environment and all medical information is appropriately recorded and documented. Despite the importance of the medical records they are often not seen as priority. There is no standard model of documentation across the NHS, therefore, it is crucial that EXPERT WITNESS JOURNAL

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Expert Courtroom Intermediaries to Double Victims and witnesses will be given more support than ever before with double the number of courtroom experts soon to be available. Victims and witnesses will be given more support than ever before with double the number of courtroom experts soon to be available to help them give evidence, Justice Secretary Chris Grayling announced in February.

available Registered Intermediary with suitable expertise operating in the geographical area. 3 The Registered Intermediary conducts an assessment of the witnesses communication abilities and needs. The Registered Intermediary provides a preliminary report for the interviewing police officer (either oral if the assessment and interview take place on the same day or in writing if it happens on a subsequent day). The report assists the police officer in how to plan the Achieving Best Evidence (‘ABE’) interview. The Registered Intermediary assists during the ABE interview, intervening if necessary to advise the police officer on communication with the witness.

Government funding for specialist support services has more than doubled to over £92 million in 2015/16, including an increase in local budgets to fund vital services on the ground. Registered Intermediaries (RIs) are crucial for victims and witnesses including children and those with mental health issues, physical disabilities or learning difficulties. By doubling the number of experts to help these vulnerable victims and witnesses understand what is being asked of them and to communicate their answers. This can mean the difference in some cases between whether a witness is able to testify or not. The support also aims to help the victim’s give their best evidence, which is a vital part of justice and also assists in their wellbeing.

4 The Registered Intermediary writes a report for the court. It provides advice and makes recommendations with examples to those who will question the witness about how most effectively to do it. It is sent to the CPS who will attach it to the Application for a Special Measures Direction. The timetable for an application and procedure are set out in Part 29 of the Criminal Procedure Rules.

How the Registered Intermediary works A witness is eligible for the assistance of an intermediary ‘(a) if under the age of 17 [now 18] at the time of the hearing; or (b) if the court considers that the quality of evidence given by the witness is likely to be diminished by reason of any circumstances falling within paragraph 2 article 4 of the 1999 Order).

5 The application for special measures should be heard by a judge at the Pleas and Case Management Hearing (or magistrate at a preparatory hearing in the Magistrates Court) and in any event as soon as possible. If the application is contested then the Registered Intermediary should attend the court hearing in order to explain the report and its recommendations.

The Registered Intermediary Procedural Guidance Manual (2012) sets out good practice and the procedure in detail. In summary: 1 When a police officer identifies that the witness might benefit from the assistance of a Registered Intermediary the officer should speak to the Crown Prosecution Service (CPS) to discuss the possible involvement of a Registered Intermediary in a case.

6 The Registered Intermediary attends the witness’s court familiarisation visit to assist with communication. They can advise the Witness Service on matters relating to the witness’s welfare of which the Registered Intermediary (who is not a witness supporter) may be aware. They can advise on timetabling of the witness evidence and when and how the witness can watch their ABE interview to refresh their memory.

2 The police should obtain the necessary consents from the witness. The police officer contacts the Witness Intermediary Scheme matching service and submits a ‘request-for-service’ form. Attempts will be made to match the witness’s communication abilities and needs to an EXPERT WITNESS JOURNAL

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7 Ground rules' for questioning must be discussed between the court, the advocates and the intermediary before the witness gives evidence (see Application for A Special Measures Direction (Criminal Procedure Rules, rule 29.3 and 29.10) at Part F, The Criminal Practice Directions of October 2013 and The Equal Treatment Bench Book chapter on Children and vulnerable adults) in order to determine the practical aspects of the way in which the witness will be questioned. See also The Advocate's Gateway Toolkit on Ground Rules Hearings.

provided next year will be an increase on their indicative budgets. The use of intermediaries There has been some opposition. It was said, for example, that intermediaries would interfere with the process of cross-examination. Others suggested that they were expert witnesses or supporters of the witness. They are not, although a suitably qualified expert witness would make a good intermediary. All intermediaries and expert witnesses are bound by a duty to the court, are independent and neutral. They are properly registered and their use is a step to improve the administration of justice without a diminution in the entitlement of the defendant to a fair trial.

8, The Registered Intermediary, having taken the intermediary oath, assists during the giving of evidence. They sit alongside the witness in the live link room (or stand next to them if they are giving evidence in court) in order to monitor communication. They intervene during questioning when appropriate and as often as appropriate in accordance with the ground rules and the recommendations in their report.

It is worth remembering the exact role of the Intermediary which is to; communicate (a) to the witness, questions put to the witness, and (b) to any person asking such questions, the answers given by the witness in reply to them, and to explain such questions or answers so far as necessary to enable them to be understood by the witness or person in question.’

If at any stage the Registered Intermediary who assessed the witness and wrote a report for the court is unable to continue in the case or to assist at trial or to assist at re-trial then there is a hand-over procedure between the first Registered Intermediary and a substitute who is sourced through the WIS matching service. The new Registered Intermediary must herself assess the witness and write her own report, which can, where appropriate, consist of adding an addendum to the existing report.

How To Become a Registered Intermediary The Ministry of Justice has overall governance and policy responsibility for the Witness Intermediary Scheme (WIS) which includes recruitment. The WIS is operated and managed on behalf of the Ministry by the National Crime Agency (NCA). Recruitment of Registered Intermediaries takes place in response to need and resources. As a substantial number of offenders suffer from disabilities which cause them to have limited language ability and communication skills, learning disabilities, and to be acquiescent and suggestible.

This compliments a wider package of reforms to smooth the path to justice for victims of crime including spending on vital support which has more than doubled under this government – reaching over £92million next year (2015/16).This will give victims access to the best possible support, no matter where they live in the country, and help ensure they are not alone in coming to terms with the impact of crime. The majority of this will be given to Police and Crime Commissioners (PCCs) to commission victims’ services based on the needs of their communities. The government has also been able to confirm that the funding to be

EXPERT WITNESS JOURNAL

Experts with speech and language skills, adult learning difficulties, and psychiatric and psychological experience particularly intellectual ability or social functioning may well be suitable. If you are interested in applying to become a Registered Intermediary, please email nick.peel@justice.gsi.gov.uk

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Benefits to Client and Solicitor when a Doctor Can Use Various Languages by Marta Elian M.D. Consultant Neurologist & Expert Witness 3. Asked to see a man labelled disoriented and psychotic in the Accident and Emergency department; it was suggested to refer him to the psychiatric hospital as an inpatient. On examination: a variety of questions were repeatedly answered with identical five words – in English. He seemed to struggle to express himself – realising that without success. After carefully listening to aseries of identical words I have detected a Hungarian accent; when I addressed him in Hungarian his eyes lit up smiling gratefully. I realised he is not psychotic but aphasic and his place was not in the psychiatric but in the neurological ward.

Four Steps to Become Multilingual 1. By all means carefully avoid a world language such as English, French and Spanish etc. as a mother tongue as well as for primary school education. 2. Choose one or two vernacular languages instead such as say Estonian or Turkish. 3. Get yourself parents determined and able to give good practical advice. (Mine said “what this life will bring you we do not know? With Hungarian and Rumanian you will not get very far – so better learn German, French and English”). 4. Listen to and follow their sensible instructions which I did as a teenager. (Hebrew – the most difficult of all – came later – by necessity rather than by choice becoming the language of my diploma).

4. A solicitor advertised to contact his assistant Aniko for appointments. Unmistakably a Hungarian name I offered my services. A cooperation followed with referral of several clients from Hungary. The consultations conducted in Hungarian – their history simultaneously written down in English. The report in English of course. Clients were grateful and the solicitor saved money. I did not do badly either.

How is it helpful to be polyglot? Interpreters are costly not only because their hourly rate has to be added to the expense; also because the consultation takes almost double the time as all questions and answers have to be repeated. Expense aside – some interpreters – especially those volunteering for relatives and friends are unreliable; they do not translate verbatim thus conveying what they think would be useful for their protégé.

5. After a minor head injury and brief stay in the Accident and Emergency department of the University Hospital a new immigrant claimed he was advised to give up recently acquired work for six months and to go on benefits in order “to avoid complications”. I had reservations for this story. His English was quite good. He then boasted he speaks several languages equally well “Deutsch” included. When I switched to “Deutsch” he did not understand a word let alone speak it. The final proof to support my suspicion of his made-up story.

A few examples from my large repertoire follow: 1. Having had a RTA while in the UK a French speaking tourist accompanied by his French medical records returned to arrange compensation. Cost of translation of the notes and of the interpreter were spared to please the solicitor. To be able unexpectedly to express himself in his own language pleased the client.

6. After a RTA a Lebanese man was referred to the Accident and Emergency department with a great variety of complaints and no neurological deficit. He allegedly studied medicine in Lithuania and planned to finish it in England. Why in a foreign language when Vilnius has an excellent medical school? Remained unanswered. After leaving Lithuania aiming to settle in the UK and finish his studies he was forced to make an eight month stopover in Rumania because of “administrative difficulties.” The story sounded doubtful to me as

2. A young woman had an accident while visiting her sister in the UK. She returned to the UK for Medico-legal reasons - her sister accompanied her to the consultation to translate. Asking her country of origin she answered– Moldova (now Russia it used to be Rumania). Great was the surprise when I started to speak Rumanian saving time and giving her the satisfaction to tell her own story. EXPERT WITNESS JOURNAL

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Rumanian is a Latin language relatively easy to learn; it is practically impossible to spend several months there without acquiring a basic knowledge. When I addressed him in Rumanian he was not even able to identify the language I have used. Thus proving my reservation to his story justified and disproving his story.

Conclusion The above examples support the view that being polyglot brings benefits even in medicine. â&#x2013; Marta Elian M.D.

Dr Marta Elian

7. Both parents arrived with their six year old daughter who had apparently two epileptic attacks after a head injury. As is my custom whenever a child is the client I try to give her the â&#x20AC;&#x153;grown-up treatmentâ&#x20AC;? sitting in the main armchair to be interviewed before I ask the parents. This way the child becomes more cooperative and at times tells the facts as far as possible as they really were and not embellished or to the contrary by the parents. I also get an idea of the childâ&#x20AC;&#x2122;s mental age. She followed my hands pointing to the armchair but none of the verbal instruction. Becasue her looks, gaze and non-verbal communication/behaviour I have expected her to be at least of normal intelligence. The parents then informed me they came to the UK only recently and the child only speaks her mother tongue which is Hebrew. The parentâ&#x20AC;&#x2122;s embarrassment disappeared and the little girl became very talkative and my expectation of dealing with an intelligent child became justified â&#x20AC;&#x201C; the moment I suddenly switched to Hebrew.

Consultant Neurologist and Expert Witness

Dr Marta Elian has provided expert witness reports in neurology for over 20 years. Her specialist areas are epilepsy, motor neurone disease, multiple sclerosis and objective smell tests. She is able to give evidence in court for either claimant or defendant and as a Single Joint Expert. Her experience includes cases involving personal injury as well as disputes over medical negligence. To save paying for the use of an interpreter, and his/her time consuming service. Consultations can be conducted in Hungarian, Romanian, German, French, or Hebrew.

Tel: Fax:

0207 722 5508 0207 483 1761

32a Queens Grove, London NW8 6HJ

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Understanding Psychological Trauma by Dr William Hughes F.R.C.Psych, Jungian Analyst, Trauma specialist We naturally understand trauma as a damage done and in a physical sense, the damage done will often relate to the degree of force or part of the human body affected.

At the extreme end of psychological trauma we may have a mental breakdown or a psychotic episode, and chronic trauma can lead to chronic depression or numbed out frozen states of mind where self respect has gone.

Because the development of a stable personality capable of running a complex self-organising system many of us , perhaps, most, have a way to go before our self organising system is coherent and stable enough to manage life in our complex society.

Understanding trauma means that we have to be aware of what stage of personality development and system stability a person has reached. Just like with brittle bones a “slight tap” may prove to be fatal or cause long term damage.

If a person has attained sufficient emotional stability and educational ability to be self supporting by legal means , to sustain a long term relationship with another human being and to enjoy pleasurable activities , then we usually think that the job is good enough and any more “personal development” is for the self obsessed or “hippy types” who want to mess with things outside of practical reality.

In our society today we are all waking up to realisation that what might be a trauma to one person may not be to another. As a rough guide try a suggestion that the next office party should take place at a nudist colony. Responses would have to be kept private of course because shame is a hidden manipulator of honesty. In the assessment of the “ impact” of a psychological trauma it is important to take into account not only what happened but the response of the nervous system affected.

A psychological trauma can change all that overnight. People we trusted may have let us down badly or actively betrayed us. Contracts we trusted turn out to be no more worth than the paper they are written on.

We have powerful modern methods of treating the symptoms of traumatic experiences, such as Eyemovement desensitisation ( EMDR) hypnosis, mindfulness based cognitive behavioural therapies and compassion focussed therapies.

A fellow road user seems to have become a predator, as might a trusted friend or relative. A trusted member of society in a position of responsibility and authority abuses their power that we gave them.

These all contain an element of building resilience and building self confidence which help to reduce the risk of increased sensitivity to a trauma based psychol;ogical disturbance.

Health care systems we have faith in turn out to be run by mortals capable of making mistakes. EXPERT WITNESS JOURNAL

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In some countries an element of “restorative justice” where the perpetrator and victim can meet following the dispute can give favorable outcomes. Our adversarial system does not easily lend itself to this approach which may be an interesting point for debate.

Dr William Charles Hughes MB. BS LRCP MRCS M.U.K.C.P. M.A.F.C. FRCPsych. Analytical Psychologist - Consultant in Psychiatry & Psychotherapy Independent Consultant Psychiatry – Psychotherapy Trauma Therapy – specialist training in Psycho Traumatology since 1975

What we are trying to do at Traumacare Norfolk is to build a website with local information concerning all aspects of psychological traumatisation whatever the cause.

