Expert witness 2017

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EXPERT WITNESS 2017 Conferences / Webinars / CDs / DVDs / E-Publications / InHouse / Consortium

A. Logan Pain Management Ltd. Consultant Pain Management

Dr Andrew St Clair Logan FFMPRCA Expert in assessment of long term pain following injury with regards to causation, prognosis and further treatment.

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Consultations available

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Spire Murrayfield Hospital (Wirrral)

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Contents...

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Y-STR Profiling in Sexual Assault Cases........................................................... 8

Introduction.................................................................................................................................. 8 Ethical issues.................................................................................................................................. 10 Promega PowerPlex Y23............................................................................................................. 12

Y-STR trial........................................................................................................................................ 14

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Guidance on Drugs & Driving - November 2016.................................... 16

Drug driving................................................................................................................................... 16

Guidance only............................................................................................................................. 18

Aggravating and mitigating factors.......................................................................................... 21

Factors that increase seriousness............................................................................................... 22

Aggravating and mitigating factors.......................................................................................... 23

Mitigating factors......................................................................................................................... 23

Analysis of the guidance............................................................................................................. 23 Driving 27 Attempting to drive..................................................................................................................... 27 In charge....................................................................................................................................... 27

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Bericon Case Study......................................................................................................... 31

4 How Expert Witnesses & Solicitors Can Help Each Other................34

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Conferences / Webinars / CDs / DVDs / E-Publications / InHouse / Consortium

London Pain Centre

Consultant in Pain Medicine Clinical Medical Consultant in Pain Management at Guy’s & St Thomas Hospital London, England from 1996 to date.

Author editor Pain Clinic Manuals edition 1 and 2 (BMA prize for Ed 2) Author of Intravenous Anaesthesia.

Reviewer: EJA, Neuromodulation.

Regular teacher/ demonstrator practical procedure courses at GSST & elsewhere.

Been on the Television (BBC1): - City hospital demonstration PRF for Cervical DRG’s.

Past Treasurer to NSUKI (Neuromodulation Society of UK and Ireland). zICO registered for data protection Regularly appraised and last revalidated for GMC October 2016.

Medico-Legal I initially attended courses run by Professional Solutions, 118 the Strand, Symposia by Lyons Davison, Lynden alexander.

I have spent a week undertaking the Mediation course at 118 the Strand, and passed the exam.

Lectured to PI lawyers at British library on when to instruct a pain medicine expert, other groups of lawyers on CRPS, Invited speaker Cambridge Medico-legal forum.

Given oral evidence in district, county and high courts and have given oral evidence six times in the last three years.

Instructed by claimant and defendant with no preference. Very rarely instructed as a single joint expert. Practice mostly personal injury but increasingly I am instructed on negligence cases (most frequently to comment on causation, condition and prognosis with recommendations for treatment – very rarely for liability).

I have been preparing medico-legal reports since 1991. I see on average two new claimants a week, which allows time for all the other medico-legal requests such as joint statements, conferences with counsel, answers to part 35 questions, review of surveillance and the preparation of addenda when further documents are made available for review.

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Registered with UK Register of Expert Witnesses, Waterlow Legal, X-Pro and Expert Witness.

Mrs Robyn Webber MD FRCSEd(Urol)

Consultant urological surgeon

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MA, FRCPsych., FRCGP Dr Tom Carnwath is a Consultant Psychiatrist, with specialist accreditation in General Adult Psychiatry and Addiction Psychiatry. He has also trained as a GP. He has over twenty years’ experience as an independent expert witness, providing medico-legal reports for claimant and defendant, and frequently as a jointly instructed expert.

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CONTACT e: info@mevans1.co.uk t: 01442 261163

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Section 1 Y-STR Profiling in Sexual Assault Cases

Introduction In 1964, a 19-year-old woman was raped and strangled just days after moving into a rented apartment in Boston. Her attacker admitted the crime, as well as killing 10 others, but he later withdrew his confession and was never convicted of her rape and murder. More than 50 years later, cutting edge DNA technology that focuses on the male (Y) chromosome - Y-STR –proved her attacker, the so-called Boston Strangler, was indeed at the crime scene.

The very latest advances in DNA technology mean greater scope for prosecuting authorities to collect the evidence needed to convict an offender, and to close cold cases such as the Boston Strangler. It also provides criminal defence lawyers further means to effectively defend a case and potentially prove their client’s innocence.

One of the most exciting developments in recent years in the DNA arena is undoubtedly Short Tandem Repeats on the male chromosome: Y-STRs. Uniquely valuable in cases with a sexual offences element, particularly those involving rape and sexual assault, Y-STR can establish whether penetration has occurred – even in the total absence of semen - by focusing on STRs. Essentially, Y-STR profiling provides a further tool to provide scientific evidence to investigate whether or not sexual activity actually occurred – particularly penetration.

A male’s individual Y-STR profile is inherited from his father. All male descendants therefore have essentially the same Y-STR profile, and because it runs unchanged through generations it can also provide indications of ethnic/geographic origins.

It’s not hard to see how Y-STR profiling can help cases where standard DNA profiling techniques cannot. Traditional, DNA profiling techniques cannot do what Y-STR does: that is, target the DNA present on the male Y chromosome which facilitates the production of a Y-STR profile – even where there is plenty of female DNA present.

