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chris makin Forensic Accountancy with the expert Chris Makin
Orthopaedic Expert Latest from our expert Dr Scott-Watson
Psychological Experts Midlands Psychological Services
Forensic Failures We talk to Sue Carney - Ethos Forensics
Chris Makin Chartered Accountant | Accredited Civil Mediator | Accredited Expert Determiner
Chris Makin is a chartered accountant with a vast range of experience, firstly as a general practitioner and then for well over 20 years as a forensic accountant and expert witness. Previously National Head of Litigation Support in a national firm, he now practises mainly as a commercial mediator, with expert determinations and forensic assignments for good measure.
Civil and criminal experience as expert for over 20 years in: • • • • • • • •
Loss of Profit and Consequential Loss Business & Share Valuations Matrimonial Valuations Partnership & Director Disputes Professional Negligence Criminal & Commercial Fraud Investigations Personal Injury & Fatal Accident Drug Trafficking etc. Asset Tracing & Confiscation • Section 994 Disputes • Director Disqualification • Expert Determinations
Mediated disputes in: • • • • • • • • • • • • • • •
Partnerships Share Valuations Company Sale & Purchase Professional Fees Rights of Way & Boundaries Construction Intellectual Property Professional Negligence Business Interruption Defamation Housing Disrepair Very Expensive Motor Cars Employment Contractual Failings Inheritance Act and ToLATAs
Christopher Makin | FCA | FCMI | FAE | QDR | MCIArb
Call for a FREE initial discussion without obligation Telephone: 01924 495888 or 07887 660072 Website: www.chrismakin.co.uk
CONTENTS EDITORIAL TEAM Kristina Rose David Peachey Jennifer Shaw
PROOF READERS Carol Bull Laura Sutton
RESEARcHER / WRITER
4 Forensic Pathways
DESIGN TEAM
8 Orthapaedic Expert Witness
Issac Hamza Wendy Cowham
Reg Jones
Digital Forensics
Dr Scott- Watson
10 Forensic Accountancy Chris Makin
4
22 Forensic Toxicology Mr David Berry
24 Psychological Forensics Midlands Psychological Services
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30 Commodity Trade Disputes Andrew Geddes
22 We want to thank our readers for their dedication and faithfulness to this magazine. Thank you Copyright © 2017 Forensic Insider
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| digital forensics
Digital Forensic Offering unique data analysis solutions in the area of mobile phone forensics, criminal intelligence, due diligence, and risk and business intelligence, Forensic Pathways is recognised internationally for taking a lead in the development of forensic products and services.
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ith offices in the UK and Australia and with an international distributor network, Birmingham based Forensic Pathways is an award winning company. Led by CEO Deborah Leary OBE, the company has built a strong reputation for delivering quality service and groundbreaking innovative technology where forensics is concerned. “Our CEO Deborah was also awarded the prestigious title of British Female Inventor of the Year for the development the world’s first and only transparent anti-contamination crime scene stepping plate, a product used in crime scenes globally,” says Ben Leary, business development director, who has contributed to the development of innovative software solutions for law enforcement, including Forensic Phone Analyser (FPA), Forensic Digital Exchange (FDX), Forensic Image Analyser (FIA) and the Advanced Ballistics Identification System (ALIAS).
Alongside its other successful collaborations, Forensic Pathways also works alongside police forces to develop innovative software solutions that meets end users and annual budget holders wants and needs. For example, it has been developing Forensic Digital Exchange (FDX) with the support of The Metropolitan Police service. “FDX is an information management system for data extracted from mobile phones. It allows you to automatically manage digital data from multiple extraction tools, including XRY, Cellebrite, and Aceso. It also enables phone examiners to compare extracts from the multiple tools, cuts out hours of manual processing and reduces the likelihood of human error.” To ensure it continues to combine its unique ability to produce technology that stands apart with standout services, Forensic Pathways has created a diverse team of individuals with worldclass skills and abilities in their chosen areas. “Aside from the uniqueness of our technology, what makes FPL stand out is our unwavering commitment to delivering tailored solutions based on our clients’ specific needs,” Leary.
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“We endeavour to understand our clients. This means knowing who they are, what they do, the problems they face, and ultimately what their needs are. It enables our organisation to deliver value and develop longterm client relationships. “To ensure we meet and match our intention with our action, we have amidst us experts in computer science, mathematics, forensic investigation, legal, and business matters. This, along with our strong connections with world- leading universities, means that we not only have within the company high-grade employees, but also a wealth of research and development capability. “Indeed, managing an effective research and development pipeline, alongside our partners means that Forensic Pathways can continually develop new and exciting technological innovations.” Priding on his company’s ability to be on the cutting-edge of technology, Leary says it has been instrumental in the development of the Forensic Phone Analyser (FPA), the provision of Forensic Image Analyser for image forensics,
digital forensics |
and the world’s first transparent Stepping Plate for crime scene management. “The company has a booming international presence today particularly in terms of the AntiContamination Stepping Plates, which recently led to us winning a tender to provide plates to the South African Police Service.” Here in the UK, there has been a growing emphasis on anti-contamination, with the Forensic Science
Ben Leary - Forensic Pathways
Regulator body indicating that a greater focus on the preservation and assessment at crimes scenes should be taken, citing the use of stepping plates. “It is a very exciting time for the plates, not to mention our technological offerings,” says Leary. “Technology-wise, the main functions our software offers to the end user is the analysis and the automated management of data – from the ability to determine the source of an image (FIA) through to the automated management of data compatible with multiple extraction tools allowing for the management of unlimited data from an unlimited number of devices (FDX).” This attribute, says Leary, enables the end user to benefit from significantly-reduced man-hours in the processing and management of data, as well as reducing the likelihood of human error, giving fast, accurate and reliable intelligence for the fight against crime. “The result is the end user saves a lot of time, and as we know, time is money and this saving could be key for UK police forces, who are experiencing budget reduction.” FORENSIC INSIDER | 5
| digital forensics
Indeed, such has been the impact of Forensic Pathways innovative and cutting-edge technological presentations for the past 14 years, that the company today has a dedicated global clientele who are loyal to it and it is also internationallyrecognised for taking a lead in the development of forensic products and services. Its path-breaking endeavours have led to the company winning a variety of awards both for itself as a whole and also for its innovative technologies, culminating in the Digital Forensics Award 2017 awarded by Forensics Insider and Security Insider magazines. According to Leary, it is imperative for organisations today to be technologically well-equipped, both to stay ahead of the game and to protect against cyber-crime, which can have devastating effect on an organisation’s very survival. “The use of technology is ubiquitous in the world we live in, and it is growing at a rapid rate. Many key functions in society are technology-based be they banking, education, businesses and defence. Technology is being incorporated more and more, and with that comes the growing threat of cybercrime. It is imperative that we stay one step ahead of cyber criminals,” says Leary. “By utilising Digital Forensics software, we can have a huge impact on combating cybercrime and help prevent the harm it causes people. Our technologies are designed to not only enhance the end users work experience, but to reduce time and thereby reduce cost at the same time never losing sight of the ultimate reason for the product.” Citing the example of Forensics Pathways latest invention Forensic Image Analyser (FIA), Leary says using the technology in child sexual exploitation (CSE) cases can mean vulnerable victims can avoid the need to attend court, which can be a traumatic experience for many. “Our technology has already helped convict those guilty of CSE crimes, and it is our hope that through the use of our technology, this can continue. We see this technology also having a major impact with the identification of images and devices associated with trophy images.”