Specialist in Psychotherapy, Analytical Psychologiy, PTSD, Complex behavioural problems, Vocational Stress, Mindfulness

Some useful reference books : About human resilience and what is important in the early stages of life, a good introduction is “ Why Love Matters” by Sue Gerhardt. For the more academic mind Robert Scaer, a neurologist with over 30 years experience of working with car accident victims has pulled together research from a variety of disciplines that puts “ traumatic stress” related disorders in a new light.

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Appointed as Consultant to a Probation Hostel in the 1970’s

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Given evidence in Group Cases at the Central Courts of Justice

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Investigated cases for the Department of Health

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Been involved in delicate work on behalf of certain victims of Trauma

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Given Expert Evidence in Criminal Courts at every level and prepared over 2000 reports on matters relating to litigation in disputed Civil Cases

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Has represented clients as Advocate and also served as an Attorney

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Retired member of Mental Health Review Tribunal Panel Tel/Fax: 01692 581172 Email: william1.drhughes@gmail.com Consulting Rooms, The Friends Meeting House Upper Goat Lane, Norwhich NR2 1EW

Since the early publications from 1914 onwards (largely ignored at the time) the research field in trauma related publications provides a solid background of evidence that I would say nowadays a psychological trauma needs to be treated on an equal par with a physical trauma. ■

Dr Ian Starke

Consultant Physician in Stroke Medicine, Medicine for the Elderly and General Medicine MSc, MD, FRCP (Lond), FRCP (Edin)

Dr Starke has been a practising Consultant Physician in General Medicine, Medicine for the Elderly and Stroke Medicine at University Hospital, Lewisham and Guy’s, King’s and St Thomas’ School of Medicine since 1988. Dr Starke undertakes expert examinations and reports for fitness to practise and potential litigation cases in stroke medicine, geriatric medicine and general medicine. He provides expert examinatons and reports for solicitors, immigration and HM prison services. He is able to assess clients within or outside London. Contact: University Hospital Lewisham Lewisham High Street, London SE13 6LH Tel: 0208 333 3379 Fax: 0208 333 3381 Email: ianstarke@nhs.net

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Protection of the Vulnerable by Dr Charles Essex workers and doctors recommend that children are removed from parents on the flimsiest of evidence.

The welfare and protection of the vulnerable are the markers of a civilised society. Paradoxically recognition that children are subject to assault – the battered baby – by parents, the very people whom we would consider are primarily concerned with their welfare, has only been considered in the last few decades. Child abuse, like domestic violence, happens in all strata of society. There is no such thing as parents being a typical or not typical ‘social services family’.

Although child abuse divided into four areas [physical, sexual, and emotional abuse and neglect], in this article I discuss the findings when physical abuse is suspected, explain the diagnostic process and clarify some misunderstandings. The history and examination The role of the paediatrician as an expert witness is to assist the Court by considering the medical evidence and seeing if there is a plausible explanation for the child’s injuries. The process is the same as all medical consultations – history and examination aided by investigations. The history is taken from adult carers, usually the parents, in the case of babies and young children, but also from the child themselves if they are old enough. Even young children can often give a simple explanation if asked gently how they hurt their arm or leg, etc.

In child protection cases, the stakes are high. If a carer is deemed to have caused the injuries non-accidentally a child may be taken away from an innocent parent, a parent’s nightmare. If the Court decides that the injuries have an innocent explanation, a child may be returned to a potentially murderous situation. Unfortunately child protection can easily become polarised with a relatively small but vociferous group of parents and some journalists and MPs believing that social EXPERT WITNESS JOURNAL

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It is important not to ask leading questions but simply “How did you get that poorly arm?” or “What happened next?”. If possible one should speak to the child on their own. When using interpreters it is vital to use independent interpreters, not family members.

may have taken some time to appear. Bruises can take one hour to one day to appear although occasionally bruising appears a couple of days later. Erythema [redness] and grazes [abrasions] are fresher, more recent injuries. Redness usually fades within 24-48 hours or may turn into a bruise. Grazes usually scab over in 24-48 hours.

Doctors are concerned when the history of events does not match the injuries found. Other concerning features are when the history changes significantly. It is not uncommon for parents to remember additional details or make minor changes as the story is retold. However changes such as the injury happening when the baby fell out of the high chair, then later it was when the baby rolled off the changing mat are suspicious. A delay in presenting the child to hospital and multiple attendances at different hospitals are all warning signs.

There are individual variations in terms of response to damage to the skin – an 'injury' [whether accidental or non-accidental]: how the injury will look over time; how it heals; and the final outcome. Injuries to the skin, however caused, can heal with scars of various colours and also, particularly noticeable in dark skinned people such as people of African or Afro-Caribbean descent, with either hyperpigmentation or hypopigmentation [darker skin or lighter skin, respectively, than the person's normal skin colour].

Bruises, subdural haemorrhages and retinal haemorrhages Rarely can one say definitively that an injury was caused accidentally or non-accidentally based on its physical appearance alone. One has to take other factors into account such as the age and development of the child, the explanation from the carers, and so on. Very young children who are independently mobile can get bruises. Those bruises are usually are found along a T-shape on the forehead and down the front of the face, or on the legs, usually below the knee 1. The adage that “children who don’t cruise don’t bruise” means that one must be very suspicious if a very young baby presents with bruises 2.

One would imagine that good quality photographs would give an objective record of the physical injury. However individuals can describe colours [of bruises, for example] differently whether seen with the naked eye or in photographs, and the interpretation of, for example, the colour of bruises and skin markings is subjective and different people will describe the same mark in different ways. It is important therefore that the doctor who examines the child gives a careful description in their statement of the size [including measurements] and shape of the injuries. Causes of bruising and bleeding Birth injury: I include birth injury as bruising and bleeding can happen during delivery. Babies can sustain subdural haemorrhages [SDHs] and retinal haemorrhages [RHs] during birth. However these resolve by six weeks of age 4. There is no evidence that babies who suffer SDHs and RHs during birth suffer a “re-bleed” some time later.

Clearly one cannot do experiments on children to find out exactly what degree of force of contact between a child and an object will cause a bruise or how long the time frames given below are. It is not possible to age bruises 3. Bruises caused at the same time can have different colours and appearances in the same child. This is because of factors such as the force involved, the mechanism of injury, the site of injury [such as whether it is over a bony prominence or if there is lots of subcutaneous fat], etc. Common sense and experience suggest that bruises that are red-blue and are swollen and tender are more recent and bruises that are yellow-brown and are flat and not tender are older bruises but beyond that it is difficult to be precise.

Vitamin and/or mineral deficiency: Vitamin C deficiency is rare in infants in the UK. Initially they have vitamin C stored from the vitamin C that has been passed to them in pregnancy from their mother. Breastfed babies get vitamin C in the breast milk. Infant formulas are fortified with a variety of vitamins and minerals. Babies are born with low levels of vitamin K, a necessary component of the human blood clotting mechanism. They can develop the very rare complication of haemorrhagic disease of the newborn [HDN]. Parents are offered that their babies can have vitamin K at birth to lessen the risk of the babies developing HDN. If the baby was

If a reliable witness can say when was the last time they saw that part of the child’s body without bruises then one can say that the event that caused the bruises is likely to have happened after that time, although allowing for the fact that the bruise EXPERT WITNESS JOURNAL

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given vitamin K then I believe we can discount HDN as the cause of any of bruising or haemorrhages.

Shaking a baby or infant to dislodge food because one fears the child is choking does not cause SDHs and RHs. Winding a baby on its back after a feed or the baby flopping its head forward against a carer does not lead to SDHs, RHs or even bruises to the baby’s back or face, respectively.

Blood clotting disorders: The doctor will request blood tests to check for blood clotting disorders. There are an extended range of blood tests one can request and are increasingly suggested by defence barristers. However if the child has not had a history of difficulty with continued oozing of blood such as after injections such as immunisations, or from the stump of the umbilical cord and there is no family history of bleeding disorders [this does not mean the frequent comment that someone bruises easily], and the child has had no further significant bruising since the index incident then I believe the standard clotting tests are satisfactory.

All these features do not need to be present to diagnose that a baby has been shaken. Hence rather than talk about Shaken Baby Syndrome, a doctor will take a history of when the baby became unwell [the baby usually deteriorates immediately after the injury], any accidents or injuries up to that time, and examine the baby physically, looking for any external signs of injury, and neurologically. Investigations will look for signs of infection such as meningitis or a heart abnormality which might have caused the baby to collapse, and a brain scan. When the brain scan shows SDHs, this will raise child protection concerns and lead to further investigations such as blood clotting tests as described, a skeletal survey to look for fractures and an eye examination for RHs and alert the doctor to the possibility that the baby may have been shaken, rather than attempting to fit everything into the Shaken Baby Syndrome criteria.

Accidental trauma: In young children there should be a clear history of an accidental event for significant bruising. Even if the parent were not in the same room at the time, they would hear a loud cry or even scream from a young child if the child has sustained an injury that leads to a large bruise. The doctor has to consider whether the history matches the clinical findings. SDHs and RHs caused by an accident in a baby or young infant would have been a very significant event for the parents. The carer(s) would have been well aware of an incident(s). For example, these can be seen following a high speed car crash, which gives an indication of the deceleration and forces involved.

Although within the remit of a neurosurgeon and ophthalmologist, respectively, I make the following comments here: SDHs: • In babies and infants the size of the SDH is not the cause of neurological dysfunction, as often the SDH is a thin layer of blood on the surface of the brain. Rather it is an indication of what sort of injury happened if no satisfactory explanation is given, namely a probable shaking injury.

Shaken baby syndrome Shaken baby syndrome is a phrase used much more by non-doctors than by doctors. It is often used to refer to a combination of SDHs, RHs and an encephalopathy [impaired brain function leading to lethargy and decreased consciousness, poor feeding and poor respiration]. The baby may have fractures. If a baby is violently shaken, because it has weak neck muscles, a large, heavy head relatively to the baby’s size and weight, and because the brain does not fit snugly in the skull but has space around it, the brain ricochets back and forth inside the skull. This causes bleeding on the surface of the brain [SDHs], in the brain substance [parenchymal bleeding], and injury to the brain stem as it is flexed back and forth at the neck near to where the spinal cord leaves the base of the skull. As the baby is often held around the trunk as it is being shaken by the adult the lower half of the baby’s body also shakes and can lead to spinal SDHs. The baby can develop RHs.

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• A rare medical condition [glutaric aciduria] can cause shrinkage of the brain and can lead to SDH but the brain scan usually shows a typical pattern of shrinkage of the front of the brain. These brain haemorrhages can happen repeatedly. • Unlike in adults, in children there is rarely a lucid interval between the event that caused the SDH and the child developing significantly impaired consciousness [an encephalopathy]. RHs: • There are medical conditions, albeit rare, that can cause RHs. However extensive RHs and in different layers of the retina and folds in the retina [‘perimacular folds’] are much more likely to be due to non-accidental injury, especially when accompanied by SDHs.

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There are often specific radiological findings in a child with OI but some types of this disorder can have normal radiological findings. Of the severe types leading to fractures very early in life and frequently present at birth, the pattern is different in that there are more frequent fractures and more bones likely to be affected. If fractures occur, it is likely that they will continue to occur unless particular special handling practices are introduced and used.

Low level falls One only has to watch Youâ&#x20AC;&#x2122;ve been framed to see babies and infants sustain low level falls on a regular basis. At the shopping precinct one can see baby buggies tip over backwards when parents put heavy shopping bags on the back and apart from being upset the babies suffer no injuries. A review of 75 children aged less than 5 years found that falls of under 1 metre did not cause a skull fracture unless there was a small area impact point 5. A review of 207 children who fell out of beds or cots found one fractured skull [even when considering children who had climbed over the bars of the cot] 6. There were no serious, multiple, visceral or life threatening injuries. The Avon Longitudinal Study of Parents and Carers [2001] asked parents to describe any accidents. In 2554 children there were 3357 falls, of which 97% of the injuries involved the head but only 21 resulted in concussion or fractures. Falls from beds or sofas did not result in fractures to the skull. Another review of short falls in infants with an average age of 6 months only found intracranial bleeds in children in whom abuse was confirmed 7.

OI type 1usually presents with a fracture (s) of the longer bones of the arms and legs. It is extremely unusual for it to present with fractures of the fingers, ribs or skull or with metaphyseal fractures. In the history and examination one looks for the child and his parents to see if they have blue sclera [the whites of the eyes being an azure blue], a close family relative having frequent fractures with minimal trauma, or there being a family history of sensorineural deafness in adults in the family. Testing for the COL A1A gene is gaining popularity as this can be defective in OI type 1. However this is only positive in 90% of people with OI type 1. The diagnosis is made predominantly by the history including the family history, the examination of the child, the nature of the fracture(s) and the x-ray findings.

Hence despite some curious judgements in some cases low level falls of babies rolling off the bed or the sofa and so on are not regarded by most doctors in this field as the cause of RHs and SDHs.

Vitamin C deficiency has been discussed earlier. Interest has now focussed on testing for vitamin D levels and what role it may play in fractures, often without understanding the value of this. A hypothesis was put forward by two American radiologists that low vitamin D levels in babies, which may have occurred secondary to low vitamin D in the mother, is a cause of unexplained fractures in children 8. The authors published four cases of so called â&#x20AC;&#x153;congenital ricketsâ&#x20AC;?. Their paper has been subject to many criticisms. These included comments that the clinical details of the cases had been omitted, that the authors did not have clinical care of the children but were paid defence witnesses, and that in three of the four cases Courts found in favour of abuse.

