Expert Witness Supplement

Transcription

Expert Witness
Supplement
Summer 2015
SOLICITORS
JOURNAL
Your voice in a changing legal world
www.solicitorsjournal.com
BOND
SOLON
EXPERT WITNESSES IN LITIGATION
Specialists with over 25 years’ experience
•
Intellectual Property:
•
Technology Projects: Fitness for Purpose, Due Diligence, Reasonable Skill & Care
•
E-Communication:
•
Telecommunications: Dial Through Fraud, Mobile Phone & Cell Site Forensics, VoIP
•
Corporate:
Electronic, Digital & Computer based Components, Software IP
Social Networking & Cyber-Crime, Computer Misuse
Theft, Data Recovery, Forensic Data Imaging
0845 226 0331 | [email protected] | www.itgroup-uk.com
OFC SJ EWS Sumer 2015.indd 1
6/16/2015 12:29:02 PM
A must-attend event for all expert witnesses and
solicitors who instruct them
THE ANNUAL BOND SOLON
EXPERT WITNESS CONFERENCE 2015
The largest annual gathering of experts in the UK:
Will you be there?
6 November 2015 | Westminster, London
Prominent speakers on the biggest issues affecting expert witnesses
Register your place:
www.bondsolon.com/expert-witness/conference
020 7549 2549
Untitled-2 1
BOND
SOLON
Wilmington Legal
6/16/2015 11:41:32 AM
CONTENTS
EDITORIAL
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CONTENTS
5 INTRODUCTION
Government cost cutting has created tensions between solicitors and
experts, says Mark Solon
9 PROPERTY
Poor building standards are producing an increasing crop of fire safety
expert witness work, explains Mostyn Bullock
13 FAMILY
Kevin Gibbs discusses the positive effects of a DNA testing pilot
programme on children in private family law cases
17 TECHNOLOGY
Phil Beckett advises firms on preventing employees poached by rivals
from sharing sensitive data
21 FORENSIC ACCOUNTING
To cut costs and get the best for your client from the joint statement
process, keep communicating with your expert, says Richard Formby
25 MEDICO LEGAL
What lessons can the courts and experts alike learn from the Sally Clark
case, ask Peter Feldschreiber and Carl Peck
29 PERSONAL INJURY
Paul Doyle explains the importance of making timely recommendations
for the use of assistive technology
33 ADVERTISEMENT FEATURE
DISPUTE RESOLUTION
Chris Makin considers the various forms of mediation now available
36 ADVERTISEMENT FEATURE
DNA DEFENCE
James Clery rounds up developments in forensics over the last 20 years
All rights reserved; no part of this
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SOLICITORS JOURNAL is published by
ARK Group, a Wilmington plc company
SJ 159/25 Expert Witness Supplement Summer 2015
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ARCHITECTURE
ARBITRATION & MEDIATION
Ian Salisbury
MA(Oxon)
RIBA
FCIArb
RSUA
MA(Oxon)DiplArch
DiplArch
RIBA
FCIArb
RSUA
20
years’
experience
of of
giving
expert
Over
25 years’
experience
giving
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opinion
and
evidence,
and
acting
as
and evidence, and acting as arbitrator,
arbitrator, mediator and adjudicator.
arbitrator, mediator and adjudicator.
mediator and adjudicator.
Over 20 years’ experience of giving expert
opinion and evidence, and acting as
l
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Architects’ appointments: practice, fees,
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Building technology: materials, design,
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l Intellectual property: copyright, express and
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MEDICO LEGAL
Mr R Scott-Watson
BSc(Hons) MB BS LLB (Hons)(Open) Cert Av Med. Cert MR(2)
CUEW DDAM FRCS(Ed)
RSW Medico Legal Ltd
Expert Witness in Orthopaedic Trauma.
APIL Expert.
Injury reports and Employment Tribunal reports (Equalities Act.)
Waiting list 4-6 weeks. Urgent reports undertaken.
Reporting since 1990. Over 19,000 reports.
Cardiff University Expert Witness Certificate 2014.
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Clinics in Stourbridge, Birmingham, Coventry, Bristol, Swindon and Oxford
Home and prison vists undertaken.
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7a Heath Lane
Oldswinford, Stourbridge
West Midlands DY8 1RF
Tel/Fax: 01384 441126
Email: [email protected]
4
Expert Witness Supplement Summer 2015 SJ 159/25
6/22/2015 4:03:39 PM
EXPERT WITNESS
SUPPLEMENT
INTRODUCTION
Common ground
Reforms and fee cuts have led to tensions between expert witnesses
and solicitors, but both professions are united in deploring the
impact on access to justice, says Mark Solon
A
s the courts and government continue
their endeavours to keep a lid on
litigation and curb costs, expert
witnesses have remained in the spotlight.
Two years on from the civil procedure reforms
spearheaded by Lord Justice Jackson, solicitors and
experts are both still getting to grips with the
altered landscape, marked with costs budgeting
and tight deadlines – and costs sanctions where
these have not been adhered to.
The relationship between the two sets of
professionals, historically sometimes a tense one,
has not been eased by the reforms or by the
punishing fee cuts that both have had to bear in
the legal aid sphere.
With one voice, expert witnesses and lawyers
have warned that the cuts are adversely affecting
the number and quality of experts willing to act in
publicly funded cases, with a consequent impact
on justice in some cases.
Legal aid dilemma
Richard Emery, of 4Keys International, an expert in
retail and credit card theft, paints a gloomy picture
from the legal aid front. He explains that the fee
rates paid by the Legal Aid Agency (LAA) for expert
work were fixed in 2007/8 and reviewed every year
for six years but never increased. Off the back of
those stagnant rates, fees were cut by 10 per cent
in 2013 and by a further 20 per cent in 2014, so
experts are now paid £115 an hour.
‘Balanced against inflation, in today’s money that
means we are getting paid half of what we were
paid ten years ago,’ he laments.
Emery, who says that without his other
commercial practice he would have to think
seriously about continuing to do legal aid work,
states that many others are no longer willing to do
the work for the rates on offer.
‘I am concerned that the quality of experts has
slid and will continue to slide further if the rates,
particularly in highly specialised areas of medical
P05-07 SJ EWS Summer 2015.indd 5
science, are not increased,’ he cautions.
He foresees a future in which hospitals will not
release medics from their clinical duties in order to
act as expert witnesses.
Kay Linnell, the treasurer at the Expert Witness
Institute (EWI) and a forensic accountant, echoes
his concerns. She asserts that it is no longer
possible for an expert to complete a job to their
own satisfaction unless it is done at their own
expense.
The pool of experts is diminishing, she says, as
fewer experts are willing to act and there has been
a ‘dumbing down’ of their evidence to ‘formulaic
tick-box questions and answers’ that no longer
fulfil a true ‘assistance to the court’ role.
This, she observes, has had an ‘adverse effect on
justice for individuals to the extent that litigants’
human rights are at risk’, and in some instances
‘incorrect’ decisions are being made by courts.
In addition, where work has been requested,
Linnell notes that the LAA is taking even longer to
pay experts for the work they have done.
Uncertainty over payment for court attendance,
where required, is another factor that Emery cites
as militating against taking on expert work. Unlike
with the production of written reports, he explains,
there is no prior authority given for how much an
expert will be paid to attend court.
‘The maximum is £490 for a whole day, but the
senior clerk in court can reduce that to as little as
£226 for a day,’ he says, and there is the risk that
experts will not get paid a penny if the trial is
adjourned, or the case dropped or otherwise
resolved.
A side issue, but one that Emery says is irritating
nonetheless, is the low payment for travel costs
and the allowance for staying away from home
overnight. With the exception of the country’s six
biggest cities, the allowance for staying overnight
is £55.25 a night – a rate that was fixed in June 2005
– and travel fees have been slashed by 50 per cent
to £40 an hour.
Mark Solon is managing director
of Bond Solon
www.bondsolon.com
5
6/22/2015 3:21:13 PM
EXPERT WITNESS
SUPPLEMENT
INTRODUCTION
Tension over who
bears third-party
costs overruns has
yet to play out fully
‘It is not uncommon for me to spend more than I
can recover in the expense allowance – that is
unacceptable,’ he states.
Expert witnesses are often of crucial assistance
to the court in criminal cases. Their reports can
result in a defendant pleading guilty, thus saving
the court’s time and thousands of pounds of
taxpayers’ money, and sparing victims from having
to give evidence.
Yet, says Emery, the LAA has no methodology for
measuring the value of an expert witness. He
recalls: ‘Recently I was paid £3,000 for a report. As a
result of the contents of my report, the defendant
pleaded guilty and the trial, listed for three to four
days, was vacated, saving huge sums of money –
but no one records or measures this.’
He adds: ‘No one understands the commercial or
judicial value of the expert witness,’ and proposes
that judges keep a note of the performance of
experts and the outcomes to circulate to the LAA
and to solicitors.
Post-Jackson fallout
It is not purely in the realms of publicly funded
cases where money can be a thorny issue. The
Jackson reforms have meant that lawyers have to
give earlier and far greater consideration to the
costs that are going to accrue in litigation. That
includes third-party costs, such as those relating to
experts.
Despite the seismic shift in approach, the
claimant clinical negligence partner at Bolt Burdon
Kemp, Suzanne Trask, said the change in funding
arrangements in April 2013 has ‘not significantly
altered the way we work with experts’.
While the recoverability of elements of costs
from the defendant has altered, after the event
insurance products remain available to the
claimant to cover these disbursements, she
explains.
‘Part of the insurance premium can still be
recovered from the defendant in successful clinical
negligence cases, with the other part of the
6
premium being deducted from the compensation
recovered.
‘So the client now bears the cost of insuring
for the cost of some expert fees. In my experience
this has not been something that deters claimants,’
says Trask.
What has changed, however, is the stage at
which issues and costs need to be identified.
Francesca Kaye, the immediate past president
of the London Solicitors Litigation Association
and a partner at Russell-Cooke, explains that
solicitors need to identify at directions hearings
what an expert is being instructed for and their
associated cost.
This is easier to do in larger cases where
the courts will more readily permit experts’ costs,
she says.
Budgeting and timetabling can be problematic.
Kaye observes that there has been a tendency for
experts to regard deadlines as guidelines. ‘They
are not,’ she insists, and if an expert cannot meet
the deadline set by the court, they should give
the solicitor early notice and have a good reason
to boot.
‘Solicitors have had to learn to manage the new
regime and experts will need to get better at it too,’
she adds.