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According to publications’ judging panel, the cuttingedge technologies being offered by Forensic Pathways was particularly impressive. The panel said that the company not only catered for the criminal side of things but also the business intelligence side. It further said that the judges unanimously agreed that the range of technologies offered by Forensic Pathways was the best in the sector. Speaking on the win, Leary says: “We are absolutely delighted. Winning the award is testament to the progress Forensics Pathways is making in the world of digital forensics. It shows that we are driving forward in the right direction and, more importantly, that we are providing a solution to a number of problems previously uncatered for. “Winning the award is also an affirmation from the industry
digital forensics |
that what we have created has a real value. It affirms we have a created a strong base on which to move forward.” He believes that the versatility of its product portfolio and the uniqueness of its cutting-edge technology would have definitely contributed towards the win. “The fact that a large number of law enforcement agencies are incorporating our technology into their policies on a global level is a great indication that what we are doing is helping redefine how crime is combated, and helping implement new methods that can help law enforcement deal with a variety of threats including cyber.
Forensic Pathways has also seen much success in the provision of Due Diligence and Fraud Investigation Services to the public and private sector. Working with large international corporate clients has been one of Forensic Pathways many successes. Leary says “We carry out due diligence to mitigate the risk of partnering with an individual or business whose existing or previous activities or relationships may cause legal, regulatory, reputational or financial damage. Our Fraud Investigation service enables fast collection and analysis of evidence to ensure that crucial decisions can be made to stop further losses and reverse engineer the process to make sure lessons are learnt and new procedures put in place to avoid repeat occurrences. Our technical ability in terms of developing algorithms to ask the right questions of data, coupled with a sound ability in digital forensic data recovery, linked with sound investigation skills ensures the Company is able to offer a complete package. Understanding how to get to the data, how to analyse the data and make sense of that data is a core strength of within team.” “I also believe that we reflect an ethos of doing ‘good business’. We want all our stakeholders to feel valued and feel that they are getting value. Trust, integrity and a commitment to helping shape the future of forensics globally for the protection of others is hopefully what has come through. It is certainly what we aim for.” FIA is “Patented under European Patent Number 2396749”
Forensic Pathways 2 Snow Hill, Birmingham, B4 6GA
Tel: (0)121 2313215 | Email: sales@forensic-pathways.com | Website: www.forensic-pathways.com FORENSIC INSIDER | 7
| Orthopaedic related personal injury cases
RSW Medico legal ltd
Q&A with Dr Scott- Watson
Averaging 1,500 medico-legal reports per year with over 19,000 completed since 1990, Richard Scott-Watson of RSW Medico-Legal has a built a solid and successful reputation with claimants and courts alike
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ased in West Midlands but covering the whole of the UK, RSW Medico-Legal was founded 25 years ago by Richard ScottWatson, a highly-experienced trauma and orthopaedic surgeon.
“I run RSW Medico-Legal Ltd which consists of me, a reliable full time secretary and a tape recorder. Based in Stourbridge, I run clinics in Birmingham, Coventry, Bristol, Swindon and Oxford. I see clients for medico legal reports in orthopaedic trauma cases for solicitors and insurance companies. I have done this for 25 years and have written over 19,000 reports,” says Scott Watson.
“How many solicitors have ever seen that assessed or written in a report? I would reckon almost none. “I have been assessing and writing it into reports, as well as successfully treating the sufferers for 25 years and in that time have seen it put into only three reports written by others, none of them GP or orthopaedic experts.” Mr Scott-Watson believes that if the experts entrusted with the responsibility are not assessing and treating this condition, their credibility as an expert in this condition is questionable.
With a BSc(Hons) MB BS LLB(Hons)(Open) Cert MR(2) CUEW DDAM FRCS(Ed), Mr Scott-Watson has trained extensively over the years in a pursuit to raise his standard to the highest level and to provide the best possible service to clients.
“It occurs in over 80 per cent of the WAD cases I see, but you have to ask the right questions and do the correct examination as often the claimant will not volunteer the symptoms and will frequently not either know they have the condition, or if they do ,that is was related: They just adapt. The condition does not recover if left untreated.”
“I specialise in looking at the whole picture in every case. My main aim is the maximal recovery of the claimant, and this often leads to further investigation – usually MRI scans – and treatment, as most of the claimants I see have been under-investigated and under-treated with most also having never been fully assessed.”