Fractures No fracture is diagnostic of a non-accidental injury. Any fracture can be caused accidentally or nonaccidentally. However [depending upon the age of the child] some fractures are so unlikely to happen accidentally that without a convincing history of how the fracture happened one must be suspicious of non- accidental injury. These include fractures of the hands and feet, posterior parts of the ribs, the spine and metaphyseal fractures [at the growth plates of the bones], even in mobile active children. However in young babies and infants a mid shaft fracture of, say, the thigh [femur] would be suspicious especially if the child is not walking. One has to exclude a medical cause of easy fracturing. These include an underlying metabolic, genetic or medication cause. Deficiency of vitamins C and D, deficiency of copper, and what is frequently termed osteopenia of prematurity, are what might be considered to be the metabolic causes of easy tendency to fracture bones in babies. Osteogenesis imperfecta, [OI] which is a genetic condition, is also a cause. Extensive steroid use is a medication cause.

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The conventional understanding of rickets [clinical vitamin D deficiency] is that there is a spectrum: low vitamin D, followed by biochemical rickets, followed by radiological rickets [the rickets visible on x-ray] followed by the complication of rickets [that is, fractures]. It is implausible to suggest that even if the child has low vitamin D alone [one end of the spectrum] this could be a cause of fractures as a complication of rickets [at the other end of the spectrum] without the intervening findings.

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An up-to-date review of the topic concludes â&#x20AC;&#x153;although it is recognised that infants may have low vitamin D levels for many reasons, the likelihood that clinical rickets or mild vitamin D deficiency is apt to result in bone fractures in non ambulatory infants is exceedingly lowâ&#x20AC;? 9.

1. Maguire S, Mann MK, Sibert K, Kemp A. Are there patterns of bruising in childhood which are diagnostic or suggestive of abuse? A systematic review. Arch Dis Child 2005;90:182-6.

Copper deficiency is very rare and infants have large stores of copper. Children with copper deficiency tend to have delayed development, their muscles tend to lack tone and they frequently have a specific rash. X-ray changes precede fractures and the absence of any changes on the childâ&#x20AC;&#x2122;s x-rays mean that copper deficiency can be ruled out as a cause of the childâ&#x20AC;&#x2122;s fracture.

3. Maguire S, Mann MK, Sibert J, Kemp A. Can you age bruises accurately in children? A systematic review. Arch Dis Child 2005; 90:187-9.

References:

2. Sugar NF, Taylor JA, Feldman KW. Bruises in infants and toddlers: those who don't cruise rarely bruise. Puget Sound Pediatric Research Network. Arch Pediatr Adolesc Med 1999;53:399-403.

4. Whitby HE, Griffiths PD, Rutter S, et al. Frequency and natural history of subdural haemorrhages in babies and relation to obstetric factors. Lancet 2004;363:846-51.

Osteopenia of prematurity is getting rarer as premature babies are monitored carefully and often given phosphate supplements as part of their overall nutrition.

5. Johnson K, Fischer T, Chapman S, Wilson B. Accidental head injuries in children under 5 years of age. Clin Radiol. 2005; 60:464-8. 6. Lyons RK, Oates TJ. Falling out of bed â&#x20AC;&#x201C; a relatively benign occurrence. Pediatr 1993;92:125-7.

Corticosteroid use is a cause of easy fracture but this is very rare in children. However these need to be â&#x20AC;&#x2DC;potentâ&#x20AC;&#x2122; steroids given either directly to the child or the mother within the pregnancy over a period of time. It does not include hydrocortisone cream [which should be used carefully and sparingly in any case] used for, say, eczema. â&#x2013;

7. Tarantino CA, Dowd MD, Murdock TC. Short vertical falls in infants. Pediatr Emerg Care 1999;15:5â&#x20AC;&#x201C;8 8. Keller KA, Barnes PD. Rickets vs abuse: a national and international epidemic. Pediatr Radiol 2008; 38: 1210-16. 9. Botash SA, Sills IN, Welch TR. Calciferol deficiency mimicking abuse fractures in infants: is there any evidence? J Pediatr 2012; 160:199-203.

Thanks to Dr Annie Callaghan for advice on this paper.

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Dr Charles Essex

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30 years experience in paediatric neurology, neurodevelopment, learning difficulties, special needs, head injuries, and child protection. Experienced and special interest in cerebral palsy (causation and condition and prognosis), epilepsy, autism, victims of road accidents, child development and child protection.

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I prepare reports as a single joint expert in child protection cases, alleged non-accidental injury, care proceedings, failure to thrive and factitious and induced illness [FII] with frequent Court experience in giving evidence in these cases.

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Regular clinics held in paediatric neurology, genetics, neonatal follow up and ophthalmology (all paediatric). I am a member of the British Paediatric Neurology Association (BPNA). I prepare reports for plaintiffs and defendants, reports for CICA and COP3 reports.

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Contact: Mob: 0797 104 8544 Email: charles.essex@virgin.net Web: www.drcharlesessex.co.uk Address: Suite 115, 41 Oxford Street Leamington Spa, Warwickshire CV32 4RB

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Medico-Legal Evaluation of Psychological Injury: Current Implications for Legal Training and Continuing Education by Dr Hugh Koch, Chartered Psychologist & Director, Hugh Koch Associates LLP Dr Katie Newns, Chartered Psychologist, Hugh Koch Associates LLP Dr Louise De Haro, Chartered Psychologist, Hugh Koch Associates LLP Redress following non-fault incidents is now bedded into the Civil Litigation world both in the UK and the USA – rising number of claims are balanced by increasing scrutiny by experts and insurers. This demanding field requires lawyers, barristers and the judiciary to become as expert and as knowledgeable as possible about how injury evidence impacts on legal decisions.

(legal) education are highlighted and reflect the situation that initially lawyers have little or no specific training in psychology (Vallano, 2013.) Psychological injury has been defined as ‘mental harm, suffering or injury caused to a person that may be a worsening of a pre-existing condition, may negatively impact functional activity, and lead to claims in the civil court for damages’ (Young, 2008). Whether such injury is consistent with physical injuries, there are many assessment issues which are problematic including: severity, attribution, impact, prognosis and historical relevance (Koch and Kevan 2005.)

This transatlantic paper reviews what issues pertain to psychological injuries and how legal decision makers perceive and use psychological evidence to contribute to and render civil judgements. Specific recommendations for continuing professional EXPERT WITNESS JOURNAL

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How are these crucial issues perceived by legal decision makers (lawyers, barristers, judges), particularly when compared to physical injuries? This article will highlight how psychology and psychological processes are understood by them and also suggest how continuing professional development (CPD) and training can advance their understanding of how psychological evidence is used in civil litigation.

c) Self-report and medical treatment evidence Witness statements and contemporaneous treatment evidence provides an initial ‘picture’ of what may have occurred ‘at the scene’ and in the first few months after the index accident. Many issues of reliability pertain here (Koch 2014) including: Primacy, Recency, ‘Halo’ effects, suggestibility, recall and motivational factors. Issues of consistency between self report and medical/treatment records also have psychological relevance (Koch, Lillie & Kevan, 2006).

The Psychology of a Personal Injury Claim a) What is the medico-legal decision making Process: The flow chart (figure 1) below illustrates the key events in the medico-legal decision making process from initiation of a claim to its resolution: -

d) Obtaining reliable and objective medico-legal evidence In both the UK and the USA, the independence and impartibility of the expert is paramount (CPR rules (1999) (Leckart, 2013)). This is embodied in how the expert forms his/her opinion on diagnosis/attribution/causation and prognosis and ‘stands apart’ from claimant self-report, medical treatment history and test data. The general issues of reliability in medico-legal assessment and the

b) Finding Liability To succeed a claimant must establish a defendant’s fault, which caused their injuries. This maybe established first before medical evidence is sought or alongside an ‘at risk’ strategy of obtaining simultaneous medical evidence.

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particular areas of variability, as observed by experienced psychologists and psychiatrists, have recently been researched (Koch (2015) in submission)

their subsequent legal decisions. For example, if a severe disorder is alleged, which type of legal challenge is most effective: - credibility challenge; liability challenge; diagnostic challenge.

e) Gaining greater clarification and challenging the ‘allegation’ The act of seeking recovery for psychological injury places the claimant’s allegation ‘in controversy’ by Rule 35 questioning or its equivalent in different USA state jurisdictions. The use of defendant requested medico-legal reports, Part 35 questioning and ultimately Joint Expert report discussions all contribute to this greater clarification of what actually happened in any one index event.

4) Presence and admissibility of pre-existing psychological injury (PEI) Nearly 50% of the general adult population meet diagnostic criteria for a psychological disorder at some point during their lifetime. This contrasts with the ‘eggshell skull’ rule, taking the claimant ‘as you find’ them. To be admissible, PEI must be relevant, and non-prejudicial. The lawyer evaluating legal causation must consider whether PEI provides a plausible alternative explanation for the alleged psychological injuries. In addition non-disclosure of PEI may indicate concealing of evidence and contribute to the untruthfulness variable. When evaluating the relevance or ‘probative’ nature of PEI, many factors are considered e.g. symptom overlap between PEI and current allegation, onset date, course and duration of PEI, and comorbidity (common symptom type). It is not known how lawyers deal with PEI and its potential prejudicial nature and impact. This is crucial to the court’s evidence admissibility guidelines.

Particular Perceptual Issues for Lawyers 1) Physical and Psychological Injuries: Mutually supporting or not? It is now reasonable to progress a claim for psychological injuries irrespective of any physical injury incurred. The existence of physical injury can lend credibility to psychological injury allegations. However this can result in misperception both overly positive or, when physical injury is absent, overly negative about the effect of psychological injuries. In practice, both physical and psychological injuries have objective and subjective components, and both need careful scrutiny, as both ‘can open the door to frivolous lawsuits’.

5) Lawyer’s knowledge of mental health issues There are, in our opinion, many common misperceptions by lawyers about mental health issues as they pertain to civil litigation. The most notable issues are that: • Psychological injuries are not objectively verifiable • Psychological injuries are easily fabricated • Psychological injuries are rarely severe or disruptive.

2) Adherence to classification systems alone Lawyers differ in their awareness and understanding of how psychological disorders are classified or diagnosed. Strict adherence to ICD-10 or DSM-IV/V illustrates a lack of understanding of how clinical assessment, assessment of disruption and response to treatment are necessary adjuncts to ‘whether diagnostic criteria are met’.

Competent, experienced experts utilising several means to enhance diagnostic reliability including symptom validity testing, medical record review and analysis, and behavioural observation (both within interview and external to interview). In addition, clinical judgement plays a crucial role in using empathy to validate or invalidate a claimant’s allegations.

3) How severity is assessed Clinicians and lawyers alike differ in terms of how they react and therefore assess an ‘emotional’ claimant sitting in front of them. For some, erroneously, this presentation is enough to load the claim ‘high’ on severity. For most, however, assessment of severity is complex and problematic, and dictates whether claimants can pursue recovery for their psychological injuries and whether the defendant can or will challenge their claims (see Daubert and Merrell 1993.) Little is known about how lawyers determine severity and how this then determines EXPERT WITNESS JOURNAL

Lawyers can benefit from training to develop their cognitive/mental/logical ‘schemas’ of psychological injury to then help them deal with the multidimensional nature of these many variables.

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6) The multi-dimensional assessment of reliability and truthfulness How can one tell a claimant was telling the truth? The common legal question. Whether this is the province of the expert, lawyer or judge, there is a general perception that the courts are wary of allowing recovery for psychological injuries not least in case this led to a profundity of civil lawsuits.

Figure II Psychological Injury Main Psychological Disorders: Differentiating factors Priority give to Psychological issues: Is it valued? Chronic Pain: assessment, treatment and prognosis Impact of pre-existing history (vulnerability, treated depression, life events, egg shell skull) Treatment or Advice? Reliability of Information Attribution + ‘But For’ test Reliability and Truthfulness GP medical notes: help or hindrance Use of psychometric tests Does anger mean ‘disorder’ or ‘disdain’ Cognitive Impairment and seeking neuropsychological advice Opinions after multifactorial evaluation

Psychologists use many methods to assess whether a claimant is lying, exaggerating or inaccurately describing their psychological symptoms (therapeutic and effective listening and communication, clinical judgement, severity assessment, consistency with contemporaneous medical records, use of standardised questionnaires, behavioural data collection) (Koch and Kevan, 2005).

Towards Continuing Professional Education for Lawyers in Psychological Injury

Psychology and Law: Practical implications for civil litigators Psycholegal research and practice: An introduction Psychological implications of CPR: Impartiality, multi source opinion forming and expert ethics

The importance and interest in the study of psychological injury within the legal system in both USA and UK is growing (Vallano, 2013). The variable appreciation and issues invoked in obtaining fair recovery for valid psychological injury claims depends partly on accurate perceptions by lawyers, barristers and judges about the causes, consequences and legitimacy of psychological injuries.

Getting reliable, robust opinions from experts: facts versus opinions Effective communication with experts: Written, telephone, face-to-face Questioning experts: getting greater clarity from Part 35 questioning

More training and professional development opportunity are needed to improve knowledge and understanding of psychological injury in legal professionals.

The politics of the Joint Opinion: ensuring the expert understands his/her role Are Single Joint experts more impartial: the ‘push and pull’ on SJE’s

Such CPD activity should focus on: • Clinical Issues e.g. Understanding diagnostic, attribution and prognosis issues

‘Cross examining’ an experts report: how to conduct a robust critique of reports The psychology of reliability, consistency and truthfulness: who detects deception?

• Reliability Issues e.g. Consistency between data types; assessing truthfulness; reasons and motivation to exaggerate

Conclusion The term ‘psychological’ has two separate but linked meanings and contexts within civil litigation. Firstly, it applies to a significant part of ‘personal injuries’ for which claimants in the UK and USA bring their case for compensation. Secondly, it applies to how lawyers understand and practice, and how they conduct their relationships with several different ‘clients’ or ‘customers’, both internal and external and how specifically they understand the way expert witnesses operate and provide impartial opinions.