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Dr Joshua Adedokun FCARCSI, FRCA, FFPMRCA Chronic Pain Expert Personal Injury

Clinical Negligence

Dr Adedokun has extensive clinical experience in the management of various Chronic Pain Syndromes including persistent neck, back, neuropathic or Complex Regional Pain Syndrome (CRPS) especially following personal and occupational injuries. He also has wide experience in Medical Negligence claims.

We supply a wide range of Psychology services including: Forensic reports for use in the court system including Child Risk and Offender Risk Reports, Pre-sentence Reports, Life Review Panels & Parole Panel Reports

Listed on the UK Register of Expert Witnesses, an APIL expert, Member of Society of Expert Witnesses and Expert Witnesses Institute.

Dr Adedokun accepts instructions from Claimants, Defendants and as a Single Joint Expert. He covers Manchester, Liverpool, Leeds, Birmingham and London.

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

Therapy for general Mental Health issues from depression to Sex Offender Treatment to Personality Disorders by experienced Clinical Psychologists Personal Growth issues including Stress Management, Anger Management & Assertiveness Training

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MR Kim Hakin FRCS FRCOphth

Mr Kim Hakin is a Consultant Ophthalmic Surgeon working in the NHS and in private practice.

Available for medico-legal consultations in London and Taunton.

His special interests include the management of cataracts, ocular trauma, eyelid and lacrimal surgery, including cosmetic eyelid surgery, facial aesthetic injection and laser treatments.

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However, according to a forensic scientist specialising in sexual offences, Y-STR “has been around for some time, but the use of this technique in forensic applications is relatively low. The sensitivity of Y-STR typing in a male/female mixed sample is reported to be 1 male cell in 2000 whereas traditional DNA profiling has a 1 in 50 limit for male DNA detection. This makes Y-STR analysis potentially useful in cases where there has been penile or digital penetration but without the deposition of semen, or where the semen is sperm-free”1.

Y-STR profiles can be obtained from samples taken up to 48 hours following an alleged incident where penetration took place. This is now reflected in the sampling guidelines at the Faculty of Forensic and Legal Medicine of the Royal College of Physicians.

Y-STR profiling results are not yet searchable against the National DNA Database.

However, according to the National DNA Database Ethics Group (‘EG’), the Forensic Science Regulator’s DNA Analysis Specialist Group is developing a standard for DNA profiling using Y-STR analysis. In addition, it is being considered whether a centralised elimination database for Y-STRs should be established for forensic science providers.

Ethical issues There are, however, some ethical concerns in relation both to Y-STR and establishing an elimination database. The EG has advised in favour of the use of Y-STR information in connection with serious crimes without opening the door to routine/ speculative searches of genealogical links between males, but says its governance must be considered. The EG has also raised some of the wider ethical issues, including: •

What is the potential public benefit? For instance, improvement of crime

detection and conviction, esp. in sexual crime

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What is the potential public harm? Y-STR analysis can provide information

about male infertility (although rare the information might be unknown to the

donor); and use for familial searching

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What individuals or groups would be most affected?

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Any threat to human rights or moral entitlements?

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Is there a risk of error or injustice?

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In the context of an elimination database, the EG explained some of the practical ethical issues including: •

Biological relationships: male relatives, such as brothers, can expect to share

almost identical Y-STR profiles and resulting profiles taken from two brothers who worked at the same FSP or police force would very obviously identify if the individuals did not share the same biological father •

Information about male fertility problems: associations have been identified

between certain combinations of missing and/or duplicated Y-STR alleles and male fertility problems. In an otherwise high quality profile, certain combinations of alleles may indicate a deletion of part of the Y chromosome and the possibility that an individual might have fertility problems •

Transgender issues: how to approach Y-STR profiling of transgender individuals

as those individuals who have transitioned to or identify as female, yet genetically have XY chromosomes will need to be included on the Y-STR databases whilst those who have transitioned to or identify as male, yet genetically have XX chromosomes will not need to be included on the Y-STR elimination database2

Promega PowerPlex Y23 Y-STR profiling has been adopted over recent years, and there have been notable improvements in both the quality of Y-STR sampling kits. The well-known Promega PowerPlex® Y23 System, for instance, can successfully amplify trace amounts of male DNA, even in the overwhelming presence of female DNA. So has it withstood scrutiny? Colorado Springs Police Department Metro Crime Laboratory put it to the test (choosing this kit over others because it “exhibited superior discriminating power over the other amplification systems”). The lab found it to be the most discriminating Y-STR kit on the market to date and the results, it said, demonstrated the ability of PowerPlex® Y23 to perform as intended by Promega for use on casework samples. There are other kits on the market including ThermosFisher Scientific F-filer Plus Kit.

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Mr Stuart Hislop Consultant Oral & Maxillofacial Surgeon MBCHB, BDS, FRCS Ed, FDSRCS Ed, FDRCPS Qualified in dentistry in 1978 and medicine in 1987 Mr. Hislop has a full training in Oral and Maxillofacial surgery. He has experience in all aspects of the specialty but his main interests are head and neck oncology including skin cancer as well as reconstructive surgery. He also has an interest in facial trauma both hard and soft tissue.

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20 years experience.