“That is the basis of the way I look at cases, all cases. This is a speciality in itself quite unrelated to normal NHS orthopaedic daily work. These are not the cases that turn up in hospital outpatient clinics, indeed most orthopaedic surgeons will only see them in their medicolegal practice.”
Mr Scott-Watson’s particular hobby-horse, by his own admittance, is the neurological consequences of whiplash-associated disorders (WAD). “Let me take you on a brief journey, if I may. Look up the Mayo Clinic, a top neurological institute in the US, type in Thoracic Outlet Syndrome and see what the first cause is that they mention – it is road traffic accident,” he says. 8 | FORENSIC INSIDER
Orthopaedic related personal injury cases |
Delivering on promises... According to Mr Scott-Watson, becoming an expert increasingly needs proof that the person has the specific qualifications. “A number of minor courses and certificates are out there and are of some use but really courses like the Cardiff University Expert Witness Certificate is the only one I have come across that really tests all aspects of the legal side. “ “A course will help with concentrating on the duties of the expert. Far too often, I still find reports coming in that have obviously been written for a claimant or defendant instructor. They are fairly easy to counter but experts should be aware that it should not be obvious as they are the disinterested finder of the correct answer to the question of injury and disability.” Challenging the number of experts with a qualification or experience working in the field allowing them to assess disability, he says that it would be hard to find one. “Well, there are almost none out there with capability in dealing with disability, but it is the core of the case. So how can anyone assess disability in relation to daily living and work capability without experience and training and be an expert? I leave that open.” Querying what value the initial GP report in injury cases provide, Mr Scott-Watson states that the reports record events that are usually relatively recent before they are forgotten. “That is it. Beyond that, they are of absolutely no value as they are written almost entirely by the claimant, who can, and often does, say anything. Indeed, one GP expert recently asked the claimant what they wanted him to put.”
“The notes will not be examined in almost all cases, and when they are it is rarely adequate, meaning that as an objective assessment of the whole case they have no value at all. They are an incredibly weak link in the chain and encourage fraud,” he adds. Given that, how do we consider prognosis? “To do so every piece of evidence – contemporaneous notes, past history, previous reports – all have to be considered to build as full a picture as possible about the extent of the injury and the progress up to the point of assessment,” points out Mr Scott-Watson. “People recover at different rates, psychological issues related or unrelated to the injury may get in the way and people with even mild degrees of hypermobility will recover slower from ligament injury than those without. How often have solicitors seen that even assessed, let alone commented upon.”
RSW MEICO LEGAL LTD 7a Heath Lane, Old Swinford, Stourbridge, West Midlands, DY8 1RF
Tel: (0)1384 441126 Fax: (0)1384 441126 Email: carolcouzens@ymail.com
FORENSIC INSIDER | 9
Forensic Accountancy
and Business Valuations forensic insider emagazine
Chartered Accountant
Accredited
Civil Mediator Accredited Expert
Determiner
- chris makin
why choose an accountant as a mediator? 3 Grays Inn Square, London, WC1R 5AH
Telephone: 07887 660072
Email Address: chris@chrismakin.co.uk
Forensic Accountancy and Business Valuations |
Chris Makin
Chartered Accountant | Accredited Civil Mediator | Accredited Expert Determiner
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ffering a range of skills and experience that can add value and provide solutions to those affected by accountancy fraud, chartered accountant Christopher Makin has over two decades’ experience as a forensic accountant and expert witness. Based in Yorkshire, but serving across the UK, Chris Makin is a tried and tested forensic accountant and expert witness, mediator, and expert determiner with a solid reputation in his area of work. With 20 years as a general practice chartered accountant, followed by 25 years as a forensic accountant and expert witness, the last 16 of which has also been as a commercial mediator, he is accredited as mediator by CIArb; accredited as expert determiner by The Academy of Experts; accredited as forensic accountant and expert witness by ICAEW; and is APIL approved as an expert. He has conducted some 100 mediations with 80 per cent settlement rate and acted as mediator in partnership, director, share valuation, company sale and purchase, Section 994, construction, rights of way, boundary, defamation, intellectual property, professional negligence, business interruption, housing disrepair, ToLATA, employment and several other kinds of contract disputes He has also been a frequent lecturer on mediation matters and is trained in time limited and advanced mediation techniques. He has participated in mock mediations to demonstrate power of mediation to judges, barristers and solicitors. In litigation support experience, he has been involved in both civil and criminal matters for 25 years, covering areas such as loss of profit and consequential loss, business and share valuations, matrimonial valuations, partnership disputes, professional negligence, criminal and commercial fraud investigations, personal injury and fatal accident, and drug trafficking, asset tracing and confiscation. He has attended court and meetings of experts and given expert evidence about 100 times. 11 | SECURITY INSIDER
FORENSIC INSIDER | 11
| Forensic Accountancy and Business Valuationsns
Chartered Accountant | Accredited Civil Mediator | Accredited Expert Determiner Indeed, the list seems endless but such is Makin’s formidable and impressive list of achievements. “I ‘retired’ from a national firm as national head of litigation a few years ago, and thought it might be pleasant to do a couple of mediations a month. “It helps people to avoid court, and would give me some income to fend off the day when I start to draw my pension,” recalls Makin “So I started writing to solicitors about mediation, and the response I got, from many solicitors I had never heard of, was ‘I thought you were a forensic accountant. Can you just have a look at some papers for me?’ Since then, I have never stopped being a forensic accountant, a valuer, an expert determiner, and a mediator. The flow of new work
has never stopped, and I help an awful lot of people.” Makin usually works from home, but does travel a lot. “I also have a small office in Gray’s Inn Square, in the heart of legal London, which works perfectly for me.” A friendly and cost-effective approach towards cases and clients has allowed business to thrive. “I would say that what sets me apart is my professional and caring approach towards clients – both potential and on-hand ones. “The first aspect of my approach is that I offer an initial review of any potential appointment. I FORENSIC INSIDER | 12
Forensic Accountancy and Business Valuations |