While Kaye finds the idea of budgeting easier in
smaller cases, Emery suggests that it can be totally
impossible in larger cases where there can be large
quantities of information to analyse in
circumstances where the volume cannot be
predicted.
Where court-approved budgets overrun, the
question of who should bear the pain can be a
moot point. Some experts are taking a robust
approach and claiming their stated fees in full,
regardless of what the court dictates, which can
put the solicitor and client in an awkward position.
Although the Jackson reforms have been in
place for just over two years, Kaye says that
everyone is still struggling with budgeting. Most
cases that started post-Jackson are still going
6/22/2015 3:21:13 PM
EXPERT WITNESS
SUPPLEMENT
INTRODUCTION
through the courts, but she predicts that the
tension over who bears third-party costs overruns
has yet to play out fully. ‘There will be cases where
solicitors get caught,’ she adds.
Linnell notes: ‘Solicitors can take uplifts on fees
and enter conditional fee agreements with clients
based on a risk/success matrix or underwrite costs
and have an interest in the outcome of cases.’
Experts cannot do that and retain independence,
so their expert’s fees should be ring-fenced, she
argues.
Other phenomena that have come out of the
Jackson reforms are the use of single joint experts
and the practice of ‘hot-tubbing’ – where experts
give their evidence together. For both practices, it
is early days, and hot-tubbing remains rare.
But Thayne Forbes, the joint managing director
at Intangible Business, says he has seen signs of the
benefits of hot-tubbing type exercises where the
parties adopt a more proactive, open, and
constructive approach to test instructions given to
experts.
‘This sometimes reveals that common ground
between experts is more extensive than originally
thought,’ he notes.
To regulate or not to regulate?
The professional standards of some experts,
particularly given the increasing financial
constraints, have continued the (as yet unresolved)
question of whether and how experts should be
regulated.
While most solicitors and experts themselves
state that the majority of experts are honest and
conscientious, an undercover investigation by the
BBC’s Panorama last year revealed the willingness
of some to breach their professional obligations
and write dishonest reports. In Justice for Sale, only
one out of the nine experts featured declined to
write the dishonest report requested by the
reporter, who was posing as a litigant in person.
The majority of those who act as expert
witnesses are already regulated by their own
professional bodies, so the value of another layer of
regulation is questionable. However, for those in
niche areas of practice where there is no
professional body, it is again uncertain who should
determine whether a person has the requisite skills
to act as an expert.
Linnell favours the proposal of the European
Expertise and Expert Institute: certification and the
development of a national register of experts,
reviewed every five years and monitored by
judicial feedback and assessment.
The former Bar Council chairman and regulatory
barrister Tim Dutton QC, who appeared in the
BBC’s documentary, suggests that a study be
carried out under the aegis of the Ministry of
Justice to discover the extent of abuse.
If after 12 to 18 months it shows that abuse is
continuing and widespread, he suggests thought
should be given to making it an offence to
‘knowingly fail to comply’ with the duties set out in
either the Criminal or Civil Procedure Rules.
The pool of experts
is diminishing as
fewer experts are
willing to act and
there has been a
‘dumbing down’ of
their evidence
Whiplash reforms
Meanwhile, the government’s crusade against the
perceived ‘compensation culture’ led to the
introduction in April 2015 of the MedCo online
portal through which all medical reports in
whiplash claims are commissioned.
Medical experts must be registered with the
company behind the site, MedCo Registration
Solutions, in order to provide £180 fixed-fee
medical reports.
Opponents, including the Law Society, have
warned that the new arrangements will increase
costs and complexity, while a group of personal
injury firms have prepared a judicial review
challenge to the scheme, claiming it will impede a
claimant’s ability to prepare their own case and
ultimately deny access to justice to those with
personal injury claims.
The reform also sees the introduction of
mandatory accreditation and reaccreditation of
experts from January 2016. SJ
7
6/22/2015 3:21:13 PM
BUILDING AND CONSTRUCTION
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8
6/22/2015 4:04:12 PM
EXPERT WITNESS
SUPPLEMENT
PROPERTY
Defects in building
fire safety
Mostyn Bullock considers the decline in building standards and
asks what the industry can do to stop the rot
T
he increase of workload for professionally
qualified fire engineers acting as expert
witnesses on civil cases has shifted from
discernible to tangible in recent times.
This is great for our consulting peer group. It’s
interesting and challenging work that is required
to be carried out by persons that are appropriately
professionally qualified and is usually invoiced on a
time-charge basis. Fantastic.
Compared to working on building design and
delivery, where we are competing with people
without the professional qualifications who say
they can do an equivalent job cheaper and where
clients put cost above professional qualifications,
it’s a much better business. Splendid. However,
there is a ‘but’.
Rhubarb plant
For consulting engineers, fire safety expert witness
work is a bit like the rhubarb plant in the corner of
the garden: it’s ancillary to the main purpose of the
garden, it doesn’t need to be lavished with
attention to survive, and it gets on with producing
something that we know is not going to be to
everyone’s taste. And, year on year, it seems to
produce a bit more.
According to the gardener in my family, it’s just
the fertility of the soil that keeps it going.
The expert witness subject is one which is being
regularly discussed between peers in our
profession, not necessarily in relation to the
technical detail of the breaches which form the
cases, but rather the nature of the ground which is
producing the increasing crop of cases for us to
work on.
The discussions are tinged with frustration at the
increasing frequency of problems with fire safety
coming to light, which don’t reflect well on our
profession and create the impression that the
industry is not doing its job properly. Unfair?
Perhaps. Or, maybe the fire safety industry has
been guilty in respect of not doing more together
sooner to arrest the slide in standards.
Omission of fire protection from the places
where it should be, manufacturers’ claims of
product performance not withstanding scrutiny,
use of products outside their limits of application,
and so on, are long-standing problems that haven’t
got any better. However, what has changed is the
frequency of ‘discovery’. This is not as the result of a
greater incidence of fires, but rather seemingly as a
result of other issues coming to light and being
investigated first, such as failures in weathertightness, acoustics, or structure.
Quite a lot of the calls that we now get as a
precursor to appointment start with the words:
‘We’ve been looking at… and we’ve got concerns
about what we’ve seen with the fire’.
Why is this? While we are used to seeing corners
being cut in terms of fire safety, it looks like quality
in other aspects of design and construction is also
suffering more. Is it a feature of a drop in the level
of assurance that is being applied during project
delivery?
Today, a significant majority of new building
projects receive assurance of building regulations
compliance that is purchased from the building
control body, and where the scope of the service
providing this assurance is subject to contractual
negotiation by the developer/contactor. When we
inspect buildings delivered by such arrangements,
is it any surprise that we often find that very little
has been done correctly?
Mostyn Bullock is a director at
Tenos
www.tenos.com
Providing assurance
Regulation 9 of the Approved Inspectors
Regulations includes the statement: ‘Approved
inspectors shall have no professional or financial
interest in the work they supervise unless it is
minor work.’ This is taken to mean that it is against
9
6/22/2015 3:24:11 PM
BUILDING AND CONSTRUCTION
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FIRE & EXPLOSION INVESTIGATION
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10 www.solicitorsjournal.com
6/22/2015 4:05:38 PM
EXPERT WITNESS
SUPPLEMENT
PROPERTY
the law for an approved inspector to be providing
assurance to the client that the ‘works’ meet the
requirements of building regulations when the
approved inspector has either a professional or
commercial interest in these works. The job of
enforcing compliance with these regulations was
gifted by the government to the Construction
Industry Council (CIC).
So, then, why is it that we are currently faced
with all of the following arrangements being
operated in the field:
Separate companies forming part of a group
company providing building control and
design on the same project, where the group
companies have separate directors or the
group companies have the same directors;
Separate companies that are related by means
of common ownership and staff (i.e. not
registered as part of a group company
structure) providing building control and
design of the same project;
Building control companies providing fire
strategy design reports to be followed by the
project team;
Building control companies sub-contracting
fire strategy design work to fire engineering
consultancy practices; and
Other building control companies stating
that regulation 9 prevents them from acting
as above.
This confusing picture is currently the subject of
discussions between the fire engineering design
sector, government, the CIC approved inspectors
register, and the professional membership
organisations representing the building control
sector.
So, if the government and its appointed
policeman left the door ajar, the construction
industry has shoved it wide open. The prospect of
being told what to do by the person who then ticks
the box in terms of building regulations approval
has been like manna from heaven for the project
managers challenged by cost-conscious clients
(external and internal) to reduce professional fees.
The result has been that some developers and
main contractors now even request tenders for a
one-stop-shop design and approval service with
no regard to regulation 9 and scant regard to their
own liabilities. These liabilities are clear in the
Construction (Design and Management)
Regulations in terms of ensuring that those
carrying out the work are competent and that the
provider of the building control function cannot
act in the capacity of a designer (and will be
unlikely to be appropriately professionally
indemnified to do so).
As a consequence, building control bodies and/
or ‘related’ companies have been actively
commercially incentivised to engage in design
work, such that they can realise the fees for this
work and then ‘afford’ to carry out the ‘lighter touch’
building control commanded by the fees and
scope negotiated for that function with the client.
The result is less fully independent scrutiny of
designs on the table and construction in the field.
The outcome is lower standards of project delivery
and greater incidence of problems later on.
Tipping point
The view of the legal profession appears to be that
the building control body, by means of not having
a design responsibility, is ‘untouchable’, albeit not
beyond admonishment when it comes to civil
claims for building defects. Where the building
control function has not been completely
independent, this puts a different complexion on
things, and perhaps it is appropriate for this
viewpoint to be challenged in cases where it is
clear (or perhaps unclear) that the building control
body has had a conflict of interest in the work it has
approved, either through having a relationship
with the designer or by providing design or
commissioning design itself. And, what about the
additional claim on the developer and/or main
contractor for not ensuring appropriate
independence?
If things continue as they are, could the bubble
burst? I think so. If standards continue to spiral
downwards, we may reach a tipping point where
the legal sector is faced with so many claims for
litigation that the financial structures supporting
the industry can no longer carry the load being
placed upon them.
Insurers and investors should therefore be taking
a closer look and doing their bit to raise the bar in
terms of expectations on developers and
contractors to ensure that the assurance being
provided by the building control function is
completely and transparently independent, and
that designers and contractors understand and
accept completely their liabilities in terms of design
and construction delivery, and that these liabilities
are not obviated by building control approval.
A simple statement in the employer’s
requirements for the project referencing regulation
9 and stating what it means in the context of the
project would be all that is needed. In terms of
professional fees, it’ll cost a bit more to build the
job, but there will be less picking up the pieces
down the line.