Works in Ayrshire and Glasgow Experienced medico legal expert Also carries out routine oral surgery Will work for both plaintiff and defendant

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Email: Stuart.Hislop@aaaht.scot.nhs.uk 13

Y-STR trial The Metropolitan Police has carried out a 6-month Y-STR pilot and is due to give its evaluation of the pilot to the EG. No details of the trial appear to be available, but when its evaluation is provided, forensic providers and experts will undoubtedly find its observations useful.

What’s clear is that Y-STR profiling is playing an increasingly vital component in eliminating suspects, and providing unequivocal, convincing evidence in serious sexual offences cases.

1. http://www.forensiccontext.com/demonstrating-that-penetration-has-occurredwhen-no-semen-is-found-the-whys-and-wherefores-of-y-strs/

2. https://www.gov.uk/government/uploads/system/uploads/attachment_data/ file/543118/NDNAD_Ethics_Group_meeting_minutes_7_June_2016.pdf

3. Study by Marshall University, Huntingdon, WV USA focusing on the validation of the PowerPlex®

Colin Featherstone Accredited Expert Witness

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FBI validation guidelines for forensic laboratories. Summer 2015

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Section 2 Guidance on Drugs & Driving November 2016

The Sentencing Council – ‘guidance’ issued this week (21st of November 2016) on driving, attempting to drive or being in charge with drugs in the system above the permissible levels This is such an important document that I feel it warrants reproduction (in large measure) and an analysis of some of the important points within it. It will be highly relevant to criminal practitioners on an almost daily/weekly basis and a ‘must read’ for anyone acting as Court Duty Solicitor. Although not said, I suspect it will be applied to anyone being sentenced as from its publication, regardless of the offence or conviction date. Although it does not have the status of formal Guidance issued

by The Sentencing Council it will still become a highly relevant document in the Magistrates’ Court. Near the conclusion I give examples of 7 different defendants looking at 7 different sentences arising from the ‘guidance’.

The first page of the new ‘guidance’ reads as follows:

Drug driving Introduction Since the new offence came into force in March 2015 the Sentencing Council has received a large number of requests for a sentencing guideline. It has been brought to our attention that there are concerns with sentencing in this area and a risk of inconsistent practices developing.

The new offence is a strict liability offence, which is committed once the specified limit for any of 17 specified controlled drugs is exceeded. The 17 drugs include both illegal drugs and drugs that may be medically prescribed.

The limits for illegal drugs are set in line with a zero tolerance approach but ruling out accidental exposure. The limits for drugs that may be medically prescribed are set in line with a road safety risk-based approach, at levels above the normal

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concentrations found with therapeutic use. This is different from the approach taken when setting the limit for alcohol, where the limit was set at a level where the effect of the alcohol would be expected to have impaired a person’s driving ability. For these reasons it would be wrong to rely on the Driving with Excess Alcohol guideline when sentencing an offender under this legislation.

Guidance only At present there is insufficient reliable data available from the Department for Transport upon which the Sentencing Council can devise a full guideline. For that reason, and given the number of requests for guidance that have been received, the Sentencing Council has devised the attached ‘guidance’ to assist sentencers.

It is important to note that this guidance does not carry the same authority as a Sentencing Guideline, and sentencers are not obliged to follow it. However, it is hoped that the majority of sentencers will find it useful in assisting them to deal with these cases.

The Sentencing Council will, in due course produce a guideline with the assistance of evidence and data gathered by the Department for Transport. Any new guideline will be made subject to public consultation before it is finalised.

We all know that the new offence came into force on the 2nd March 2015. A new Section 5A was inserted into the Road Traffic Act 1988 as a result of the implementation of Section 56 (1) of the Crime and Courts Act 2013.

The new offence is as follows: Section 5A (1) and (2) makes it an offence for a person to drive, attempt to drive, or be in charge of a motor vehicle on a road or other public place with a specified controlled drug in the body, if the proportion of the drug in that person’s blood or urine exceeds the specified limit for that drug.

Statutory Instrument 2014 No. 2868 – The Drug Driving (Specified Limits) (England and Wales) Regulations 2014 which came into force on the 2nd March 2015 gave us the details of 16 controlled drugs and the limit permissible expressed in terms of micrograms per litre of blood. 2 mcg/L of blood of cannabis, 10 mcg/L of blood of cocaine etc

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I have been a full-time NHS Consultant Cardiologist at Solihull Hospital (Heart of England NHS trust) since 2010.

I am on the Specialist Register for Cardiology & General Internal Medicine.

Expertise includes complications from cardiac procedures, atrial fibrillation, syncope, cardiac arrest and other arrhythmias, chest pain and myocardial infarction, cardiac risk assessment, heart failure and cardiomyopathy, hypertension, stroke, pulmonary embolism, cardiac trauma and insurance claims, thrombosis and anticoagulation.

I provide expert reports in a wide range of cases with an emphasis on clinical negligence, personal injury, causation, condition and prognosis.

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The drug they were obviously not sure about was amphetamine and so we were given Statutory Instrument 2015 No. 911 – The Drug Driving (Specified Limits) (England and Wales) (Amendment) Regulations 2015 which came into force on the 14th April 2015 and set the permissible limit for amphetamine at 250 mcg/L of blood The ‘guidance’ goes on as follows: Driving or attempting to drive Triable only summarily: Maximum: Unlimited fine and/or 6 months.

Must endorse and disqualify for at least 12 months.

Must disqualify for at least 2 years if an offender has had 2 or more disqualifications for periods of 56 days or more in preceding 3 years – refer to disqualification guidance and consult your legal adviser for further guidance (I shall analyse the meaning of this later – I wonder if the guidance is correct in this regard?)