• Expert Issues e.g. Independence and impartiality of experts; communication with experts; obtaining opinion clarification • Quality Management Issues e.g. Effective communication between legal, medical, claimant and defendant; refining and improving medico-legal processes; improving quality and monitoring time and costs. Several topics which fit into one of these four categories are showing in figure II below. EXPERT WITNESS JOURNAL

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The provision of training or CPD activities for lawyers is seen as crucial to the continuing development of civil litigation procedure and credibility. â&#x2013;

References Koch HCH (2014) Getting the right balance? How to obtain or provide reliable expert evidence. Solicitors Journal. Expert Witness. February Koch HCH and Kevan T (2005) Psychological injuries. XPL Press. St Albans Koch HCH, Lillie F and Kevan T (2006) Perfect attendance: Decision making model for assessing GP records. Legal and Medical, January, 16 â&#x20AC;&#x201C; 17 Leckart B (2013) Mental Health Professionals in Litigation, May, WETC Newsletter. Vallano J.P (2013) Psychological injuries and Legal decision making in Civil cases. Psychological Injury and Law, 6: 99 â&#x20AC;&#x201C; 112

Seminars are being planned in the UK on these two areas in 2015. More information about availability of training and CPD seminars can be obtained from Hugh Koch (hugh@hughkochassociates.co.uk) and at www.hughkochassociates.co.uk and also from Central Law Training (CLT) at www.clt.co.uk'

Ms Michelle O'Sullivan Chartered Forensic Psychologist, Registered Practitioner Psychologist with the BPS (British Psychological Services) and HCPC (Health and Care Professions Council) BSc. (Hon), MSc., CPSYCHOL, AFBPsS. Specialist assessment in risk of offending behaviours (e.g. violent, sexual, substance misuse), needs assessments (e.g. mental health, offending behaviours, risk management), cognitive ability and competence assessments for criminal, family and civil legal proceedings. Various treatment approaches offered including CBT, EMDR, EFT among others to address mental health problems such as anxiety, depression, trauma related difficulties. Assessment and treatment with children, adolescent and adult populations.

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Contact: Miss Michelle O'Sullivan Tel: 07788 428 289 Email: michelle@thepsychologicalclinic.com Web: www.thepsychologicalclinic.com The Psychological Clinic PO Box 4102, Bracknell, Berkshire RG42 9FQ

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Post traumatic Stress Disorder: An Old Idea in a Relatively New Package by Dr Dennis Trent, Chartered Clinical Psychologist Midlands Psychological Services The alternative diagnosis was that of Adult Situational Reaction. Based on reports of holocaust experiences it was also noted that the reaction was stronger when it was the result of human actions.

One of the hardest mental health diagnoses to make is that of Posttraumatic Stress Disorder (PTSD). Part of the reason is its popularity in the press. Almost everyone knows the symptoms and I even recall one patient coming in with a check-list of symptoms of which he stated he had every one. Since many of the symptoms are self reported, prior knowledge of the symptoms can lead to an easily mistaken diagnosis by someone who may have the best of intentions, but lacks the skill to tease out the real from the feigned.

When DSM was re-issued in 1968 as DSM-II, the term Gross Stress Reaction was removed and replaced by the more generic Transient Situational Disorder, under which the sub-category of Adjustment Reaction to Adult Life contained the descriptor, “Fear associated with military combat and manifested by trembling, running and hiding”. It was not until 1980 with the publication of the third edition , commonly referred to as DSM-III, that the term Posttraumatic Stress Disorder was used as an official diagnostic term. It also divided the term into Acute, Chronic or Delayed. Other significant changes to the diagnosis included a fuller listing of the criteria for diagnosis. In the 1987 revised edition, or DSM-III-R, it extended the trauma to observing trauma to others so that the individual no longer had to suffer the trauma directly.

Although many accounts of what would later become known as PTSD have appeared in the literature, the term became an issue following World War II. Stories and books about the American Civil War such as The Red Badge of Courage, depict clear accounts of what would later be classified as PTSD. In World War I the condition was commonly referred to as “shell-shock”, but was then pretty much ignored until WWII. During WWII the terms “Battle Stress” and “combat fatigue” were commonly used to describe the condition. Following WWII, or at the close of the war, when the horrors of the holocaust became known it was realised that the condition was not solely the result of war directly. The 1952 Edition of the Diagnostic and Statistical Manual (DSM) published by the American Psychiatric Association did not list the condition as such. It did, however, give a code of 000-x81 Gross Stress Reaction. It stated, “Under conditions of great or unusual stress, a normal personality may utilize established patterns of reaction to deal with overwhelming fear. The patterns of such reactions differ from those of neurosis or psychosis chiefly with respect to clinical history, reversibility of reaction, and its transient character”.

The Diagnostic and Statistical Manual is now in its fifth edition, DSM-5, and the diagnosis has remained relatively consistent over the past years. While efforts have been made to integrate the DSM system with that of the World Health Organization’s International Classification of Diseases (ICD), it was not until the publication of ICD-10 Classification of Mental and Behavioural Disorders in 1992 that the concept of PTSD was included in their nosology. The hallmark condition for the application of the diagnosis is that the person has experienced or has been exposed to an event in which the individual is exposed to an actual or threatened death, serious injury or sexual violence. There is probably no place in which this is more likely to occur than in the military forces. Combat, by its very nature is life threatening and over the years Hollywood has done little to bring the true horror of combat out in the

It went on to say, “This diagnosis is justified only in situations in which the individual has been exposed to severe physical demands or extreme emotional stress, such as in combat or in civilian catastrophe”. EXPERT WITNESS JOURNAL

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open. The lack of support from family and friends also plays a part. While many will look back at their time in the military with fondness due to the intense relationships formed in times of stress, the lack of support from those loved ones left behind can have an isolating effect on a person. Add to this the refusal for many years of the incapacitating effect of stress in such events (remember General Patten’s famous slap?), it is little wonder why the armed forces has recently focussed on identifying and treating PTSD along with other stress disorders.

in the military and those recently leaving the military. While the military itself has made strides in the recognition and treatment of PTSD, those who leave the services with undiagnosed PTSD face increased vulnerability to both substance abuse disorders and mood disorders leading to suicidal gestures or attempts. Additionally, those with PTSD have a stronger link with violence than is found in the general population. Acts of violence within a population with undiagnosed PTSD are more likely to occur, especially when disinhibited by alcohol or drugs. The need for the proper and qualified intervention for both the diagnosis and treatment of PTSD becomes apparent to even the most casual observer.

In World War II, the average solder saw limited direct action as they would take a position and hold it to be ‘leapfrogged’ by a new battalion who would take the next objective and then hold it, only to be ‘leapfrogged’ by yet another group and so on. Since then, however, from Korea and Viet Nam through Iraq and Afghanistan, the common soldier has had to face extended periods of uncertainty direct threat in combat. Insurgency raises questions of trust and we have seen numerous incidents in which someone we thought was fighting on ‘our side’ turned and caused death and destruction to those with whom he or she had been working. Add to this the uncertainty of Improvised Explosive Devices (IEDs), Suicide Bombers and general acts of terror, and the probability of PTSD increases, to the point where it is a wonder more individuals in the military do not suffer the effects of a PTSD.

Again, the problem is to differentiate those who truly have a PTSD from those who know the symptoms. There is, therefore, a strong need for professional expertise in the accurate diagnosing of the condition. This is especially true in cases where those deciding the fate of an individual have limited or ‘popular’ knowledge of the disorder. Once the diagnosis is confirmed, the next task is to obtain the appropriate treatment. While this sounds obvious, it is not always as easy as one would wish it to be. As PTSD is included in the Mental Health /Mental Illness arena, it suffers from all of the difficulties of mental illness in general, that is prejudice and ignorance on both the part of the general public and the individual with the condition. Too often individuals are ‘embarrassed’ and deny the existence of the condition not only to others, but also to themselves. They will tend to externalise the reasons for their behaviour to others while often internalising responsibility. Guilt may often occur, especially in situations in which the individual is involved in the same incident in which someone else has died or been severely injured. They will often feel guilty for having survived or remained uninjured when another did not. Equally, a sense of guilt for having placed another in harms way may occur.

While the military clearly deserves a mark of credit for their efforts, and while the incidence remains low in the overall, it is increasing. Any gain in reporting incidents of PTSD in active duty personnel, however, is often offset by the non-reporting of those who have left the military and for whom the symptoms do not appear until weeks, months or even years after discharge. The recent popularity of American Sniper and the subsequent trial of Eddie Ray Routh, the man convicted of killing Chris Kyle and Chad Littlefield, have again raised concerns about the recognition, impact and treatment of those veterans who left service with undiagnosed PTSD along with their attempts at self-medication.

Stress is based on perception of an event, or events, and a PTSD, as its name implies, is an extreme form of stress. Changing that perception, therefore, is crucial to the resolution of a PTSD. This may occur either due to an unexpected immediate occurrence or a buildup of events over a period of time such as the case of military personnel who, while perhaps have never been confronted with a traumatic event, are in positions where that possibility is predominant over an extended period of time.

Even a brief review of the literature indicates a strong link between the presence of a PTSD and a substance abuse disorder (SUD) as well as that between the presence of a PTSD and suicide. With both the NHS and Social Services currently stretched due to financial constraints and a growing number requiring their services, an increasing number of individuals with undiagnosed PTSD are attempting to self-medicate with drugs and alcohol. This clearly indicates a vulnerability again for those EXPERT WITNESS JOURNAL

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over a period of time. While medication may give a window within which the individual can change that perception, in the majority of cases the perception will remain unless challenged in a professional, non-judgmental and objective manner. Although it takes only an instant to change one’s mind, it can be a difficult and daunting task for one to challenge that belief on one’s own. Hence the need for professional intervention. There are a number of ways to help the individual to challenge those beliefs and perceptions and each psychologist, psychiatrist, therapist, or counsellor will bring their own personal approach to which ever theoretical orientation they take. Finding someone the individual feels comfortable with is often the first task as trust is often difficult for a person whose ability to trust has been shattered by events.

Clinical, Forensic & Child Risk Assessments Pre/Post Sentence Reports Life Review Panels Therapy, Anger Management Intellectual Functioning (IQ) UK Wide Coverage Private and Legal Aid Short Notice - Quick Response

There is no ‘magic bullet’ for the resolution of a PTSD. Although there are commonalities in the symptoms expressed by those with PTSD, since each individual reacts uniquely to stress, the diagnosis requires unique skills and the resolution of a PTSD must be tailored to the individual. The psychologist is uniquely placed to provide both the diagnosis and the treatment. Being trained across all four major schools of psychological theory, a psychologist is able to adjust the theory, and t herefore the treatment style, to the individual rather than trying to fit the individual into a pre-determined theory or set of interventions. ■

Midlands Psychological Services Quayside Tower, 252-260 Broad Street Birmingham, B1 2HF Tel: 0121 224 3051/Fax: 0121 224 3252

Email: mps@midpsych.co.uk

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Mike Martin Associates Ltd Right to Care

Health and Social Care Consultant, Lecturer, Practitioner, Researcher & Trainer MA, MSc, Diploma Social Administration, Diploma in Social Work (CQSW), Certificate in Management

Mr Mike Martin 6 Stormont Street Perth, Perthshire PH1 5NW Tel: Fax: Mob: E-mail: Web:

01738 633 948 01738 700 000 07904 060103 mike@mikemartinassociates.co.uk www.mikemartinassociates.co.uk

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Tree Data: How Relevant Collection and Use Can Enhance Management by Mark Chester - Cedarwood Tree Care more vulnerable to breaking. The vigour of the tree is also assessed, as this is a good way to identify a tree in decline. The most important data with such a survey (apart from accurately identifying the position of each tree) is whether an individual tree needs pruning (or felling) and how urgent the work is.

Processing tree data, whether by collecting it through tree surveys (often the work of the consultant), or interpreting the information as a tree officer, has been a fundamental element of my work as an arborist. In the early days, the specification was generally agreed by others. However, increasingly I am finding myself responsible for setting the parameters.

When I look at a tree, I assess both safety work and pruning which would be beneficial to the tree, also helping to avoid problems later on. When trees are growing in open settings, there is a tendency for lower branches to become over-dominant and compete with the central leader. This detracts from the ability of the tree to fully develop. There is also the longer term risk of the larger branches becoming too heavy for the tree to sustain. As a purist, I seek a pruning solution. However, for those with limited resources, I appreciate that this action is less of a priority and guide the focus accordingly.

As trees become more prominent both in terms of their contribution to the landscape and the obligations on land owners to ensure they are maintained in a safe condition, so there are increased requests for inspections and management reports. The client in these situations is generally a lay person when it comes to a technical appreciation of the tree resource. Ultimately, the information usually required is along the lines of knowing what trees they have and what is the condition? The basic survey relates to the condition of the tree in terms of safety. This explores the physiological state of the tree, looking at cavities, weak forks and side branches that are too large for the tree and EXPERT WITNESS JOURNAL

Whilst the data collected is not complex in itself, the process of collating it can easily become

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exercise. For every site with a population of high quality trees whose retention is highly desirable, there is a site where one is identifying little more than scrub and self-set trees of very limited merit. I sympathise with clients who are required to provide a report, by a suitably qualified consultant, on trees on site, where it is clearly evident that there is practically nothing to report. How often has a self-set Sycamore or Goat Willow in the corner of a derelict plot resulted in the planners insisting on a tree report? For one client, the planners stipulated a Landscape Appraisal before approving plans to regenerate an abandoned site covered in debris and scrubs.

complicated. I recently surveyed trees for a housing association whose sites covered much of the West Midlands region. I inspected some 1000 trees across 80 different sites. To make it easier to identify the sites with trees requiring more urgent attention, I provided mini reports for each site with colour coding to highlight where priority work was located. For the planning scenario, the client is often required by the local planning authority to provide details of the trees on the proposed development and how they contribute to the setting. The key data relates to the size of each tree (the trunk diameter is used to calculate the space that should be allocated to the tree whilst crown spread indicates the physical space presently occupied), how important itsâ&#x20AC;&#x2122; retention is to the site in terms of aesthetics and future life span. The data that needs to be collected is more detailed than is the vase for the basic condition assessment, although that information is still included.