By virtue of the human condition, oversight,
mistakes, negligence, and occasional skulduggery
will still have their place in the make-up of the
compost which will keep the rhubarb growing in
the corner of the garden, but at least the building
control process will keep it under control rather
than acting as a fertiliser. SJ
Fire safety expert
witness work is a
bit like the rhubarb
plant in the corner
of the garden
11
6/22/2015 3:24:21 PM
Grant Wright QTR_Layout 1 15/05/2015 09:24 Page 1
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M.B., B.S., LLB., DOccMed., FRCPsych.
CONSULTANT PSYCHIATRIST
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19 years
of experience
in medico-legal
report
writing
nnOver
20 years
of experience
in medico-legal
report
writing
nnAccredited
specialist
with
the
General
Medical
Council
in adult
Accredited specialist with the General Medical Council
in &
oldadult
age &
psychiatry
old age psychiatry
nnCertificate
of Civil
ExpertWitness
WitnessAccreditation
Accreditation (Cardiff
Certificate
of Expert
(CardiffUniversity)
University)
nnCertificate
Procedure Medicine
Rules for Expert Witnesses (Bond Solon)
Diploma ininCivil
Occupational
n Certificate in Medico-legal Report Writing in Civil Claims –
nExpert
Law degree
other qualifications outside of psychiatry helps
Witnessand
Institute
ensure
that
reports
areMedicine
well structured and targeted to the
n Diploma in Occupational
key
issues
of
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n Law degree and other qualifications outside of psychiatry help ensure
reports
areoccupational
well structured
and&targeted
to thepractice
key issues of the
nthat
Busy
clinical,
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n Experience in old age psychiatry, the assessment of testamentary
n Medico-legal expertise for both Claimant & Defendant in personal injury,
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2005 under the
clinical
negligence,
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injuryassessments
at work and MCA
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Act,experience
the assessment
of testamentary
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of
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Previous
in military,
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independent
sector
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assessments MCA 2005
psychiatry
n Previous experience in military, NHS and independent sector psychiatry
n Other medico-legal interests: personal injury, clinical negligence
n Regular medico-legal consultations held in Leeds, Cleckheaton,
and work &Newcastle.
stress litigation
for both
Manchester
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and Claimant
elsewhere&byDefendant
arrangement.
n Practice in North East England with consulting facilities in
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DX 720874 Northallerton
Tel / Fax 01609 778730
www.drvincenti.co.uk
6/22/2015 4:06:18 PM
EXPERT WITNESS
SUPPLEMENT
FAMILY
Piloting progress in
family proceedings
Kevin Gibbs discusses the impact of a pilot scheme for the
provision of DNA testing on children in private family law cases
T
he introduction of the Legal Aid,
Sentencing and Punishment of Offenders
Act (LASPO) reforms in 2013 removed
public funding for the provision of DNA, drug,
and alcohol tests in private family law cases.
Since the reforms came into force there have
been concerns that the lack of provision for these
tests was leading to delays in private law cases
concerning children and, as a consequence,
having a negative impact on their welfare.
As a result of this change, it was agreed to run a
pilot project to explore how public funding for the
provision of DNA, drug, and alcohol tests could
work where such a test was judged to be necessary
to resolve the case. The Ministry of Justice (MoJ)
implemented the pilot programme with the
support of the president of the Family Division, the
Children and Family Court Advisory and Support
Service (Cafcass), and HM Courts and Tribunals
Service (HMCTS).
The pilot scheme ran from June 2014 to
November 2014 in identified courts in two
designated family judge areas in England. Both
sites were discussed with the relevant designated
family judges, who gave their support to the pilot
scheme.
This article focuses on the provision of DNA
testing, although some mention will be made of
the other tests for drugs and alcohol.
Pilot scheme
The delivery programme was supported by a
training and awareness programme, which
included briefing sessions that took place at both
sites. These sessions included members of the
judiciary, HMCTS, solicitors, and Cafcass staff.
The pilot was funded by the MoJ, overseen by
Cafcass, and managed by a third-party
organisation, Oxford Family Mediation. The testing
service was commissioned from Oxford Family
Mediation as a time-limited pilot, permissible
through existing third-party service frameworks
managed by Cafcass.
The pilot scheme was evaluated by MoJ
analytical services and the evaluation report
published in February 2015. The full report can be
accessed from the MoJ’s website.
Information was gathered in relation to:
The types of tests ordered;
The stage in proceedings and the type of case;
The time taken;
Costs; and
The inputs needed to ensure effective
outcomes.
Kevin Gibbs is head of service at
Cafcass
www.cafcass.gov.uk
This information was used to inform the
evaluation of the pilot and identify possible
future steps.
Information has been gathered by Cafcass that
shows the average case duration in the area has
been reduced by three weeks in the pilot cases.
Half of the cases have been concluded at the first
hearing dispute resolution appointment (FHDRA)
and the other half at the post-FHDRA stage. There
has been no identified impact on the timetabling
of cases in the pilot area courts.
13
6/22/2015 3:28:00 PM
EXPERT WITNESS
SUPPLEMENT
FAMILY
Clear communication
The establishment of the process was important
for successful delivery. This included the early
involvement of stakeholders such as the judiciary,
HMCTS, and solicitors, as well as Cafcass staff. The
importance of a clear communication process at
the start of the pilot proceedings, including the use
of launch events, was noted in the feedback that
Cafcass received.
Training to support the implementation of the
pilot was received positively. The evaluation
suggested that additional training for the judiciary
and legal advisers to enable them to make
informed decisions on which tests to commission,
and how to interpret them accurately, would
enhance the benefits of the availability of expert
evidence.
Representatives from across key professional
groups were positive about the provision of
funding for expert evidence in the pilot, and
expressed a commitment to work collectively to
ensure it worked effectively. Again, good
communication between the agencies involved
was considered essential.
Midlands Psychological Services SJ QTR NEW 2012:Layout 1
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The evaluation included a comparator area,
which was selected due to its similarity in size and
other demographic factors to the pilot areas.
Research with professionals in the comparator area
showed that ‘without such evidence the judiciary
may have to make unsatisfactory orders. Orders
made without expert evidence were perceived as
less likely to be followed, and professionals
suggested that cases would often be returned to
court as the underlying issues had not been dealt
with.’ It was also felt by professionals that it was
difficult to progress cases without the results of a
DNA test.
Feedback from Cafcass family court advisers
following the evaluation was that active
engagement with parties took place, supported by
the training provided. The family court advisers,
particularly on court duty, have a role in
gatekeeping and negotiation with the parties and
the court. They reported that this also contributed
towards the appropriate ordering of testing.
Positive impact
Certainty around parentage is essential for the
11:42
Page 1
PSYCHIATRY
Dr Lars Davidsson, MRCPsych, MEWI
Dr Lars Davidsson
Lars Davidsson Consulting International Ltd
Prittlewell House, 30 East Street
Southend on Sea, Essex SS2 6LH
01702 464099
[email protected]
Appointments available at the above
address and at Suite 4, 7 Harley Street, London.
More than 1000 reports provided in civil and
criminal matters including employment and
clinical negligence cases.
For a full CV and terms and conditions please
visitwww.angloeuropeanclinic.co.uk
www.angloeuropenclinic.co.uk.
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6/22/2015 3:28:00 PM
EXPERT WITNESS
SUPPLEMENT
FAMILY
long-term stability of the child. The absence of this
of the work in the pilot areas in February 2015, it
information can lead to lengthier hearings,
was agreed that the pilot process for DNA testing
continued conflict, and uncertainty – none of
would be concluded and the delivery of DNA
which is in the child’s interest.
testing across the country rolled out. The work in
The increased certainty that the provision of
Bristol and Taunton has continued and the
DNA tests in the specified cases has given to
procurement process for delivery has begun. It is
professionals and families has had a positive
anticipated that the procurement process will be
impact for the children concerned. This has
concluded later this summer, with the national
contributed to a reduction in the time taken to
programme beginning in September 2015.
reach decisions and allowed children to have a
The evaluation of the DNA pilot by the MoJ
more certain future.
supported the development of a national process
The evaluation found that professionals felt the
for such tests to be carried out across the country.
testing provided increased knowledge and
Procurement arrangements have been put in
awareness about child safeguarding concerns and
progress for this work by the Cafcass national
questions around parentage, as well as providing
commissioning team.
reassurance to all the professionals involved. They
As a result of the lessons learned from the pilot
Quarter Page_Layout 1 13/05/2014 12:28 Page 1
felt it supported the overriding principle that the
process, it has been decided that the management
child’s welfare should be the family court’s
of the national process will be carried out by
paramount consideration in making decisions
Cafcass rather than a third-party organisation. This
about a child’s upbringing and allowed orders to
will streamline the process and reduce costs.
be made with more confidence.
In relation to drug and alcohol tests, it has been
agreed that the pilot will be extended to a wider
Next steps
geographical area and include additional sites
Following the publication of the MoJ’s evaluation
before a final decision is taken. SJ
FREELANDER, ERIC SJ QTR:Layout 1
MEDICAL
29/05/2013
12:01
Mr. Eric Freedlander
Consultant Plastic Surgeon
B.Sc.(Hons.), M.B., Ch.B., FRCS(Plast.)Ed.,
FRCS(Eng.), M.D.
Over 20 years’ experience of Medico-Legal work
Personal Injury and Clinical Negligence Reports
Cosmetic and Reconstructive Surgery
Burns and Scalds
Hand and Lower Limb Trauma
Cleft Lip and Palate
Scarring as result of injury or surgery
Past President British Association of Plastic,
Reconstructive & Aesthetic Surgeons
Claremont Hospital
401 Sandygate Road
Sheffield S10 5UB
Tel./Fax: 0114 230 9160
Page 1
Certainty around
parentage is
essential for the
long-term stability
of the child
MEDICO LEGAL
Dr Peter Garrard PhD FRCP
Consultant Neurologist
GMC accredited specialist
SPECIAL INTERESTS:
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tel: 020 8725 2735
fax: 020 8725 2950
email: [email protected]
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6/22/2015 3:28:01 PM
ORTHOPAEDICS
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MCh.Orth., FRCS(Eng), EWI
Consultant Orthopaedic Surgeon
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as Medico-legal Expert
I am able to prepare expert witness reports and give
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• Orthopaedics and Bone and Joint Trauma
• Muscle-tendons, peripheral nerves and
soft-tissue injuries
Extensive experience in management of fractures in
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I will act for either claimant or defendant and also as a Single Joint Expert
(Exception: ‘Breach of Duty’ Report in Clinical Negligence arena.)