look at the key documents, type out a summary and share it with the instructing solicitor, and only then quote a fee. If for whatever reasons instructions do not follow, I do not make any charge – and I don’t even sulk. Solicitors and their clients can learn the cost before they commit. So it costs nothing to find out if I can help, and at what price. “Another strength would be my extremely helpful nature. I sit on a number of professional committees and am an examiner in mediation and expert determination. I also act as an honorary counsellor for chartered accountants with ethical problems and give a lot of free advice to individuals besides helping many younger forensic accountants as they develop their practice. I can afford to do this because my income as a forensic accountant is reasonable, I have a good pension to look forward to, and I do not want to retire yet because I enjoy the work so much. “I would also add my versatility to my strong points. I do civil, family, and criminal litigation, and several methods of ADR, so I can look at a job in the round and work with the solicitor, barrister or litigant in person to help solve their problems, usually at reasonable cost.” Makin considers himself as an all-rounder based on the significantly long list of types of litigation cases and mediations he does. According to him valuations tend to be needed in certain circumstances such as family proceedings, Company Act matters, and civil proceedings. Elaborating on family proceedings valuations, he says: “Typically, a husband and wife set up in business early in their marriage; he has the business ideas and becomes managing director, and she keeps the books, drives the van etc. “As the business grows, he builds his own team of managers and professional advisers and she brings up the children. If the marriage breaks up, a clean break is desirable. She wants a home and cash, and he FORENSIC INSIDER | 13
| Forensic Accountancy and Business Valuations
wants to take on the business. The aim is to have equality, and the house and savings are easy to value. But what is the business worth? This is where I come in. “In all such cases, and others, the value of the business, and your client’s part of it, must be determined. I have acted frequently as a mediator and as an expert determiner in such matters, but today we are concerned with my work as expert valuer. “In family cases the expert is usually instructed to value each spouse’s shareholding, estimate the tax which would be payable on disposal of the shares, and say how much cash may be extracted from the company to aid a settlement. Traditionally there would be separate experts on each side, and I remember many happy experiences with Hildebrand documents and the like.”
who doesn’t know CPR or FPR and who cannot write an expert report in acceptable format, and who cannot survive crossexamination at trial.” In civil proceeding cases, Makin explains, the expert has to be versatile like him. “Where one business is suing another, the claimant company may be suspected of not having the resources to meet the defendant’s costs if the defendant wins. Winning, but not recovering your costs, is a Pyrrhic victory. So the Court may be invited to issue a Security for Costs order; it obliges the claimant company to lodge with the Court sufficient funds to meet a costs award; and if the claimant cannot lodge those funds, they are out of the game.
“These days, with judges’ preference for the SJE – so that they don’t have to strike a balance between opposing experts’ opinions of £15 million as against £nil – family valuations are less exciting, but no less worthwhile. And there are always the big cases where party experts are needed.” Explaining valuation where Company Act matters come into play, Makin says: “In the commercial field, so often one of the founders of a company is elbowed out by others, and has to mount a claim under Section 994 of the Companies Act for unfair prejudice. Normally a ‘fair’ value is required, but what is fair? Is there for example a quasi partnership per Ebrahimi –v- Westbourne Galleries? Such matters need an experienced valuer. “There are two essential requirements for your choice of valuer: a person who has experience and a deep understanding of business, and a person who has in effect a second profession as expert, for there is no point in choosing someone who knows about business, but 14 | FORENSIC INSIDER
“As valuer, I can be brought in by either side: by the defendant to give expert evidence that the claimant company is without the means to pay, or by the claimant company to give expert evidence that it does have those means.” Makin prides on his ability to understand business based on his versatility and all-round experience and exposure to it, whether they be big or small enterprises. Having been a managing partner in a series of firms, starting as a sole practitioner and eventually becoming head of litigation in a national firm, he has certainly been there.
Forensic Accountancy and Business Valuations |
“When in general practice I acted for a huge range of clients, from market traders to PLCs. And my chapter on Loss of Profits for the self-employed, which appeared for many years in Kemp & Kemp, is available to you on request. I do understand business. “I was also one of the first to be accredited as a forensic accountant and expert witness by the ICAEW, and I am a fellow at The Academy of Experts, one of only 60 worldwide. And with over 100 court appearances, the witness box to me is a very familiar place,” he says. Makin uses one or more of three techniques when valuing business namely the dividend yield basis, the assets basis, and the earnings basis.
“The first is only for arm’slength investors, and in my work we rarely come across that. This is because owners/directors/ shareholders pay themselves dividends at a rate dependent more on tax planning than on commercial considerations.
remuneration – again more dependent on tax planning than on a market rate of their services – and compare our opinion of future maintainable income with the dividends being paid by similar companies on the stock exchange.”
“The assets basis is used for property companies where the value of the property is more important than the income it produces, though income is often a driver of value); or for companies on the brink of insolvency where expected sale prices of assets is the driver, but also as an underpinning of value on the third basis, which is the earnings basis, which is most often used.
At 72, Makin today is not anxious to increase his business but helping people facing difficulties spurs him on.
“We have to study past earnings history, recognise market changes, adjust for the directors’
“I used to be responsible for forensic units throughout the UK, so I’ve got the T-shirt for that. Now I just want to go on for a few more years, and my sole aim is to help people facing difficulties. In that I think I have been very successful, and I think I have more to give.”
Mobile: 07887 660072 | Telephone: 01924 495888 | Fax: 01924 494421 Email: chris@chrismakin.co.uk | Website: www.chrismakin.co.uk FORENSIC INSIDER | 15
| FBI Forensic Failures Special
Ethos Forensics
Amidst revelations of serious forensic errors made over more than two decades by the FBI, tales of wrongful conviction due to faulty forensic evidence, and the continued fallout from closure of the UK Forensic Science Service, what is the current quality and reliability of forensic science?