Must disqualify for at least 3 years if the offender has been convicted of a relevant offence in preceding 10 years – consult your legal adviser for further guidance.

If there is a delay in sentencing after conviction, consider interim disqualification.

As a guide, where an offence of driving or attempting to drive has been committed and there are no factors that increase seriousness the Court should consider a starting point of a Band C fine, and a disqualification in the region of 12 – 22 months.

The list of factors that increase seriousness appears in this guidance. Please note that this is an exhaustive list and only factors that appear in the list should be considered.

Where there are factors that increase seriousness the court should consider increasing the sentence on the basis of the level of seriousness.

The Community Order threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness. The court should also consider imposing a disqualification in the region of 23 – 28 months.

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The Custody threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness AND one or more aggravating factors. The court should also consider imposing a disqualification in the region of 29 – 36 months.

Having determined a starting point, the court should consider additional factors that may make the offence more or less serious. A non-exhaustive list of aggravating and mitigating factors is set out in the guidance.

Factors that increase seriousness (this is an exhaustive list) Evidence of another specified drug or of alcohol in the body Evidence of an unacceptable standard of driving Driving (or in charge of) an LGV, HGV or PSV Driving (or in charge of) a vehicle driven for hire or reward

Aggravating and mitigating factors (these are non-exhaustive lists) Aggravating factors Previous convictions having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction.

• Location e.g. near school • Carrying passengers • High level of traffic or pedestrians in the vicinity • Poor road or weather conditions Mitigating factors • No previous convictions or no relevant/recent convictions • Remorse • Good character and/or exemplary conduct • Age and/or lack of maturity where it affects the responsibility of the offender • Mental disorder or learning disability • Sole or primary carer for dependent relatives • Very short distance driven • Genuine emergency established

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In charge • Triable only summarily: • Maximum: level 4 fine and/or 3 months • Must endorse and may disqualify. If no disqualification, impose 10 points As a guide, where an offence of being in charge has been committed but there are no factors that increase seriousness the court should consider a starting point of a Band B fine, and endorsing the licence with 10 penalty points. The list of factors that increase seriousness appears in this guidance. Please note this is an exhaustive list and only factors that appear in the list should be considered.

Where there are factors that increase seriousness the court should consider increasing the sentence on the basis of the level of seriousness.

The Community Order threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness and one or more aggravating factors (see later in the guidance). The court should also consider imposing a disqualification.

Where there is evidence of one or more factors that increase seriousness and a greater number of aggravating factors (see later in the guidance) the court may consider it appropriate to impose a short custodial sentence of up to 12 weeks. The court should also consider imposing a disqualification.

Having determined a starting point, the court should consider additional factors that may make the offence more or less serious. A non-exhaustive list of aggravating and mitigating factors is set out in this guidance.

Factors that increase seriousness – (this is an exhaustive list) • Evidence of another specified drug or alcohol in the body • Evidence of an unacceptable standard of driving • Driving (or in charge of) an LGV, HGV or PSV • Driving (or in charge of) a vehicle driven for hire or reward

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Aggravating and mitigating factors (these are non-exhaustive lists) Aggravating factors Previous convictions having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction • Location e.g. near school • Carrying passengers • High level of traffic or pedestrians in the vicinity • Poor road or weather conditions

Mitigating factors • No previous convictions or no relevant/recent convictions • Remorse • Good character and/or exemplary conduct • Age and/or lack of maturity where it affects the responsibility of the offender • Mental disorder or learning disability • Sole or primary carer for dependent relatives • Very short distance driven • Genuine emergency established

Analysis of the guidance The first thing that strikes one upon reading the ‘guidance’ is that the level of drugs within the system does not even get a mention. Is the defendant with 2 µg of cannabis per litre of blood in his system more culpable, and therefore deserving of a harsher punishment, than the defendant with 26 µg of cannabis per litre of blood in his system? I may be wrong but it seems to me that the Sentencing Council were probably wary of being too specific/definitive in relation to culpability arising from the level of drugs until further research has been done establishing with a greater degree of certainty the differing effects, in terms of impairment or otherwise, of the differing drug levels.

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Be careful in relation to ‘evidence of another specified drug or alcohol in the body’ as a factor increasing seriousness – the ‘guidance’ says the following: For these purposes, cocaine and benzoylecgonine (BZE) shall be treated as one drug as they both occur in the body as a result of cocaine use rather than polydrug use. Similarly 6-Monoacteylmorphine and Morphine shall be treated as one drug as they both occur in the body as a result of heroin use. Finally, Diazepam and Temazepam shall be treated as one drug as they both occur in the body as a result of Temazepam use.

Let’s imagine that you are the Court Duty Solicitor dealing with the road traffic list.

Defendant No. 1 appears before the Court and pleads guilty to a drug offence (driving or attempting to drive) – there are no factors that increase seriousness – the starting point is a Band C fine i.e. 150% of relevant weekly income with a range of between 125% and 175% – in addition a disqualification in the region of 12 – 22 months (query – would it be permissible for the Magistrates’/District Judge to take into account the reading in deciding the appropriate length of the disqualification?