As a Member of the Expert Witness Institute, London, my reports are in
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As a Fellow of the American Academy of Orthopaedic Surgeons with Expert
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I am prepared to undertake reasonable travel if necessary.
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10 Harley Street, London W1G 9PF
Ethos SJ QTR_Layout 1 27/05/2015 16:35 Page 1
FORENSIC SCIENCE
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M.Sc, C.Chem, F.R.S.C,
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WEB: www.docexam.co.uk
6/22/2015 4:02:23 PM
EXPERT WITNESS
SUPPLEMENT
TECHNOLOGY
Employee poaching:
Taking control of
data breaching
Phil Beckett explains how firms can reduce the likelihood of
confidential information following employees out of the door
W
ith fears of job uncertainty passing
with the recession, employees are
starting to gain confidence and are
reassessing their career options. In addition to
this, employers are on the lookout for top talent
to aid their growth and market share, which is
their main focus now that concerns over cash
flow and survival are behind them.
Although the recovering economy is a positive
sign, this also means that employees will be
moving on to other companies. Businesses must
be aware that when a member of staff leaves,
there is always a risk that it will be more than just
their physical presence leaving the company. It
could be that important confidential data follows
in their wake.
Inside knowledge
Without understanding the true implications of
their actions, skilled employees who have been
poached by rival firms can often take more than
just their expertise to their new role. Looking to get
a head start, employees on the move may also seek
to make use of previous client relationships, inside
knowledge, and confidential data, as well as try to
convince previous colleagues to join them.
Technology makes this process much easier. In
the ever-connected world we now live in, there are
more routes to transport data and conspire with
others. Bring-your-own-device (BYOD) policies and
cloud-based computing are just some of the ways
in which previous employees can both accidentally
and purposefully share sensitive information.
Difficulties transpire in this area as there is no
way in which a firm can control an employee’s
social media or their private network of friends.
What is clear, however, is that employees should
not be sharing confidential content belonging to
the firm. Even transferring data to cloud systems
like Dropbox can muddy the waters if it is regularly
used for genuine reasons relating to work.
There are a variety of steps an organisation can
take in order to control this data breaching. This
ranges from the implementation of certain
technological measures to the introduction of
various legal actions. These can be categorised into
two distinct groups: steps to be taken as
preventative measures before an employee is
poached and those to be taken afterwards as
responsive actions.
When it comes to proactive preventative
measures, the first step firms can take is to closely
monitor firewalls, proxy, and other network logs to
identify unusual patterns of activity. These can
often be a telltale sign of off-system
communication.
This IT-based monitoring should also be
extended to communications within the
organisation. Although employees will rarely use
their corporate email address for communications
of this nature, it is certainly not unheard of. Any
signs of unwanted communication with other
organisations can easily be picked up, but firms
should also be aware of their employees emailing
certain documents to themselves.
Email is not the only communication medium
that should be tracked. Instant messages, chat, and
SMS messages could all equally contain sensitive
information or data, and firms should try to keep a
close eye on these platforms if they are able to.
Phil Beckett is a partner at Proven
Legal Technologies
www.provenlegal.com
Auditing actions
To gather this kind of information from their
employees, organisations may also want to
perform audits on individual machines. Not only
does this allow firms to see what devices have been
connected to the machine, but it also brings into
play users’ internet activity. This can be very
17
6/22/2015 3:30:04 PM
Victoria Jenkins:Layout 1
16/02/2012
09:59
Page 1
FORENSIC SERVICES
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Areas of expertise
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Legal highs
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Project1_Layout
27/01/2015 14:55
Page 1
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Griffin Forensics SJ WInter 2014_Rev 1.1 .indd 1
20/12/2014 17:20:15
6/22/2015 4:08:16 PM
EXPERT WITNESS
SUPPLEMENT
TECHNOLOGY
revealing, highlighting patterns of harmful
behaviour, such as viewing the webpages of
competitors or searching on job sites. Being able to
identify which employees are most at risk of
moving on can mean efforts to prevent data
breaches can be focused, and HR can direct efforts
towards keeping them on board.
Good information management is key, although
it is often overlooked, as it can restrict and disrupt
employees. The starting point is ensuring that
confidential data is kept confidential and that only
authorised people have access to it. Linked to this
is the ability to audit actions, ensuring that all
actions on a critical system (for example, customer
relationship management) are logged and date/
time stamped, so they can be tied to an individual.
Doing so allows an organisation to very quickly
point the finger if information does go astray. Key
functionalities such as ‘full export’ should also be
strictly restricted, reducing the chances of a leak
and the damage done if one does occur.
A key preventative measure that goes hand in
hand with this is good IT security. This involves
simple steps such as ensuring that there are no
back doors into the network that employees can
abuse, but can also stretch to a blanket ban on
personal USB devices and web-based email and
cloud services.
This range of monitoring, auditing, and security
activities is crucial, and must be approached with
caution and care. Organisations must respect the
privacy rights of their employees and make efforts
to ensure that they do not feel besieged. Making
sure employees know their activities are being
watched is often a good thing as it encourages
professional practice, though too much and a toxic
atmosphere can ensue.
Reactive action
When it comes to reactive actions following a data
breach, a company should focus on the ‘ABC’ of
successful investigation, namely:
Act immediately and preserve any potential
evidence;
Bring in the experts; and
Conduct a thorough analysis.
Step A means that any smartphones, tablets, or
computers used by the individuals concerned
should be taken out of circulation, not used at all,
and have a forensic image of them taken as soon as
possible.
This should also extend to network data
associated with the user and the logs of key
systems so that they can also be investigated.
Failing to do so could compromise any subsequent
investigation and restrict a firm’s ability to work out
what information went missing, when, and at
whose hands.
Step B suggests that professional forensic
experts should be brought in to ensure that
procedures are thorough and that the correct
protocol is followed – which can make or break an
investigation. Companies should also consider
getting appropriate advice from specialist lawyers,
who deal with such breaches on a daily basis and
can provide expert advice on whether
investigators or other professionals should be
brought in.
Finally, Step C involves a thorough analysis of a
wide variety of data. Internet artefacts, which can
reveal the use of web-based emails, cloud services,
and other forms of communication, should be the
first port of call. Next, USBs and other external
storage devices which have been connected to the
system should have their contents – past and
present – analysed where possible.
In addition, a picture of the files that have been
downloaded on to such devices needs to be
developed. Available log files should also be
reviewed to analyse what the individuals did and
when they did it. Finally, a more general search
across the data should be conducted to identify
any unusual activity that requires further
examination.
By combining a comprehensive set of
preventative measures with a quick and thorough
response protocol, firms can go a long way to
ensuring that they do not fall foul of damaging
data breaches when people choose to move on.
If employees are poached by rivals, any attempts
to share sensitive data can be spotted and
prevented at an early stage with the right
application of auditing, monitoring, and security
processes. Should a breach be detected, swift and
careful action must be taken, and, with the right
application of the ABC of successful investigation,
the damage done can be greatly reduced. SJ
In the everconnected world,
there are more
routes to transport
data and conspire
with others
19
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Drug/drink drive cases
Drugs and drug traces
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(2).pdf 1 12/3/2014 11:11:23 AM
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& amends_2014
body mapping
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FDS amends:Page template.qxd
phones
Electronic tagging (PID)
Fingerprints & documents
Firearms (incl. GSR)
Fires & explosions
Footwear/instrument/tool & tyre marks
Glass & paint
Toxicology (including prison samples)
17/02/2011
10:57 Page 19
Tachographs
Fraudulent & stolen vehicle exams
Vehicle accidents & reconstructions
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6/22/2015 4:09:00 PM
EXPERT WITNESS
SUPPLEMENT
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Making the most
of your expert
Richard Formby considers how to save costs and optimise the
quantum expert’s joint statement
E
xpert evidence is a valuable litigation tool
which, once deployed in the ever costconscious litigation arena, has to be
carefully managed in order to achieve maximum
impact at a proportionate cost.
Once a party has established breach and
causation, quantum is everything, and so good
communication with your quantum expert has to
be a ‘guiding star’ for successful outcomes.
Realistic estimate
Having carefully selected your expert, obtained a
realistic estimate of their likely costs for a report (as
required by the rules), and obtained permission to
rely upon that evidence, you will no doubt also have
gathered (potentially large quantities of) relevant
documents and witness evidence. Your client will
then be able to boast a claim, professionally
substantiated by a Civil Procedure Rules part 35
report.
Unfortunately, unless the parties and the court
have opted for a single expert (rare as a hen’s tooth
when it comes to quantum in serious personal
injury and clinical negligence litigation), the
process will typically now move to the service of
the expert evidence, expert meetings, and joint
statement.
How the expert evidence is served will
determine the area to focus on next. If there is
simultaneous exchange (which, with quantum
issues, is less common), it is particularly important
to explore whether both experts worked to the
same (or sufficiently similar) instructions and have
considered the same evidence.
With sequential exchange, there is now some
order to what could have been a ‘free for all’. There
are two influences on this: the tighter recoverable
costs regime, and the Civil Justice Council (CJC)
guidance 2014 on the use of expert evidence,
which has created some helpful ‘checks and
balances’.
Paragraph 61 of the CJC guidance requires that,
where the defendant’s expert’s report responds to
that of the claimant’s expert, it should focus on
areas of material difference. So, hopefully, no more
‘bulky’ reports from defendant’s experts repeating
background facts and financial analysis, but rather
confirmed areas of agreement and focused,
reasoned argument on key areas.
For those quantum experts insecure about their
role and influence, who have a tendency to hide
behind vast arrays of tables and repetitive,
sometimes unsubstantiated assertion, paragraph
61 will be rightly unnerving. But, hopefully, we will
see more instances of quantum experts merely
making their expert topic points and leaving the
advocacy to others.
Following on from this, paragraph 71 of the CJC
guidance provides clear recognition that in the
joint statement the claimant’s expert may need to
consider and respond to material, information, and
commentary included within the defendant’s
expert’s report.
These two areas of new guidance are most
welcome because they remind all experts to keep
focused on material issues and differences.