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- Sue Carney, Consultant Forensic Scientist, Ethos Forensics
n April 2017, the FBI made a formal admission of errors in its forensic science. 26 out of the 28 examiners at its microscopic hair comparison unit had overstated the significance of evidence in favour of the prosecution over a period of more than 20 years. This revelation followed criticism of flawed bite mark comparison evidence, a heated discussion that continues amongst the US forensic community, and subsequent investigation. The National Association of Criminal Defence Lawyers and the Innocence Project are currently assisting the US government in the largest postconviction review of forensic evidence; investigation of thousands of cases. Of those cases so far reviewed, 32 of the defendants were sentenced to death of which, 14 have been executed or died in prison. The National Academy of Sciences 2009 report, Strengthening Forensic Science In The United States: A Path Forward, is particularly critical of those evidence types, such as bite marks analysis, comprising subjective comparisons. Of such evidence types, it states that there is continuing dispute over their value and scientific validity. The report also highlights that in such experience-based methods there exists the potential for bias, particularly in the absence of blind comparisons. The report, amounting to more that 300 pages, is comprehensive in its recommendations. Whilst it could be argued these universally relate to the standards and quality requirements of forensic science the world over, a simple comparison of the US with the UK is not straightforward. The US is a vast country comprising a variety of jurisdictions at both state and federal level. Uniting the practices of this collection of agencies and implementing accreditation and best practice is an unenviable task. In assessing the state of UK forensic science one must view both its past and possible future. The UK has a long history of forensic innovation. It was at the University of Leicester in the 1980s that Sir Alec Jeffreys developed DNA fingerprinting, the precursor of the DNA profiling techniques used today by forensic agencies worldwide. The former Forensic Science Service had a reputation as the UK’s foremost forensic research body, establishing the guidelines for many forensic evidence types including landmark publications ranging from the persistence of biological evidence in sexual assaults to the implementation of frameworks for the interpretation of forensic evidence. The FSS closed in 2012 under pressure from the UK government in its deregulation of the forensic market. The ripples are still being felt across the forensic community. The new competitive forensic market brought with it a culture of faster and
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FBI Forensic Failures Special |
EXPERTS AT UNRAVELING CRIME cheaper forensic science. Today’s main UK forensic providers (LGC, Cellmark and Key Forensic Services) are under increasing pressure to deliver more for less, as are their customers, the 43 police forces of England and Wales, whose forensic budgets have been slashed. The effects on forensic science are palpable. Forensic science is a painstaking process where accuracy and attention to detail are critical. Yet reporting scientists find themselves under increasing time pressures diametrically opposed to quality. Rushing any forensic analysis risks evidence being missed.
and again, fibres have provided crucial evidence in casework. Notable examples include the murders of Holly Wells and Jessica Chapman and the eventual prosecution of Norris and Dobson for the murder of Stephen Lawrence. Despite continued campaigns for change in UK forensic science, the announcement on 24 July that Contact Traces, possibly the only specialist forensic fibre consultancy in the UK, was to withdraw from the forensic market was a bitter blow and is symptomatic of the current state of UK forensic science.
In addition to the inevitable loss of expertise from UK forensic science, as many time-served scientists chose retirement or alternative careers, this new culture also brought about reluctance on behalf of police forces to use particular evidence types due to perceived cost. Fibre comparison is a case in point. The big three forensic providers deliver relatively few fibre comparison services directly, since customers are loath to authorise such timeconsuming analyses. Yet time
What remains for the smaller consultancies operating within the UK forensic market? Unlike many of the US forensic laboratories, the big 3 UK forensic providers hold accreditation to international quality standards (ISO 17025), as do some of the smaller organisations providing forensic services to the defence. Accreditation ensures the quality of work is comparable to that of other accredited organisations offering the same products and services. It is an assurance of capability and competence. In short, it demonstrates excellence. However, the accreditation process is currently cost-prohibitive for independent consultants working as sole traders. Further, they lack the infrastructure required for objective self-assessment. The closure of the Council for the Registration of Forensic Practitioners in 2009 meant that there were no longer clear criteria, other than accreditation status, upon which the criminal justice system could assess the credentials of an expert witness. Within the next five years, it is thought that accreditation will be a legal requirement for all forensic practitioners in order to operate within the UK criminal justice system. Whilst this is to be commended, there is, as yet, no clear framework under which independent consultants can demonstrate competence. The Forensic and Policing Services Association, in conjunction with the Chartered Society of Forensic Sciences are exploring the options for small businesses and consultants via their quality standards working group. It is hoped that the Society, FORENSIC INSIDER | 17
| FBI Forensic Failures Special
as the industry’s professional body, will be able to fulfil some of the objective monitoring functions on behalf of independent consultants. The NAS report recommended that the control and operation of US forensic provision be removed from police forces, in order that forensic experts maintain true impartiality. The new costfocused UK forensic market has prompted increased numbers of UK police forces to form their own in-house forensic services. Many of these have not yet achieved accreditation, such that they too are not yet able to evidence quality and capability. This increase in police in-house forensic activity has given rise to a fragmented approach in some cases. Rather than a set of exhibits being submitted for examination by the forensic science provider, some forces carry out their own examination and submit swabbed or cut out stains to an FSP for DNA profiling, accompanied by little contextual information. The FSP and police experts each compose their own evidential statement in the case and there is a risk that on some occasions, issues of how the tested biological material came to be deposited on the exhibit may not be addressed in either statement. Furthermore, the mutual trust built up over years of collaboration between forensic science providers and police forensic submissions units in jointly agreeing the most appropriate forensic strategy for the case may suffer. It seems that decisions are now made based on perceived cost rather than forensic potential and the true needs of an investigation. If