– Would it be permissible for the Magistrates’/District Judge to take into account the reading in deciding where the offence fell within the range? – are these decisions i.e. ‘range’ and ‘period of disqualification’ only to be decided, dependent upon aggravating and mitigating factors? (My view, for what it’s worth, is that the latter proposition is correct in that the reading ought not to be taken into consideration in deciding issues such as ‘range’ and ‘period of disqualification’).

Defendant No. 2 appears before the Court and pleads guilty to a drug offence (in charge) – there are no factors that increase seriousness – the starting point is a Band B fine i.e. 100% of relevant weekly income with a range of between 75% and 125% – in addition 10 penalty points (query – the same questions as posed above).

NB – remember that there are only 4 factors that increase seriousness and that the list is a definitive one!

1 – Evidence of another specified drug or alcohol in the body 2 – Evidence of an unacceptable standard of driving 3 – Driving (or in charge of) an LGV, HGV or PSV 4 – Driving (or in charge of) a vehicle driven for hire or reward

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Defendant No. 3 appears before the Court and pleads guilty to a drugs offence (driving or attempting to drive) – the only factor that increases seriousness is that there is evidence of another specified drug or of alcohol in the body – such a defendant might be at risk of a Community Order and a disqualification in the region of 23 – 28 months.

Still dealing with defendant No. 3, exactly the same would apply if the only factor that increased the seriousness was 2, 3 or 4 in the above list.

Defendant No. 4 appears before the Court and pleads guilty to a drugs offence (driving or attempting to drive) – this defendant has more than one factor increasing seriousness – it would appear from the ‘guidance’ that he is still only at risk of a Community Order Defendant No. 5 appears before the Court and pleads guilty to a drugs offence (driving or attempting to drive) – this defendant has one or more than one factor that increases seriousness (let’s say, evidence of an unacceptable standard of driving) and IN ADDITION he has one or more than one of the aggravating factors (let’s say, he was near a school, or carrying passengers, or there was a high level of traffic or pedestrians in the vicinity or the road or weather conditions were poor – these are just examples of a non-exhaustive list of aggravating factors) – this defendant is likely to have crossed the Custody threshold – the court should also consider imposing a disqualification in the region of 29 – 36 months Defendant No. 6 appears before the Court and pleads guilty to a drugs offence (in charge) – there is evidence of one or more factors that increase seriousness and one or more aggravating factors – in these circumstances the Community Order threshold is likely to be crossed – the Court should also consider imposing a disqualification – this, of course, will be a discretionary disqualification under Section 34 (2) of the Road Traffic Offenders Act 1988 in lieu of the 10 penalty points – it is one or the other – there can never be a discretionary disqualification and penalty points for the same offence – R v Martin – it is a discretionary disqualification and the minimum period is one day and the maximum period is, presumably, life – I only say this to indicate that Parliament hasn’t set any mandatory minimum period – the period is entirely at the Court’s discretion.

NB – where the offence is ‘in charge’ as opposed to ‘driving or attempting to drive’ you will have noticed that in order for the Community Order threshold to be crossed there must be evidence of one or more factors that increase seriousness AND one or more aggravating factors.

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This is not the case where the offence is ‘driving or attempting to drive’ where the Community Order threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness – no mention here of one or more aggravating factors.

This seems entirely logical to me as the offence of being ‘in charge’ is regarded as a lesser offence than ‘driving or attempting to drive’– the offence of ‘in charge’ being punishable by a level 4 fine and/or 3 months imprisonment and 10 penalty points rather than an unlimited fine and/or 6 months imprisonment and a mandatory minimum period of disqualification (absent special reasons) of 12 months which is applicable in relation to ‘driving or attempting to drive’ Where the Community Order threshold has been crossed in relation to an ‘in charge’ offence than the court should also consider a discretionary disqualification as opposed to 10 penalty points.

Defendant No. 7 appears before the Court and pleads guilty to a drugs offence (in charge) and there is evidence of one or more factors that increase seriousness and a greater number of aggravating factors – in these circumstances the Court may consider that the Custody threshold has been crossed and that a short custodial sentence of up to 12 weeks might be appropriate – the Court should also consider imposing a disqualification Defendant No. 7 is problematic and the ‘guidance’ could be clearer – apparently, the Community Order threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness and one or more aggravating factors – the Custody threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness and a greater number of aggravating factors – what is meant by ‘a greater number of aggravating factors?’ – how are those words to be differentiated from the words ‘one or more aggravating factors?’– it would have been far simpler to say that the Community Order threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness and one aggravating factor whilst the Custody threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness and more than one aggravating factor – there will be arguments in Court as to whether or not the Community Order threshold or the Custody threshold has been passed.

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Driving A person can be said to be ‘driving’ where they have substantial control over both the movement and the direction of a vehicle

Attempting to drive A person can be said to be ‘attempting to drive’ where they have done an act which is more than merely preparatory to the commission of the full offence – we know from case-law that the mere opening of a car door is not sufficiently preparatory to be regarded as an attempt – Mason and the DPP [2009] EWHC 2198 (Admin) (it seems to me that there must be something more e.g. putting the keys into the ignition barrel or activating the start of the vehicle in some way – the words in brackets are my comments and not part of the judgement)

In charge There is no hard and fast all embracing test as to the meaning of ‘in charge’. If the defendant is the owner or lawful possessor of the vehicle or has recently driven it, he is prima facie ‘in charge’ unless he has put the vehicle in someone else’s charge; if he is not the owner, lawful possessor or recent driver, but is sitting in the vehicle or is otherwise involved with it, the question is whether he has assumed being ‘in charge’ of it.