The planning process can be costly, as applicants provide a list of reports considering site constraints, highways issues, bats and other ecological issues, along with design statements. As the costs of commissioning various specialists rise, the applicant is often faced with a rapidly shrinking budget, and seeks to limit further costs. This can result in less of a focus on what they actually want themselves. I recently surveyed trees for one aspiring developer seeking to regenerate a small piece of waste ground. I asked whether a landscape scheme had been commissioned. This had not been considered, as it was not on the listed of stipulated documents. Was it really necessary, given the costs already encountered? Is it not time, I suggested, for the applicant to decide what they wanted? Did they want to look at the existing surroundings, or would they prefer some colour? What trees and shrubs could enhance the setting? It is interesting, when someone has become accustomed to working within a framework of constraints, to grasp that they may be able to choose the landscape.

These surveys are defined by BS5837:2012 and the reports generated tend to be subject to more scrutiny that the basic condition assessments, as they accompany planning applications which are being considered by the local planning authority. Recommendations and priorities are still required. However, seeking to allocate a retention category for a tree is a subjective judgement and I am always conscious that I could be called to explain my recommendations. The general principle is that the more important trees should be retained within a site. The reality is that often this is not possible as other priorities determine the outcome. Regardless of whether a tree is being retained or not, the retention category to which it is allocated should be the same.

As I mentioned earlier, the data parameters for planning reports are established by the British Standard. However, for safety and other assessments, the data being collected can be set by the client, especially if they have specific requirements. Often the client seeks guidance requiring the data that should be collected, and I have frequently been asked to design the template for their approval. Relevant data collection is important to provide an informed survey. However, if one is being required to collect additional data, this can affect costs and represent inefficient use of resources.

I once surveyed a site for a local authority where the terrain consisted of reclaimed land which was now public amenity space. It contained landscaping and tree planting which dated from the 1970s. The surrounding area was residential. I had been provided with a proposed layout which did not allow for any trees to be retained, even though some of them were, in my opinion, of high quality and worth retaining. It became apparent later on that the main reason for my report was to provide the local authority with a detailed audit of the tree cover to enable appropriate mitigation planting as the site was to be cleared and completely redeveloped. I am actually relieved that I didnâ&#x20AC;&#x2122;t know this when I was surveying the trees and making recommendations for the retention of the better specimens.

I was invited to tender for a survey of trees on a housing estate for the estate manager. The purpose was to inform safety management of the trees. However, I was asked to identify the species of each tree down to the cultivar. With some trees such as Maples and Cherries, this can be very difficult and a task which only the specialist who deals solely with

It does concern me that some of the data I am instructed to collect is little more than a box-ticking EXPERT WITNESS JOURNAL

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Maples or Cherries can complete with confidence. I was also required to measure tree canopy spread to the nearest metre, with a 10% margin of error. This is a level of detail rarely required with a planning report which is considering the amount of space an individual tree may need in order to be successfully retained. Requiring it for a safety assessment would not, in my opinion, enhance the management of the stock but would increase surveying time, and therefore, costs.

Principle Consultant

Mark Chester BSc (Hons); Tech. Cert. (Arbor.A.); MIOH; F.Arbor.; C.U.E.W.; C Env.

Mark has experience in Tree Preservation Orders, boundary disputes, amenity tree valuations, planning permissions and tree works.

When I am surveying trees, the surveying process takes a certain amount of time and data being collected needs to be relevant to the situation, with discretion regarding when to add extra information in the field (such as the proximity of a particular tree to a footpath where roots may be a future problem, or branches growing over a roof, with leaf fall blocking guttering, both of which may need specific management solutions. Timing of inspections is key for me to establish the condition of the trees. It is harder to assess vigour when a deciduous tree is dormant. I have been instructed to survey trees in the middle of winter, and the results are inevitably limited.

He can provide feasibly assessments, support mediation and produce technical reports, and can guide your case through to a court hearing. Mark has undertaken specific training in cross examination and has an excellent track record of successful courtroom witness cases. Mark Chester holds the Cardiff University Law School Bond Solon Civil Expert Certificate, enabling him to provide Expert Witness support for court cases and tree disputes, including Tree Preservation Order breaches and compensation for tree damage. A recent case summary described Mark as "a very impressive and authoritative witness." Contact Details Telephone: 01981 570426 Mobile: 07888 838360 Email: enquiries@cedarwoodtreecare.co.uk Website: www.cedarwoodtreecare.co.uk

Trees need space to fully develop, and it is disheartening to see a group planted so closely that they will limit the future growth of each other. Similarly, planting without reference to surrounding features such as overhead power lines which need to be maintained free of vegetation can result in lost opportunities to establish the specimen trees of the future.

One headline statistic that is often favoured relates to tree planting. Organisations love to quote the numbers of trees they are planting. They make for great photo opportunities and public relations material. We have the London Mayorâ&#x20AC;&#x2122;s office aiming to plant 10,000 trees within London during the current mayoral term, and during the winter of 2014-2015, the Tree Council set the target of planting one million trees. It is great to see trees and establishing the next generation receiving publicity and political support. However, without careful management, many trees struggle to become established. Indeed, the last audit, back in 2006 (published in the paper â&#x20AC;&#x2DC;Trees in Towns llâ&#x20AC;&#x2122;, found that as many as 25% of the young trees being planted by highways authorities were dying within two years.

Incidentally, the two projects I am connected with involve training in the various skills of establishing young trees and separately providing a platform whereby the management of the young trees can be monitored for effectively and adjusted as required. Issues such as watering can affect the establishment of young trees, and over-watering is as detrimental as insufficient application. The operator records their action during irrigation and records the condition of each tree. This needing further attention can then be identified for further action.

I have been exploring this because I am involved in two projects where the aim is to improve both the survival rates and the vigour of younger trees, two elements which are integral to enhancing the urban forest. A problem with planting trees solely to meet a target is that there may be insufficient time and thought given to selection of the location, the species and future contribution. If there is insufficient space for a tree then planting one to tick the relevant box will achieve little. Similarly, selecting small ornamental trees such as Cherry and Apple which tend to be shorter-lived and reach maturity when only several metres in height can result in their being overwhelmed by surroundings. EXPERT WITNESS JOURNAL

These two projects may be considered pioneering. However, another one, whilst being new application is definitely using established technology. Chlorophyll fluorescence is present in the foliage of all plants, whether trees or not. In a healthy plant, the fluorescence is able to absorb more light than is the case for a plant in decline. Stress from excess or insufficient water, compacted ground or damage from the application of a herbicide can all be identified from the fluorescence which responds more quickly than is evident from the external appearance of the plant. With this data being 129

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exploring installing a root barrier. When the BRE guidelines recommend no action for movement of up to 20mm and one is presented with evidence of movement of 2mm, it is unclear to me how else I am supposed to respond as a professional.

collated and interpreted, one can gain a more complete understanding of the condition and health of the plant concerned. Whilst the collection and correct interpretation of relevant data helps to enhance efficient management, there can be costs in cutting corners. This is particularly the case when dealing with tree-related subsidence claims. Trees can cause damage to property both directly and indirectly, and in such situations, appropriate management should be explored. This can involve felling trees growing close to walls and installing root barriers to restrict rooting activity.

In true CSI fashion, I seek to follow the evidence. Again from the annuls of local government and the world of Tree Preservation Orders, a request was received to fell a tree due to invasive roots blocking a drain. There was evidence of the invasive roots, but with a dozen trees of several species in the vicinity, it was unclear which one was the guilty party. Once this was established, we would have a basis to proceed. A specific tree had been identified in the applicantâ&#x20AC;&#x2122;s garden. Having agreed a course of action, the applicant let slip that they would appreciate this particular tree being removed due to the shade and leaf fall nuisance it caused; an ulterior motive!

However, I have encountered numerous instances where trees are pruned or felled based on limited or inconclusive evidence. Why does this matter? There is a tendency to attribute blame to trees in the first instance. Where the tree isnâ&#x20AC;&#x2122;t culpable, or is only a contributing factor, the removal can be regarded as the solution and further investigative work delayed. In addition, with felling of the tree being blamed, an amenity feature is lost.

In this case, the guilty party was found to be a neighbouring tree, for which consent to fell duly followed, a course of action which perhaps left the original applicant somewhat disappointed to still have their tree. However, this reinforced the need to establish the evidence. For me, data is not just figures but physical evidence and carefully assessing it can help to guide clients considering pursuing legal action. I have been asked to advise on whether a dead tree died from natural causes or the result of action by a third party such as a neighbour.

In one case, a tree was cited as causing the wooden floor in a village hall to lift, with invasive roots being blamed. It was only after the nearest tree had been removed and the problem continued that the floor was lifted and a leaking water pipe found to be the cause. It is interesting, and shocking, the pressure which can be applied by the insurers and other professionals to action their recommendations for tree removals regardless of the evidence. One case I explored when in local government involved a Silver Birch tree cited as being responsible for causing a porch extension to come apart from the main house. Roots in the vicinity identified as being from a Birch was the basis of the claim. I arranged for the tree in question to be made subject to a Tree Preservation Order, and it was only when dealing with the subsequent appeal for refusal of consent (subsequently dismissed) that the subsidence specialists acknowledged that the extension was of poor quality and not built on foundations and therefore affected by settlement. It had been a long journey, and one in which felling of the Birch would not have resolved the problem.

For those seeking to prepare a case, the information that cause of death was natural may disappoint, but it avoids embarrassment later on. One tree I looked at for such evidence had girdled roots which had snapped in a winter storm! In that case, the guilty party was actually the nursery which had grown the tree and not re-potted it in time, and then sold it rather than scrapping poor stock! I began this article by looking at data collection with reference to planning applications. When I am asked to provide a survey to BS5837:2012, I begin by asking whether a topographical survey has been undertaken to plot the positions of trees on site. I appreciate that the process of preparing an application for submission can be costly, and the topographical survey may seem as just another expense. I can work without this information, but having it enhances the accuracy of my work and it can provide important data. When I survey trees, I include all with a trunk diameter of 75mm or greater. This is not only the recommendation of the British Standard, but when trees are within a Conservation Area, all trees of this size and greater are subject to protection.

When damage does occur to a building, the Building Research Establishment (BRE) provides guidelines for appropriate action based on the severity of damage. I have encountered claims to fell based on two months of a twelve month investigation, threats to pursue recovery of costs if the alleged offending tree was not felled and pleas for action when the evidence presented was minimal. In one such case, the insurers offered to pay for felling a tree they had cited, before EXPERT WITNESS JOURNAL

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report had been produced. The residents wished to ensure that any representation they made was based on sound professional advice. Whilst a number of ornamental trees reaching the end of their natural lives had been recommended for removal, so too were a row of mature weeping Willows, on safety grounds which seemed to be rather vague. Furthermore, the organisation which had commissioned the report cited that itsâ&#x20AC;&#x2122; author was â&#x20AC;&#x2DC;an approved consultantâ&#x20AC;&#x2122;. There is no national register of approved consultants, with the only comparable list being the Registered Consultants of the Arboricultural Association. In that case, the Willows were successfully retained.

With one site I surveyed, a topographical survey had been commissioned, but only of the significant trees. Having surveyed all of those subject to protection, I then found that I had more trees in my survey than we in the topographical survey. There were some challenges with merging the two sets of data. Architects tend to plot trees as small round circles. This is fine for smaller trees. However, for larger trees, it can give a misleading picture and may encourage layouts to be drawn up which can only be implemented with some tree removal. Finally, as an author, I need to be sure that my findings and recommendations are clear and unambiguous, regardless of the situation. After all, I am unlikely to be supervising programme of tree work undertaken based on my recommendations made months or even years ago. It can be interesting reading the conclusions made by others and exploring the evidence they have used. I was once asked to guide a residentsâ&#x20AC;&#x2122; group concerned by proposals to fell many trees within a park as part of regeneration works, for which a consultantâ&#x20AC;&#x2122;s

This brings me to the value in my work, when a tree is retained based on my recommendations regardless of the original proposal. It is satisfying to return to a site months or even years after providing advice and seeing trees retained based on comments made previously. Whether I did the original survey or advised on recommendations made by others, it is so satisfying to see a tree standing because of my actions. â&#x2013;

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Draft RICS Guidance Notes & Professional Statement: Surveyors Acting as Expert Witnesses in Scotland The first edition of the combined RICS professional statement (formally referred to as a practice statement) and guidance note Surveyors Acting as Expert Witnesses in Scotland will apply to surveyors providing expert evidence, whether oral or written, before a range of courts and tribunals in Scotland (a role sometimes referred to in Scotland as a skilled witness).

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an outline of the written report format

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the immunity of the expert witness.

RICS in Scotland works closely with the Scottish Government on matters relating to land, property and construction. Members there are integrally involved with many large construction projects in the region, such as the 2014 Glasgow Commonwealth Games and the new Forth crossing.

This includes: â&#x2014;&#x2020; the need for clear instructions and terms of engagement fees guidance on what to do in situations of conflict of interest

clarification of the differences between the roles of expert witness and advocate

RICS Professional groups also provide technical advice across the RICS organisation. They contribute to the RICS public policy agenda, and develop and maintain strategic alliances with other professional bodies and industry organisations /groupings.

The professional statement section sets out the mandatory duties of a surveyor in providing expert evidence, while the guidance note section provides further information on good practic.

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RICS in Scotland has seven partner universities delivering a wide range of RICS-accredited courses. â&#x2013;

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Croft Surveyors are independent, regional Chartered Building Surveyors with offices in Plymouth, Totnes, Torquay, Exeter and Taunton allowing easy geographical coverage of the South West and further afield. All of our surveyors who give expert evidence, and/or prepare expert reports, have attended Court hearings, and most have given evidence in some cases on many occasions. Our experts are fully conversant with Part 35 of the Civil Procedure Rules, and can act as a sole party expert or a single joint expert, whichever is required. Croft Surveyors have been instructed in both civil and criminal cases.