cost and time are the main opponents to quality, can we be sure that UK forensic science is protected from such serious errors as those admitted by the FBI? Whilst comprehensive checking procedures are in place to minimise error within UK forensic laboratories, it is the follow up of errors — what is learnt — that is most important. A significant portion of the requirements for ISO 17025 accreditation deal with managing the risk of error, but it must be accepted that any forensic service run by people can never be completely error free. People become tired, they have erratic moods, they have off days. They are not machines. This principle relates to all types of forensic science but is particularly pertinent to those more subjective forensic methods involving marks comparisons. Anyone who thinks that we are free of cognitive bias in forensic marks comparisons on this side of the Atlantic need only refer to the Scottish Fingerprint Inquiry to realise their misconception. The fact is, almost all forensic opinion contains some degree of subjectivity. Even the most analytical test results have context within a case, and if we are to address the more complex, and arguably more useful, issues of how a questioned substance came to be present in or on an exhibit, then we may need to infer from previous casework experience in addition to published scientific data. The good news is that we are a few steps ahead of the US
EthosForensics
Phone +44 (0)7796 546 224 | Website: www.ethosforensics.com 18 | FORENSIC INSIDER
in our awareness of cognitive bias. It is an issue familiar to all forensic practitioners and awareness, whilst not prevention, means that we know the warning signs. Blind comparison is more routinely part of the peer review process and practitioners try not to be swayed by the nature of any particular case. Of course, this does not guarantee complete eradication of bias and error, but the framework is in place. The most recently appointed (from November 2016) Forensic Science Regulator, with an overall responsibility for identifying and developing quality standards, is herself an experienced forensic scientist. This can only be an advantage, along with the recent agreement that the regulator will be given statutory powers to regulate the quality of forensic evidence. As a final point, it’s important to consider the UK’s status as a world leader in forensic science. Whilst this was considered to be true in the hey day of the FSS, it could now be argued that research is rarely conducive to profit and therefore, may not be the first priority of the existing forensic science providers. Having said that, a recent (April 2017) Chartered Society of Forensic Sciences conference showcased some innovative research being undertaken at many of the UK’s fine academic institutions and by dedicated forensic practitioners within the FSPs. Perhaps, whilst vocal forensic practitioners continue to wield some influence, all is not lost.
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| Forensic Toxicology
Dr David Berry Independent Toxicology Consultant
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t is nigh on impossible to understate the importance of using a forensic toxicologist in both civil and criminal legal cases.
Berry is a Clinical and Forensic Toxicologist who specialises in toxicology with particular emphasis on drugs, both prescribed and illicit, and alcohol. In the modern world, toxicological reports and interpretation are involved in a wide range of criminal and civil investigations. These cover the areas of driving with alcohol and drug cases, child custody where drugs and poisons are involved, drug facilitated crime and workplace drug testing. In addition, medical reviews, interpretation of forensic toxicological analysis and forensic pathology reports are all a part of this brave new world, where a whole host of hidden signs shed light on crime. “I’ve worked extensively not only in the Clinical Toxicology area but also Forensic; both post mortem and other forensic applications.” Berry explains. “Toxicology and Clinical or Forensic toxicologists mainly deal with the effect of drugs, alcohol and poisons on individuals in a whole range of situations.” he continues. “The key factor is understanding laboratory analytical findings and their
interpretation together with the probable effect of a drug or poison on the individual. “There is no substitute for experience and it is also very important that one can explain findings to the Court in lay terms.” As far as Berry is concerned, important new trends include the rapidly increasing number of new drugs, such as new psychiatric substances, used to be called legal highs and usually obtained from the internet and via head shops. “New, improved analytical methods and techniques for drug/ poisons analysis in Clinical and Forensic specimens and increased use of additional biological specimens; oral fluid 22 | SECURITY INSIDER
Forensics and toxicology are playing ever more important roles in today’s world. We speak with Dave Berry about his role as an expert witness. and hair with the need to understand both the potential and limitations of such samples are also important.” he goes on. “In the future, I am hoping for more determined science and improved results, but there is a need to invest in Forensic research and development which in ten years, with appropriate investment, I would hope for better, more widespread understanding of the complex issues involved in Forensic/Clinical toxicology.” Preparing insurance reports, dealing with personal injury and medical negligence cases are all part of Berry’s stock in trade. He has more than 30 years’ experience as an expert witness in Coroners, Magistrates, County and Crown Courts. Forensics is a hugely complex arena. Such expertise can only add to the benefits it offers both individuals and societies.
Dr David Berry
Independent Toxicology Consultant
19 Collingwood Close, East Grinstead West Sussex, RH19 4BQ Telephone: (0)1342 324955 Mobile: (0)7833 556460
Digital Forensics is now a key element in most legal cases. It is critical that it is handled correctly to ensure robust, quality evidence is obtained.
Computer Foresics
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ince 2003 FMS have been one of the U.K.’s leading suppliers to both Prosecution and Defence, of expert evidence services relating to the use of mobile phones prior to, during and after criminal activity.
FMS provide this unique and specialist service to clients consisting of Police Forces, the Crown Prosecution Service, Defence Solicitors, the Serious & Organised Crime Agency, HM Revenue & Customs and other law enforcement.
Mobile Phone
FMS have recognised experts drawn from the Communication Service Industry and Law Enforcement with a combined expertise of over 100 years. All staff are subjected to rigorous quality security checks in house, by public bodies, law enforcement agencies and where necessary the Home Office. From the simplest desktop exercise, to the most complex survey and analytical processes, our in-house expertise is available and ready to provide services such as Mobile Telephone Cell Site Analysis and Mapping, Call and Billing Data Analysis, Phone Handset Examination and the reading of SIM, Memory Cards and other digital devices, all supported by Expert Witness Testimony.
Data Recovery
Audio & Video An accredited ISO9001:2000 company, Forensic Mobile Services is committed to achieving the internationally recognised ISO standards relevant to the delivery of forensic services including ISO 17025 and ISO 27001.