Richard Formby is an accountancy
expert witness and partner at
Monahans Chartered Accountants
www.monahans.co.uk
Vital point
Another vital point for all experts to consider is
how to address fundamentally different ‘cases’
advanced by the respective parties. Again, the CJC
provides clear, if little known, guidance. Paragraph
58 says: ‘Where there are material facts in dispute
experts should express separate opinions on each
hypothesis put forward. They should not express a
view in favour of one or other disputed version of
the facts unless, as a result of particular expertise
and experience, they consider one set of facts as
21
6/22/2015 3:31:46 PM
FORENSIC ACCOUNTANTS
RICHARD FORMBY FCA MAE
• Highly experienced Accountancy Expert Witness
• Flexible approach including initial reviews to
assess quantum issues
• Practised in high value, complex personal injury,
clinical negligence, fatal accidents, commercial
& professional negligence cases
• Instructed by claimants & defendants
He is a top-drawer expert on a complex case”
Contact Richard Formby on 01225 472800 or email [email protected]
www.monahans.co.uk
Fingerprint Analysis QTR 2014_Layout 1 13/01/2014 14:38 Page 1
PERSONAL INJURY
FINGERPRINT ANALYSIS
John Ridd CFIEHF FIOSH
Consultant Ergonomist
Highly experienced expert witness, providing a
specialist and professional ergonomics service in
musculoskeletal injury issues at work, especially
in relation to:

Back pain

Upper limb disorders/RSI

Shoulders/neck
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ASSESSMENT REPORT BRIEFING
EXPERT WITNESS
A fully independent consultancy
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in all aspects of fingerprint and crime
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Instructions accepted on behalf of both Claimant
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Expert. Initial telephone discussions on potential
cases can be held at no charge.
Tel:
01483 472050
www.jrp-ergonomics.co.uk
35 Woodlands, Horbury,
Wakefield West Yorkshire WF4 5HH
[email protected]
Telephone: Wakefield 01924 264900 (Office)
01924 276986 (Home) 01924 265700 (Fax)
JRP Ergonomics, West End, Woking, Surrey, GU24 9HS 22 www.solicitorsjournal.com
Peter M. Swann, FAE, FFS
6/22/2015 4:09:41 PM
EXPERT WITNESS
SUPPLEMENT
FORENSIC ACCOUNTING
being improbable or less probable, in which case
they may express that view and should give
reasons for holding it.’
In other words, your expert can, and must,
address their opinion on the respective cases, and
you need to make sure the opposing expert does
likewise.
This is the time to identify areas in your case that
require support by way of further witness
evidence, remembering the difficulties you may
have in obtaining permission to serve further
evidence (which does more than ‘amplify’ an
existing statement).
Where possible, get that evidence in place ahead
of the expert’s meeting, so your expert has
evidence rather than assertion to refer to. This can
have a ‘make or break’ influence on the outcome of
a claim.
Where important new issues are raised and/or
new evidence is introduced by the defendant’s
expert (particularly those involving complex
business situations or a lost business opportunity),
this may be the point for the claimant’s expert to
comment by way of a supplemental report. This
need not be a lengthy report; a good expert will
make this brief and focused. Again, this may
require swift action, but can help ensure that your
expert evidence addresses topics key to your
client’s case. The supplemental report may help to
avoid a lengthy joint statement process, which in
itself may form part of your argument when
seeking permission for the supplemental report.
The decision about which way to ‘meet’ or
‘respond’ to a new point or ‘curve ball’ from the
opposing party will depend upon whether your
expert can extinguish the point crisply in a short
letter or whether it might require discussion for
them to make the point – or even to allow your
expert to reveal a biased or over-rigid approach by
the other side’s expert in the joint statement itself
– remembering again that the CPR require an
expert to acknowledge evidence or opinion that
changes their opinion.
An expert who is reluctant to concede a
good point or consider an alternative factual
hypothesis puts themselves at risk of losing the
ear of the court.
Direct discussion
While it is, quite rightly, frowned upon for solicitors
and/or counsel to involve themselves directly in
the discussions between experts, it is healthy,
beneficial, and, in some situations, vital in terms of
costs management for the instructing solicitor to
‘pave the way’ for a good experts meeting and joint
statement process.
That is, of course, if experts’ discussions are going
to be beneficial and at a proportionate cost (so as
to meet the requirements of CPR practice direction
35.9(1). PD 35.9(3) requires the parties to provide
agendas. Indeed, there is nothing to stop you
inviting your expert to contribute to the process of
identifying the topics for an agenda. It seems very
likely that the expert’s contribution to this process
will be compatible with assisting the court as far as
possible and (consistent with your duties) your
client too.
Before embarking on the process of putting
together an agenda, you should invite your expert
to provide a bullet-point briefing on their fellow
expert’s evidence, probably as a precursor to a
conference with counsel, or three-way teleconference involving your client.
So, what have the experts discussed? While CPR
35.12(4) sets out that the content of the expert
discussions shall not be referred to at trial unless
parties agree, I have seen a trend for quantum
experts to take this a step further.
Some experts seek an undertaking that the
content of all discussions, drafts of joint
statements, and similar matters remains
confidential between the experts. My view is that
the expert should resist agreeing to such a
restriction. This is not through a desire to involve
instructing solicitors in the discussions and joint
statement process, which would be inappropriate,
but rather I am reluctant as an expert to agree to a
restriction that is not expressly set out within CPR
part 35 or relevant guidance.
Why? Because one needs to retain ‘ways
and means’ to deal with an unreasonable expert
that one may come across, to avoid the joint
statement becoming unnecessarily protracted,
costly, or worse.
To get the best for your client from a joint
statement process, keep communicating with your
expert. Make sure they have the information and
evidence that they need and that they brief you as
necessary.
Consider if extra witness statements will help.
What about the use of a supplemental report or
commentary letter from your expert? Don’t shy
away from discussing agenda topics – a good
expert will welcome your views, as they may not be
party to all issues in the case and where settlement
proposals may be leading.
Also, a focused agenda should keep costs down,
and don’t forget that if there are very different
hypotheses being advanced, both experts should
now be addressing all of them – yours and theirs. SJ
An expert who
is reluctant to
concede a good
point is at risk of
losing the ear of
the court
23
6/22/2015 3:31:59 PM
CONSULTANT CARE SJ QTR_Layout 1 14/05/2015 11:18 Page 1
MEDICO LEGAL
MEDICO LEGAL
Mr Nikhil A Shah
Consultant Orthopaedic
& Trauma Surgeon
FRCS (Tr & Orth), MCh(Orth) Liverpool, FRCS (Glasg),
MS(Orth), DNB(Orth) MBBS(Hons)
Secretary - Jayne Bailey, Consultantcare
Spire Hospital, Whalley Range, Russell Road
Manchester M168AJ.
[email protected]
T: 01613933053 Fax: 01618501270
NHS - Wrightington Wigan & Leigh Hospitals NHS Foundation Trust
Clinical Director Trauma, RAEI, Wigan 2010-2012
Senior Honorary Associate Lecturer Edge Hill University
Special Interest- Pelvic & Acetabular Fractures, Primary & Revision
Hip and Knee replacements, long bone and joint articular fractures,
periprosthetic fractures around joint replacements, early arthritis,
osteotomy for young adults with dysplastic hip problems.
Medicolegal Practice
Clinical negligence reporting within specialist area of
practice -primary and revision hip and knee replacements, pelvic
and acetabular fractures, lower limb long bone and periarticular
trauma and related areas
Personal injuries arising from RTA, trips, slips, falls, major trauma,
lower limb and pelvic fractures, soft tissue injuries periprosthetic
fractures.
Claimant11:16
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single joint expert 45:45:10 approximately
ge template.qxd 21/05/2014
Page 19
Detailed CV on request.
Annual updated Medico-legal Training
MEDICO LEGAL
MEDICAL
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Brain & spinal injury specialists Equip2Speak offer through its
CUBS accredited experts, a range of services to solicitors and
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Lisa Humberstone (SLT)
M: 07966 143738
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M: 07960 753248
W: www.equip2speak.co.uk
Based: NW
Coverage: UK
6/22/2015 4:10:12 PM
EXPERT WITNESS
SUPPLEMENT
MEDICO LEGAL
Learning from the
Sally Clark case
Peter Feldschreiber and Carl Peck discuss what can be done to
prevent future miscarriages of justice in cases of sudden infant
death syndrome
I
n 1999 Sally Clark was convicted in the crown
court at Chester of the murder of her infant
sons, Christopher and Harry. In the absence of
crucial evidence that was later forthcoming,
Clark’s first appeal to the Court of Appeal was
dismissed on 2 October 2000, based in part upon
judicial endorsement of a prosecution witness’s
opinion that the chances of two successive
natural infant deaths is one in 73 million.
On 2 July 2002, the Criminal Cases Review
Commission referred Clark’s case back to the Court
of Appeal as unsafe due to newly introduced
evidence of natural causes of death. The court
confirmed the convictions to be unsafe and set
them aside. Mrs Clark was released, but sadly never
recovered from her ordeal of three years’
imprisonment, and died in 2006.
The new evidence comprised microbiological
tests showing evidence of lethal infections in both
infants.
Here, we consider the clinical, epidemiological,
and statistical evidence presented during the
prosecutions, and the subsequent impact on UK
jurisprudence of one of the most serious
miscarriages of justice in the English courts.
Circumstantial similarities
At eleven weeks of age, Clark’s first child,
Christopher, died suddenly on 13 December 1996.
Home Office pathologist Dr Williams concluded
that the cause of death was a lower respiratory
tract infection, noting minor resuscitation trauma.
The case was treated as a case of sudden infant
death syndrome (SIDS or ‘cot death’).
On 26 January 1998, Harry, Clark’s second child,
died suddenly aged seven and a half weeks. Dr
Williams concluded the resuscitation injuries to be
consistent with vigorous shaking as the likely cause
of death. Williams’s findings led him to revise his
opinion of Christopher’s cause of death as
suggestive of smothering.
Clark and her husband were arrested on
suspicion of murdering both infants.
Absent compelling evidence, and in spite of
defence testimony that Clark’s infants were well
cared for and loved by their parents, the
prosecution elicited weak circumstantial
similarities in the detailed history of the death of
each child, suggesting that they had died from
deliberately induced injury.
Three other expert witnesses testified for the
prosecution: Professor Sir Roy Meadow,
pediatrician (St James’s University, Leeds); Dr
Keeling, paediatric pathologist; and Professor
Michael Green, forensic pathology (University of
Sheffield).
Expert evidence for the defence was given by:
Professor Berry, paediatric pathologist, a
recognised expert in SIDS; Dr Rushton, paediatric
and peri-natal pathologist; Dr Whitwell, forensic
pathologist; Professor David, paediatrician; and
Professor Luthert, ophthalmologist.