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The areas in which we can provide expert evidence are: Building / Construction Disputes Boundary Disputes. Party Wall Disputes Dilapidations Neighbour Disputes Surveys/Professional Negligence Mobile Homes

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Contact: Kevin Isaacs Tel: 01752 201748 Fax: 01392 455150 Email: ki@croftsurveyors.co.uk Web: www.croftsurveyors.co.uk Offices in Plymouth, Totnes, Torquay, Exeter and Taunton

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Who’s Fault is it Anyhow? Is an Architect Best Placed to See the Big Picture? by Simon Duffy, BA (Hons), Dip Arch, R.I.B.A, Cowan Architects, Member of the Expert Witness Institute On the basis that the Defendant had itemised restricted windows as a requirement, it was apparent that other parties could be culpable and an in-depth analysis of the process was undertaken. We identified that there was no robust procedure of risk analysis, particularly given the vulnerable nature of the residents, and that a ‘designer’s risk assessment’ would have highlighted the shortcomings in the window design. As a result of this oversight, the need for restrictors was left out of the NBS Specification at tender despite being included in their design statement. When the problem surfaced much later in the process at the point when the windows were being fitted, the wrong restrictors were ordered in haste and not fitted according to the manufacturer’s instructions. It seems that the only party that didn’t have any part to play at this point was the manufacturer of the windows.

If you type “Building Defects” into Google, you’ll find yourself faced with an endless stream of academic papers, research documents and case notes detailing the minutiae and complexity of the issue. No surprise therefore that the apportioning of blame when a defect surfaces can be a weighty process with numerous interested parties battling it out to prove that it was someone else’s fault. Not only can the costs run into millions, but if a building defect has led to a loss of life, the moral obligation to find the culprit is paramount. The first port of call is to find an independent “Expert” to assess and advise. But this is no easy task as few are well placed to “get under the skin” of the intricate and complex process of creating a building. The Construction Lawyer will probably go straight to a building surveyor, but it is actually an architect who is in a unique position to provide such insight; not only do they have an understanding of the very convoluted and subtle design processes but they are also fluent in the multitude of building regulations, legislation and contract law. After all, it takes one to know one.

A Costly Business The ownership of responsibility through contracts of engagement is key and can often be transferred during the process from conception to completion. Defects in construction can be costly, dangerous and damaging to reputations not to mention Professional Indemnity (PI) premiums, but they remain a regular occurrence. The construction of buildings and structures has become increasingly complex. New developments, innovative materials and designs as well as cost and time pressures create potential hazards for the effective delivery of a defect-free project. After all, it’s still a very human industry where the physical work is undertaken by individuals.

A Case in Point In a recent case, an elderly resident of a newly built care home was able to open a restricted window and fall to their death. The HSE were keen to point the finger at the care home provider for failing to protect its residents sufficiently. The Defendants sought our advice as Architects and Expert Witnesses to assess their liability. On a site visit it became apparent that not only was the restrictor on the window fitted wrongly, but that it was the wrong restrictor for the windows. The window opening height was also too low with no protective guard rail to mitigate the risk and that the design allowed for a small radiator to be installed at the foot of the window. In short, the window had not been designed to comply with Part K of the Building Regulations for “Guards and Barriers”. EXPERT WITNESS JOURNAL

Inherent defects in high profile or iconic buildings can attract adverse media coverage, as happened after the collapse of the Royal Plaza Hotel in Thailand (1993) and a section of Paris' Charles de Gaulle Airport (2004). Even if the problem is less 133

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spectacular, the consequences can be very serious with the average value in the UK for a major construction dispute rising in the last couple of years to an average high of £18.5. It’s even greater in Asia, the Middle East and the US.

documentation, guidance, regulations, legislation and all the associated implications to address. One part of the process will impact on another part so along the journey there has to be plenty of consultation.

The Legal Standpoint So how does the law view culpability in the building profession? Increasingly the building professions have moved toward academic qualification and although it is rare for new members to start with less than a bachelor’s degree, as soon as newly qualified professionals begin to practise, it is their actions – not qualifications – which become the gauge of their competence.

In our case study, it was the architect, however, who failed in their duty of care to the client, to address the need for windows that were fit for purpose. It was the architect who was involved at all the critical stages of the process and continually failed to notice the omission. And it was an architect, acting as an Expert Witness, who spotted this error when so many other parties had missed it. There was certainly a liability placed on the client who had experience in the needs of its residents, but they are not building professionals and could not be expected to have the depth of knowledge required in order to manage every detail.

In common law, professional competence is assessed in comparative rather than absolute terms. A professional to be in error is not of itself grounds for a claim for professional negligence. Unless the express terms of the contract state to the contrary, or in cases where there is an implied or statutory duty to achieve ‘fitness for purpose’, it is not sufficient merely to show that a defect has arisen from someone’s errors or omissions.

What Constitutes a Defect? Defects are defined as aspects of the works that are not in accordance with the contract and they can occur from design deficiencies, material deficiencies, inadequate or inappropriate specification and workmanship errors. In each case the finger of responsibility points in a different direction.

For example, many engineers have, in the recent past, wrongly specified high-alumina cement. However, they did so at a time when a large part of the profession believed this to be sound. The mere fact that they were wrong and that damage has resulted from this error does not make them liable for the consequential losses. Each professional is judged by comparison with their peers. Thus, for any professional to be liable for the cost of a defect, they would have to have performed their duties to a lower standard than could be expected of a representative body of the same ordinarily competent professionals.

For structural defects discovered years after completion, contractors and consultants carry a legal responsibility towards the owner to rectify the problem. This may be by way of contract, warranty professional indemnity, H&S legislation or common law. Whichever it may be, proof of liability is required and proving this can be a lengthy process. Due to the number of different parties involved, often sharing responsibilities, it can be very difficult to prove negligence. While the legal process proceeds slowly, restoration work is typically on hold.

Who is Best Qualified to Judge? But who is best qualified to decide whether there has been incompetence or where the blame lies? The building surveyor is certainly well placed to assess the technical information and how it has been translated in its isolated form to the end product. But do they have the holistic perspective and can they understand the pragmatic impact of the defect?

Each Building Journey is Unique Depending on what is being built, each element of the Building Regulations could be applied differently according to the building’s need. For example, a fire escape will differ fundamentally between a hospital and a residential care home. A hospital is likely to have a sequential escape strategy where each ward becomes an individual module to be fire protected. The escape routine would be to move patients from ward to ward away from the fire hazard, securing off each ward until a safe location is reached. This is obviously necessary as patients are often confined to bed and hooked up to pieces of medical equipment. In a residential care home, there is a need for numerous escape points located at various strategic locations based on the distances between them and the living areas to minimise the length of time needed for an individual to be able to reach a fire escape route.

The duty owed to a client is to act with the skill and care of the ordinary prudent person holding themselves out as possessing the particular skill offered. It is not simply a question of giving correct or incorrect advice, but of demonstrating a standard of skill commonly found in persons of like discipline. The professional needs to understand their role as it fits into the lengthy and complicated process of building design and construction. It has to be a totally informed process with a suite of EXPERT WITNESS JOURNAL

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There are many risks associated with buildings so it is the duty of the architect to design it so that risks are eliminated or at least mitigated. As already mentioned, the developers are ultimately exposed most to the cost of defects and the buck stops with the client, particularly as far as the Health & Safety Executive is concerned. But there are so many different parties involved that this is often not a fair reflection. In identifying the comparative strengths of the surveyors and the architects, while the former’s strength is in assessing practicalities, the architect has a more holistic view of the whole building process.

Building contracts have been around for a long time. One of the first could be said to be the code of Hammurabi (King Hammurabi ruled the kingdom of Babylon from 1792 to 1750BC) which dealt with payment and runs as follows: If a builder builds a house for someone and completes it, he shall give him a fee of two shekels in money for each sar of surface. The code also dealt with responsibility for any defects. Here the position was admirably clear, if ultimately a little harsh: If a builder builds a house for a man and does not make its construction meet the requirements and a wall falls in, that builder shall strengthen the wall at his own expense. If a builder builds a house for a man and does not make its construction firm and the house which he has built collapses and causes the death of the owner of the house that builder shall be put to death.If the son of the owner dies, the son of the builder shall be killed.

Unfortunately, in our case study, the designer:• designed a fundamental aspect of the care home incorrectly; • did not notice the mistake during the years before the building was constructed; • did not produce a design risk assessment to identify any issues;

Acting as an Expert Witness at Cowan Architects, Simon Duffy has been an architect in private practice for nearly 20 years, designing residential and commercial buildings including award winners in the health sector. He is an Expert Witness in design defects as well as in the accommodation needs of seriously disabled people. He is also currently involved in the design, construction & adaptation of buildings for people with disabilities ranging from amputees to severe Cerebral Palsy. ■

• did not specify the correct restrictors even if the window had been designed to the correct height; • misinterpreted the Building Regulations Part K assuming that a restrictor could function as a barrier; • did not follow the guidance stated in the clients requirements; • did not include restrictors in the NBS Specification used to tender the project; • as part of the contractor's team, when the issue of restrictors was addressed, did not make any comment about the suitability of the restrictors eventually specified. In this instance, despite there being a catalogue of oversights and mistakes throughout the process which involved healthcare auditors, building control, contractors, suppliers, project managers, the client AND the architect, they were missed. It took a very experienced architect on the outside to understand the relevance of them all. Interestingly, from April 2015 the Health & Safety requirements will change and the Planning Supervisor’s role will no longer exist. Nearly all pre-construction design responsibilities in relation to Health & Safety will become the ‘principal designer’s’, which in most instances will be the architect. It may be that this will simplify the process or it may mean that there is one less opportunity for defects to be caught earlier. Whatever the outcome, defects are a human condition and in the complex building environment it is the architect who becomes the Expert as they are the professional who is best placed to see the process from the inside-out and understand the architects and designers from their own perspective. EXPERT WITNESS JOURNAL

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Hot-tubbing and How it Helps Judges Decide Cases The use of experts in court proceedings has increased dramatically since John Smeaton, a civil engineer, was called to testify in court for a case related to the silting-up of the harbour at Wells-Next-The-Sea in Norfolk in 1782. The examination and cross-examination process can also leave experts feeling frustrated. They will often be asked questions that they feel would lead to misunderstanding of their evidence. Crossexamination, by its very nature, can leave experts feeling that their skills knowledge and even professional integrity have not been bestowed with an appropriate level of respect.

Expert testimony in today’s courts is now commonplace in many cases where issues concern “technical” matters that fall outside the court’s sphere of knowledge. It follows that expert evidence can therefore be complicated. Traditionally, when expert evidence is given, each party will call one or more expert witnesses whose evidence is intended to give guidance to the judge help him or her to understand technical submissions and arguments submitted in pursuance of a particular party’s case. Cross-examination is the traditional method for testing that evidence.

Distinguished and respectable experts can be subjected to cross-examination that is wholly designed to undermine their testimony, rather than assist the court to understand a particular point which may be crucial to the outcome of the case.

This methodology has given rise to a number of concerns. Examining Counsel can take individual experts through tedious details of their reports and assumptions. Huge amounts of court time can then be spent on cross-examination of each expert in turn.

Many experts have probably come away from courts feeling contemptuous of the adversarial examination process. In fact, they may be disheartened to the extent they may no longer wish to be involved in undertaking this hugely important role. This could seriously damage the effectiveness of the courts in dealing with technical disputes.

For judges and tribunals who are not experts in a particular subject matter, technical issues can become submerged in a labyrinth of detail. They can also be mind-numbingly dull. More importantly, expert evidence can be confusing and often contradictory as a result of the role of advocates who often seek to undermine the credibility of their opponent’s expert and his or her testimony. EXPERT WITNESS JOURNAL

In short, the traditional method for examining and testing expert evidence in court does not necessarily allow competing opinions of experts to be properly assessed. The fact that experts are supposed to help the court is undermined by an approach that is routinely used to discredit experts’ views, or force them into a position where they 136

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appear to concur with something that they really do not regard as accurate. But what alternative is there?

• The judge will normally explain the procedure that he or she requires the experts to follow and, if necessary, how the procedure differs from any previous experience they may have had in giving expert testimony.

It is true that expert evidence can be technical and difficult to understand properly. Hot-tubbing offers the potential for expert evidence to be submitted in a way that is not tedious for everyone in court, and it better at helping a judge to grasp issues he or she needs to comprehend in order to make an informed judgment. Hot-tubbing also enables each expert to focus on the real issues, and not be distracted by the often brutal tactics of Barristers.

• Each expert will be invited in turn by the judge to identify and explain the principal issues in their own words. Thereafter, each expert will be invited to the evidence provided by the other expert(s). • The experts may ask each other questions about what has been said or left unsaid. The judge acts as moderator, or chair, in these discussions.

The hot-tubbing technique diminishes the risk of lawyers and the judge misunderstanding what the experts are saying. It enables evidence from a number of experts to be given concurrently. This means there is greater input and assistance from the experts who are able to spend time helping the court to understand technical issues rather than defending their individual professional integrity. In response to the argument that cross-examination is essential to test the credibility of an expert, there is the counter-argument that a discussion between two experts, moderated by the judge, will be more effective in determining which witness is the more convincing expert.

• Counsel is then invited to identify specific topics on which they will cross-examine an expert. Each topic is then addressed in turn. During this procedure, opposing experts are invited to comment on the issue being addressed. If the opposing counsel does not understand the answer to a question, he or she can turn to their own expert and ask that expert to comment on the other’s answer. A real benefit of hot-tubbing is that it reduces the chances of an expert “muddying the waters”. Also, it prevents counsel from unnecessarily digressing. In other words, each expert is aware that the other expert can quickly expose a wrong answer and support a correct one. So the submission of expert evidence gets directly to the salient point.