“An expert in legal proceedings is someone whose knowledge or experience of a particular field or discipline means they are competent to interpret the facts, express opinions and draw conclusions on matters relating to that field or discipline and who have been employed to do so.“
Head Office Old Mews, 32 High Street, Thatcham, Berkshire, RG19 3JD 01635 866 678 info@forensicmobile.co.uk www.fmsgroup.co.uk
| Psychological trending
Midlands Psychological Services Dr Dennis Trent
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ny time a child is involved, parents will attempt to bias the assessment in a direction which puts them in the best light, says Dr. Trent, from Midlands Psychological, describing how and why it is so important to get a psychological expert witness involved. It is logical that viewpoints vary from the claimant, defendant’s or the prosecution’s perspective. Both prosecutor and defendant wish to prove their innocence or otherwise, while a claimant wants to prove the reason for a claim at its worst level. Psychologists use psychometric tests to support opinions of course, but perhaps more importantly they can tease out non-immediately visible or hidden truths. “These might covering lingering personality disorders or a number of other issues.” Trent continues. All assessments are confidential, so he can’t reveal any particular, recent example where Midlands Psychological has had a major impact. Talking about the trends driving the sector in general, however, is easier. “The loss of legal aid is a key driver. In addition,
recognition is growing surrounding the power of psychological vs psychiatric reports. We are also increasingly recognising the limitations of psychology in social work training and this is an area which is developing and changing.” In the future, Midlands Psychological will continue to realign its work to deal with the loss of legal aid, and will put greater focus on therapy and life changes, and how psychological assessment and work impacts on these. “Anger management, stress management and also working with the survivors and perpetrators of sexual abuse remains key to our work,” Dr. Trent elaborates. “We are also working with those who download child pornography and more short and long term general therapies. “Working with personality disorders is going to be more and more important in the future of our work.” Through
Psychological expert witnesses, and the firms behind them, are vital to delivering the truth. Midlands Psychological is one such company. Dr Dennis Trent
Midlands Psychological Services
6th Floor, Quayside Tower, 252-260 Broad Street, Birmingham, B1 2HF1) Tel: (0121) 224-3051 Fax: (0121) 224 3252 Email: mps@midpsych.co.uk1 Website: www.midpsych.co.uk 24 | SECURITY INSIDER
the social enterprise model, the firm is now able to take an efficient, cost effective and flexible approach to delivering services, whilst retaining the values and principles of providing a public service. “Our profits are re-invested for the benefits of our service users. We are an independent group with a wealth of knowledge, skills and expertise from decades of high level work in Health, Education and Social Care.” Trent concludes.
Griffin Forensics was founded in November 2006 to provide a high quality, cost effective and jargon free digital investigation and data recovery service.
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ur computer forensics experts are accredited in the UK Register of Expert Witnesses, Waterlow’s Expert Witness Register and The Expert Witness Directory. They have been instructed as computer forensics expert witnesses in investigations including terrorism offences, murder, rape, theft, fraud, money laundering, IP theft, child pornography, computer misuse, graffiti, Internet piracy, trading standards offences, Munchausen’s Syndrome by Proxy, drug offences, grievous bodily harm and cruelty against children. Griffin Forensics undertakes work for both defence (including Legal Service Commission funded cases) and prosecution clients and take instruction in civil proceedings.
Our Investigators - Chris Watts and Anthony Smith Chris served as a Royal Air Force Policeman for 23 years where he was involved in the investigation of computer misuse and computer security breaches. He also introduced a formal computer forensic capability into the RAF and remained the central point of contact for this discipline until his retirement in 1999. He entered commercial
computer forensics at Vogon International Ltd in January 1999 and, at the time of Vogon’s closure in December 2006; Chris was the Computer Investigations Manager.
imaging and supporting police forces with the execution of search warrants. In 2011 Tony joined our team where he is employed as a forensic investigator and data recovery expert.
He has received training on computer data recovery techniques, computer auditing, computer security, computer forensics, computer investigations, computer viruses and computer maintenance from both military and commercial sources. Chris has been instructed as a computer forensics expert witness for the defence and the prosecution and is an experienced Single Joint Expert.
Our Analyst and Mobile Phone Expert Elizabeth England
Anthony (Tony) joined Vogon International Ltd in 2001 where he was employed as a Data Recovery Engineer performing data recovery duties and providing forensic processing support to the computer forensic department. At Vogon his work mainly concerned the recovery of data from damaged or corrupt storage media and file-systems. From 2007 till 2010 Tony worked in various forensic analyst and forensic consultant roles where his work included converting data to a human readable format, forensic
Elizabeth was previously a development technician for a pharmaceutical company before entering the world of data recovery and computer forensics with Vogon International Ltd in 2002. She is responsible for the acquisition of mobile phone and sat nav data, the forensic images of computer media, data recoveries (including forensic data recoveries) and the analysis of computer data. Liz has received training in data recovery, the acquisition of mobile telephone SIM card and handset data, computer investigations and the handling of evidence. Griffin Forensics Ltd,
5 Oxford Court, St James Road, Brackley, Northamptonshire, NN13 7XY 01280 707190 info@griffinforensics.com www.griffinforensics.com
| Digital Forensics
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ecoming an expert in the field is not something that happens overnight begins John Butler, Principal Analyst at Geode Forensics.
To be really proficient the expert needs a good degree in science or engineering which gives the basic background knowledge to get started plus confidence to speak to an audience and the ability to write technical reports. Geode has dealt with well over 1000 cases to date and we have over 35 years spent designing, managing and teaching about computer systems. We have been in the business now for over 10 years but we are learning all the time, especially from the police.“ “Every case is crucial to the people directly involved and every single one has its own peculiarities and challenges. After over 1000 cases one might think one could just reach into a library of past reports and pull one out but it never seems to be that way. It is never dull and you do get the odd high profile case – they can set the adrenalin going but our job is to stay in the background and leave the stage to the advocates.” Digital forensics is, today, vital to the UK legal system. When things go wrong, the online digital archive represents a person’s black box recorder, which can give essential insights into the events that led up to any incident and afterwards. “Technology doesn’t stand still so neither can we, and the sector is becoming more competitive as people realise its importance and training becomes easier to obtain.” says John, illustrating the challenging nature of his work. “We are actively looking at new technologies that will get us into devices that are currently inaccessible or can squeeze the last bit of information from the devices that we can read already.