Peter Feldschreiber, pictured,
is a barrister at 4 New Square
ww.4newsquare.com and
Carl Peck is the founder of
pharmaceutical advisers NDA
Partners
www.ndapartners.com
25
6/22/2015 3:33:54 PM
EXPERT WITNESS
SUPPLEMENT
MEDICO LEGAL
Lay judges in
criminal trials
should sit with
expert technical
assessors
There were disparate conclusions by doctors at
the trial. Dr Williams argued in the case of
Christopher’s death there was a ‘possibility that the
child was smothered, a possibility in a broad range’.
Professor Meadow rejected lethal respiratory
infection and SIDS, concluding that Christopher’s
death was not natural.
Professor Green, and Drs Keeling, Berry, and
Rushton, all considered the cause of Christopher’s
death to be ‘unascertained’. Professor David
considered that possible causes of death were
idiopathic pulmonary haemosiderosis and
suffocation.
These expert witnesses disagreed on the post
mortem findings in the eyes, lungs, brain, and
spine in respect of each death.
Obvious factors which were of relevance to the
appeal included:
The changed opinion of Dr Williams that the
respiratory findings could not have led to
Christopher’s death;
The crown’s acceptance of Professor Luthert’s
attribution of the intra-retinal haemorrhaging
of the eyes to the result of an error in slide
preparation;
Disparate expert opinions regarding the
assignment of the deaths as unnatural; and
The validity of Dr Meadows’s opinion of the
statistical unlikelihood of two successive infant
deaths by natural causes.
used to evaluate drug-induced adverse events and
environmental hazards. It is also employed in the
assessment of causal linkages with injuries in the
civil courts. Statistical analysis of available data can
sometimes be employed.
In our view there is a strong case for its judicious
use in the criminal courts. However, as Robyn Lucas
and Anthony McMichael cautioned in the Bulletin of
the World Health Organisation in October 2005, ‘any
resulting causal explanations must be viewed as an
aid to judgement, not as arbiters of reality’.
It is helpful to consider two overlapping
epistemological frameworks which may be
employed by epidemiologists and
pharmacologists to evaluate causation of
biologically induced injury, namely the Bradford
Hill criteria for causation and probability analyses.
The Bradford Hill framework for causation was
developed in 1965 by the eminent statistician and
epidemiologist Sir Austin Bradford Hill. He
described the criteria for persuasive linkage of a
given cause (in this case SIDS or murder) and an
observed outcome (infant death):
Contemporality between the outcome and the
causative explanation;
Effect of re-challenge and de-challenge of
possible cause(s) on the outcome;
Plausibility of the putative mechanism of
causation; and
Presence of similar instances leading to similar
outcomes.
Probability analyses
This approach can be integrated into the Hill
framework to estimate the likelihoods of competing
causal explanations for an observed outcome.
Applied here, the approach relies upon explicit or
implicit estimates of the probabilities (called ‘prior’
probabilities) of each possible cause (SIDS, murder)
accounting for the outcome (sudden death).
When more than one sudden death occurs in a
single family, it matters how the ‘prior’ probabilities
of SIDS and murder are taken into account. The Sally
Clark case is illustrative of incorrect and correct
incorporation of probability analyses in assessing
the causes of the deaths of Clark’s sons:
Incorrect (two errors): In changing his first
opinion, Meadows retrospectively assumed the
‘prior’ probability of SIDS in Christopher to be 1
in 8,500 and calculated the probability of SIDS
accounting for the deaths of both of Clark’s
sons (1/8,500 x 1/8,500 = 1 in 73 million) based
on the incorrect assumption that the
occurrence of SIDS is a random, independent
event. Hearing expert testimony of such an
extreme improbability of such occurrences in
one family may have misled jurors to conclude
a greater likelihood of double murders.
Correct: When the occurrence of a second SIDS
death in one family is correctly assumed to be
non-randomly higher, based upon knowledge
of correlating factors (hereditary traits,
epidemiological clustering in families), the
probability of two SIDS in one family can be
calculated according to Bayes’ rule. This involves
incorporating the probability of the first SIDS
occurrence (1/1,300) with the higher probability
of the second SIDS (1/100) along with the
probability of single (1/650,000) and still lower
frequencies of double infant murders (1/1.65
million) in one family.
Although information on each Hill criterion may
not be fully available, the approach is commonly
Using this approach, the likelihood of the deaths
being due to SIDS is 6 in10.
6/22/2015 3:33:54 PM
EXPERT WITNESS
SUPPLEMENT
MEDICO LEGAL
The court reviewed the statistical testimony of
Professor Roy Meadow and concluded that this
figure had unduly influenced the jury. Following
the trial, the Royal Statistical Society (RSS) issued a
public criticism of the expert evidence given by
Professor Meadow and considered his approach
was statistically invalid.
The criticism noted that no empirical
justification for the assumption of randomness
was provided in the case, but there were a priori
reasons for the assumption of randomness of SIDS
to be false, including unknown genetic or
environmental factors that predispose families to
SIDS, so that a second case within the family
becomes much more likely. The statement from
the RSS read: ‘The Court of Appeal has recognised
these dangers (R v Deen (1993), R v Doheny and
Adams (1996)) in connection with probabilities
used for DNA profile evidence, and has put in
place clear guidelines for the presentation of such
evidence. The dangers extend more widely, and
there is a real possibility that without proper
guidance, flawed frequency estimates and
incorrect statistical analyses presented by an
“expert” in court mislead the jury in ways that are
very prejudicial to defendants.
‘Society does not tolerate doctors making
serious clinical errors because it is widely
understood that such errors could mean the
difference between life and death. The case of R v
Sally Clark is one example of a medical expert
witness making a serious statistical error, one
which may have had a profound effect on the
outcome of the case.
‘Although many scientists have some familiarity
with statistical methods, statistics remains a
specialised area. The Society urges the courts to
ensure that statistical evidence is presented only by
appropriately qualified statistical experts, as would
be the case for any other form of expert evidence.’
The third key issue leading to the referral to the
Court of Appeal was the failure by the prosecution
to disclose the microbiological results which had
been known to Dr Williams.
Throughout the trial there had been significant
and ongoing problems in the investigation of the
deaths. Standard protocols were not followed and
essential steps such as routine dissection and
histology were omitted, which prevented
verification of alleged autopsy findings. Also, a
number of potentially important diagnoses and
conclusions were altered over time.
The court concluded that the very detailed
review of the evidential and interpretive
differences between the prosecution and defence
witnesses, particularly as regards the statistical
error and non-disclosure of the microbiological
reports, meant both Christopher and Harry’s
deaths were from natural causes. The verdicts were
unsafe and were quashed.
Fundamental flaws
Sally Clark’s case raises some very disturbing issues
regarding the admissibility of evidence and the
evaluation of causation. It was also worrying that
the judges at the original trial and the first referral
to the Court of Appeal failed to understand the
fundamental technical flaws in the statistical
evidence by Sir Roy Meadow. These may be
examples of relatively common problems at trial
with highly specialised technical medical issues
such as the diagnosis of SIDS. We suggest that lay
judges in criminal trials should sit with expert
technical assessors who would be qualified to
opine on the weight, credibility, and technical
accuracy of such evidence.
The Law Commission has published a
comprehensive report on this issue (Law Com 325).
The commission recommended a new statutory
admissibility test, which would provide that expert
opinion evidence is admissible in criminal
proceedings when it satisfies a ’reliability test’. This
would provide that if there is any doubt on the
matter, expert evidence presented as evidence of
fact should be treated as expert opinion evidence.
Trial judges should be provided with a single list
of generic factors to help them apply the reliability
test and these factors should be set out in the
primary legislation containing the test. The trial
judge should take into consideration the factors
which are relevant to the expert opinion evidence,
and any other factors they consider to be relevant.
Also, criminal courts should have a limited
power to disapply the reliability test so that it does
not have to be applied routinely and unnecessarily;
equally, the power to disapply must not be such
that the reliability test becomes only a nominal
barrier to the adduction of unreliable expert
opinion evidence.
As regards the impact of expert evidence on
jury considerations, the commission proposed
that the reliability hearing should ordinarily take
place before the jury is sworn but, exceptionally,
it should be possible to hold a hearing in the
absence of the jury.
Unfortunately, these proposals have not
yet been accepted or put on to the legislative
agenda. SJ
Incorrect statistical
analyses presented
by an ‘expert’ in
court mislead the
jury in ways that
are very prejudicial
to defendants
27
6/22/2015 3:33:54 PM
r ad.qxp
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BIRMINGHAM, BRISTOL, CARDIFF, LEEDS, LIVERPOOL, MANCHESTER, MAIDSTONE, NEWCASTLE, NOTTINGHAM, SHEFFIELD
PERSONAL INJURY
Mr. M. W. McLain.
M.D., F.R.C.S.
Consultant in
Accident
and Orthopaedic
Surgery
12 Redhouse Square
12 Redhouse Square
Duncan Close
Duncan Close
Northampton
Northampton
NW3 6WL
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Tel: 01604 646412
Tel: 01604 646412
Fax: 01604 646413
Fax:
01604 646413
Email
[email protected]
PERSONAL INJURY
Mr Alexander J M Birnie
MB FRCS
Consultant
Orthopaedic
Surgeon
Expert in virtually
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6/22/2015 4:11:00 PM
EXPERT WITNESS
SUPPLEMENT
PERSONAL INJURY
Helping people to
help themselves
Assistive technology has a key role to play in the rehabilitation of
victims, says Paul Doyle, but such solutions need to be more than
an afterthought in personal injury claims
T
he inclusion of an effective assistive
technology provision is an important
factor to consider when pursuing a
personal injury or medical negligence claim.
However, there are a number of issues that need
to be considered in a timely manner in order to
ensure that any assistive technology
recommendations made during the process are
able to fully maximise a client’s capacity to live as
independently as they want.
Wide spectrum
Assistive technology (AT) is any product or service
designed to enable independence for disabled and
older people. It incorporates a wide spectrum of
products and/or services that have applications
across a broad range of needs in a disabled
person’s life, from alternative and augmentative
communication (AAC) devices to wheelchairs.
For many professionals, AT tends to be
associated with the technologies they encounter
when engaged in their professional roles. For
example, to a carer delivering personal care to an
individual with a spinal cord injury, it could be a
wheelchair, hoist, or postural management
equipment. Similarly, to a teaching professional, AT
might be considered as something that enables a
child with cerebral palsy to access the computer in
a classroom setting or that enables them to
communicate effectively with their teachers and
fellow students.
In general, the provision of AT tends to be the
responsibility of professionals employed in the
health, social care, and educational sectors.
Underpinning all of these is a group of
professionals who are experts in the field of AT;
they have grounding in and an understanding of
the technical aspects of the devices, hardware, and
software that are used in concert with practical
support as part of a multidisciplinary response, and
their mission is to maximise a person’s capacity to
live as independent a life as possible.