To date, the use of hot-tubbing by individual courts has varied slightly depending on the approach taken by the relevant judge. A typical approach, which is drawn from the author’s experiences of observing the Australian civil system, is as follows: • After experts for both sides have prepared their reports they will meet, without lawyers present, to prepare a joint report on the matters about which they agree, and those on which they disagree.

Sometimes different views expressed by experts can be substantial, but the point is the judge will see what they actually agree on, and what it is they disagree on. The hot-tubbing process allows experts to ask questions of each other and supplement the other’s answers. Hot-tubbing encourages experts to co-operate with each other and understand their role is to assist the court, rather than simply support the case for the instructing party, who is paying their fees.

• Each expert will provide reasons as to why he or she disagrees. It is not impossible that this process will occasionally result in the experts agreeing on everything that each has said in their respective reports. On most occasions, however, there is likely to be a number of differences of opinion between the experts.

The big difference with hot-tubbing is that all the experts are together in the witness box at the same time, answering the same questions on the same basis. It represents a revolutionary change from traditional cross-examination, and it actually works to help judges, and lawyers, understand matters that fall outside their normal sphere of knowledge and skill.

• The joint expert reports enable counsel to be aware of issues that are contentious between the experts before the trial. This allows crossexamination to be more focussed. • In court, the experts are called to give evidence together. The court room will be set up so that the experts can sit together with convenient access to their reference materials.

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For experts, the process of hot-tubbing enables them to explain specialised subject matter to the judge, and put their points across in a more effective way. 137

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Evidence submitted through the hot-tubbing process can greatly reduce the hearing time. It is efficient and it identifies the important issues proficiently. The judge is able to speak directly to experts and invite them to explain matters in a way he or she will understand. At the same time, the other expert is at hand to provide an alternative view or support the response of the expert being questioned.

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No system is perfect, and some lawyers will find flaws in the hot-tubbing process. The fact is, litigation is still costly, often inordinately long and nearly always stressful. Hot-tubbing will not resolve all the problems associated with the litigation process, but it looks to be a better system for submitting expert evidence than conventional examination and cross-examination. At the end of the day, it will ensure experts remain an important part of the judicial process. ■

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Company Profile Novo 55 Novo 55 Consulting Ltd is a small civil engineering consultancy specialising in highways and structural engineering. Both of Novo 55’s directors are Registered Members of the Association for Project Safety and both have over 30 years’ experience in their respective fields in local government and the private sector. Our directors’ extensive experience can help clients throughout the United Kingdom with all technical aspects of incidents.

Andy’s areas of expertise include structural engineering and highway maintenance. He is a Chartered Civil Engineer with an honours degree in civil engineering and a Member of the Institutions of Civil Engineers. He has a National Certificate in Construction Health and Safety and a National General Certificate in Occupational Health and Safety Andy has broad experience of highway maintenance having been the manager of the highway maintenance team of a Northeast England City Council for 10 years and the Head of Transport and Engineering. He has broad technical and legislative knowledge and procedural experience of the highway maintenance service. Andy is also an experienced structural engineer, with a particular interest in buildings and related structures.

Charles’s area of expertise is in traffic and transport. He is a Chartered Civil Engineer with an honours degree in civil engineering and is a Member of both the Institutions of Civil Engineers and the Chartered Institution of Highways and Transportation (CIHT). He is a member of the Society of Road Safety Auditors and holds a Highways Agency approved Certificate of Competence, which allows him to carry out Road Safety Audits on the Trans European Road Network (TERN).

Novo 55 has provided advice to the Treasury Solicitor regarding temporary signing at a major road improvement site. A collision resulting in serious injury had occurred within the site during the construction works and the temporary traffic management arrangements that were in place at the time of the incident were called into question. Thanks to the extensive evidence that was provided and Charles’s knowledge of signing requirements and legislation, he was able to give a view as to whether the signage in place was incorrect or likely to be misleading.

Charles has wide-ranging experience in traffic management, accident investigation and road safety and the procedures that local government should follow when providing traffic and road safety services to the public. He has recently carried out a traffic sign audit at a large motor vehicle manufacturing plant in the Northeast of England and is currently involved with a number of cycling schemes as Auditor.

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Andy has provided Solicitors with expert advice on a range of highway related incidents involving both pedestrians and vehicles. He continues to provide opinion regarding highway policy (and other) maintenance regimes and likely rates of deterioration. Andy has also provided opinion on the claimed cost of repair of highway infrastructure following crashes. A recent case involved the Scottish Minister for Transport where Andy was able to demonstrate that the cost of an incident was significantly lower than that being claimed.

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EXPERT WITNESS JOURNAL

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The Making of an Expert An interview with Captain Peter J McArthur, Master Mariner, Pilot and Expert Witness is at the very core of what makes as expert, but that is only the beginning and theoretical knowledge alone is never enough.

Asking Peter how he became recognised as one of the foremost expert witnesses in the Maritime field, he began by correcting me. “I need to make one thing absolutely clear” he says “At no time have I ever given myself the title or the accolade of ‘expert’. That was something attributed to me by others, but which, I soon learned, was a necessary prerequisite to be taken seriously by the courts and by clients who appointed me. The simple fact is, I have something of an issue with the title ‘expert’. That said, I do accept a degree of specialisation in certain maritime fields”.

Peter is passionate that only those with a comprehensive knowledge underpinned by a lifetime of practical experience should be capable of calling themselves experts. Further, he argues “a good expert should never rest on their laurels, but should continually seek to improve their knowledge and refresh their experience at every opportunity”. He relates how, over the last few years, upon analysing some very plausible documents presented in evidence to explain the causal factors behind high value shipping collisions, he has been both amused and horrified upon realising that those who had been engaged to both discredit his client’s case - and his own specialist research and maritime background - had never set foot on a ship in their life and were relying purely on evidence derived from models. He recalls “When enquiring about the tell-tale signs of interaction that might be expected prior to one

Apparently, part of the issue arises from incidents where Peter recalls having seen ‘good men - who have given a lifetime’s work in a field which they know intimately - have their lives completely destroyed by so-called ‘experts’ who, when one delves not too far beneath the surface, turned out to be academics capable of setting out a good case on paper, yet when their actual experience was queried retrospectively, hadn’t the faintest idea about field practicalities. Experience, he continues, EXPERT WITNESS JOURNAL

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particular incident, the ‘expert’ had no idea what I was talking about. After that, it became a simple matter to knock down the other side’s case - so saving the reputation and livelihood of my clients employees, not to mention the very considerable damages that were being claimed as a result of the collision”.

outlines how his childhood passions and professional competencies began to combine logically and make sense. Recognising that from his earliest years Peter demonstrated a latent talent, I asked him to outline the life-path that led him to becoming a Captain, a pilot and a general maritime specialist? His first nautical experiences were gained during school summer holidays when, he explains, he was fortunate enough to get a job washing dishes on a paddle steamer. There then followed three summer seasons when he worked his way through the entire catering department - holding every job from pantry man, to cook, to Steward, and, at one time, ran the catering department - despite his young age – clearly displaying a management capability that would serve him well later in his career. Peter explains that where he came from, expectations were low. One either joined the army or, if you had any sense, you went to sea. Through a rather strange set of circumstances – which involves a broken cotter pin on his motorbike – found himself at sea where, right from the outset, his decision to go into the Marine Department rather than engineering side was questioned as it quickly became apparent that he had a talent for fixing things, an aptitude which, he says, “was to prove both the boon and the bane of his life for many years”.

His opinion of ‘expert evidence’ based on models and mathematics, unsubstantiated by practical experience, becomes clearer as he continues “I’m afraid, no matter how academically competent or convincing some documents may appear, if someone purporting to be an expert presents evidence that has the potential to destroy lives and livelihoods, then they should be able to demonstrate personal, hands-on, experience to substantiate the documentary evidence that they present to the court”. I asked Peter to explain the sequence of events that led him to developing the specialisations that his clients have come to value and to rely upon. Peter smiles as he paints a picture of his remaining few months in nautical College, having just been introduced to the field of marine hydrodynamics and the topic of interaction, knowledge (as was explained) that was absolutely critical for safely manoeuvring and handling ships operating in close proximity to one another. “We have to teach the fundamentals of these theories” explained the lecturer, “you have to know about them so that when faced with them you at least have some idea of what you are looking at. But our advice to you is ... never ever attempt these manoeuvres with your own ship … leave it to the experts! “ Peter raised his hand and asked “and who are the experts?’ Without hesitation the reply shot back “the Manchester Ship Canal pilots, they wrote the book.” Peter’s plan crystallised in that moment, “that’s what I want to do” he says, “I didn’t just want to be good, I wanted to be the best there was.”

Peter’s apprenticeship was worldwide and involved getting to know oil and product tankers, bulkers, chemical and molten sulphur ships, He also touched on container ships as their use was growing quite significantly. Peter outlines his career as a young officer, “I seemed destined to spend my life on VLCC’s and ULCC’s, that was until I found myself in a dry-dock where my talent for fixing things came to the fore. Although a relatively inexperienced officer at the time, I would negotiate repairs and offer improvement suggestions which seemed nothing more than common sense to me, thinking nothing more of it. I’d obviously impressed somebody because, within a matter of months, I was appointed to another dry-dock bound ship - then another and so on. Taking the negative perspective, I was sure I’d upset someone and this was punishment. I didn’t like the way things were going as I was spending more time under ships and crawling around in their innards than I was at sea, on the deck, or on the bridge.

The whole subject of hydrodynamics, interaction, pressure fields, ship generated waves and the forces between ships - although he had no idea what they were at the time - were topics that had always fascinated him. He explains some early childhood memories when he would watch the intricate wave patterns created by his little plastic boat as it sailed on the puddles and later, his fascination of the waves made by the great oceangoing ships that plied the nearby River Clyde. Later, as a professional mariner, formally trained in this field, as a pilot and an accomplished ship-handler, Peter EXPERT WITNESS JOURNAL

That realisation, plus a desire to gain quality sea-time so that I might rise through the ranks and get my own command, resulted in my leaving deep sea and taking up a position with a middle trade 142

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company. The smaller ships had numerous problems and my capacity for working out what was wrong and fixing it soon bubbled to the surface again. That wasn’t a bad thing as, still being only in my early 20’s, I found myself the youngest Chief Officer in the British Merchant Navy - a situation which lasted for about three years.

winter working on the Grand Banks of Newfoundland. “Exploration in extreme Arctic conditions -with the ever present threat of icebergs - is quite an experience and one which one never forgets” he says. “What started out as a simple rig move, if there is such a thing, turned into over a year’s contract in the most extreme environments that the Earth has to offer. Simply being in charge of isn’t enough! At the back of one’s mind is the everpresent knowledge that any decision has the potential to affect the lives of hundreds of men. It’s difficult to explain, it’s something one accepts and gets on with, but the sense of responsibility and the weight of command never leaves, not even when on vacation”. Eventually, the project was successfully handed over to the Canadian nationals, as was always intended, and he found himself back in the North Sea working for agencies on a contract basis - moving rigs and carrying out field repairs.

Whilst I did build quality sea time that included the navigation experience and some of the ship handling practice that I desperately wanted, during the last 18 months with that particular company I ended up in nine drydocks! Bemoaning my lot, one shrewd old Captain gave me it straight ‘You will never get a long-term command laddie, every skipper in the fleet wants you on board for dry-dock. Your reputation precedes you and you’re known for getting ships fixed properly, on time, and on budget. You’d best face it; you’re destined to be a superintendent.’ That wasn’t what I wanted to hear”. In the early 1980’s the shipping industry underwent a significant downturn - coinciding with Peter’s need to spend time with his young family so he worked as a Marine Technical surveyor in the United States, followed by two years as a Berthing Master and part-time Hydrographic Surveyor in Humber ports. His earlier work in the USA turned out to be the foundation for a further four years working as an Oil Surveyor, Marine Technical Consultant and P&I appointee based in the Middle East.

By the early 1990’s Peter was employed as the ‘Mr Fixit’ for one of the biggest oil exploration companies in the world - regularly acting as Barge-Master during installation wet docking, scheduling overseeing and upgrading semi-submersibles or performing the demanding role of Rig Tow- Master when circumstances required. In the mid-1990s, offshore working in the North Sea went into a steady decline as the major oil finds became ever deeper, more inaccessible and more expensive to exploit. It wasn’t long before Peter elected to return to sea - in command of coastal tankers and ro-ro vessels and plying the busy European, Baltic and Mediterranean routes with the companies he was working for only too willing to make use of his experience in repairing ships. This move coincided with Peter’s conscious decision to return to nautical college and upgrade his command endorsement to full Master Mariner certification. No sooner had he gained his Master Mariner certification than he was invited back into the offshore industry to move oil rigs - a service that he then regularly provided - as an independent consultant during seagoing leave periods.

With his extensive background in vessel problem solving, ship repairs, project and personnel management, and with a lot of uncertainty surrounding the state of the marine industry in general, a move into the North Sea oil and gas industry seemed quite a logical progression for Peter. His venture into the offshore industry coincided with a period when, following a lot of serious accidents and near disasters, the industry was becoming more heavily regulated as the UK sector tightened up on virtually every aspect of working procedure and safety monitoring. Personnel with higher-level maritime qualifications backed with significant experience were at a premium and it wasn’t long before Peter was appointed to manage oil rig upgrade projects or was tasked with moving them from work yards in North-East Scotland out into the exploration fields of the North Sea. Peter reflects that “some of his most challenging, therefore enjoyable, projects involved overseeing rig moves across the Atlantic, then remaining with them while they upgraded in preparation for EXPERT WITNESS JOURNAL

In 1997 Peter was invited to become a Manchester Ship Canal pilot, an offer he accepted instantly as this was something he had always wanted to do. He explains with passion, “Pilotage isn’t simply about moving ships from one place to another. It requires a considerable range of skills including: vessel management; ship-handling competence; good project and personnel management; interpersonal skills; technical know-how; health 143

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and safety awareness, plus an intimate knowledge of your district supplemented by an acute appreciation of the waterway hydrology, topography, commercial infrastructure and, of course, the local bylaws”. He amplifies, “It’s no accident that pilot training can take over six years and is often likened to the leap in competence required by a doctor who trains to become a neurosurgeon”

The truth, he realised, was two-fold. Firstly, no one had actually spent long enough carrying out the detailed research on full-size ships to enable them to explain with sufficient clarity what was actually going on with the ships, the water and the pressure fields. Secondly, and a far more difficult problem to tackle, the field of hydrodynamics was governed by academics, whom, it seemed, viewed mariners and ship-handlers as a problem, rather than a source of knowledge. In their opinion, models gave them all the data they needed to both ‘understand’ the nature of ship hydrodynamics and to undertake the role of marine hydrodynamics ‘expert’ for the courts.