Forensic functionality We keep large portions of our lives online, in terms of records of the calls and messages we send and receive and who they are to or from. This evolving world makes digital forensics more and more crucial. Giles Crosse investigates. need to find ways of keeping in the game. The range of devices is getting wider all the time – there are phones, smartphones, tablets, notebooks and PCs, but SatNav systems, gamestations, and even smart TV systems can have information of value. “Information is stored on the device or in the ‘cloud’, messaging can take place via email, via a wide range of messaging systems or via public or private messages on social networking sites such as Facebook or Twitter.” According to John, the quantity of information in these locations goes up all the time, phones are up to 128Gb and 512Gb plug-in media cards are available. “Despite what programmes such as CSI may imply, these can’t be read instantly and unless data transfer rates increase the next generation of phones will take over a day to read. “We don’t buy hard disks any smaller than four terabytes now and even then storage is a problem. The principal longer-term challenge, as with any technology business, is finding the time to read what one has to do to keep up.” Either way, Geode’s forensic expertise and toolkit is kept under constant review and John maintains a selection of the same tools as used by police computer crime units. All this means he is ready and waiting when the next call comes.
“There are a couple of immediate challenges.” he goes on. “Security is getting better in phones in particular and we
Geode Forensics Ltd , 1 Glebe Place, Lasswade, Midlothian, EH18 1HH Tel: 0131 660 5111, Fax: 0131 454 1780, Mob: 07775 791396 Email: info@geodeforensics.com, Website: www.geodeforensics.com 28 | SECURITY INSIDER
| Commodit y Trade Disputes - metal
Expert witness
Andrew Geddes
Oxford Metallurgy graduate Andrew Geddes has been an advisor and an expert witness for disputes in metals commodity trading in Italy, Switzerland, Sweden, Russia, US, Hong Kong, and the UK. Providing advice, reports, and oral evidence in court, he has built a solid reputation with law firms, producers, traders, and consumers.
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dvisor and expert witness on commercial and valuation matters for international disputes in the field of nonferrous metals and their raw materials, with particular emphasis on alumina and aluminium and tolling, Londonbased Andrew Geddes has held senior positions for more than 40 years with metal producers, traders and fabricators and has done business in 70 countries while being a regular visitor to 50 of them.
He also has experience of covering broken contracts, fraud, market loss valuations, hedging loss valuations, agency arrangements, and contract negotiations including shipping and warehousing.
Using London Metal Exchange extensively as well as FX markets for hedging, he has resolved several disputes and litigations for large and small businesses. His experience primarily spans raw materials including aluminium, alumina, copper, magnesium, silicon, nickel, and cobalt.
After a stint in Rio Tinto Geddes worked in the international trading sector with Gerald for almost 20 years and then with some other trading companies based in Switzerland.
“While I did a degree in metallurgy, I have in fact worked in the commercial sector of the non-ferrous metals business for over for over four decades,” says Geddes. “About half of this time was in Switzerland while the rest in the UK but always for international companies.”
“Those were all international trading activities, not supplying any service as an Expert witness,
but this is where I gained a broad experience of all the potential problems and the tricks that others get up to sometimes.” His forays in his chosen profession brought Geddes in touch with a number of producers and consumers from around the world, mainly from the aluminium sector, many of whom sought his assistance as expert witness in a third party dispute. “For as long as I was in Gerald doing business with so many companies in the sector it was inevitable that there would be a conflict of interest sooner or later. It was only after I left Gerald that I started to accept expert witness appointments.” Geddes revived his trade membership from Institute of Materials, Metals and Mining, which he did not really need when trading for Gerald. By his own admission, Geddes did not set out to act as an expert witness for a living. While he is now almost retired he is still active in the primary metals, recently more on copper and zinc in addition to
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Commodit y Trade Disputes - metal |
Designed to work built to last.
I find that experts appointed by the other side may be very good at their market research or very good as an accountant but probably never did a deal for millions of dollars in their life. “I have no accounting background but I often find all sorts of errors if the other expert is an accountant because they rationalise a deal a different way in terms of full invoice values and do not think like a trader who thinks in dollars per tonne, the premium or discount from LME, and the hedge behind the physical contract.”
aluminium. It is this activity which he believes enables him to accept appointments from time to time as an expert as he keeps himself up to date with the market and new regulations that apply to expert witnesses. While there are a number of people who I know will accept expert witness appointments in the aluminium sector in commercial disputes most of them only have the commercial experience. They do not have the industry experience, a metallurgical background as a degree, and often do not have the court experience that I have over a period of almost 25 years. “The cases I deal with are usually so large that just one or two cases in a year is plenty with the available time that I have. There will always be some disputes arising from fraud, whatever happens with the market. The same is true for matters of compliance or distortions of the market or anti-trust disputes.” When Geddes gets appointed on a dispute he often comes across parts of the case that the lawyers may not yet have noticed, or not appreciated the significance, that can dramatically change the outcome.
Geddes can provide the lawyers with a trader’s view of the significance of the contract(s), what should have happened, what really did happen and what the losses are. “When looking at a dispute on a contract for a physical delivery it is essential to include the implications of the corresponding LME hedge and a view of what happened within the market between the time the contract was made and the due time for delivery,” he says. It is most likely that many of the parties appointing Geddes already know him through his business contacts or perhaps the lawyers have seen some of his expert witness reports or may have confronted him in court in the past. “If someone chose me out of the blue without knowing me beforehand I would like to think it is because of my many years of experience on the commercial side of the metals business, my experience having worked in producers, traders and consumers and my intimate knowledge of the workings of the London Metal Exchange for all the hedging that accompanies the physical metals business.”
Andrew Geddes - Expert Witness 16 Gerald Road, London, Greater London, SW1W 9EQ Tel: 07768 274 499
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