As AT is often considered to be part of a
clinician’s, teaching professional’s, and therapist’s
‘toolkit’, it is therefore incumbent on the AT expert
to understand fully the interventions, their reasons
for being implemented, and how any
recommendations made by the AT expert may
impact on those made by other members of the
multidisciplinary team supporting the client.
The AT expert witness is therefore charged with
taking into consideration the needs and
aspirations of the client and their loved ones, and
the recommendations of other experts, and writing
a report that sets out their recommendations while
integrating them into a realistic context, usually
within the client’s residential setting.
As AT has such an extensive footprint and crosses
so many disciplines, the AT expert witness is often
asked to attempt to ‘glue together’ seemingly
disparate and unconnected technologies into one
convenient and effective integrated solution.
Indeed, it is not unusual, for example, for a
client’s powered wheelchair to have the capacity to
provide the user with a control mechanism that
enables them to access their home computer, or to
control their home environment, including doors,
lighting, curtains, and home entertainment
equipment.
Similarly, many communication aids are built on
computer-based platforms with additional
functionalities that enable a user to control access
to the internet and make telephone calls using the
same device.
In their report, the AT expert witness needs to
carefully consider how such technologies may be
integrated in order to create bespoke solutions
that enhance a person’s independence while
remaining as reliable and safe as possible.
Unfortunately, it is often the case that this aspect
of a client’s provision tends to be considered after
other experts have been instructed, have carried
out their assessments, and have written their
reports. This sometimes results in AT assessments
of need and the provision of reports taking place
when a client’s property has already undergone
Paul Doyle is the head of access,
research and development at
Hereward College
www.hereward.ac.uk
29
6/22/2015 3:35:42 PM
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Untitled-2 1
6/16/2015 12:13:27 PM
EXPERT WITNESS
SUPPLEMENT
PERSONAL INJURY
the adaptation process and been designed, or even
completed.
This has sometimes led to the need to retrofit AT,
with all of the attendant disruption and
compromise in functionality and aesthetics that
such an outcome engenders.
A practical example of how to counter this would
be to instruct an AT expert at the beginning of the
process in order that they can work with
accommodation experts and other professionals to
ensure they include the provision of AT in the
design stage of any property adaptation or build.
Integral role
Another issue faced by the AT expert is one that
arises when recommending an AT-based solution.
It can sometimes be considered in a legal context
that there exists an ‘either/or’ approach to AT
provision or human support, in that AT is
sometimes perceived as a direct replacement for
care and thus may inevitably impact on a final
financial settlement.
However, it is not as simple as that. It is not
unusual for a person who is in the early stages of
their rehabilitation post injury (or, in the case of an
individual with a disability from birth, as they
mature) that most of the individual’s support is
provided via carers in the form of practical support
and, as a result, the role of AT initially takes a
secondary position.
As the individual undergoes rehabilitation or
participates in their education, AT often plays an
integral role in maximising their potential for
independence. The capacity to alter or reduce the
amount of human support as a person’s skills and
confidence in using an AT-based solution increases
is essential in supporting the client. Therefore,
when undergoing such processes, both types of
support need to be in place concurrently.
Even when the client is a mature individual, no
longer obliged or indeed wanting to be involved in
education, the setting of pragmatic and achievable
goals related to the implementation and use of AT
is crucial. By doing so, the client is able to build on
success and is therefore more likely to successfully
adopt and continue with their use of AT.
In some instances, such goals may appear
minimal, or indeed (from an external perspective)
redundant (if one has carers in place). But it is very
much the case that if a person is able to do
something for themselves independently, no
matter how apparently insignificant that action
may appear, this is widely accepted as having a
substantial and positive impact on their
psychosocial wellbeing and also on the wellbeing
of their loved ones.
An effective transition to independence is
therefore best facilitated by the multidisciplinary
team supporting the client and underpinned by
the setting of personalised goals based on an
individual’s current and future aspirations and
capabilities, and should be considered an
important aspect of an AT intervention.
Bespoke programme
To that end, a mechanism that might be employed
to support a young person’s transition to
independence is the recently introduced
education health and care plan (EHCP).
EHCPs are intended to replace statements of
special educational need. They identify
educational, health, and social needs and set out
the support required to meet those needs.
An aspect of EHCP provision intended to address
the specialist educational needs of disabled young
people originates from the Special Educational
Needs and Disability Regulations 2014. In the
accompanying code of practice it states: ‘Highquality teaching that is differentiated and
personalised will meet the individual needs of the
majority of children and young people. Some
children and young people need educational
provision that is additional to or different from this.’
Taking the notion into consideration that
additional or different educational provision is
something that may be included in a young
person’s provision, I have latterly suggested in my
reports that it is good person-centred practice to
include a client’s AT provision among the teaching
and learning resources available to them, including
the AT they have at home.
If a client has an aspiration to live independently
then it makes sense to identify the effective use of
home-based AT as part of their goal setting within
a bespoke academic programme.
EHCPs are an ideal vehicle to support this
method of working collaboratively and to help
facilitate relationships between home and school/
college.
However, it is essential that someone is in a
position to ensure such an approach is followed
through and, with the current economic climate
putting increasing pressure on statutory services’
resources, it would be further good practice to
recommend in an AT report that a case manager or
a similar professional be provided with the
appropriate authority and financial resources to
coordinate and monitor such an approach.
That said, it is important to recognise the
value of including and setting pragmatic goals
for AT adoption and use, regardless of an
individual’s age. SJ
The setting of
pragmatic and
achievable goals
related to the use
of AT is crucial
31
6/22/2015 3:35:55 PM
Julie Jennings 1-4 Jan 2012_Page template.qxd 21/05/2014 11:38 Page 1
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FEATURE
DISPUTE RESOLUTION
How many routes
to resolution?
Mediation and other forms of ADR will become increasingly popular
as the impact of rising court fees begins to bite, says Chris Makin
T
here are many ways to resolve disputes,
and it falls to the skilled legal practitioner to
choose the right one. It is no longer the case
that going to court is the only way.
In criminal cases, court is the almost inevitable
route. But let’s not be so hasty. If, for example, fraud
is detected, going to the police is not necessarily the
right choice to make. If a business has suffered
financial fraud – say, an accountant who has stolen
cash, falsified records, or run a scam with suppliers
– the size of the fraud can often have brought the
enterprise to the brink of insolvency.
The urgent need then is to recover the money –
fast. Reporting matters to the police can result in
them seizing as evidence the very records that are
needed to pursue the offender. You need a skilled
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help confront the offender for restitution, without
destroying the evidence needed if a formal claim
must be made, or if a criminal prosecution becomes
necessary.
Big ticket
In big ticket family cases, a financial dispute
resolution (FDR) is commonplace. A senior family
judge hears the evidence in submissions, makes a
finding, and encourages the parties to go away and
agree matters. If that fails, the whole case is heard
before a different judge for a binding decision.
Members of Resolution are keen on collaborative
law, where both spouses and their solicitors do their
best to agree matters in meetings. Since the lawyers
must stand down if discussions fail, and since the
parties must instruct different lawyers at additional
cost, everyone is committed to reaching a
settlement.
Mediation is good in family matters. Specially
trained family mediators hear both sides in a series
of meetings, and help find common ground. In most
cases the parties are supposed to attend a
mediation information and assessment meeting
(MIAM) before they can have a hearing, though
adoption of this is patchy in some areas. This, surely,
is the year when mediation will finally take off as the
Jackson reforms bed in, especially with hugely
increased court fees.
In civil litigation, the choice is wide. There is always
the option of talking to the other side, and many
personal injury practitioners are fond of the joint
settlement meeting.
Arbitration is available, and for some cases it is
ideal: one can have a fair hearing, before an
arbitrator of the right profession to understand the
issues, and with a legally binding decision, and for
big cases it is far quicker than waiting for a High
Court hearing. But arbitration can be so formalised
that it takes just as long as court, and you have to
pay the arbitrator rather more than the court fee.
Formal hearings
Expert determination (ED) should not be
overlooked. It is a cheaper and faster form of
arbitration; the expert is chosen for his appropriate
experience, and the process is carried out largely on
paper, though formal hearings can be held if
necessary.
There is also early neutral evaluation, where,
similar to ED, experts receive submissions from the
parties and their advisers, and then issue a nonbinding determination. If they can’t agree matters
after that, a mediation can be conducted to agree on
what is left.
There are many ways to skin a cat.
Let me close by telling you about a wonderful
experience I had recently. In a big dispute over
professional negligence, the parties wanted two
mediators: a lawyer and an accountant. The lawyer
they chose was Sir Alan Ward, recently retired as a
Court of Appeal judge, now a mediator and
chairman of the Civil Mediation Council. But,
although he had always been very supportive of
mediation in his judgments, he had not yet done a
mediation.
The accountant mediator they chose was yours
truly, and I have done almost a hundred mediations.
Do you know, though, Sir Alan was wonderful: wise,
well-informed of the procedure and the case, and
with a soothing bedside manner. And never once
did he revert to making judgments. The whole
experience was a delight. Sir Henry Brooke became
a very busy mediator when chairman of the CMC,
and I predict an equally bright future for Sir Alan. SJ
Chris Makin is an independent
forensic accountant, mediator and
expert determiner
www.chrismakin.co.uk
There are many
ways to skin a cat
33
6/22/2015 3:40:33 PM
Untitled-2 1
6/16/2015 11:56:47 AM
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FEATURE
DNA DEFENCE
The good, the bad,
and the ugly
James Clery considers some of the main changes in DNA forensics
over the past two decades
I
have worked in forensics for almost 20 years
and have witnessed many developments in the
industry – some good (significant changes in
the technology used), some bad (the demise of
the Forensic Science Service (FSS)), and some ugly
(the role of experts in court).
James Clery is the managing
director at DNA Defence Ltd
www.dna-defence.co.uk
The lack of R&D
is leaving the UK
behind Europe, and
trailing globally
Faster turnaround
First: the good. The recent TV dramatisation that
was based around Sir Alec Jeffreys’ s discovery of
DNA fingerprinting (Code of a Killer, ITV) shows
how far we’ve come since the first 1986 DNA case.
We now have better technology (faster
turnaround), automation (less chance of human
error, mix ups, and contamination), and better
software (more robust interpretation of DNA
profiles and statistical weighting). The introduction
of DNA17 profiling in 16 DNA areas to bring the UK
in line with Europe means increased discrimination
and sensitivity, but also more mixtures and transfer
interpretation issues.