As a pilot, Peter availed himself of the unique opportunity that arose from having the control and conduct of several different ships each day. He took the opportunity to apply and test those theories he’d been taught about marine hydrodynamics and applied himself to studying, at first-hand, the interaction forces that exist between ships. It didn’t take long before he realised that something ‘wasn’t quite right’ and that vessels were not performing or reacting as he might anticipate. ‘That’s just the way it is’ he was told ‘we eventually learn what does and doesn’t work and then deal with it’ his colleagues counselled. Peter explains that “he was unhappy with the discrepancies between his theoretical knowledge and what he actually observed during acts of pilotage”.

Peter’s research work was, for the most part carried out on his own. As his findings became more widely known, they attracted the attention of colleagues from other pilotage districts who acknowledged the value and practical application of his early theories. It took a further eight years of testing, experimenting, refining and retesting until he had developed a satisfactory set of pressure field diagrams that corresponded with the reality of what he encountered on a daily basis and which, he felt, were reliable enough to pass along to others, especially the officers on the bridge.

There was one further apparent deficiency that concerned Peter. No sooner had he begun to understand the deeper technical aspects of ship generated pressure fields - so that he was able to anticipate what a ship would do in a given situation – than he realised that there was a lack of technical research information that might explain to mariners (in an easy to remember, non-technical manner) both the extreme nature of interaction phenomena he encountered and why these effects might vary from one moment to the next when the technical hydrodynamic parameters of the vessel did not change correspondingly.

As a Mariner and non-academic working on his own - in a field that was essentially the preserve of universities, research institutes, specialist hydrodynamicists and research physicists, Peter acknowledges that he faced numerous difficulties in having his work widely recognised - despite its proven practical application. Unsupported, but always aware that his findings were of significant importance to maritime safety, he corresponded with many of the UK nautical colleges and visited them to explain his findings. Trying to get colleges to recognise that there were flaws in what they were teaching was perhaps one of the most frustrating things he ever attempted. Peter says “it felt like a completely thankless task and must have sounded like I was threatening the status quo”.

He theorised that if one could anticipate with a high degree of accuracy what was likely to happen under a given set of circumstances, then there had to be a logical explanation that could be distilled into some fairly simple rules that would allow him to explain to ship Captains - who often queried what he was doing with their ship, and why he was doing what he was doing.

Research and piloting ships did not take up all of his time. As a committed lifetime learner Peter applied himself to his other interests, one of which was law and, in 2007 he qualified as a lawyer through the Open University. Following a consultation with the College of Law, whom Peter speaks of with respect and great admiration, they suggested that “he was far too specialised to be an ordinary solicitor” and that he should consider taking an MBA and going down the consultancy route – which he subsequently did!

The problem was, as Peter explains, “he had never seen these rules explained or written down”. On further investigation, it emerged that whilst some basic guidelines did exist (as had been taught to him) there were no explanations that addressed his own queries. Peter assumed “this is surely an oversight on the part of previous researchers?” EXPERT WITNESS JOURNAL

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I asked Peter how the breakthrough came in having his work and theories recognised? “Two breakthroughs came almost at the same time”, he says, “the Maritime College in Liverpool acknowledged the validity of his research results and the National Sea training centre in Gravesend conceded that ‘what he had discovered was the theory for what they had been trying to teach for 25 years’. Within weeks the Nautical Institute, based in London, accepted an extract for worldwide publication1.

“And you don’t still don’t think of yourself as an expert do you”, I ask quizically? “I still have issues with the accolade of expert” responds Peter. “If I am asked what an expert is, or how I would define an expert, I think of would have to direct you to the definition given in the MCA document ‘The Human Element’2 where, to be considered an expert, one has to have actually been doing the job for at least 10 years - but the definition is more comprehensive than that”. Ericsson (2006)4 says “it takes 10 years or around 10,000 hours of deliberate practice to become an expert … it has little to do with innate ‘giftedness’ The 10 years of deliberate practice required for a person to become an expert … involves constantly engaging with tasks just beyond current levels of performance and comfort. It also involves the guidance of teachers and coaches who not only provide trainees with the feedback they need, but who can teach a person how to become their own coach. Experts are not only expert in their technical area, but have also learned how to learn.”

No sooner was that extract published, than Peter was contacted by a specialist insurance assessor who had read how the theories might be practically applied and immediately saw the implications as the likely causal factors for a serious shipping collision that had taken place in the Malacca Straits. The issue for the insurer was that contemporary hydrodynamic theory (based on model research) indicated that the collision could not arise from ship pressure-field interaction and could only be explained as the result of a mechanical steering failure and bad seamanship.

“But”, says Peter, “Ericsson makes an important point about continued practice, a point to which I fully subscribe insofar as

Peter was able to apply not only his theories on hydrodynamics and ship interaction, but his vast experience of ship handling and manoeuvring, an extensive knowledge of ship technical systems including steering gear operations, his knowledge of maritime law, management theories and shipboard working systems, all of which enabled him to analyse the scenario from the hydrodynamic, technical, navigational, tactical and legal perspectives (a range of competencies that is entirely unique in any one individual) and to arrive at a conclusion which was not only common sense, but which entirely confounded the academic ‘experts’ who were adamant that their mathematics proved the incident could not be attributed to hydrodynamic interaction.

Experience does not [necessarily] equal expertise! Expertise does not follow directly from experience. A lookout cannot acquire a Master’s knowledge and skills simply by spending 10 years on the bridge. Similarly, a Master’s expertise will remain very narrow if they only practise what they know. Deliberate practice is a sustained, structured engagement with scenarios that are not familiar. There are no short-cuts to this process” Peter concedes that, in view of these criteria, he believes that the classification ‘expert’ may sometimes be justified, but he quickly qualifies that saying “That doesn’t mean I know everything as some ‘experts’ would have us believe. “No”, he says “I know enough to know that I don’t know everything. I think I probably suffer from the curse of education. That is, the more one knows, the more one realises what they don’t know - if that makes sense. I only have one solution to that deficiency, keep learning, keep practising and keep researching”.

Following Peter’s engagement, firstly as a technical advisor, then as an expert witness, the matter was quickly resolved and the case never reached court. Returning to his opening statement, Peter comments “I have no doubts that without the benefit of a lifetime’s experience solving technical problems, years of research as a practical hydrodynamicist, a comprehensive knowledge of the law and an unsurpassed experience of ship-handling and navigation at close proximity, that the wrong conclusion as to causation would have been reached in that incident and innocent men would have had their lives ruined and reputations destroyed”.

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I ask Peter about some of his more recent cases and ask him if he can maybe expand on the fascinating work he is doing in the field of molecular hydrodynamics where he is regarded as the world’s leading practical proponent. He relates another very high profile case he was invited to comment on, one which interested the world media as it involved a passenger ship collision. “My initial brief was to have a look at the 145

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facts -it didn’t look good for the client as they expected very heavy insurance claims.” Peter explains, he was tasked with advising how liability might be reduced. But then, he says, he brought all of his experience to bear on the problem and broke it down into various components – navigational, tactical, hydrodynamics, pilotage, ship-handling and numerous other issues. He smiles, “what I was able to prove was that the passenger ship - whose interests I was initially invited to consider – wasn’t at fault. But degree of fault is something for the courts to decided, isn’t it? Yet again, the prima-facie evidence, had it been relied upon, would have resulted in a wrong outcome and a miscarriage of justice.

the same vessel will correspond with one another except in the very loosest terms. Because of this, the courts should be extremely wary of accepting ‘expert’ evidence derived from models or simulations alone and which is not substantively backed up with practical hands-on observations of an experienced mariner acting as a moderator. There is nothing entirely predictable about these events, something Lord Justice Porter recognised as far back as 1949 in the case of the CURACAO when he ruled ‘each [hydrodynamic] event can only be explained with reference to those factors prevailing at the material time’ 5. The learned judge couldn’t have known the longer term implications of what he said. We’ve come full circle since then and current research stresses that his ruling on that occasion remains entirely relevant today.

“I remain mindful that the ‘experts’ duty is to the court, not the client, even though they are paying the bills” he acknowledges. “Although the client was quite satisfied, I am very content that the truth came out and justice was properly served”

What are the wider implications of your work on molecular hydrodynamics? The world of pilotage grasped the importance and the implications almost instantly and an extract from my paper on practical implications has been published for all pilots, and anyone else who cares to take it on board.4

And what’s going on with your molecular hydrodynamics research – that seems particularly interesting? “Molecular hydrodynamics, now there is a fascinating subject if there was ever one”! Peter describes how he has carried out sea trials on various new build ships and countless newly dry-docked vessels and they all have one thing in common - not one of them has ever performed according to their mathematical models or to the results gained from the scale models that are built to try and show how the full-size version will perform in a sea-way under real conditions4.

The curious thing about molecular hydrodynamic theory is that it predicts that because of the energies involved, it will be very difficult to reproduce the results in a conventional test tank – so I suspect it will be disregarded as a non-starter by pure academics who didn’t discover it. That said, they will have to take account of it if they wish to present themselves as ‘experts’.

“I don’t know how many naval architects I have spoken to over the years” says Peter “but their experience of scale ship models and mathematically modelled simulations always results in the same outcome. They have never been able to explain the discrepancy between the model and the full-size reality. For years I have been arguing that it doesn’t matter how close to reality the scaled-down model might be, or that the rudders, propellers or thrusters are redesigned so that the model manoeuvres more like the full-size ship. One thing never changes, that is the water itself. You can change everything but molecular hydrodynamic theory shows that the water itself will behave differently and exhibit different physical qualities if you change any of the initial conditions such as temperature, salinity, atmospheric pressure, or if you fail to take appropriate account of the state of agitation that may arise from any one of a number of factors.

Interestingly, molecular hydrodynamic theory has allowed me to examine what are described as some of the mysteries of the sea. I find it difficult sometimes to accept that no one has examined the properties of water in the Marine sphere to the degree that I have been privileged to do so. My work on ship hydrodynamics has underpinned my research in molecular hydrodynamics and indeed prompted many of the questions that I set out to answer. I am accredited with: solving John Scott Russell’s 180-year-old ‘great wave of translation problem’; with working out the dynamic of what causes a wave to break and, amongst other things, working out why tsunami waves are far more destructive than contemporary wave theory would suggest. There is a lot more to do in this field and it is probably an area of research and development that will continue long after I am gone, but I am both happy and humbled to have brought it to its present state of development.

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And what does the future hold for you as an ‘expert’? I’m often asked why I don’t give up pilotage and become a full time consultant, but that would be to walk away from a job that I love and which gives me immense satisfaction plus I would have to abandon my research facility, the Manchester Ship Canal, which is unlike any other in the world. Further, as long as I’m a pilot my credentials as a ship-handler and researcher remain unquestionably current.

Captain Peter McArthur Master Mariner, Marine Pilot and Research Hydrodynamicist MBA, LLB (Hons), Master Mariner, CMarTech, FIMarEST, FNI.

Captain Peter J McArthur is a Master Mariner and practicing marine pilot with vast seafaring experience having commanded oil, chemical, product and molten sulphur tankers, bulk carriers and Ro-Ro vessels. He has extensive offshore oil & gas industry experience. As a qualified lawyer, Captain McArthurs’ commercial and technical knowledge, forensic capability, practical competencies, breadth of experience and research credentials combine with his technical know how have enabled him to analyse problems from numerous perspectives all at the same time - a fairly unique capability in one individual - resulting in an ability to develop strong, logically persuasive and legally coherent arguments when advising marine clients and acting as an expert witness.

I’m being strongly encouraged by colleagues in the legal sphere to take on the mantle of arbitration and mediation. The arguments being put to me are that my combination of technical competencies, navigational and ship-handling skills, general knowledge, legal and business qualifications and my extensive industry experience are quite unique and would be of benefit to a wide spectrum of disputing parties. I can see the sense in that proposition so it’s something I must give appropriate consideration to. ■

Area of work Worldwide Norwest Interaction Ltd Norwest Interaction Ltd, HQS Wellington, Temple Steps, Victoria Embankment, London WC2R 2PN Tel: 01978 861033 Mob: 07811 956 220 Skype: peter.mcarthur43 Email: info@nwint.net Web:www.nwint.net or www.pjmcarthur.com

References 1, McArthur, P.J (2009). New thinking on Ship Generated Hydrodynamic Pressure fields. Nautical Institute ‘Seaways’ Magazine, August 2009. London. UK. 2, Gregory D, Shanahan P. The Human Element, a guide to human behaviour in the shipping industry. Pp 42 – 43. MCA 2010. The Stationary Office. ISBN 9780115531200 3, Ericsson K.A. The Cambridge Handbook of Expertise and Expert Performance, (2006) Cambridge University Press

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4, McArthur P, Marine Implications of Molecular Hydrodynamics. The Pilot. UKMPA , Spring 2014.

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5, Porter, LJJ. (1949). Queen Mary (Curacao) 1949 82 L.R. 303. Commenting on Interaction between Ships.

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