The following circumstances will be relevant: 1 – Whether and where he is in the vehicle or how far he is from it; 2 – What he is doing at the relevant time; 3 – Whether he is in possession of a key that fits the ignition; 4 – Whether there is evidence of an intention to take or assert control of the car by

driving or otherwise;

5 – Whether any other person is in, at, or near the vehicle and if so the like particulars

in respect of that person.

It will be for the court to consider all of the above factors with any others which may be relevant and reach its decision as a question of fact and degree (DPP v Watkins [1989] QB 821, [1989] 1 ALL ER 1126)

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Let us now return to the part of the ‘guidance’ which reads ‘Must disqualify for at least 2 years if an offender has had 2 or more disqualifications for periods of 56 days or more in preceding 3 years’ and see where the statutory basis for this contention comes from.

I might add, in passing, that exactly the same words appear in the Magistrates’ Court Guidelines concerning alcohol and driving offences, and always have done.

The statutory basis for the above is Section 34 (4) of the Road Traffic Offenders Act 1988 which reads as follows: Subject to subsection (3) above, (and this, as you know, is the subsection that states that the ban is 3 years rather than 12 months if the offender has been convicted of a relevant offence in the preceding 10 years), subsection (1) above shall apply as if the reference to 12 months were a reference to 2 years – (a) In relation to a person convicted of – (i) Manslaughter, or in Scotland culpable homicide, or (ii) An offence under Section 1 of the Road Traffic Act 1988 (causing death by dangerous driving), or (iia) An offence under Section 1A of that Act (causing serious injury by dangerous driving), or (iii) An offence under section 3A of that Act (causing death by careless driving while under the influence of drink or drugs), and (b) In relation to a person on whom more than one disqualification for a fixed period of 56 days or more has been imposed within the 3 years immediately preceding the commission of the offence.

Q – Does an offender only fall within the potential 2-year ban if he or she meets the criteria in both (a) and (b)? – In my view the answer is ‘NO’ – I can see nothing in the wording of the above which requires the offender to fall into both categories – the wording suggests to me that (a) and (b) are entirely separate and distinct from one another and falling into either category would do

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Q – If I am right in my answer to the first question, then why does the ‘guidance’ only refer to Part (b) rather than Parts (a) and (b) – an offender may well fall within (a) because of a previous conviction either acquired at the Magistrates’ Court or the Crown Court within the requisite period – I say Magistrates’ Court or Crown Court because the offence of ‘causing serious injury by dangerous driving is triable either way – the others being clearly indictable only.

Q – If I am right in my answer to the first question, then why does it never happen in practice? – When was the last time you saw a defendant disqualified for 2 years or more on their first drink drive conviction because they fell within (a) or (b)? – I have never seen it happen and yet, apparently, it’s been in the legislation since 1988!

If you read the relevant passage in Wilkinson on Road Traffic, whilst it could be clearer, it does seem to support my contention that falling within either (a) or (b) will suffice We know where it does happen in practice and the scenario is as follows: A defendant appears in court and ‘tots’ i.e. accumulates 12 or more penalty points and thus falls within Section 35 of the Road Traffic Offenders Act 1988. The disqualification within Section 35 (1) is referred to as ‘the minimum period’ Section 35 (2) reads as follows: The minimum period referred to in subsection (1) above is – (a) 6 months if no previous disqualification imposed on an offender is to be taken into account, and (b) one year if one, and two years if more than one, such disqualification is to be taken into account; And a previous disqualification imposed on an offender is to be taken into account if it was for a fixed period of 56 days or more and was imposed within the three years immediately preceding the commission of the latest offence in respect of which penalty points are taking into account under Section 29 of this Act. WE HAVE ALL HAD EXPERIENCE OF SUCH DEFENDANTS!

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Driving under the influence of drugs, either illicit or prescription, has been an offence for many years but before March 2015, the Crown had to establish that the individual was impaired to drive.

Historically about 40% of proceedings in Magistrates Courts for drug driving were withdrawn or dismissed. The comparable figure for drink driving was 3%.

However, given that one in ten 17-24 year olds have taken drugs before driving and nearly 25% of fatal road accidents showed drugs were a key factor, the Government decided to impose statutory limits for certain substances and consequently the police no longer need to prove impairment for this new offence.

The change in law works alongside the old legislation but makes it an offence to drive while over a specified limit for each of the 16 drugs listed.

This makes the offence similar to that for driving with excess alcohol, given that statutory limits now exist.

From a scientific perspective, the cases undertaken by Bericon Forensics show an emerging pattern, one very similar to the types of cases which we have undertaken in drink driving for the last 30 years.

More specifically, we have prepared reports in the following cases, all of which show comparability to drink drive prosecutions: Case Study 1: “In Charge” prosecutions: similar to drink drive cases where the individual wouldn’t have driven until under the legal limit.

The defendant was in the driver’s seat of the vehicle and officers noted the smell of cannabis emanating from within the car.

He gave a positive roadside test for the presence of cannabis and a sample of the defendant’s blood was taken for analysis.