Second: the bad. Over the years as a defence
expert, I always felt most comfortable at the FSS;
from their professionalism, dedication, and duty, to
utilising forensic science for specific needs. Plus,
they dictated to the customer (the police) what
they wanted examined; they weren’t treated like a
testing laboratory like today.
Since its closure we have lost decades of
invaluable expertise and irreplaceable experience.
When I first started as a criminalist in New York in
the 1990s, techniques, by today’s standards, were
limited, but developments over the following years
gave a breadth that newbies today won’t
appreciate.
If the loss of expertise is put to one side, the loss
of the FSS meant the loss of fundamental research
and development (R&D). When working overseas,
the UK was seen as the leader in the field: no
longer.
The FSS was losing money, but it was never
meant to make money. Plus, laboratories were
forced to release the fruits of expensive R&D to
commercial laboratories in order to level the
playing field and not disadvantage the customer
(the police) when choosing which supplier to use.
Today, the lack of R&D is leaving the UK behind
Europe, and trailing globally. There is no incentive
to do R&D.
Crown experts
Finally, the ugly. This is concerned with conduct at
court. Crown experts often produce a report
without a defence proposition upon which to
assess, via Bayes’ theorem, which version of events
may be more likely given the evidence provided.
My concern is when, even with a defence
hypothesis, the crown expert favours the
prosecution hypothesis which is later shown to be
unsupported. In a recent case of alleged sexual
touching, following discussion with two crown
experts (on statistical interpretation and DNA
transfer), the statistics were dropped as unreliable
on day two, and on day three the crown expert
decided that the defence proposition (unchanged)
was now viable.
The information had not changed, just
expectations. The case was dropped, as there was
no possibility the jury could favour DNA transfer
based on allegations versus innocence.
This caused considerable inconvenience and
wasted court time, which could have been avoided
with pre-assessment. Whose fault was it? The
prosecution? The experts? The system? Is it the
crown experts’ job to suggest alternatives?
In 2013, a DNA conference in Rome discussed
the access of courts to an independent body to
evaluate the forensic evidence and opinion in the
event of disagreements. I find that crown experts’
opinions, even from the same laboratory, vary
wildly. Each laboratory does things differently,
using different criteria for interpretation of data.
Each expert is biased by their knowledge and
experience.
So what is the answer? Rectification? A similar
body to review and determine how much weight
to place on an apparent DNA match and transfer?
For now, one solution I consider viable is to have
every crown report subject to a full defence review
prior to being issued. Further information,
clarification, and discussions can be had before
trial and not while sitting outside court. SJ
6/22/2015 3:39:09 PM
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Malcolm James is a former Health and Safety Executive principle specialist inspector who has
over 32 years experience dealing with safe working at heights, including over 12 years acting
as an independent expert witness in civil and criminal proceedings.
MEDICO LEGAL
January
2015Mould
Dr Graham
38
Turner Rise
Consulting Rooms
55 Turner Road
Colchester
Essex, CO4 5JY
01206 752888
FALLS/FALLING OBJECTS
MBChB, MRCGP, DRCOG, FFSRH, FRIPH
l Adverse Drug Reactions
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l Specialist in Toxicology
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1/28/2015
Page 1
Academy of Experts
Member of Expert
Witness Institute
Consultant Surgeon Trauma
Orthopaedics
[email protected]
www.expert-evidence.com
15:30
Turner Rise
Consulting Rooms
Mr. Thomas
[email protected] or
MEDICAL
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Expert Evidence Limited Dr Thomas Walford
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In the last 20 years, I have prepared over three thousand reports in relation to
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I am on the UK Register of Expert Witnesses. I have been approved by the
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Consulting rooms, 10, St John St, Deansgate, Manchester M3 4DY
Accuvision Laser Clinic, 42-43 New Kings Rd, London SW6 42S
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Secretary: Kathie Davies Tel: 07870 685 825 Email: [email protected]
Expert Witness Supplement Spring 2015 159/25 SJ
6/22/2015 4:38:56 PM
FORENSIC SCIENCE
MEDICAL
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Hairs/Fibres
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We are widely acknowledged
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Paternitytest/Interpretation
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We areconsultancy.
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The first forensic company registered to ISO/IEC 9001:2008. Opinion on Crown
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experts, Bond Solon
Cardiff University
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to ISO/IEC
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Charteredexperts,BondSolonCardiffUniversityExpertWitnessCertified,extensiveexperienceofallCrown
re-testingtoISO/IEC17025:2005.
Chartered experts, Bond Solon Cardiff University Expert Witness Certified,
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Tel: 020 7631 1632 Fax: 020 7323 3487
National DNA Database protocols, university lecturers, directors/committee
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extensive
experience
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and
Charteredexperts,BondSolonCardiffUniversityExpertWitnessCertified,extensiveexperienceofallCrown
committeemembersofprofessionalbodies,publishedandcited,objective,clearandhelpful.
[email protected]
National
DNA
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university
directors/committee
a broker. Complex
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Work
performed
in houseprotocols,
by our expertswe are NOTlecturers,
providers,laboratoryaccreditation/qualityandNationalDNADatabaseprotocols,universitylecturers,directors/
Workperformedinhousebyourexperts-weareNOTabroker.Complexandurgentcasesareourspeciality.
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weekends and
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6575771
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Weworkweekendsandeveningstokeeptodeadlines.
DNA Defence Ltd, Queen Square House, 18-21 Queen Square, Bristol BS1 4NH
[email protected] W dna-defence.co.uk Co. Reg. No.6575771
DX 7806 Bristol T 0117 370 2727 F 0117 911 8583
DNA Defence Ltd,QueenSquareHouse,18-21QueenSquare,BristolBS14NH
E [email protected] W dna-defence.co.uk Co. Reg. No. 6575771
DX7806BristolT01173702727F01179118583
[email protected] W dna-defence.co.uk Co. Reg. No.6575771
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Mr Aruni Sen
Professor Watson has over 30
years of experience in his field
and written over 1200 legal
medical reports on gastrology,
endoscopy, heptology and food
poisoning cases.
8 Chetwyn Court,
Gresford, Wrexham,
LL12 8EG
Contact details:
Simona Florescu (secretary)
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01603 593959
Professor Watson
[email protected]
01603 597266
01481 724 081
[email protected]
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N&S SJ EPG:Layout 1
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CLASSIFIED.indd 39
39
6/22/2015 4:38:57 PM
Index to Advertisers
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DRUGS
Dr Graham Mould.......................................38
Independent Drug Monitoring Unit....35
EMPLOYMENT
GMR Consulting..........................................37
FIRE & EXPLOSION
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Hawkins.........................................................10
Monahans.....................................................22
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Manderstam Group Consulting.............12
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GMR Consulting..........................................37
Malcolm James Consultancy..................38
BUILDING & CONSTRUCTION
FINANCIAL SERVICES
GVA..................................................................10
Kings College London..................................8
Complyport..................................................20
Expert Evidence Limited..........................38
FHDI (Forensic Handwriting and
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Forensic Document Services Ltd...........20
DENTAL
DentoLegal...................................................38
Fingerprint Analysis...................................22
MEDICAL
Chris Makin......................................................4
ARCHITECTURE
Emmerson Associates...............................20
Victoria Jenkins...........................................18
HANDWRITING & DOCUMENT
EXAMINATION
Bracey, Dr Paul.............................................38
SURVEYING
BARRY J CROSS FCIOB FRSH MRICS MCIH Chartered Building Surveyor
A chartered
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PRODUCTS & SERVICES
 Expert Witness reports for construction disputes  Claimant and Defence Expert Witness – Civil and criminal litigation
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BARRY CROSS IS AN ACCREDITED EXPERT ON CONSUMER MATTERS AND HAS ASSISTED AND
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Grenville House, 322 Stratford Road, Shirley, Solihull, West Midlands B90 3DN
Telephone: 0121 693 1993 Fax: 0121 693 1994 Mobile: 07970 026386 Website: www.barryjcross.co.uk
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Expert Witness Supplement Summer
20159:41:19
SJ 159/25
11/29/2012
AM
6/22/2015 4:42:25 PM
Index to Advertisers
Eric Freelander.............................................15
Pilgrim Enterprises ....................................32
Plowman, Dr P N..........................................39
Starke, Dr Ian................................................24
Turner Rise Consulting Rooms...............38
MEDICO LEGAL
Consultant Care...........................................24
Dr Peter Garrard..........................................15
Equip2Speak................................................24
Julie Jennings ..............................................32
Meleagros Surgical Ltd.............................24
Mr Aruni Sen.................................................38
Mr Bernard Garston....................................39
Professor Alastair J M Watson.................39
Professor Charles Claoué.........................35
RSW Medicolegal Ltd....................................4
NEUROPSYCHOLOGY
Dr Christopher Plowman.........................42
NOISE, VIBRATION &
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Shaun Murkett.............................................42
ORTHOPAEDICS
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Paul Rose........................................................38
PSYCHIATRY
Anglo European Clinic..............................14
Dr Gareth Vincenti......................................12
N & S Consultants........................................39
PSYCHOLOGY
Midlands Psychological Services..........14
ROAD TRAFFIC
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Gerald Eve LLP................................................8
Grant Wright Associates...........................12
Insepes..............................................................8
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41
6/22/2015 4:42:26 PM
Dr C R Plowman SJ HPGh:Layout 1
24/01/2013
16:41
Page 1
NEUROPSYCHOLOGY
Dr Christopher R Plowman
BSc MSc Clin Psych D CPsychol AFBPsS
Consultant Neuropsychologist
I specialise in the neuropsychological assessment of the cognitive, emotional and behavioural
consequences of Acquired Brain Injury in adults following road-traffic accidents, assaults, anoxia,
or exposure to toxic substances. I have experience in the assessment of disorders of mood,
neurotoxicology, epilepsy, drug and alcohol misuse, tumours, HIV, PTSD, and in the areas of
Personal Injury, Occupational Health and Clinical Negligence.
I am a recognised Expert by Cardiff University Law School and Bond Solon, and I am trained in the
legal aspects of report working, giving evidence in Court and the responsibilities of a Single Joint
Expert. I have provided medico-legal reports in Personal Injury and Clinical Negligence cases for
over ten years.
Consulting rooms:
BMI Meriden Hospital,
Coventry
Correspondence address:
PO Box 15858, Solihull B91 9RN
Tel: 0121 7070482 Fax: 0121 7062822
Email: [email protected] or
[email protected]
Domicillary visits throughout England and Wales are also available by request.
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Untitled-2 1
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Expert Witness Supplement

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