This sample was subsequently shown to contain tetrahydrocannabinol (THC) at a concentration of 3 microgrammes per litre (3.2ug/l). This THC concentration is above the statutory limit of 2ug/l but given that defendant was not seen to be driving the vehicle he was charged with being in charge of a vehicle.

Bericon was requested to prepare a report that assessed the significance of THC being found in defendant’s blood and, most significantly, if his reading would have fallen below the statutory limit when he intended to drive.

Our report suggested that it was most probable that his reading would have been below 2ug/l when he would have returned to drive his vehicle and the defendant was acquitted.

Case Study 2: Post-incident or post-driving consumption of drugs: similar to cases where individual has consumed alcohol after having driven.

The defendant was spoken to by police officers and took a roadside drug test which indicated the presence of cannabis. He was arrested and taken to the police station.

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A blood sample was taken from him and subsequent analysis of which showed there to be THC present at a concentration of not less than 3.3ug/l, which exceeds the statutory limit of 2ug/l.

We were instructed that the defendant consumed about one gramme of cannabis immediately after he was stopped and prior to him speaking to police officers.

Bericon was requested to prepare a report that assessed whether the cannabis compounds could be present as a consequence of the defendant’s consumption of cannabis in the manner suggested.

Our findings were on the assumption that the defendant consumed the amount of cannabis at the time suggested that this could have given rise to the reported blood THC reading or at least have significantly contributed to it to a level that without it, his reading would have been below the statutory limit. The defendant was acquitted.

Case Study 3: Unknowing consumption of drugs: similar to cases where the individual has consumed alcohol unknowingly Police officers spoke to the driver of a motor vehicle and requested he took a roadside drug test. The test indicated the presence of cannabis and the Defendant was arrested and taken to the police station.

A blood sample was taken from him and subsequent analysis of which showed there to be THC present at a concentration of not less than 7ug/, which exceeds the statutory limit of 2ug/l.

We were instructed that the defendant consumed a cake which reportedly contained a quantity of cannabis. He reported that the whole cake consumed 6.5 grammes of cannabis and which was divided into six portions, three of which were consumed by him.

Bericon was requested to prepare a report that assessed whether the cannabis compound could be present as a consequence of the defendant’s unwitting consumption of it in the cake.

Our findings were that on the assumption that the cake contained the quantity of cannabis that was suggested and that the defendant consumed it in the amounts and at the times suggested that this could have given rise to the reported blood THC reading or at least have significantly contributed to it and therefore without this consumption his reading could have been below the limit.

The defendant was acquitted.

All the above cases have been undertaken by Bericon Forensics in the last 12 months and show that in some situations, consideration should be given to a whole range of factors about drug use and drug driving prosecutions.

Alan Baker Bericon Forensics T: 01782 394929 F: 01782 394931 M: 07834 838776 E: enquiries@bericon.co.uk W: www.bericon.co.uk Offices in London and Stoke-on-Trent

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Dr Anba Soopramanien Consultant in Spinal Injuries & Rehabilitation Medicine MD, Phd, FRCP I feel fortunate to have worked as a Consultant in Spinal Injuries & Rehabilitation Medicine since 1982 as this is an area of great interest to me.

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My extensive clinical experience has enabled me to prepare medico-legal reports in over 2000 cases over the last ten years.

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Postal Address: 13 Goodhall Close, Stanmore, HA7 4FR

Section 3 How Expert Witnesses and Solicitors Can Help Each Other

Expert witnesses play a crucial role in litigation. A case can turn on the evidence of an expert in any given case. The strength of an expert witness and their evidence can also be a deciding factor in whether, and how a case can be settled - meaning the costs involved in on-going litigation can be reduced or even avoided.

Experts are sometimes commissioned to give an expert evaluation of a case to enable the solicitor to decide if a claim is worth pursuing. In other cases, an expert witness will be instructed by the claimant’s or defendant’s solicitor to support the claim or defence. In some cases, a joint expert will be instructed by both parties, representing a substantial costs saving for both sides of the dispute.

The relationship between expert witnesses and their instructing solicitors is therefore vital. So what is the role of an expert witness, and how can solicitors and expert witnesses be a mutual help to each other?

As an expert witness, your role is to provide an independent, true, accurate, thorough assessment of the issues. For example, the claimant’s physical and or mental injuries and prognosis in a personal injury claim; an engineer’s report on a potentially defect mechanical system; or a handwriting analysis in a claim involving a fraudulent document.

Lawyers will be seeking experts who are specialist in a particular field – sometimes in a particularly niche area in any given field. A general cancer specialist, for instance, may not be as qualified to provide expert evidence where a claimant has a rare form of ovarian cancer: a specialist in ovarian cancer would be more appropriate.

Or in a construction case involving an ancient building, a specialist surveyor experienced in Grade 1 listed buildings would be preferable to an expert chartered building surveyor.

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Experts can therefore help lawyers by being upfront about the extent of, and limits to, their professional expertise in any given case. For their part, instructing lawyers will need to be clear as to what is required so that the right expert can be found and commissioned.

A good relationship between expert witness and lawyer makes dealing with potential conflicts easier to deal with. Once a conflict or potential conflict, or connection, has been identified, the nature and extent of a such a conflict needs to be established as quickly as possible. This may need to be disclosed to the other side, and the expert witness may need to cease proceeding. The instructing solicitors can help the expert in dealing with issues of conflict effectively for the protection of all parties concerned.

Where an expert report is required for the purposes of litigation, the overarching role of the expert is to help the court reach its final decision. The expert witness effectively provides the judge with the evidence, including an expert analysis of matters that are not within the judge’s own expertise and knowledge.

Expert witnesses are under a duty to comment only on matters within their expertise.

It is vitally important that the scope of the report required is clearly defined between expert and solicitor so that the expert has absolute clarity as to what is required.

A clear foundation for what is required means both solicitor and expert can comfortably communicate and discuss matters during the litigation.

The instructing solicitor must be able to clearly identify the issues on which an expert’s opinion is required. For instance, the nature of an injury may not be in doubt, and liability may not be in issue, but the extent of the injury, and how long it may take for the claimant to recover could be the two issues of contention. If this is made clear to the medical expert who is commissioned, their remit will be clear; and when their report is received – the solicitor will have a report that focuses on the matters that are at issue. This will make the entire process less time consuming, and more cost effective.

The duties of an expert witness are set out in Civil Procedure Rules, Part 35, and instructing lawyers should explain these duties to their experts. Part 35 (and its associated Practice Direction) clearly states the need to consider all material facts, and also to comment where there is a range of opinion. Experts should not be hesitant to ask the solicitor to explain these duties to them, and to request any further information that will help them discharge their legal responsibilities.

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As an expert witness, you may be required to give oral evidence in court. It is understandable that you will need advice on how to address the court, and how to deal with cross examination in court – particularly if you are inexperienced. The professionally-minded instructing solicitor (and counsel if involved in the case) will guide you through what you can expect, so that you can give your evidence with confidence and discharge your duty to the court.

The relationship between an expert witness is potentially lengthy, particularly in the case of long-running litigation. Even in the case of disputes that are settled relatively quickly, expert witnesses will be seeking to build their reputation and look for further opportunities to provide their expertise as an expert witness.

Compatibility and mutual trust is therefore vital. Experts need to understand precisely what lawyers are looking for in any given expert report and be able to nail the issues clearly and succinctly in a way that the client, and the judge (and sometimes a jury) will be able to understand. If the case reaches a final hearing, the expert will want to be trusted and relied upon for the expert evidence he or she has provided.

An expert’s report can make or break a claim, whether in the early stages of a claim or at a final court hearing. A good working relationship between expert and solicitor is undoubtedly at the heart of producing a robust and effective report that is fit for purpose.

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Dr Monaci has completed the Cardiff University Bond Solon Expert Witness Certificates (Civil and Criminal Law).

Contact: linda@monaciconsultancy.com for an initial enquiry.

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The service XPC services provides expert witness advice and written reports to both prosecuting and defence counsels in drug related criminal and similar cases. Our clients include the Crown Prosecution Service (CPS), Police Authorities and many private solicitors.

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I have considerable experience of conducting psycho-legal reports for Civil and Criminal Court in matters of personal injury, clinical negligence, mental capacity, fitness to plead/stand trial, cognitive functioning/learning disabilities, personality disorders and mental health.

I am registered with the BPS and HCPC.

The Role of the Psychologist in Assessing Fitness to Plead and Stand Trial The law on unfitness to plead is concerned with whether or not an accused is able to stand trial and, if not, the procedure that should be used to deal with that accused. If at any time during the Court process the defendant’s competency to stand trial is questioned a full and detailed assessment should be sought. An example would be a defendant who as a result of very low intellectual ability is unable to follow the process of his or her trial. In England and Wales, the test known as the Pritchard test is applied by the courts when deciding whether a defendant is unfit to plead, however the test is outdated and inconsistently applied.

Following a consultation paper in 2010 and an issues paper in 2014, on 13 January 2016 the Law Commission published its report on unfitness to plead. The Law Commission proposed that the new test should centre upon the defendant’s decision making capacity and capacity for effective participation in their trial. This brings the new test in line with modern Court proceedings and the test for capacity in civil proceedings which focuses on decision making abilities (Mental Capacity Act 2005).

Up until recently the determination of a defendant’s lack of capacity relied on the evidence of two or more registered medical practitioners in general such practitioners tended to be psychiatrists.

The new legislation has recognised that other professionals are suited for this role. In particular psychologists are routinely involved in assessing, formulating and treating mood and cognitive disturbances and consideration of the assistance required for defendants to participate effectively in the trial process is very much within their expertise. Consequently, the Law Commission has stipulated that one of the experts must be a registered medical practitioner duly approved under section 12 of the Mental Health Act and the second expert can be either a registered medical practitioner, registered psychologist or an individual having a qualification appearing on a list of appropriate disciplines approved by the Department of Health.

A psychological assessment will usually include a detailed evaluation of the defendant’s mental health, cognitive functioning, verbal reasoning and comprehension skills, attention and concentration, short term memory, decision making abilities, suggestibility and any other relevant psychological factors.

This information will be used in order to form an opinion about whether the defendant is deemed to be fit or unfit to plead and/or stand trial but more importantly the expert can make recommendations to the Court which will allow a vulnerable defendant to fully participate in the proceedings. At the heart of the Law Commissions’ recommendations is the belief that there should be a full trial wherever possible, this is because only such trials engage all the fair trial processes and guarantees for those involved.

A departure from a full trial should be a last resort that is only taken when it is in the best interests of the defendant. In order to fulfil this criteria reasonable adjustments to the criminal process should be made. info@dovehousepsychology.com

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